United States District Court, S.D. California
September 19, 2014
MICHAEL DOUGHTY, an individual, Plaintiff,
DEPARTMENT OF THE NAVY, a Federal agency, Defendant.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Michael Doughty. (ECF No. 3).
On September 17, 2014, Plaintiff initiated this action by filing the Complaint. (ECF No. 1). On September 18, 2014, Plaintiff filed the Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 3). The Motion requests that the Court "[d]eclare that [the Navy's] de-mobilization and discharge of Plaintiff violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States and enjoin Defendant from de-mobilizing and discharging Plaintiff until he has a proper opportunity to respond to the periodic investigation, " "[i]ssue preliminary and permanent injunctions enjoining [the Navy] from de-mobilizing and discharging Plaintiff until he has had a proper opportunity to respond to the periodic investigation, " and "[o]rder [the Navy] to reinstate Plaintiff to the pre-deployment training he was undergoing when his security clearance was revoked without cause." (ECF No. 3-1). The Motion is accompanied by Plaintiffs de-mobilization orders, which he received on September 18, 2014.
Rule 65 of the Federal Rules of Civil Procedure provides:
(a)(1) The court may issue a preliminary injunction only on notice to the adverse party....
(b)(1) 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.
Fed. R. Civ. P. 65(a)(1) & (b)(1).
To the extent Plaintiff seeks a preliminary injunction, Plaintiff has failed demonstrate that Defendant has received notice of the factual basis for the Motion. Fed.R.Civ.P. 65(a)(1). The docket does not reflect that Defendant has been served. To the extent Plaintiff seeks a temporary restraining order without giving notice to the opposing party, Plaintiff has failed to show "immediate and irreparable injury" that will result "before the adverse party can be heard in opposition, " Fed.R.Civ.P. 65(b)(1)(A), and Plaintiff has failed to "certifly] in writing any efforts made to give notice and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1)(B). Plaintiff has failed to comply with the requirements of Rule 65. See Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) ("The stringent restrictions imposed by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.") (quotation omitted).
IT IS HEREBY ORDERED THAT Plaintiffs Ex Parte Motion for a Temporary Restraining Order and Preliminary Injunction (ECF No. 1) is DENIED without prejudice to Plaintiff filing a proof of service of the Complaint and Motion or providing grounds as to why notice to Defendant should not be required.