Lewandowski et al v. Southgate Community Schools Board of Education et al

Filing 4

ORDER denying #2 Motion for temporary restraining order and striking improper filing.Signed by District Judge David M. Lawson. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VINCENT LEWANDOWSKI, on behalf
of minor children K.L., A.L., and M.L.,
Plaintiffs,

Case Number 21-12316
Honorable David M. Lawson

v.
SOUTHGATE COMMUNITY SCHOOLS
BOARD OF EDUCATION, SHARON
IRVINE, TIMOTHY O. ESTHEIMER,
ANDREW GREEN, DARLENE L.
POMPONIO, RICK LAMOS, JASON
CRAIG, NEIL J. FREITAS, and SHAWN
SAGE,
Defendants.
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ORDER DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER AND STRIKING IMPROPER FILING
On September 30, 2021, plaintiff Vincent Lewandowski filed his pro se complaint alleging
that a “mask mandate” adopted by the Southgate Community Schools Board of Education and its
officials violated substantive and procedural rights of Lewandowski’s several minor children,
which are guaranteed by the Due Process Clause of the Fourteenth Amendment and analogous
provisions in the constitution of the State of Michigan. Lewandowski contemporaneously filed an
ex parte motion for issuance of a temporary restraining order (TRO) prohibiting the School Board
from enforcing its mask wearing policy.
The Court has reviewed the complaint and its attachments and the plaintiff’s motion and
finds that the motion for a TRO must be denied because the plaintiff has not advanced any sound
justification for issuing a restraining order without notice. Rule 65 of the Federal Rules of Civil
Procedure authorizes the issuance of preliminary injunctions and temporary restraining orders.
The Court may issue a temporary restraining order, sometimes without advance notice to

defendants, to preserve the status quo until it has had an opportunity to determine whether a
preliminary injunction should issue. See First Tech. Safety Sys, Inc. v. Depinet, 11 F.3d 641, 650
(6th Cir. 1993). But the Court may enter a temporary restraining order without notice only if:
(A) 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; 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). A temporary restraining order is an extraordinary remedy that is generally
reserved for emergency situations in which a party may suffer irreparable harm during the time
required to give notice to the opposite party or where notice itself may precipitate the harm. See
Hambell v. Alphagraphics Franchising Inc., 779 F. Supp. 910, 912-13 (E.D. Mich. 1991). The
Court considers the same factors in determining whether to issue a TRO or preliminary injunction,
which are: “(1) whether the movant has a strong likelihood of success on the merits, (2) whether
the movant would suffer irreparable injury absent [an injunction], (3) whether granting the
[injunction] would cause substantial harm to others, and (4) whether the public interest would be
served by granting” injunctive relief. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th
Cir. 2008) (quotation marks omitted). “Every temporary restraining order issued without notice
must state the date and hour it was issued; describe the injury and state why it is irreparable; [and]
state why the order was issued without notice.” Fed. R. Civ. P. 65(b)(2).
The plaintiff’s motion does not allege that notice was given to the defendants. The Court
finds that the circumstances described in the motion and the pleadings also do not suggest that
notice would precipitate the harm alleged, because the pleadings state that the mask wearing policy
which is challenged was promulgated (and evidently has been enforced) since some time in late
August 2021. The Court may not enter a temporary restraining order without notice to an adverse

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party unless facts attested to in an affidavit or 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) (emphasis added). From the information so far
presented, it is apparent to the Court that the alleged harm produced by enforcement of the
ordnance in question will not be triggered by the delivery of notice to the adverse parties, because
the infliction of the alleged harm by the defendants’ enforcement efforts either already is
completed, or at least is underway. The Court therefore will deny the motion for a TRO, but the
denial will be without prejudice to the prospective filing of a motion for preliminary injunction, if
the plaintiff wants to pursue that relief after service of process is completed.
The plaintiff also incorporated a proposed order in the motion, which, presumably, he
wanted the Court to sign and enter. The inclusion of the proposed order was improper because
such orders never should be filed by a party on the electronic docket. E.D. Mich. LR 7.1 cmt.
(citing Elec. Filing Pols. & Procs. R 11(a)). Proposed orders should be submitted to the Court
through the CM/ECF Utilities function. Because the proposed order was incorporated with the
motion as part of a single filing, without a separate document identifier, the motion must be
stricken entirely.
Accordingly, it is ORDERED that the plaintiff’s motion for a temporary restraining order
(ECF No. 2) is DENIED, but the denial is without prejudice to the filing of an adequately grounded
motion for preliminary injunction after service of process is complete.
It is further ORDERED that the plaintiff’s motion for a temporary restraining order (ECF
No. 2) is STRICKEN.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: October 1, 2021

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