Regions Commercial Equipment Finance, LLC v. Performance Aviation, LLC et al
Filing
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ORDER denying Plaintiff's 4 Motion for TRO. The Court holds the motion in abeyance with respect to a preliminary injunction. The Court will contact the parties or their counsel to schedule a hearing once Defendants have been served. Signed by District Judge Keith Starrett on July 22, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
REGIONS COMMERCIAL EQUIPMENT
FINANCE, LLC
V.
PLAINTIFF
CIVIL ACTION NO. 2:16-CV-110-KS-MTP
PERFORMANCE AVIATION, LLC, et al.
DEFENDANTS
ORDER
For the reasons below, the Court denies Plaintiff’s Motion for a Temporary
Restraining Order [4], but the Court holds in abeyance Plaintiff’s Motion for
Preliminary Injunction [4], pending a hearing.
This is a breach of contract case. Defendant Performance Aviation, LLC obtained
loans to purchase two aircraft. Each aircraft is collateral for its respective loan. The
remaining Defendants – Wade Walters Consulting, Inc.; Prime Care Revenue
Management, LLC; Prime Care Management Group, LLC; Wade Walters; and Dorothy
E. Walters – guaranteed the loans.
On January 20, 2016, the United States seized the aircraft pursuant to warrants
issued by this Court [1-9]. They have been and are currently being held in Houston,
Texas, and Fort Lauderdale, Florida.
Plaintiff contends that Performance defaulted on the loans. Accordingly, Plaintiff
accelerated the loans in February 2016, and it alleges that Defendants currently owe
$5,683,697.50, excluding attorneys’ fees and costs of collection.
Plaintiff claims that the Government communicated “its intention to release the
aircraft to Performance in the very near future.” Accordingly, it seeks a temporary
restraining order and preliminary injunction barring the Defendants from liquidating,
disposing, destroying, using, selling, transferring, and/or transporting the aircraft from
their current locations in Texas and Florida once the Government releases them, unless
it first obtains leave from this Court.
A temporary restraining order is an “extraordinary remedy.” Lakedreams v.
Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Rule 65(b) provides the requirements for
obtaining a TRO:
The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney 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). The movant must also show “(1) there is a substantial likelihood
that the movant will prevail on the merits; (2) there is a substantial threat that
irreparable harm will result if the injunction is not granted; (3) the threatened injury
outweighs the threatened harm to the defendant; and (4) the granting of the [temporary
restraining order] will not disserve the public interest.” Clark v. Prichard, 812 F.2d 991,
993 (5th Cir. 1987). These stringent requirements “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.” Phillips v.
Chas. Schreiner Bank, 894 F.2d 127, 131 (5th Cir. 1990).
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The Court finds that Plaintiff has not satisfied the requirements of Rule 65(b)(1).
First, Plaintiff has not clearly shown that irreparable injury, loss, or damage will result
before Defendants can be heard in opposition. “In general, a harm is irreparable where
there is no adequate remedy at law, such as monetary damages.” Janvey v. Alguire, 647
F.3d 585, 600 (5th Cir. 2011); see also Hospice Advantage, LLC v. St. Joseph Hospice,
LLC, 2013 U.S. Dist. LEXIS 53069, at *2-*3 (S.D. Miss. Apr. 12, 2013). Plaintiff has not
alleged sufficient facts to demonstrate any injury it may suffer before Defendants can
be heard can not be remedied by monetary damages.
The Court also notes that Plaintiff’s counsel did not certify in writing any efforts
made to provide notice to Defendants and the reasons why such notice should not be
required. Tucker v. Calhoun County Sch. Dist., 2016 U.S. Dist. LEXIS 66752, at *3 (N.D.
Miss. May 20, 2016) (where attorney did not certify in writing efforts made to give
notice, TRO was denied); see also Hospice Advantage, 2013 U.S. Dist. LEXIS 53069 at
*3.
For these reasons, the Court denies Plaintiff’s motion [4] with respect to a
temporary restraining order, but the Court holds the motion in abeyance with
respect to a preliminary injunction. The Court will contact the parties or their counsel
to schedule a hearing once Defendants have been served.
SO ORDERED AND ADJUDGED this 22nd day of July, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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