INDIANA TRANSPORTATION MUSEUM, INC. v. HOOSIER HERITAGE PORT AUTHORITY

Filing 13

ORDER denying 3 Plaintiff's Motion for Temporary Restraining Order. Finally, the Court notes that ITM refers to its Petition for Temporary Restraining Order in its brief as its "Verified Petition for a Temporary Restraining Order and Prel iminary Injunction Hearing." [Filing No. 4 at 1.] To the extent that ITM requests a preliminary injunction hearing in its Petition for a Temporary Restraining Order, the Court DENIES that request because ITM has not filed a Motion for Prelimin ary Injunction. The Petition for a Temporary Restraining Order does not request a preliminary injunction. And while the Complaint discusses and requests a preliminary injunction, ITM cannot move for a preliminary injunction within its Complaint, and must file a separate motion and supporting brief. Should ITM do so, the Court will request that the Magistrate Judge confer with the parties - if and when that time comes - to set an appropriate briefing schedule. In sum, the Court DENIES ITM's Petition for Temporary Restraining Order, [Filing No. 3 ], because ITM has not complied with Rule 65(b)'s requirements for ex parte issuance of a temporary restraining order, and because ITM has not made an adequate showing under applicable law that a temporary restraining order is warranted. (SEE ORDER FOR MORE DETAILS.) Signed by Judge Jane Magnus-Stinson on 7/13/2017. (MRI)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANA TRANSPORTATION MUSEUM, INC.,

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Plaintiff,
vs.
HOOSIER HERITAGE PORT AUTHORITY,
Defendant.

No. 1:17-cv-02373-JMS-MPB

ORDER
On July 10, 2017, Plaintiff Indiana Transportation Museum, Inc. (“ITM”) filed a Complaint
against Defendant Hoosier Heritage Port Authority (“Hoosier Heritage”), [Filing No. 1], and a
Petition for Temporary Restraining Order, [Filing No. 3], in the United States District Court for
the Northern District of Indiana. The next day, ITM moved to transfer its own case to this district,
arguing that “[v]enue is inconvenient for the Defendant in this district” and “is more convenient
for the Defendant in the Southern District of Indiana, Indianapolis Division.” [Filing No. 9.]
ITM’s Motion to Transfer was granted, and the Court received this case four days after it was
initially filed. [Filing No. 10; Filing No. 11.]
In its brief in support of its Petition for Temporary Restraining Order, ITM states that
Hoosier Heritage prohibited ITM from “operating the 2016 Fair Train, Polar Bear Express and
historical, education and entertainment excursions in 2016 and 2017 and 2018.” [Filing No. 4 at
2.] ITM argues that it will suffer imminent and irreparable injury if Hoosier Heritage is not
restrained from prohibiting it from operating the 2017 State Fair Train at the Indiana State Fair
from August 4, 2017 through August 20, 2017. [Filing No. 4 at 2.] It argues that there is no
adequate remedy at law because “[l]egal relief cannot be obtained without filing multiple

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lawsuits,” that there is a substantial likelihood that ITM will prevail on the merits because ITM
has been “substantial (sic) harmed and damaged and will continue to be so,” and “[t]he public will
not be entitled to historical and educational and entertainment excursion (sic),” and that the harm
to ITM in the absence of a temporary restraining order outweighs the harm to Hoosier Heritage if
a temporary restraining order is granted. [Filing No. 4 at 2-3.] Finally, ITM asks that the Court
issue a temporary restraining order without notice to Hoosier Heritage because “ITM will suffer
immediate and irreparable injury[,] financial loss, loss of goodwill, loss of exclusions, selection of
operator and/or damage if the order is not granted before [Hoosier Heritage] can be heard and
notice would be impractical or impossible there (sic) is no less drastic way to protect [ITM’s]
interest….” [Filing No. 4 at 3.]
Although ITM asks for a temporary restraining order and generally cites to Federal Rule
of Civil Procedure 65(b), it completely ignores the standards and burdens that request entails. First
of all, ITM requests that the Court issue a temporary restraining order without notice to Hoosier
Heritage, but makes no effort to comply with the requirements that accompany such a request.
Specifically, Federal Rule 65(b)(1) provides that the Court may only issue a temporary restraining
order without notice if “specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse party
can be heard in opposition.” Moreover, ITM’s counsel must certify in writing any efforts made to
give notice and the reasons why it should not be required. Fed. R. Civ. Pro. 65(b)(1)(B). Although
ITM’s Complaint is verified and certified by John McNichols, Chairman/President of ITM, ITM’s
counsel has not certified in writing why the pending request for a temporary restraining order was
filed ex parte. ITM’s statement that the temporary restraining order should issue without notice
so ITM has time to “prepare and operate its Fair Train on August 4, 2017” is not adequate to

