Free Order on Motion for TRO - District Court of California - California

Case 3:08-cv-00930-L-WMC

Document 5

Filed 05/28/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 SAMMY'S PRODUCE, INC., 12 13 v. 14 REY & REY PRODUCE, INC., and MANUEL REYNOSO, 15 Defendants. 16 17 Plaintiff Sammy's Produce Inc. ("Sammy's") filed an unverified Complaint for violations 18 of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e(c)(2), along with a 19 request for a temporary restraining order without notice to defendants Rey & Rey Produce, Inc. 20 and Manuel Reynoso. 21 As noted, plaintiff seeks a TRO without notice to defendants. Federal Rule of Civil 22 Procedure 65(b) specifies the conditions for an ex parte temporary restraining order: 23 24 25 26 27 28
08cv930

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff,

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Civil No. 08cv930 L(WMc) ORDER DENYING WITHOUT PREJUDICE APPLICATION FOR TRO WITHOUT NOTICE [doc. #3] and STRIKING MOTION FOR PRELIMINARY INJUNCTION [doc. #4]

(1) Issuing Without Notice. 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.

Case 3:08-cv-00930-L-WMC

Document 5

Filed 05/28/2008

Page 2 of 2

1 FED.R.CIV.P. 65(b). 2 3 Here, plaintiff's counsel has not provided an affidavit and certification as required under

4 the Rule 65(b). Counsel has not provided any statement or discussion that would support the 5 issuance of a TRO without notice. Therefore, the Court will deny without prejudice the TRO 6 without notice. If plaintiff again seeks the issuance of a TRO without notice, it shall comply 7 fully with Federal Rule of Civil Procedure 65(b). If plaintiff seeks the issuance of a TRO with 8 notice to defendants, it shall provide an affidavit with its application attesting to the notice and 9 means of notice that has been provided to defendants. 10 Plaintiff prematurely filed a separate motion for preliminary injunction and filed the

11 motion without obtaining a hearing date for the motion. Because the Court has denied the 12 application for TRO without notice, the Court will strike from the record plaintiff's motion for 13 preliminary injunction. 14 IT IS SO ORDERED.

15 DATED: May 28, 2008 16 17 18 19 COPY TO: 20 HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE 21 22 ALL PARTIES/COUNSEL 23 24 25 26 27 28
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08cv930

M. James Lorenz United States District Court Judge