Phaneuf, et al v. NH Board of Registration of Funeral Directors and Embalmers, et al

Filing 11

ORDER denying 7 Motion for Reconsideration. Re: 6 Order on Motion for Preliminary Injunction, Order on Ex Parte Motion. So Ordered by Judge Steven J. McAuliffe.(vln)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Arthur O. Phaneuf
v.

Civil No. 12-cv-160-SM

NH Board of Registration of
Funeral Directors and Embalmers, et al
NOTICE OF RULING / ORDER
Re: Document No. 7, Motion for Reconsideration
Ruling: The motion for reconsideration is somewhat unclear.
Rather than filing a motion for a temporary restraining order,
Plaintiffs ask the court to reconsider its order dated April 26, 1012,
and

“construe” their earlier insufficient pleading as a motion for

a TRO.

But, the court’s order made three basic points:

1) the

earlier pleading did not clearly seek a TRO and the court did not
construe the pleading as seeking such relief;

2) even if the

pleading were to be construed as seeking a TRO, it failed to meet
the plain requirements of

Federal Rule of Civil Procedure 65(b),

and so was denied without prejudice [to actually filing a compliant
motion for a TRO] - for failing to comply with the Rule, and 3)

plaintiff should be prepared at an early stage of the litigation to
address

obvious

legal

abstention

issues.

Notwithstanding,

Plaintiffs have not filed a distinct motion expressly seeking a TRO,
and, while they seem to ask the court to construe their earlier
pleading as a motion for a TRO at the end of their motion for
reconsideration, they have still not complied with the plain
requirements of Fed.R.Civ.P. 65(b), which governs the issuance of
temporary injunctive relief.
So, again, to the extent plaintiffs are seeking relief in the
nature of a TRO, the motion is again necessarily denied for failure
to comply with Rule 65(b).

(Rule 65(b) requires, among other things,

that the movant show, by affidavit or verified complaint, that
irreparable injury, etc., will occur before the adverse party can
be heard in opposition, and, to disclose what specific efforts
movant’s counsel has made (“certified in writing”) to give notice
to the adverse party, or the reasons why prior notice to the adverse
party should not be required.

Nothing in the motion to reconsider

satisfies those requirements.

To the contrary,

the pleading

suggests that the matter should not be heard on an ex parte basis.
In their memorandum supporting the motion for reconsideration, the
Plaintiffs seem to be requesting a preliminary injunction (as opposed
to a TRO), but "[t]he court may issue a preliminary injunction only
on notice to the adverse party."

Fed.R.Civ.P. 65(a).

The motion

for reconsideration (document no. 7) is denied
So ordered.
/s/ Steven J. McAuliffe
U.S. District Court Judge
Date:

cc:

May 15, 2012

Frank B. Mesmer, Jr., Esq.
James Spencer Culp, Esq.