Harrington et al v. Rupe et al

Filing 52

ORDER that the plaintiffs' request for a temporary restraining order 48 is denied. The defendants' motion to set a hearing or briefing schedule 51 is granted in part and in part denied. The defendants may respond to the plaintiffs' motion for a preliminary injunction on or before February 5, 2016. The plaintiffs may reply in support of their motion on or before February 15, 2016. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANE HARRINGTON and
MIDWEST GIRLS CLUB,
4:15-CV-3158
Plaintiffs,
vs.

ORDER

HOBERT RUPE, et al.,
Defendants.
This matter is before the Court on the plaintiffs' motion for temporary
restraining order and preliminary injunction (filing 48). For the reasons stated
below, the Court will deny the plaintiffs' motion for temporary restraining
order. The Court will rule on the plaintiffs' motion for preliminary injunction
after the defendants have had the opportunity to fully brief its merits.
Briefly summarized, the plaintiffs' motion alleges that the plaintiffs
operate a club, the "Midwest Girls Club" ("MGC"), in Hastings, Nebraska.
Filing 49 at 2. According to the plaintiffs, the club operates as a private
membership club, and allows patrons to bring their own beer to the club. See
filing 49 at 5. The plaintiffs allege that on December 17, 2015, the defendant
Grand Island Independent published an article in which defendant Hobert
Rupe stated that the plaintiffs' business plan is illegal. Filing 49 at 2.
According to the plaintiffs, this article was defamatory and caused
reputational harm that "scared awa[y] unknown hundreds or even thousands
of people from joining MGC and attending MGC events." Filing 49 at 4. The
plaintiffs' request a temporary restraining order or a preliminary injunction
ordering the Grand Island Independent to refrain from republishing the
article, and to issue a retraction of the article. Filing 49 at 15. To the extent
that the plaintiffs are moving for a temporary restraining order, that motion is
denied.
When deciding whether to issue a temporary restraining order, the Court
turns to the four Dataphase factors: (1) the probability that the movant will
succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the
state of the balance between this harm and the injury that granting the
injunction will inflict on the nonmovant and other parties; and (4) the public
interest. Roudachevski v. All–American Care Centers, Inc., 648 F.3d 701, 705
(8th Cir. 2011) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114

(8th Cir. 1981) (en banc)). A temporary restraining order is an extraordinary
remedy, and the movant bears the burden of establishing its propriety. Id.; see
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 439 (1974) ("[O]ur 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.").
Here, the plaintiffs have not established that they will suffer irreparable
harm if the temporary restraining order is not granted. The newspaper article
complained of was published on December 17, 2015—more than a month
before the plaintiffs filed the present motion. See filing 49 at 2. It is evident
from Fed. R. Civ. P. 65 that temporary restraining orders are designed to act
as stopgaps in emergency situations where there is no time for a full hearing
before immediate, irreparable harm occurs. The plaintiffs have made no
showing as to why an article published a month ago warrants that
"extraordinary remedy" here. See Roudachevski, 648 F.3d at 705.
To the extent the plaintiffs move for a preliminary injunction, the Court
will consider that motion after permitting the defendants to fully brief its
merits, if any. Several of the defendants have moved the Court to set a
hearing, or in the alternative, establish a briefing schedule: the Court will set a
briefing schedule, and will consider whether a hearing on the motion is
required after the motion is fully briefed. The defendants may respond to the
motion for preliminary injunction on or before February 5, 2016. The plaintiffs
may reply on or before February 15, 2016.
IT IS ORDERED:
1.

The plaintiffs' request for a temporary restraining order is
denied.

2.

The defendants' motion to set a hearing or briefing schedule
(filing 51) is granted in part and in part denied.

3.

The defendants may respond to the plaintiffs' motion for a
preliminary injunction on or before February 5, 2016.

4.

The plaintiffs may reply in support of their motion on or
before February 15, 2016.

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Dated this 19th day of January, 2016.
BY THE COURT:
John M. Gerrard
United States District Judge

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