Hubbel v. Patrish LLC

Filing 20

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that petitioner's motion to limit evidence [# 2 ] is granted as set out above. IT IS FURTHER ORDERED that the Court will hear oral argument and any evidence the parties wish to submit on Friday, October 12, 2012 at 10:30 a.m. in Courtroom 14-South. Signed by District Judge Catherine D. Perry on 09/28/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL L. HUBBEL,
Petitioner,
vs.
PATRISH LLC,
Respondent.

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Case No. 4:12CV1579 CDP

MEMORANDUM AND ORDER
This matter is before me on petitioner’s motion for a temporary injunction
under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). Petitioner
moves to limit the evidence of its likelihood of success on the merits to the
administrative record. In cases such as this, the Eighth Circuit Court of Appeals
directs me to apply the preliminary injunction factors set out in Dataphase
Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981), to decide if
injunctive relief should issue. Osthus v. Whitesell Corp.,639 F.3d 841, 844-45
(8th Cir. 2011) (citing Sharp v. Parents in Community Action, Inc., 172 F.3d 1034,
1038-39 (8th Cir. 1999)). Likelihood of success on the merits is but one of the
factors. “The purpose of this inquiry into the merits is not to second guess the
Board’s decision to commence enforcement proceedings . . . [but] because the

need for the court to act is, at least, in part, a function of the validity of the
applicant’s claim.” Sharp, 172 F.3d at 1039.
Respondent opposes the motion and wants to challenge the testimony and
evidence from the administrative hearing. Yet any new evidence and arguments
would not be relevant to whether petitioner will ultimately succeed on the merits
of his claims, which necessarily can only be determined by examining the
evidence actually before the Board – i.e., the administrative record. However, to
the extent such evidence is relevant to one of the other factors I must consider
when determining whether injunctive relief should issue, respondent remains free
to present that evidence to me by documents, affidavits, or live testimony at the
hearing of this matter.1
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to limit evidence [#2]
is granted as set out above.
IT IS FURTHER ORDERED that the Court will hear oral argument and any

1

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008), does not
support respondent’s argument because the United States Supreme Court did “not address the
lower courts’ holding that plaintiffs have also established a likelihood of success on the merits.”
Instead, that case discussed the irreparable injury, public interest, and balance of harms factors.
See id. at 22-31. As I have stated, however, respondent may present evidence outside the
administrative record on these factors.
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evidence the parties wish to submit on Friday, October 12, 2012 at 10:30 a.m.
in Courtroom 14-South.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of September, 2012.

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