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Sammy's Produce, Inc. v. Rey & Rey Produce

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 28, 2008

SAMMY'S PRODUCE, INC., PLAINTIFF,
v.
REY & REY PRODUCE, INC., AND MANUEL REYNOSO, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING WITHOUT PREJUDICE APPLICATION FOR TRO WITHOUT NOTICE [doc. #3] and STRIKING MOTION FOR PRELIMINARY INJUNCTION [doc. #4]

Plaintiff Sammy's Produce Inc. ("Sammy's") filed an unverified Complaint for violations of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e(c)(2), along with a request for a temporary restraining order without notice to defendants Rey & Rey Produce, Inc. and Manuel Reynoso.

As noted, plaintiff seeks a TRO without notice to defendants. Federal Rule of Civil Procedure 65(b) specifies the conditions for an ex parte temporary restraining order:

(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.

.R.CIV.P. 65(b).

Here, plaintiff's counsel has not provided an affidavit and certification as required under the Rule 65(b). Counsel has not provided any statement or discussion that would support the issuance of a TRO without notice. Therefore, the Court will deny without prejudice the TRO without notice. If plaintiff again seeks the issuance of a TRO without notice, it shall comply fully with Federal Rule of Civil Procedure 65(b). If plaintiff seeks the issuance of a TRO with notice to defendants, it shall provide an affidavit with its application attesting to the notice and means of notice that has been provided to defendants.

Plaintiff prematurely filed a separate motion for preliminary injunction and filed the motion without obtaining a hearing date for the motion. Because the Court has denied the application for TRO without notice, the Court will strike from the record plaintiff's motion for preliminary injunction.

IT IS SO ORDERED.

HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE

20080528

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