It's Greek to Me, Inc. d/b/a GTM Sportswear v. Fisher et al, No. 5:2017cv04084 - Document 22 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER denying 19 Motion for TRO without prejudice to the plaintiffs' modifying their motion into seeking a preliminary injunction and serving the same no later than December 19, 2017. The defendants shall have until December 28, 2017, to file any response. The court shall conduct any required hearing on the motion for preliminary injunction on January 3, 2018, at 10 a.m.. Signed by U.S. District Senior Judge Sam A. Crow on 12/15/17. (msb)

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It's Greek to Me, Inc. d/b/a GTM Sportswear v. Fisher et al Doc. 22 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS I T’S GREEK TO ME, I NC. dba GTM SPORTSWEAR AND HANESBRANDS, I NC., as plan adm inist rat or of t he GTM EMPLOYEE HEALTH CARE PLAN, Plaint iffs, v. No. 17- 4084- SAC JEFFREY S. FI SHER, and BRETZ & YOUNG, LLC, Defendant s MEMORANDUM AND ORDER The case com es before t he court on t he “ m ot ion for t em porary rest raining order and upon not ice and hearing, prelim inary inj unct ion,” ( ECF# 19) , filed by t he plaint iffs I t ’s Greek t o Me, I nc. dba GTM Sport swear and Hanesbrands, I nc. ( “ plan adm inist rat or” ) . The m ovant s apparent ly int ended t hat t his m ot ion and accom panying m em orandum would be filed and decided wit hout not ice or part icipat ion from t he defendant s, as t hey included no cert ificat e of service on t heir filings. The m ovant s, however, did not execut e an ex part e elect ronic filing, so t he defendant s should have received elect ronic not ice of t hese filings. Having paid m edical expenses or benefit s in t he am ount of $146,726.61 under a healt h care plan t o Jeffrey S. Fisher ( “ Fisher” ) result ing from his inj uries sust ained in an aut om obile accident on Oct ober 5, 2014, t he plan adm inist rat or is seeking, int er alia, Dockets.Justia.com equit able relief and t he im posit ion of a const ruct ive t rust and/ or equit able lien for funds in t he possession or const ruct ive possession of Fisher or his law firm , Bret z & Young, LLC, ( “ Firm ” ) which represent ed him in t he personal inj ury act ion brought for t he Oct ober 2014 aut om obile accident from which Fisher recovered set t lem ent proceeds. The plan adm inist rat or is now asking t he court t o grant a t em porary rest raining order ( “ TRO” ) t hat would require t he defendant s t o deposit wit h t he court t hose set t lem ent proceeds recovered in Jeffrey S. Fisher’s personal inj ury case in t he am ount of $146,726.61 or t hat would require t he defendant s t o hold t his am ount in t he Firm ’s I OLTA t rust account pending final resolut ion of t his m at t er. ECF# 19. For an ex part e TRO, t he m ovant m ust sat isfy t w o prerequisit es. First , “ specific fact s in an affidavit or a verified com plaint clearly show t hat im m ediat e and irreparable inj ury, loss, or dam age will result t o t he m ovant before t he adverse part y can be heard in opposit ion.” Fed. R. Civ. P. 65( b) ( 1) ( A) . Second, “ t he m ovant ’s at t orney cert ifies in writ ing any effort s m ade t o give not ice and t he reasons why it should not be required.” Fed. R. Civ. P. 65( b) ( 1) ( B) . The Suprem e Court in Granny Goose Foods, I nc. v. Team st ers, 415 U.S. 423 ( 1974) , not es t he except ional circum st ances needed t o j ust ify an ex part e proceeding: The st ringent rest rict ions im posed . . . now by Rule 65, on t he availabilit y of ex part e t em porary rest raining orders reflect t he fact t hat our ent ire j urisprudence runs count er t o t he not ion of court act ion t aken before reasonable not ice and an opport unit y t o be heard has been grant ed bot h sides of a disput e. Ex part e t em porary rest raining orders are no doubt necessary in cert ain circum st ances, cf. Carroll v. 2 President and Com m issioners of Princess Anne, 393 U.S. 175, 180, 89 S.Ct . 