Willrich v. The United States et al

Filing 30

MEMORANDUM OPINION AND ORDER denying 29 Motion for Leave for Temporary Restraining Order, Preliminary Injunction Hearing, and Permanent Injunction. (Ordered by Judge Barbara M.G. Lynn on 8/1/2013) (skt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CANDACE WILLRICH,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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No. 3:13-CV-2670-M-BK

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s “Motion for Leave for Temporary Restraining Order,
Preliminary Injunction Hearing, and Permanent Injunction” (“Motion”). Plaintiff’s Motion for
Temporary Restraining Order is DENIED. The other Motions are DENIED as well, but may be
reasserted later.
I.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff moves this Court for entry of a temporary restraining order against Defendants, 1
“enjoining them from harming Plaintiff, namely, harassing, stalking, intimidating, threatening
and other said activities stated in this motion.” Mot. at 1. Plaintiff further requests that if her
request for a temporary restraining order is granted, the Court grant Plaintiff a preliminary and,
eventually, permanent injunction. Id. at 2.

1

Throughout her Motion, Plaintiff uses “Defendant” and “Defendants” interchangeably. Because Plaintiff brings
suit against multiple Defendants, the Court construes Plaintiff’s Motion to request injunctive relief against all
Defendants in this action.

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II.

LEGAL STANDARD

A Plaintiff must demonstrate each of the following elements to be entitled to injunctive
relief: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable
injury if the court does not grant the requested relief; (3) that the threatened injury outweighs any
harm that will result if the injunction is granted; and (4) that the grant of injunctive relief will not
disserve the public interest. See Deutsche Bank Nat. Trust Co. v. Sims, No. 3:12-CV-05171-MBK, 2012 WL 6651123, at *2 (N.D. Tex. Dec. 21, 2012) (citing Janvey v. Alguire, 647 F.3d 585,
595 (5th Cir. 2011)).
Moreover, where, as here, a plaintiff seeks a restraining order ex parte, the Court can
issue the requested relief only if “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 “the movant’s attorney [or, if pro se, the movant]
certifies in writing any efforts made to give notice and the reasons why notice should not be
required.” Fed. R. Civ. P. 65(b)(1)(A)-(B).
III.

APPLICATION

As an initial matter, Plaintiff has failed to comply with Federal Rule of Civil Procedure
65(b)(1)(B). First, Plaintiff has not demonstrated why notice should not be required here.
Plaintiff’s conclusory assertion that “there is not enough time to serve notice on the Defendant
and other parties,” Mot. at 8, is insufficient. See Thompson v. Hughes, Watters & Askanase,
LLP, No. 3:13-CV-429-G-BH, 2013 WL 705123, at *1 (N.D. Tex. Jan. 31, 2013), adopted by,
No. 3:13-CV-0429-G-BH, 2013 WL 705883 (N.D. Tex. Feb. 27, 2013). Second, Plaintiff has
not described in her Motion any efforts undertaken to give Defendants notice of her present
application. Plaintiff’s statements that “considerable effort was made to request Defendant and

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other parties to refrain from stalking and harassing” her, Mot. at 2, and that she “also requested
that Defendants and other named parties cease and desist from assaulting her in her home, in her
car, and at public venues,” id., do nothing to explain why she could not have given notice to
Defendants of her present application for injunctive relief. Plaintiff’s failure to meet the
requirements of Federal Rule of Civil Procedure 65(b)(1)(B), is reason enough to deny her
Motion.
Even assuming that Plaintiff did satisfy the requirements of Federal Rule of Civil
Procedure 65(b)(1)(B), she did not satisfy the requirements of Federal Rule of Civil Procedure
65(b)(1)(A). Plaintiff did not submit an affidavit in connection with this Motion, nor has she
filed a verified complaint in this action. Thus, Plaintiff did not point the Court to any specific
facts that show that “immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). This, too,
is reason enough to deny Plaintiff’s Motion.
Most significantly, however, Plaintiff has not demonstrated her entitlement to injunctive
relief. The Court has reviewed the allegations of Plaintiff’s Complaint, and concludes that
Plaintiff has not demonstrated a substantial likelihood of success on the merits. 2 Because the
party seeking a temporary restraining order bears the burden of proving each of the four
elements enumerated above, the Court does not decide whether Plaintiff met the other three
elements necessary for a grant of injunctive relief. See Dearmore v. City of Garland, 400
F. Supp. 2d 894, 898 (N.D. Tex. 2005).

2

While the Court is aware that Magistrate Judge Toliver has recommended that this case be summarily dismissed
with prejudice as frivolous, see Findings, Conclusions and Recommendation of the United States Magistrate Judge
(Docket Entry No. 10), the Court does not consider this recommendation for purposes of deciding Plaintiff’s
Motion.

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IV.

CONCLUSION

For the reasons given, Plaintiff’s Motion is DENIED.
SO ORDERED.
August 1, 2013.

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