United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER, REQUIRING PLAINTIFF TO DEMONSTRATE
JURISDICTION, AND SETTING PRELIMINARY INJUNCTION BRIEFING
J. MICHELSON U.S. DISTRICT JUDGE
Capital for Merchants, LLC claims that Defendant Wealth
Creating Investments, Inc., has breached a contract they had.
CFM is in the business of providing cash advances
(“MCAs”) to small businesses in exchange for a
share of the small businesses' future receivables. On
July 15, 2016, CFM agreed to sell to WCI, a collections
company, $15, 000, 000 worth of its MCAs. (R. 1, PID 2, 8.)
In particular, the parties' agreement states:
At the closing of the transactions contemplated by this
Agreement (the “Closing”) . . . Buyer [WCI] will
(i) pay to Seller [CFM] in cash or immediately available
funds the sum of [$474, 084.00] and (ii) assume the Assumed
Liabilities. . . .
The obligation of Seller to consummate the transactions
contemplated hereby is subject to the satisfaction by Buyer,
or written waiver by Seller, of the following conditions
precedent: (i) Seller shall have received the Purchase Price
in full, and Buyer shall have assumed, upon the terms and
conditions set forth herein, the Assumed Liabilities . . . .
(R. 1, PID 8.) Now three months later, CFM says that WCI has
still paid only $150, 000 of the $474, 084 purchase price. So
CFM filed this breach of contract lawsuit.
asks the Court to grant it some relief post haste. In
particular, yesterday, October 12, 2016, CFM filed a motion
for a temporary restraining order and for a preliminary
injunction. (R. 3.)
Court will deny CFM's request for a temporary restraining
initial matter, this Court is not yet certain it has
jurisdiction over CFM's breach-of-contract claim. CFM
claims that it is diverse from WCI, and thus invokes
subject-matter jurisdiction under 28 U.S.C. § 1332. But
CFM's sole member, North American Bancard, is itself an
LLC, and CFM has not pled the citizenship of each and every
member of North American Bancard. Instead CFM pleads that
North American Bancard is a Delaware LLC, has its principal
place of business in Michigan, and is a citizen of Michigan.
(R. 1, PID 1-2.) But if any member of North American Bancard
is a citizen of Nevada-WCI's state of
citizenship-diversity would be destroyed. As such, CFM has
not adequately pled diversity of citizenship. See Delay
v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th
Cir. 2009) (“When diversity jurisdiction is invoked in
a case in which a limited liability company is a party, the
court needs to know the citizenship of each member of the
company. And because a member of a limited liability company
may itself have multiple members-and thus may itself have
multiple citizenships- the federal court needs to know the
citizenship of each ‘sub-member' as well.”).
nothing indicates that WCI has been served with CFM's
complaint let alone CFM's request for injunctive relief.
And CFM's motion does not state that it has otherwise
informed WCI that it is seeking an injunction. Thus, the
Court presumes that WCI does not yet have notice of CFM's
requested relief. And, in that scenario, Rule 65 bars the
issuance of a temporary restraining order unless “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(b)(1)(B). CFM's counsel
has provided no such certification.
a temporary restraining order serves a limited purpose: to
prevent irreparable harm during the short time period between
when the relief is sought and the when the Court rules on a
motion for a preliminary injunction. See Bronco Wine Co.
v. U.S. Dept. of Treasury, 997 F.Supp. 1309, 1313 (E.D.
Cal. 1996) (“The purpose of a TRO is to preserve the
status quo pending a full hearing on a preliminary
injunction.”). Yet CFM's claims of irreparable harm
are not only too conclusory to grant any type of injunctive
relief-“CFM's relationship with its customers is
being irreparably harmed by WCI's effort to resell or
collect on the Accounts”-they also fail to show why the
irreparable harm is so immediate that this Court must rule
now as opposed to in a month or two. Indeed, the parties
signed their agreement almost three months ago.
the Court DENIES CFM's request for a temporary
Court will, however, set an expedited schedule on CFM's
motion for a preliminary injunction as follows:
October 27, 2016
Meet and Confer (see below)
November 3, 2016
Submission of Pre-Hearing Materials (see below)
November 10, 2016
Preliminary Injunction Hearing (see below)
November 22, 2016