347, 351, 21 L.Ed.2d 325 ( 1968) , but under federal law t hey should be rest rict ed t o serving t heir underlying purpose of preserving t he st at us quo and prevent ing irreparable harm j ust so long as is necessary t o hold a hearing, and no longer. I d. at 438- 39 ( foot not es om it t ed) . Where a plaint iff seeks such relief wit hout not ice t o a known and locat able adverse part y or wit hout an opport unit y for t he known and locat able adverse part y t o be heard, he should be able t o show t hat not ice would result in im m ediat e, irreparable harm such t hat not ice would “ render fruit less t he furt her prosecut ion of t he act ion.” See Reno Air Racing Ass'n, I nc. v. McCord, 452 F.3d 1126, 1131 ( 9t h Cir. 2006) . Present ly, t he plan adm inist rat or’s m ot ion fails t o m eet t he prerequisit es for a TRO. St rict com pliance wit h t hese requirem ent s is expect ed. Com m ercial Securit y Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1356 ( 10t h Cir. 1972) ( “ We can only reit erat e t hat Rule 65 m ust be st rict ly com plied wit h.” ) . The m ovant ’s filings fail t o show t he im m ediat e and irreparable harm , t hat is, how t he prosecut ion of t his act ion would be rendered fruit less, if bot h not ice and an opport unit y t o be heard were given t he defendant s and t he m at t er was prom pt ly decided. There are no fact s and circum st ances present ed showing t hat t he risk of harm over t he next couple of weeks is uniquely different or great er t han t he risk of harm t hat has exist ed since t he plan adm inist rat or filed t his act ion nearly t hree m ont hs ago. The court does not believe it can reasonably ent ert ain essent ially an ex part e TRO m ot ion under such circum st ances. Put sim ply, t he m ovant ’s filings 3 and conduct t o dat e do not sat isfy t he prerequisit es of Rule 65( b) ( 1) and lack t he kind and qualit y of except ional circum st ances t hat warrant a TRO. At t he sam e t im e, t he plaint iff’s am ended com plaint includes serious and subst ant ial allegat ions. I t is also t roubling t hat t he defendant s are apparent ly refusing t o prot ect against t he dissipat ion of t hese set t lem ent proceeds in light of Mont anile v. Board of Trust ees of Nat . Elevat or I ndust ry Healt h Benefit Plan, - - - U.S.- - - , 136 S.Ct . 651, 660 ( 2016) ( “ t he plaint iff m ust st ill ident ify a specific fund in t he defendant ’s possession t o enforce t he lien.” ) Thus, t he court shall prom pt ly conduct a hearing on t he plaint iffs’ m ot ion which t his court will now t reat as seeking a prelim inary inj unct ion. The plaint iffs shall m odify t heir m ot ion appropriat ely and serve it on t he defendant s no lat er t han Decem ber 19, 2017. The defendant s shall have unt il Decem ber 28, 2017, t o file any response. The court shall conduct any required hearing on t he m ot ion on January 3, 2018, at 10 a.m . I T I S THEREFORE ORDERED t hat t he plaint iffs’ m ot ion for a TRO wit hout not ice and an opport unit y for t he defendant s t o oppose it ( ECF# 19) is denied, but wit hout prej udice t o t he plaint iffs’ m odifying t heir m ot ion int o seeking a prelim inary inj unct ion and serving t he sam e no lat er t han Decem ber 19, 2017. The defendant s shall have unt il Decem ber 28, 2017, t o file any response. The court shall conduct any required hearing on t he m ot ion for prelim inary inj unct ion on January 3, 2018, at 10 a.m . 4 Dat ed t his 15t h day of Decem ber, 2017 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 5 6

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