Summary
concluding that the moving party for a preliminary injunction “must show by Verified Complaint or Affidavit” facts to establish four preliminary injunction factors
Summary of this case from Chiles v. SalazarOpinion
Civil Action No. 06-cv-00295-MSK.
February 22, 2006
THIS MATTER comes before the Court on the Plaintiffs' Motion for Temporary Restraining Order (#2). Having reviewed the pleadings filed thus far, the Court
FINDS that:
1. The Motion makes no reference to the Complaint (#1). However, the Court has construed the Complaint's allegations in support of the motion.
2. This action is based upon a written contract (#2, Exh. A) which the parties entered into in resolution of Civil Action No. 02-cv-00397-JLK. According to the Complaint, the Plaintiffs agreed to develop and manufacture an anti-sweat control device for refrigeration doors, and the Defendants performed under the contract by making payments and providing expertise and testing laboratories. The Plaintiffs allege that the Defendants are wrongfully attempting to cancel the contract pursuant to paragraphs 7.1 and 7.2 of the contract, which provide for the contract's termination only in specified circumstances.
The Court cannot determine from the Plaintiffs' pleadings how many Defendants are named in this case, although there appear to be three.
3. In the case at bar, the Court's subject matter jurisdiction is unclear. Civil Action No. 02-cv-00397-JLK was closed upon the parties' written stipulation to dismiss the case with prejudice. The district court issued no order retaining jurisdiction to enforce the parties' settlement agreement.
The Plaintiffs invoke the Court's jurisdiction pursuant to 28 U.S.C. § 1332. However, the Complaint fails to demonstrate complete diversity or that the amount in controversy exceeds $75,000. One of the Plaintiffs is a limited liability company. A limited liability company is deemed to be a resident of all states in which any of its members reside. See Carden v. Arkoma Associates, 494 U.S. 185, 195 (1990) ; see also GMAC Commercial Credit, LLC v. Dillard Dept. Stores, Inc., 357 F.3d 827, 828-29 (8th Cir. 2004). The Complaint does not identify the states in which each of the members of ControlTec, LLC reside. Furthermore, the only relief sought in the Complaint is an injunction for which no facts with respect to the amount in controversy are pled.
4. The Plaintiffs have failed to make a facial showing that they are entitled to injunctive relief. To obtain such relief, the moving party must show by verified Complaint or Affidavit facts to establish: (1) a likelihood of success on the merits; (2) that it will suffer immediate and irreparable harm if no injunction issues; (3) the threatened injury outweighs any injury to the opposing party if an injunction issues; and (4) an injunction would not be adverse to the public interest. See Wiechmann v. Ritter, 44 Fed. Appx. 346, 347 (10th Cir. 2002) (not selected for publication in the Federal Reporter) (citing Country Kids `N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283 (10th Cir. 1996) (addressing standard for a preliminary injunction)). The Complaint is not verified and the affidavit supporting the Motion fails to make a facial showing as to the second, third and fourth requirements. The assertions of irreparable harm in the supporting affidavit are conclusory and speculative, there are no facts from which the Court can determine immediacy, and there are no allegations addressing any injury to the opposing parties or to the public interest.
A copy of Wiechmann is attached to this Order.
5. The Plaintiffs also have not shown that a temporary restraining order can issue pursuant to Fed.R.Civ.P. 65(b). This rule provides in relevant part:
(b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. . . .
The Motion's Rule 7.1 certification is not sufficient to establish that the Plaintiffs have given notice of the Motion to each Defendant or their attorneys. The Motion states that a copy of the Motion was provided to "counsel for the Defendant" but it does not specify to whom the Plaintiffs provided it, whether such person is counsel for all of the Defendants, when, or how it was provided ( i.e.: whether it was actually received by defense counsel).
Therefore, the Court must treat the Motion as one seeking relief without notice. As such, the Plaintiffs have not made an adequate showing under Rule 65(b). The affidavit in support of the Motion does not establish that the Plaintiffs will face immediate and irreparable harm if no temporary restraining order is issued before the Defendants can respond to the Motion. For the reasons previously stated, the Motion also fails to adequately certify the efforts made to give notice to the opposing parties or counsel.
IT IS THEREFORE ORDERED that:
1. The Plaintiffs' request for a temporary restraining order is DENIED. The Motion for Temporary Restraining Order (#2) is CONVERTED into a Motion for Preliminary Injunction.
2. On or before close of business on February 23, 2006, the Plaintiffs shall personally serve a summons, Complaint, a copy of the Motion for Preliminary Injunction (#2), and a copy of this Order upon each Defendant.
3. On or before March 6, 2006, the Defendants shall file a response to the Motion for Preliminary Injunction.
4. On or before March 6, 2006, the Plaintiffs shall SHOW CAUSE why their claims should not be dismissed for lack of subject matter jurisdiction.