LONG v. BALLARD et al

Filing 8

ORDER re 7 MOTION for Preliminary Injunction or for Temporary Restraining Order - Because the plaintiff has not satisfied Rule 65(b)(1), the motion for a temporary restraining order 7 is denied. The plaintiff's motion for a preliminary i njunction 7 remains pending. Once the defendants have appeared in the action and have filed an answer to the complaint, or sooner if circumstances warrant, the parties are directed to meet with the assigned Magistrate Judge to determine deadlines for discovery, briefing, and other details with regard to the pending motion for preliminary injunction. Signed by Judge Jane Magnus-Stinson on 6/4/2012. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

BOBBY RAY LONG,

)
)
)
)
)
)
)
)

Plaintiff,

vs.
GREG BALLARD, et al.,

Defendants.

No. 1:12-cv-569-JMS-DML

Entry Discussing Selected Matters
I.
A.
Requests for a temporary restraining order (“TRO”) are governed by the same
general standards that govern the issuance of a preliminary injunction. See New
Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc. (NRDC), 129 S. Ct. 365,
374 (2008) (citing Munaf v. Geren, 128 S. Ct. 2207, 2218-19 (2008)).
In addition, a plaintiff seeking issuance of a TRO without notice to the
defendant must satisfy two further requirements: (1) “specific facts in an affidavit
or a verified complaint [must] clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in
opposition,” and (2) the applicant's attorney must certify in writing the reasons why
notice should not be required. Fed.R.Civ.P. 65(b)(1) (emphasis added). There are
very few circumstances justifying the issuance of an ex parte TRO. Granny Goose
Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438-39 (1974)(“The stringent
restrictions imposed . . . by Rule 65[ ] on the availability of ex parte temporary
restraining orders reflect the fact that our entire jurisprudence runs counter to the
notion of court action taken before reasonable notice and an opportunity to be heard

has been granted both sides of a dispute.”) (footnote omitted). Such circumstances
include “a very narrow band of cases in which ex parte orders are proper because
notice to the defendant would render fruitless the further prosecution of the action.”
Amer. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984).
Although the plaintiff does not frame his application for a TRO as an ex parte
one, the court treats it as such because there is no evidence of written or oral notice
to the adverse parties. There is no evidence of service on defendants and no
declaration regarding oral notice.
As an ex parte application, the plaintiff fails to satisfy Rules 65(b)(1). Plaintiff
fails to set forth specific facts in an affidavit or a verified complaint clearly showing
that immediate and irreparable loss would result before the defendants could be
heard in opposition. See Fed.R.Civ.P. 65(b)(1)(A). The plaintiff, neither with or
without counsel, has failed to certify in writing any efforts to give notice to the
defendants. See Fed.R.Civ.P. 65(b)(1)(B). The plaintiff has also not demonstrated
that notice is impossible or would render further prosecution of the action fruitless,
as is required for an ex parte TRO. Reno Air Racing, 452 F.3d at 1131.
Because the plaintiff has not satisfied Rule 65(b)(1), the motion for a
temporary restraining order [7] is denied.
B.
The plaintiff’s motion for a preliminary injunction [7] remains pending.
Under Rule 65(a)(1), “[t]he court may issue a preliminary injunction only on notice
to the adverse party.” Fed.R.Civ.P. 65(a)(1). This will necessarily entail service of
process on the defendant(s), including service of the complaint and of the motion for
preliminary injunction.
II.
Once the defendants have appeared in the action and have filed an answer to
the complaint, or sooner if circumstances warrant, the parties are directed to meet
with the assigned Magistrate Judge to determine deadlines for discovery, briefing,
and other details with regard to the pending motion for preliminary injunction.
IT IS SO ORDERED.

06/04/2012
Date: _______________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Bobby Ray Long
842 North Dequincy Street
Indianapolis, IN 46201