CHAVES et al v. INTERNATIONAL BOXING FEDERATION

Filing 6

OPINION. Signed by Judge Jose L. Linares on 3/22/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 16-1374 (JLL)

DIEGO CHAVES and KO
INTERNATIONAL CORPORATION,
Plaintiffs,

MEMORANDUM OPINION

v.

INTERNATIONAL BOXING
FEDERATION,
Defendant.
Presently before the Court is Plaintiffs' application for an order requiring Defendant to
show cause why a preliminary injunction should not issue, filed on March 22, 2016. (ECF No. 3.)
Plaintiffs seek a preliminary injunction requiring Defendant in part to cancel a boxing match
scheduled for March 26, 2016. For the reasons below, the Court denies the application without
prejudice.
Federal Rule of Civil Procedure 65 sets forth the requirements for "injunctions and
restraining orders" and generally requires notice to the non-moving party. In particular, Rule 65
states that a "court may issue a preliminary injunction only on notice to the adverse party." Fed.
R. Civ. P. 65(a)(l) (emphasis added). Alternatively,
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.

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Fed. R. Civ. P. 65(b)(l). To be clear, it is only in the "exceptional case where ex parte relief is
appropriate" that the Court will grant the order to show cause without notice, in which case the
Court would "include provisions for service on the opposing party." L. Civ. R. 65. l(c), Comment.
In other words, it is not enough for a movant to simply include provisions for notice in the proposed
order under Local Civil Rule 65.l(c) without also satisfying Federal Rule of Civil Procedure 65,
as Local Civil Rule 65.1 merely "complements and implements the limitations of Fed. R. Civ. P.
65." L. Civ. R. 65.1, Comment.
The notice requirement of Rule 65 "is not merely a procedural nicety, but rather, a
fundamental aspect of procedural due process under the Constitution." Anderson v. Davila, 125
F.3d 148, 156 (3d Cir. 1997) (citing Fuentes v. Shevin, 407 U.S. 67, 80 (1972)). Although the
Rule is silent as to how much notice is sufficient, the Supreme Court has observed that the Rule
requires, at the very least, "a hearing in which the defendant is given a fair opportunity to oppose
the application and to prepare for such opposition." Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, 415 U.S. 423, 432 n. 7 (1974) (citation omitted). In Anderson, the Third Circuit
declined to read into the rule a minimum five-day notice requirement (as had the Fifth Circuit),
but reiterated that the non-movant must have a "fair opportunity to prepare to explain their actions
to the district court." Anderson, 125 F.3d at 157 (finding two weeks to be sufficient notice).
Here, there is no indication that Plaintiffs' provided notice to Defendant, nor is there a
certification explaining why notice should not be required. Thus, Plaintiffs have not satisfied the
requirements of Federal Rule of Civil Procedure 65. Accordingly, the Court shall deny the
application without prejudice.
To the extent that Plaintiffs intend to renew their application, the Court notes that injunctive

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relief is an "'extraordinary remedy' and 'should be granted only in limited circumstances."' Kos
Pharms, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting Am. Tel. & Tel. Co. v.
Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). To be entitled to such

relief, the movant must "make a clear showing of immediate and irreparable injury or a presently
existing actual threat." Marsellis-Warner, 51 F. Supp.2d 51 F. Supp. 2d 508, 528 (D.N.J. 1999)
(quotingAciemo v. New Castle County, 40 F.3d 645, 655 (3rd Cir. 1994)); see also Acierno v. New
Castle

, 40 F.3d 645, 655 (3d Cir. 1994) ("[M]ore than a risk of irreparable harm must be

demonstrated.") (quotation omitted).
Based purely on a cursory review of the documents presently before the Court, the nature
and extent of irreparable harm is not clear, given that Plaintiffs waited until the last minute to file
this application. The bout which Plaintiffs seek to enjoin is taking place this Saturday, March 26,
2016, but was sanctioned by Defendant on November 23, 2015-nearly four months ago. (ECF
No. 3-1, Rivera Deel. if 33.) "[D]elay ... knocks the bottom out of any claim of immediate and
irreparable harm." Pharmacia Corp. v. Alcon Labs., Inc., 201 F. Supp. 2d 335, 383 (D.N.J. 2002);
see also New Dana Perfumes v. The Disney Store, Inc., 131 F. Supp. 2d 616, 630 (M.D. Pa. 2001)

(delay of two months in sending demand letter and five months in moving for relief precludes
preliminary injunction). It is true that caselaw suggests that the services of a professional boxer
and promoter are unique in a way that more readily leads to a finding of irreparable harm. 1
However, if Plaintiffs intend to re-file, they are advised to address why they waited until four days
prior to deadline to file their application, especially given that this delay may preclude Defendant
from receiving adequate notice. 2

1

2

See, e.g., Lewis v. Rahman, 147 F. Supp. 2d 225, 234, 237 (S.D.N.Y. 2001).
The Court additionally notes that L. Civ. R. 7.2 requires that "any brief shall include a table of contents and a table

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For the foregoing reasons, Plaintiffs' application for an order requiring Defendant to show
cause why a preliminary injunction should not issue, filed on March 22, 2016, (ECF No. 3), shall
be denied. An appropriate Order accompanies this Opinion.

DATED:

2016

of authorities," both of which are absent from the brief presently before the Court.

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