United States District Court, E.D. Michigan, Southern Division
DENYING IN PART PLAINTIFF'S "MOTION FOR PRELIMINARY
INJUNCTION AND ORDER FOR IMMEDIATE SHOW CAUSE HEARING
PURSUANT TO FED. R. CIV. P. 65, " DENYING
PLAINTIFF'S "EX PARTE MOTION FOR ORDER DETERMINING
THAT DEFENDANTS HAVE BEEN ADEQUATELY SERVED, " AND
SETTING A PRELIMINARY INJUNCTION HEARING
H. CLELAND UNITED STATES DISTRICT JUDGE.
filed their Complaint (Dkt. # 1) on November 3, 2016, and
Defendants have yet to be served. On November 15, Plaintiffs
filed a "Motion for Preliminary Injunction and Order for
Immediate Show Cause Hearing Pursuant to Fed.R.Civ.P.
65." (Dkt. # 5.) On the same date Plaintiffs also filed
an "Ex Parte Verified Motion For Order Determining That
Defendants Have Been Adequately Served With Court Process Or,
Alternatively, Permitting Substituted Service of
Process." (Dkt. #6.) As no attorney has appeared on
behalf of any of the Defendants, Defendants were not served
through the electronic filing system, though the certificates
of service indicate that Plaintiffs have mailed copies of the
motions to a person believed to be counsel for Defendants.
Because it requests the issuance of a preliminary injunction
without notice or hearing, Plaintiffs' motion may be
fairly characterized as a request for a temporary restraining
order. See Fed. R. Civ. P. 65(b). For the following
reasons, the court concludes that a temporary restraining
order is not required in this case, and it will not deem
Defendants to have been served.
evaluating a motion for a temporary restraining order
("TRO"), a district court must strictly adhere to
the requirements of Federal Rule of Civil Procedure 65.
Leslie v. Penn C. R. Co., 410 F.2d 750, 751 (6th
Cir. 1969) (quoting Austin v. Altman, 332 F.2d 273,
275 (2d Cir. 1964)). Rule 65 states in relevant part that:
A temporary restraining order may be granted without written
or oral notice to the adverse party or that party's
attorney only if (1) it clearly appears from specific facts
shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damages will
result to the applicant before the adverse party or that
party's attorney can be heard in opposition, and (2) the
applicant's attorney certifies to the court in writing
the efforts, if any, which have been made to give the notice
and the reasons supporting the claim that notice should not
Fed. R. Civ. P. 65(b). When evaluating whether to grant a
TRO, the court must consider "(1) whether the movant has
a strong likelihood of success on the merits, (2) whether the
movant would suffer irreparable injury absent a [TRO], (3)
whether granting the [TRO] would cause substantial harm to
others, and (4) whether the public interest would be served
by granting the [TRO]." N.E. Ohio Coal, for the
Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.
2006) (citations omitted). These factors are
"interrelated considerations that must be balanced
together, " not independent prerequisites. Id.
(quoting Mich. Coal, of Radioactive Material Users, Inc.
v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).
"For example, the probability of success that must be
demonstrated is inversely proportional to the amount of
irreparable injury the movants will suffer absent the
[TRO]." Id. (citing Griepentrog, 945
F.2d at 153). However, a TRO is a form of emergency relief
and requires that a plaintiff would suffer "immediate
and irreparable injury, loss, or damage . . . before the
adverse party can be heard in opposition." Fed. R.
Civ. P. 65(b).
only reason for this court to act before Defendants can be
heard would be to restrain the disbursement of monies
allegedly paid to insolvent Defendants in consideration for
participation in a medical residency program. Plaintiffs
allege that Defendants' precarious financial position
counsels in favor of an order that Defendants post $400, 000
with the Clerk of the Court. However, this court will not
exercise its equitable powers to require such a large outlay
without proper service or a hearing as the Defendant hospital
and its patients could be irreparably harmed, it would not
serve the public interest, and no other factor outweighs this
consideration under the current facts. Plaintiffs also assert
that the burden on Varun Chopra's ability to seek another
residence program justifies this court to enter an injunction
requiring Defendants to supply Plaintiffs with a letter
saying that Mr. Chopra was terminated from the residency
program rather than withdrew. Troublingly, at least one email
from an attorney purporting to represent Defendants suggests
that the Defendants contest whether this is even factually
accurate. (Dkt. #6-3.) This court will not sit in equity and
order Defendants to issue a letter making misstatements of
fact. Such an order would clearly harm Defendants and is not
in the public interest, nor is the likelihood of success or
injury great enough to overcome these considerations.
Therefore, Plaintiff's motion for TRO will be denied.
court will also deny Plaintiff's ex parte
request for a determination that Plaintiffs have effected
service on Defendants. Plaintiffs argue that counsel for the
Defendants has unfairly promised to accept service on behalf
of Defendants then later changed her story. They also claim
that Plaintiffs have wrongfully evaded normal service of
process. While it is unfortunate that communications between
counsel in this case have not proceeded ideally, it is
apparent that counsel first indicated that she could accept
service on November 3, 2016, (Dkt. #6-3), then spoke to her
client and corrected this mistake a day later, (Dkt. #6-7).
This is a far cry from bad faith gamesmanship, and any
prejudice to Plaintiffs that might have resulted is minimal.
Moreover, nothing indicates that Plaintiffs will be unable to
serve Defendants normally within the 90 day period allowed
under Federal Rule of Civil Procedure 4(m), as only two weeks
have passed since the initial filing of the complaint.
IT IS ORDERED that Plaintiff's "Motion for
Preliminary Injunction and Order for Immediate Show Cause
Hearing Pursuant to Fed.R.Civ.P. 65" (Dkt. #5) is DENIED
with respect to the request for a temporary restraining
order. The request for a Preliminary Injunction remains
FURTHER ORDERED that Plaintiff must serve this order on
Defendants by November 22, 2016. Assuming service is made by
that date, the court intends to conduct a telephone
conference with counsel on November 28, 2016 at 3:00 p.m. to
discuss and seek agreement on the logistics (timing,
complexity, etc.) of a preliminary injunction hearing.
court anticipates conducting a hearing on the motion for
Preliminary Injunction on January 12, 2017 at 1:30 pm, at the
U.S. District Court in Port Huron, Michigan.
natural party defendants will be required to appear as will
all corporate entity party representatives with fully
dispositive settlement authority.
FURTHER ORDERED that Plaintiffs "Ex Parte Verified
Motion For Order Determining That Defendants Have Been
Adequately Served With Court Process Or, Alternatively,