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support the ex parte issuance of a temporary restraining order. It appears from the Complaint that
this lawsuit encompasses an ongoing dispute between ITM and Hoosier Heritage that dates back
to at least one year ago. [See Filing No. 1 at 5 (ITM alleging that Hoosier Heritage prohibited it
from operating the Fair Train during the 2016 State Fair in August 2016).] Lack of time to give
the other side notice is both disingenuous in this case and invalid. Further, ITM’s argument that
giving notice would be “impractical or impossible” and “there is no less drastic way to protect
[ITM’s] interests,” [Filing No. 4 at 3], is not supported by the Verified Complaint. Thus, the Court
concludes that Plaintiff has not met the requirements for it to issue a temporary restraining order
without notice pursuant to Rule 65(b).
Additionally, ITM’s Petition for Temporary Restraining Order is substantively deficient.
The Court may grant a temporary restraining order if the movant: (1) has some likelihood of
succeeding on the merits, (2) has no adequate remedy at law, and (3) will suffer irreparable harm
if the order is denied. See Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992).
If these three elements are met, the Court will consider any irreparable harm to the non-movant
and balance it against the harm to the movant. See id. at 12. ITM does not set forth what specific
claim it is asserting in its Complaint. While it alleges jurisdiction based on the 14th Amendment
to the United States Constitution, 42 U.S.C. § 1983, 49 U.S.C. § 103, and 49 C.F.R. 1.89 the
Complaint wholly fails to specify how those laws and regulation support its claim in this case.
Without even setting forth its specific legal theories, the Court cannot determine whether ITM has
any likelihood of success on the merits. Additionally, ITM states that it will suffer financial harm
in the absence of a temporary restraining order, but this is precisely the type of harm for which
there is an adequate remedy at law. See, e.g., Wisconsin Central Ltd. v. Public Service Comm’n
of Wisconsin, 95 F.3d 1359, 1369 (7th Cir. 1996) (“With the question being one of monetary

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compensation, a plaintiff would be hard pressed to demonstrate either irreparable harm of an
inadequate remedy at law”).
Finally, the Court notes that ITM refers to its Petition for Temporary Restraining Order in
its brief as its “Verified Petition for a Temporary Restraining Order and Preliminary Injunction
Hearing.” [Filing No. 4 at 1.] To the extent that ITM requests a preliminary injunction hearing in
its Petition for a Temporary Restraining Order, the Court DENIES that request because ITM has
not filed a Motion for Preliminary Injunction. The Petition for a Temporary Restraining Order
does not request a preliminary injunction. And while the Complaint discusses and requests a
preliminary injunction, ITM cannot move for a preliminary injunction within its Complaint, and
must file a separate motion and supporting brief. Should ITM do so, the Court will request that
the Magistrate Judge confer with the parties – if and when that time comes – to set an appropriate
briefing schedule.
In sum, the Court DENIES ITM’s Petition for Temporary Restraining Order, [Filing No.
3], because ITM has not complied with Rule 65(b)’s requirements for ex parte issuance of a
temporary restraining order, and because ITM has not made an adequate showing under applicable
law that a temporary restraining order is warranted.

Date: July 13, 2017

Distribution via ECF only to all counsel of record
Copy to U.S. Magistrate Brookman
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