It's Greek to Me, Inc. d/b/a GTM Sportswear v. Fisher et al

Filing 22

MEMORANDUM AND ORDER denying 19 Motion for TRO without prejudice to the plaintiffs' modifying their motion into seeking a preliminary injunction and serving the same no later than December 19, 2017. The defendants shall have until December 28, 2017, to file any response. The court shall conduct any required hearing on the motion for preliminary injunction on January 3, 2018, at 10 a.m.. Signed by U.S. District Senior Judge Sam A. Crow on 12/15/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IT’S GREEK TO ME, INC. dba GTM
SPORTSWEAR AND HANESBRANDS,
INC., as plan administrator of the
GTM EMPLOYEE HEALTH CARE PLAN,
Plaintiffs,
v.

No. 17-4084-SAC

JEFFREY S. FISHER, and
BRETZ & YOUNG, LLC,
Defendants
MEMORANDUM AND ORDER
The case comes before the court on the “motion for temporary
restraining order and upon notice and hearing, preliminary injunction,”
(ECF# 19), filed by the plaintiffs It’s Greek to Me, Inc. dba GTM Sportswear
and Hanesbrands, Inc. (“plan administrator”). The movants apparently
intended that this motion and accompanying memorandum would be filed
and decided without notice or participation from the defendants, as they
included no certificate of service on their filings. The movants, however, did
not execute an ex parte electronic filing, so the defendants should have
received electronic notice of these filings. Having paid medical expenses or
benefits in the amount of $146,726.61 under a health care plan to Jeffrey S.
Fisher (“Fisher”) resulting from his injuries sustained in an automobile
accident on October 5, 2014, the plan administrator is seeking, inter alia,

equitable relief and the imposition of a constructive trust and/or equitable
lien for funds in the possession or constructive possession of Fisher or his
law firm, Bretz & Young, LLC, (“Firm”) which represented him in the personal
injury action brought for the October 2014 automobile accident from which
Fisher recovered settlement proceeds. The plan administrator is now asking
the court to grant a temporary restraining order (“TRO”) that would require
the defendants to deposit with the court those settlement proceeds
recovered in Jeffrey S. Fisher’s personal injury case in the amount of
$146,726.61 or that would require the defendants to hold this amount in the
Firm’s IOLTA trust account pending final resolution of this matter. ECF# 19.
For an ex parte TRO, the movant must satisfy two prerequisites.
First, “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.” Fed. R. Civ. P.
65(b)(1)(A). Second, “the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.” Fed. R.
Civ. P. 65(b)(1)(B). The Supreme Court in Granny Goose Foods, Inc. v.
Teamsters, 415 U.S. 423 (1974), notes the exceptional circumstances
needed to justify an ex parte proceeding:
The stringent restrictions imposed . . . now 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. Ex parte temporary restraining
orders are no doubt necessary in certain circumstances, cf. Carroll v.
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President and Commissioners of Princess Anne, 393 U.S. 175, 180, 89
S.Ct. 347, 351, 21 L.Ed.2d 325 (1968), but under federal law they
should be restricted to serving their underlying purpose of preserving
the status quo and preventing irreparable harm just so long as is
necessary to hold a hearing, and no longer.
Id. at 438-39 (footnotes omitted). Where a plaintiff seeks such relief without
notice to a known and locatable adverse party or without an opportunity for
the known and locatable adverse party to be heard, he should be able to
show that notice would result in immediate, irreparable harm such that
notice would “render fruitless the further prosecution of the action.” See
Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006).
Presently, the plan administrator’s motion fails to meet the
prerequisites for a TRO. Strict compliance with these requirements is
expected. Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d
1352, 1356 (10th Cir. 1972) (“We can only reiterate that Rule 65 must be
strictly complied with.”). The movant’s filings fail to show the immediate and
irreparable harm, that is, how the prosecution of this action would be
rendered fruitless, if both notice and an opportunity to be heard were given
the defendants and the matter was promptly decided. There are no facts and
circumstances presented showing that the risk of harm over the next couple
of weeks is uniquely different or greater than the risk of harm that has
existed since the plan administrator filed this action nearly three months
ago. The court does not believe it can reasonably entertain essentially an ex
parte TRO motion under such circumstances. Put simply, the movant’s filings
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and conduct to date do not satisfy the prerequisites of Rule 65(b)(1) and
lack the kind and quality of exceptional circumstances that warrant a TRO.
At the same time, the plaintiff’s amended complaint includes
serious and substantial allegations. It is also troubling that the defendants
are apparently refusing to protect against the dissipation of these settlement
proceeds in light of Montanile v. Board of Trustees of Nat. Elevator Industry
Health Benefit Plan, ---U.S.---, 136 S.Ct. 651, 660 (2016) (“the plaintiff
must still identify a specific fund in the defendant’s possession to enforce the
lien.”) Thus, the court shall promptly conduct a hearing on the plaintiffs’
motion which this court will now treat as seeking a preliminary injunction.
The plaintiffs shall modify their motion appropriately and serve it on the
defendants no later than December 19, 2017. The defendants shall have
until December 28, 2017, to file any response. The court shall conduct any
required hearing on the motion on January 3, 2018, at 10 a.m.
IT IS THEREFORE ORDERED that the plaintiffs’ motion for a TRO
without notice and an opportunity for the defendants to oppose it (ECF# 19)
is denied, but without prejudice to the plaintiffs’ modifying their motion into
seeking a preliminary injunction and serving the same no later than
December 19, 2017. The defendants shall have until December 28, 2017, to
file any response. The court shall conduct any required hearing on the
motion for preliminary injunction on January 3, 2018, at 10 a.m.

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Dated this 15th day of December, 2017 at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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