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									Homes & Loans, Inc. et al v. Wimberly et al                                                               Doc. 10


                Case 2:05-cv-01117-MCE-PAN            Document 10    Filed 06/07/2005   Page 1 of 3


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         8                                    UNITED STATES DISTRICT COURT
         9                                EASTERN DISTRICT OF CALIFORNIA
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                                                     ----oo0oo----
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       12    HOMES & LOANS, INC., a
             California corporation; and
       13    LINDA PRICE, an individual,
                                                               NO. CIV. S 05-1117 MCE PAN
       14                     Plaintiffs,
       15             v.                                       ORDER
       16    THOMAS ANTHONY WIMBERLY, an
             individual; RON JONES dba
       17    NORTHERN CALIFORNIA HOMES &
             LOANS, an individual, and DOES
       18    1 through 25, inclusive,
       19                     Defendants.
       20                                            ----oo0oo----
       21             On June 6, 2005, Plaintiffs filed a complaint in this matter
       22    alleging trade name infringement in violation of 15 U.S.C. § 1125
       23    (a).      Ten additional pendent state claims have also been
       24    asserted.         Concurrently with the filing of their complaint,
       25    Plaintiffs also submitted an Ex Parte Application for Temporary
       26    Restraining Order.                The Court has read and considered that
       27    application.
       28    ///

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                                                                                                Dockets.Justia.com
      Case 2:05-cv-01117-MCE-PAN   Document 10   Filed 06/07/2005   Page 2 of 3


1          Plaintiffs’ Ex Parte Application is DENIED, without
2    prejudice.
3          Counsel are directed to the provisions of Local Rule 65-231,
4    which governs the issuance of a temporary restraining order.
5    Subsection (a) states clearly that “[e]xcept in the most
6    extraordinary of circumstance, no temporary restraining order
7    shall be granted in the absence of actual notice to the affected
8    party and/or counsel, by telephone or other means, or a
9    sufficient showing of efforts made to provide notice.”
10         Rule 65-231(a) provides further that the requisite notice
11   must include, inter alia, “the nature of the relief to be
12   requested.”   Moreover, subdivision (c) of the Rule goes on to
13   provide that certain documents must be provided to not only the
14   court but also to the parties, including both the complaint, the
15   Motion for temporary restraining order, and the supporting brief
16   and affidavits.
17         Here, counsel for Plaintiffs have attached a letter sent to
18   counsel for Defendant Wimberly and to Defendant Jones dated June
19   3, 2005.   (Decl. Of James P. Chandler, Ex. 2).       While that letter
20   sets forth Plaintiffs’ intent to seek a temporary restraining
21   order, it does not otherwise elucidate the precise nature of the
22   relief to be requested, as required by Local Rule 65-231(a).            In
23   addition, the letter states plainly that “Plaintiffs’ complaint
24   and moving papers will be provided at the time of the hearing.”
25   Counsel have not demonstrated any good cause (not to mention
26   “extraordinary circumstances”) why these documents were not
27   provided to Defendants in accordance with Rule 65-231(c).
28   ///

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      Case 2:05-cv-01117-MCE-PAN   Document 10   Filed 06/07/2005   Page 3 of 3


1         In addition, Counsel for Plaintiffs have further failed to
2    provide (1) a proposed temporary restraining order with a
3    provision for a bond; and (2) a proposed order with blanks for
4    fixing the time and date for hearing a motion for preliminary
5    injunction, the date for the filing of responsive papers, the
6    amount of the bond if any, and the date and hour of issuance.
7    See Local Rule 65-231(c)(6) and (7).
8         Plaintiffs may resubmit their Application after rectifying
9    these deficiencies.
10        IT IS SO ORDERED.
11   DATED: June 7, 2005
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                                      MORRISON C. ENGLAND, JR
15                                    UNITED STATES DISTRICT JUDGE
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