Colbert et al v. Brennan et al

Filing 158

Minute Order. Proceedings held before Judge Susie Morgan: Status Conference held on 6/28/2013. ORDER denying 152 Motion for Temporary Restraining Order, as stated herein. (tsf)

MINUTE ENTRY
MORGAN, J.
June 28, 2013
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD TUCK COLBERT, et al.,
Plaintiffs

CIVIL ACTION

VERSUS

No. 12-2442

OWEN BRENNAN, et al.,
Defendants

SECTION “E”

A status conference was held on June 28, 2013, at 11:00 a.m. in the chambers of
Judge Susie Morgan.
Present:

Kent Lambert (counsel for plaintiff Brennan's Claims, LLC);
Philip Franco (counsel for defendants Shawn Tiffany Brennan
and Samantha Scott Brennan, in their capacities as
independent co-executors of the Succession of James Charles
Brennan (collectively, “the Succession”); Carl Victor Welsh (via
telephone) and Paul Mayeaux (counsel for defendant Owen E.
Brennan, Jr. (“Pip Brennan” or “Pip”)); Tim Gray (counsel for
defendant Brennan's Inc. (“the corporation”)).

The status of this case was discussed.
Pip Brennan’s motion for temporary restraining order1 was discussed. In his motion,
Pip seeks to restrain the corporation from making an allegedly unlawful payment to the
Succession and to restrain the Succession from receiving or accepting that allegedly
unlawful payment in connection with the purchase or redemption of the Succession’s stock.
Pip’s motion seeks to preserve the status quo until the preliminary and permanent

1

R. Doc. 152.

1

injunction claims asserted in his proposed amended answer, counterclaim, and crossclaim2
are heard and decided.
A temporary restraining order under Federal Rule of Civil Procedure 65(b)3 will issue
only if the party seeking such relief shows: (1) a substantial likelihood of success on the
merits; (2) a substantial threat that he will suffer an immediate and irreparable injury if the
requested injunctive relief is denied; (3) that the threatened injury to the movant outweighs
the harm the injunction will cause on his opponent; and (4) that the requested injunctive
relief will not disserve the public interest. See, e.g., Bergquist v. FYBX Corp., No. 02–722,
2003 WL 21488117, at *1 (E.D. La. June 20, 2003) (Vance, J.). A temporary restraining
order “is an extraordinary remedy and should be granted only if the movant has clearly
carried the burden of persuasion with respect to all four factors.” Allied Marketing Group,
Inc. v. CDL Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). Whether to grant such
extraordinary relief in a given case is left to the discretion of the district court. See Lake
Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195 (5th Cir. 2003).

2
See R. Doc. 151 (Pip Brennan’s motion for leave to file first amended answer, counterclaim, and
crossclaim).
3

Federal Rule of Civil Procedure 65 provides that “the Court may issue a temporary restraining
order without written or oral notice to the adverse party only if:
(A)

specific facts in an affidavit or a verified complain 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

(B)

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). While state law provides the basis for Pip’s motion, federal law determines the
standard by which Pip’s motion is to be decided. See, e.g., Daniel v. Allstate Ins. Co., No. 12-2933, 2012
WL 7738765, at *4 (E.D. La. Dec. 31, 2012) (Brown, J.) (“Federal procedural law determines the standard
for issuing a preliminary injunction or temporary restraining order . . . , even if state law is to be applied in
determining whether the state law cause of action can support an injunction.”) (internal citations omitted).

2

To obtain a temporary restraining order under Rule 65(b) there must be a threat of
an immediate injury. There is no evidence that the payments referenced in Pip’s motion
are imminent. Pip has failed to establish that he will suffer “immediate” harm if the motion
is not granted.
Accordingly, IT IS ORDERED that Pip’s motion for temporary restraining order
be and hereby is DENIED.
At this time, the Court takes no position on the relief sought in Pip’s motion for leave
to file a first amended answer, counterclaim, and crossclaim, nor does the Court take any
position on the claims for preliminary and permanent injunctive relief contained within
Pip’s proposed amended pleading.

28th
New Orleans, Louisiana, this ____ day of June, 2013.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

JS10 (0:50)

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