Novak v. Cobb

Filing 5

ORDER denying 2 Motion for TRO and staying decision on Motion for Preliminary Injunction. Signed by District Judge Richard Voorhees on 2/25/2013. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:13-cv-00032-RLV-DSC
DAVID NOVAK,
Plaintiff,
v.
JENNIFER JO COBB,
Defendant.

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ORDER

THIS MATTER is before the Court on Plaintiff Novak’s Motion for a Temporary
Restraining Order and Preliminary Injunction, filed February 21, 2013. (Doc. 2.)
Pursuant to Federal Rule of Civil Procedure 65(b), the Court may issue a temporary
restraining order without written or oral notice to the adverse party or its attorney only if, in
addition to other requirements, “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 . . . .” Such orders, while necessary in certain
circumstances, “should be restricted to serving the underlying purpose of preserving the status
quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no
longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of
Alameda County, 415 U.S. 423, 439 (1974). Following the movant’s satisfaction of Rule 65(b)’s
“stringent restrictions,” Id. at 438, the substantive standard to be applied is identical to the
standard for entering a preliminary injunction, see, e.g., Commonwealth of Virginia v. Kelly, 29
F.3d 145, 147 (4th Cir. 1994) (applying the preliminary-injunction standard to a request for a
temporary restraining order). Accordingly, Plaintiff bears the burden of establishing that the

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following factors, on appropriate balance, support granting the preliminary relief requested: (1)
the likelihood of irreparable harm to Plaintiff in the absence of preliminary relief; (2) the
likelihood of harm to Defendant should the requested relief be granted; (3) the likelihood of
Plaintiff’s success on the merits; and (4) the public interest. See Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008) (noting what the plaintiff must establish to receive
preliminary relief); Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th
Cir. 1991) (deeming the first two factors of greater importance).
Plaintiff claims that Defendant Cobb has misappropriated the business funds of JJC
Racing, LLC, a corporation allegedly formed and owned wholly and in equal shares by the
parties. Plaintiff claims that Defendant has removed funds from the JJC bank account for her
own personal use in the amount of $237,618.55 from 2010 through 2012. Plaintiff further claims
that Defendant has removed a trailer from Plaintiff’s warehouse without his consent or
awareness; has filed misleading documents with the Kansas Secretary of State, which indicate
that she is the only member who owns at least five percent of JJC racing; and has requested
certain information from an accountant regarding JJC Racing to aid her in refinancing her home.
In light of these claims, Plaintiff requests that Defendant be barred from acting on behalf of JJC
Racing; be ordered to return the funds; be ordered to correct the documents filed with the Kansas
Secretary of State; be barred from providing any information or funds of JJC Racing to refinance
her personal residence; be directed to refrain from commingling JJC Racing funds with her
personal funds; and be barred from destroying or concealing JJC Racing property.
Plaintiff has here failed to prove “a ‘clear showing’ of immediate irreparable harm . . .
[that is] both ‘actual’ and ‘immediate’ . . . .” Direx Israel, 952 F.2d at 812–13 (noting further that
the required magnitude of this showing, discounted by the harm the nonmovant will suffer

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should injunctive relief be granted, is inversely related to the movant’s likelihood of success).
The alleged conversion of JJC Racing funds took place over the course of three years, and the
damages described could readily be reduced to a monetary award. See Multi–Channel TV Cable
Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994)
(“[G]enerally ‘irreparable injury is suffered when monetary damages are difficult to ascertain or
are inadequate.’” (quoting Danielson v. Local 275, 479 F.2d 1033, 1037 (2d Cir. 1973))). On the
record thus far presented, despite Plaintiff’s insistence that “[d]ue to the vagaries of litigation, the
traditional litigation process will not preserve Novak’s rights” (Doc. 3 at 4), Plaintiff’s loss
essentially “is a matter of simple mathematic calculation,” and so Plaintiff has “fail[ed] to
establish irreparable injury for preliminary injunction purposes,” Id. (quoting Graham v.
Triangle Pub., 344 F.2d 775, 776 (3d Cir. 1965)). Additionally, it is reasonable to believe that
the burden on Defendant of having to surrender such an amount before the merits are decided
would be substantial.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Temporary Restraining
Order (Doc. 2) be DENIED. The Court here stays decision on the Motion for Preliminary
Injunction. (Doc. 2.)
Signed: February 25, 2013

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