River North Farms Incorporated v. GNS Frac, LLC et al

Filing 12

ORDER denying 7 Motion for TRO Extension. Signed by District Judge Debra M. Brown on 6/27/16. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
RIVER NORTH FARMS
INCORPORATED

PLAINTIFF

V.

NO. 4:16-CV-00131-DMB-SAA

GNS FRAC, LLC;
CAVE CITY SAND, LLC

DEFENDANTS

ORDER DENYING EXTENSION
This declaratory judgment action is before the Court on River North Farms
Incorporated’s motion for an extension of a pre-removal temporary restraining order issued by
the Circuit Court of Washington County, Mississippi.

Doc. #7.

Because the temporary

restraining order expired, the motion will be denied.
I
Procedural History
On June 9, 2016, River North Farms Incorporated (“River North”) filed a “Complaint for
Declaratory Judgment and Application for Temporary Restraining Order and Preliminary
Injunction” in the Circuit Court of Washington County, Mississippi. Doc. #2. On June 10, 2016,
the Circuit Court entered a temporary restraining order restraining GNS Frac, LLC (“GNS”), and
Cave City Sand, LLC (“Cave City”), “from filing any documents to assert ownership, use, or
control, or rights to determine ownership, use, or control, of the Property of River North.” Doc.
#1-1 (Book 36, Page 446). The order also restrained Cave City and GNS from “otherwise
interf[ering] with or disturb[ing] River North’s ownership, use, control; or disposition of its
Property; or interf[ering] with River North’s right to determine the ownership, use, control, or
disposition of Property of River North.” Id. The temporary restraining order provided it would

be in effect from the time River North filed a bond in the amount of $15,000, until “a hearing has
been conducted[,] ... which hearing shall not be more than ten (10) days from the hour and
minute that this TRO is entered and signed by the Court.” Id. River North filed a $15,000 bond
on June 16, 2016. Doc. #1-1. Five days later, on June 21, 2016, the Circuit Court, acting on
River North’s motion, extended the duration of the temporary restraining order “through
Monday, June 27, 2016.” Doc. #7-1.
On June 27, 2016, Cave City, asserting the existence of diversity jurisdiction, removed
the action to this Court. Doc. #1. The same day, at 3:57 p.m., River North filed a motion to
extend the temporary restraining order until further order of the Court. Doc. #7 at ¶ 14. Also on
June 27, 2016, United States Magistrate Judge S. Allan Alexander, noting that the citizenship of
Cave City and GNS had not been properly alleged, issued an order directing Cave City to show
cause why this case should not be remanded for lack of jurisdiction. Doc. #9.
II
Analysis
In addressing River North’s motion, the Court begins by noting that, while “[a] court
should decide jurisdiction early in a case and before reaching a determination of the merits of a
case, ... it may hold off on deciding a jurisdictional question, even if it means issuing a temporary
restraining order and preserving the status quo while the jurisdictional issue is being resolved.”
Somerset Place, LLC v. Sebelius, 684 F.Supp.2d 1037, 1040 (N.D. Ill. 2010) (citing United
States v. United Mine Workers, 330 U.S. 258, 290 (1947)) (internal citations omitted).
Furthermore, a court may sua sponte extend a temporary restraining order. Women’s Med. Prof’l
Cor. V. Taft, 199 F.R.D. 597, 598 (S.D. Ohio 2000). Accordingly, neither the uncertainty
regarding diversity jurisdiction nor the lack of a response to the motion precludes the extension
of the temporary restraining order. Id.
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Upon removal, “[t]he federal court accepts the case in its current posture[,] as though
everything done in state court had in fact been done in the federal court.” Nissho-Iwai Am. Corp.
v. Kline, 845 F.2d 1300, 1303 (5th Cir. 1988) (internal quotation marks omitted). A temporary
restraining order entered by the state court is thus given the same effect as if it had been entered
by the federal court. 28 U.S.C. § 1450 (“Whenever any action is removed from a State court to a
district court of the United States, ... [a]ll injunctions, orders, and other proceedings had in such
action shall remain in full force and effect until dissolved or modified by the district court.”).
Where a state court’s temporary restraining order remains in effect after removal, a federal court
may extend the order for good cause pursuant to Rule 65(b)(2) of the Federal Rules of Civil
Procedure. Xtria, LLC v. Intern. Ins. Alliance, Inc., No. 3:09-cv-2228-G, 2009 WL 4756365, at
*4–5 (N.D. Tex. Dec. 11, 2009). Rule 65(b)(2) provides:
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; state why
the order was issued without notice; and be promptly filed in the clerk's office and
entered in the record. The order expires at the time after entry--not to exceed 14
days--that the court sets, unless before that time the court, for good cause, extends
it for a like period or the adverse party consents to a longer extension. The reasons
for an extension must be entered in the record.
Under Rule 65(b)(2), a temporary restraining order issued without notice may be
extended only before the temporary restraining order expires. S.E.C. v. Unifund SAL, 910 F.2d
1028, 1034–35 (2d Cir. 1990). Here, the state court’s temporary restraining order expired by its
own terms on June 27, 2016. River North’s mere request for the temporary restraining order’s
extension on June 27, 2016, did not stay its expiration.1 Accordingly, the temporary restraining

1

Nor did River North ask for a stay of the expiration date pending the adjudication of its motion. It was incumbent
upon River North to not only request, but secure, an order extending the temporary restraining order before its
expiration. See Rashid v. Delta State Univ., 306 F.R.D. 530, 535 (“A party takes significant risks when it seeks an
extension of a deadline late on the day of the deadline; that is, at the proverbial eleventh hour. The risks include ...
that the Judge may not be able to adjudicate the motion that same day.”) (quoting Bruce v. Cty. of Rensselaer, No.
02–CV–0847, 2003 WL 22436281, at *2 (N.D.N.Y. Oct. 20, 2003)).

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order issued by the Circuit Court may not be extended, and River North’s motion for extension
[7] is DENIED.
SO ORDERED, this 27th day of June, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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