Thomas v. Zachry et al

Filing 12

ORDER that Plaintiff's ex parte Application for a Temporary Restraining Order ECF No. #3 is DENIED. IT IS FURTHER ORDERED that Plaintiff shall serve a copy of the Ex Parte Application for a Temporary Restraining Order and Request for a Preliminary Injunction ECF No. #3 , Complaint ECF No. #1 , Summons, and a copy of this Order on Defendants no later than 04/13/2017; Defendants may file a response to the request for a preliminary injunction no later than 5:00 p.m. on 04/19/2017; Plaintiff may file a reply no later than 5:00 p.m. on 4/21/2017. IT IS FURTHER ORDERED that a hearing on Plaintiff's Request for a Preliminary Injunction is set for 4/25/2017 at 10:00 A.M. in Reno Courtroom 3 before Judge Larry R. Hicks. Signed by Judge Larry R. Hicks on 04/11/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LORI L. THOMAS,

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Plaintiff,
Case No. 3:17-cv-0219-LRH-WGC

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v.
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ORDER
THOMAS ZACHRY; MARNA ZACHRY;
JOHN HARPER; STOREY COUNTY and its
BOARD OF COMISSIONERS;
Defendants.

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Before the court is plaintiff Lori L. Thomas’s (“Thomas”) ex parte application for a

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temporary restraining order. ECF No. 3. Defendants Thomas Zachry, Marna Zachry, John

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Harper, and Storey County and its Board of Commissioners (collectively, “defendants”) have

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not been served with either the present application for a temporary restraining order or the

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underlying complaint.

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I.

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Facts and Procedural Background
This is a declaratory relief action involving a determination of whether a certain parcel

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of real property in Storey County, Nevada owned by plaintiff Thomas contains a private or

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public roadway. On or about October 2016, Thomas purchased the underlying real property.

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Subsequently, in December 2016, the District Attorney for Storey County sent Thomas a letter

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demanding that Thomas allow public access to the roadway on the property. In response,

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Thomas placed certain barriers on the roadway contending that the road is a private road

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located on private property.
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On April 4, 2017, the Storey County Board of Commissioners approved a plan for the

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Storey County Public Works Department to commence proceedings to remove any and all

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obstructions on the underlying property. On April 7, 2017, Thomas filed a complaint against

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defendants alleging four causes of action: (1) petition for writ of mandamus; (2) Due Process

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violation; (3) injunctive relief; and (4) declaratory relief. ECF No. 1. Thereafter, on April 10,

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2017, counsel for Thomas filed the present ex parte application for a temporary restraining

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order. ECF No. 3.

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II.

Discussion
In its present application, Thomas requests the court issue a temporary restraining order

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without notice to defendants. See ECF No. 3. Pursuant to Rule 65, “[t]he court may issue a

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temporary restraining order without written or oral notice to the adverse party . . . only if: (A)

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specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable

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injury, loss, or damage will result to the movant before the adverse party can be heard in

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opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice

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and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1).
Here, after reviewing the documents and pleadings on file in this matter, the court finds

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that Thomas has not satisfied the requirements for issuance of a temporary restraining order

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without notice under Rule 65. She has not filed a verified complaint in this action, nor has she

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filed any affidavit in support of the present motion that establishes an immediate and

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irreparable injury, loss, or damage that would result before the defendants could be heard on

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this issue as required by Rule 65(b)(1)(A). See ECF Nos. 1, 3. In support of her motion,

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Thomas has submitted a personal affidavit and a declaration from counsel. See ECF Nos 4, 5.

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However, these documents fail to comply with the requirements of Rule 65(b)(1)(B). Counsel’s

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declaration does not mention any attempt to provide notice to the opposing party nor does it

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identify the reasons why notice should not be required. Further, Thomas’s ex parte application

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makes it clear that it has not yet served the underlying complaint. Therefore, the court finds that

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Thomas is not entitled to the issuance of a temporary restraining order without notice.

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However, upon service of the present motion and the underlying complaint on the

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defendants, as established by the filing of a notice of service with the court, the court shall treat

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the present motion as a motion for a preliminary injunction pursuant to Rule 65(a) and set an

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expedited hearing on the motion. Further, if the circumstances underlying this action change, or

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if Thomas can present evidence of irreparable harm during the expedited briefing period on her

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request for a preliminary injunction, the court would entertain a renewed motion for a

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temporary restraining order with notice to the defendants.

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IT IS THEREFORE ORDERED that plaintiff’s ex parte application for a temporary
restraining order (ECF No. 3) is DENIED.
IT IS FURTHER ORDERED that plaintiff Lori L. Thomas shall serve a copy of the

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ex parte application for a temporary restraining order and request for a preliminary injunction

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(ECF No. 3) - along with a copy of the complaint (ECF No. 1), summons, and a copy of this

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order - on defendants no later than Thursday, April 13, 2017. Defendants may file a response to

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the request for a preliminary injunction no later than 5:00 p.m., Wednesday, April 19, 2017.

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Plaintiff may file a reply no later than 5:00 p.m., Friday, April 21, 2017.

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IT IS FURTHER ORDERED that a hearing on plaintiff’s request for a preliminary

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injunction is scheduled for Tuesday, April 25, 2017, at 10:00 a.m. in Courtroom 3 at the

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Bruce R. Thompson courthouse in Reno, Nevada.

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IT IS SO ORDERED.

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DATED this 11th day of April, 2017.

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_
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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