Comment blink... missed it. (Score 3, Informative) 519
The TRO has already been dissolved.
From dissolution of ex parte TRO:
On May 10, 2004 the Court issued a temporary restraining order (the "TRO") against defendant
Ironport Systems, Inc. dba SPAMCOP.NET, Inc. ("Defendant") on behalf of OPTINREALBIG.COM,
LLC ("Plaintiff"). Defendant has objected to the TRO and sufficiently explained why its objection came
after the issuance of the Court's order. It was not through gamesmanship on the part of Defendant, but
rather issues of timing. The Court's order and Defendant's opposition crossed each other in the e-filing
system.
Having read and considered Defendant's opposition only for the purpose of determining whether or
not to maintain the TRO, the Court finds that the legal issues raised are more complicated than they
originally appeared and that the Court has a number of questions regarding the facts. Because of this, the
Court finds that the balance of hardships and the interests of justice favor dissolution of the TRO and
expediting the hearing on the preliminary injunction. This is to give both parties a full and fair opportunity to
be heard on the issues, to give the Court sufficient time to deliberate on these issues, and to issue a
judgment on the merits expeditiously so that the prevailing party shall obtain the relief necessary to prevent
irreparable harm.
United States District Court
For the Northern District of California
The Court wishes to clarify that the TRO was not a determination of the merits of this case. The
Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been
irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo , 456 U.S. 305,
312 (1982). The limited record usually available on such motions renders a final decision on the merits
inappropriate. Brown v. Chote, 411 U.S. 452, 456 (1973); see also, Paragould Music Co. v. City of
Paragould , 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass'n, 708
F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball
not a prevailing party because finding on the merits was not required for the issuance of an injunction
pending appeal); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928, 100
S.Ct. 1315 (1980) (TRO allowed plaintiffs to vote on absentee ballots but was in no way a determination
on the merits); cf Nitz v. Otte, 87 F.3d 1321 (9th Cir. 1996) (unpublished) (noting that the issuance of a
TRO did not constitute a proceeding of substance on the merit).
In contrast, a federal proceeding may be deemed to have passed beyond the " embryonic stage" if
the federal court has conducted extensive hearings on a motion for a preliminary injunction. Adultworld
Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985).
The Court is aware, however, that Federal Rule of Civil Procedure 65(b) provides that a TRO may
issue ex parte to preserve the status quo. Having reviewed Defendant's opposition and considered the
facts brought forward by it, the Court questions whether the terms of the TRO actually preserved the status
quo or altered it by requiring Defendant to take proactive steps to limit the recipients of the complaints and
to list the names of those complaining. Because in such situations, the Court must be "extremely cautious,"
Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.Cal. 1995), the
Court dissolves the TRO and expedites the hearing on the preliminary injunction.
For the foregoing reasons,
IT IS HEREBY ORDERED THAT the Temporary Restraining Order of May 10, 2004 is
DISSOLVED. Plaintiff shall serve and file a motion for preliminary injunction no later than May 12, 2004.
Defendant shall serve its reply no later than May 13, 2004. Plaintiff shall serve and file a reply no later than
May 14, 2004. The parties shall appear before the Court on Tuesday, May 18, 2004 at 1:00 p.m. for a
hearing on Plaintiff's motion for preliminary injunction.
United States District Court
For the Northern District of California
IT IS SO ORDERED.
. /s/ Saundra Brown Armstrong
Dated: May 11, 2004 SAUNDRA BROWN ARMSTRONG
United States District Judge
From dissolution of ex parte TRO:
On May 10, 2004 the Court issued a temporary restraining order (the "TRO") against defendant
Ironport Systems, Inc. dba SPAMCOP.NET, Inc. ("Defendant") on behalf of OPTINREALBIG.COM,
LLC ("Plaintiff"). Defendant has objected to the TRO and sufficiently explained why its objection came
after the issuance of the Court's order. It was not through gamesmanship on the part of Defendant, but
rather issues of timing. The Court's order and Defendant's opposition crossed each other in the e-filing
system.
Having read and considered Defendant's opposition only for the purpose of determining whether or
not to maintain the TRO, the Court finds that the legal issues raised are more complicated than they
originally appeared and that the Court has a number of questions regarding the facts. Because of this, the
Court finds that the balance of hardships and the interests of justice favor dissolution of the TRO and
expediting the hearing on the preliminary injunction. This is to give both parties a full and fair opportunity to
be heard on the issues, to give the Court sufficient time to deliberate on these issues, and to issue a
judgment on the merits expeditiously so that the prevailing party shall obtain the relief necessary to prevent
irreparable harm.
United States District Court
For the Northern District of California
The Court wishes to clarify that the TRO was not a determination of the merits of this case. The
Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been
irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo , 456 U.S. 305,
312 (1982). The limited record usually available on such motions renders a final decision on the merits
inappropriate. Brown v. Chote, 411 U.S. 452, 456 (1973); see also, Paragould Music Co. v. City of
Paragould , 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass'n, 708
F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball
not a prevailing party because finding on the merits was not required for the issuance of an injunction
pending appeal); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928, 100
S.Ct. 1315 (1980) (TRO allowed plaintiffs to vote on absentee ballots but was in no way a determination
on the merits); cf Nitz v. Otte, 87 F.3d 1321 (9th Cir. 1996) (unpublished) (noting that the issuance of a
TRO did not constitute a proceeding of substance on the merit).
In contrast, a federal proceeding may be deemed to have passed beyond the " embryonic stage" if
the federal court has conducted extensive hearings on a motion for a preliminary injunction. Adultworld
Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985).
The Court is aware, however, that Federal Rule of Civil Procedure 65(b) provides that a TRO may
issue ex parte to preserve the status quo. Having reviewed Defendant's opposition and considered the
facts brought forward by it, the Court questions whether the terms of the TRO actually preserved the status
quo or altered it by requiring Defendant to take proactive steps to limit the recipients of the complaints and
to list the names of those complaining. Because in such situations, the Court must be "extremely cautious,"
Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.Cal. 1995), the
Court dissolves the TRO and expedites the hearing on the preliminary injunction.
For the foregoing reasons,
IT IS HEREBY ORDERED THAT the Temporary Restraining Order of May 10, 2004 is
DISSOLVED. Plaintiff shall serve and file a motion for preliminary injunction no later than May 12, 2004.
Defendant shall serve its reply no later than May 13, 2004. Plaintiff shall serve and file a reply no later than
May 14, 2004. The parties shall appear before the Court on Tuesday, May 18, 2004 at 1:00 p.m. for a
hearing on Plaintiff's motion for preliminary injunction.
United States District Court
For the Northern District of California
IT IS SO ORDERED.
.
Dated: May 11, 2004 SAUNDRA BROWN ARMSTRONG
United States District Judge
