Roehl Transport, Inc. v. Stein, Adam et al

Filing 24

ORDER setting a telephonic hearing on plaintiff's TRO motion at 2:00 p.m. on Thursday, September 29, 2016, provided an affidavit is timely filed as set forth in the order. Signed by District Judge William M. Conley on 09/28/2016. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
ROEHL TRANSPORT, INC.,
Plaintiff,

ORDER

v.

16-cv-653-wmc

ADAM STEIN and OMNI SPECIALIZED, LLC,
Defendants.
_________________________________________________________________________________
The court is in receipt of plaintiff’s motion for a temporary restraining order. (Dkt.
#2.) Pursuant to Federal Rule of Procedure 65(b)(1), the court may not issue a temporary
restraining order without notice to the adverse party unless: “(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.” (Emphasis added.)

Accordingly, in addition to showing the need

for immediate relief, plaintiff must either make the showing required under Rule 65(b)(1)(B)
or promptly file proof of actual notice of the summons, complaint, motion for a temporary
restraining order and support documents. H-D Mich., LLC v. Hellenic Duty Free Shops S.A.,
694 F.3d 827, 842 (7th Cir. 2012) (permitting the district court to issue temporary
restraining order before formal service of process when the adverse party and its counsel had
actual notice of the hearing on the motion).

Plaintiff’s recently-filed “Certificate of Service” is apparently intended to satisfy
this requirement (dkt. #23), although it does not without reference to the complaint and

affidavits supporting the motion for TRO.

First, the certificate shows no effort to

accomplish any form of service on, or even provide direct notice to, either of the named
defendants themselves, but rather to provide copies to two outside attorneys, who
plaintiff’s counsel represents are “counsel of record.” On its face, this is wrong, since no
attorney has yet filed a notice of appearance (or other document) in this case on behalf of
either defendant. What plaintiff’s counsel no doubt meant to say is that each attorney
represents one of the respective defendants with respect to the current dispute, since this
is reflected in correspondence between counsel leading up to the filing of this lawsuit,
which is attached to the complaint itself.
Based on this correspondence, plaintiff’s counsel has made a good faith showing
that delivery of copies of its motion and supporting papers to these attorneys by email
was the most effective means to provide prompt notice of its motion. Plaintiff may have
until noon (CST) tomorrow to file an affidavit that: (1) email delivery of this order was
also sent to Attorneys Meikle and Binder; and (2) follow up calls have been made to both
attorneys to assure their receipt of these filings and the court’s order, as well as giving
oral notice of the hearing scheduled to proceed tomorrow as set forth below; and (3)
absent a written waiver of formal service, advising the court what steps have been taken
to accomplish actual service of the complaint, TRO motion and supporting documents,
and this order at the principal place of business of defendant Omni Specialized, LLC, and
the residence of defendant Adam Stein.
Provided this affidavit is timely filed, the court will hold a telephonic hearing on
plaintiff’s motion for a temporary restraining order at 2:00 p.m. tomorrow.

Plaintiff’s

counsel shall be responsible for initiating that call, including facilitating in good faith the
inclusion of Attorneys Meikle and Binder, as well as anyone who may wish to appear on
behalf of either defendant.

Entered this 28th day of September, 2016.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge