United States District Court, S.D. Mississippi, Northern Division
THOMAS E. PEREZ, Secretary of the United States Department of Labor, Plaintiff,
HERBERT C. BRUISTER, et al., Defendants, JOEL D. RADER AND VINCENT SEALY, Plaintiffs
HERBERT C. BRUISTER, et al., Defendants No. 3:13-cv-01081-DPJ-FKB.
TEMPORARY RESTRAINING ORDER
DANIEL P. JORDAN, III, District Judge.
This case is before the Court on the Joint Ex Parte Motion and Memorandum of Points and Authorities in Support of Motion for TRO/PI [662-1] filed by Thomas Perez, the Secretary of the U.S. Department of Labor, and Vincent Sealy, the prevailing Plaintiffs in these consolidated cases. Because Plaintiffs have demonstrated their entitlement to relief under Federal Rule of Civil Procedure 65(b), the Court issues this temporary restraining order without notice to any Defendant.
I. Facts and Procedural History
Following a 19-day bench trial, on October 16, 2014, the Court entered judgments in favor of Plaintiffs and against Defendants Herbert Bruister ("Bruister"), Amy Smith, Jonda Henry, and the Bruister Family LLC ("BFLLC"), in the amount of $6, 492, 513.97. Since that time, Plaintiffs have attempted to execute the judgment and now claim that Defendants have intentionally frustrated those efforts. The following facts are gleaned from Plaintiffs' motion for a TRO.
According to Plaintiffs, Defendants, through counsel, have indicated that they are unable to pay any part of the judgments. But Plaintiffs believe that Bruister has an interest in certain life-insurance portfolios (or "viaticals") worth several million dollars. As to some of those viaticals, Premium Funding, LLC ("PFLLC"), an entity controlled by Bruister's friend and business associate Nathan I. Prager, entered into a financing arrangement with BFLLC whereby PFLLC would pay the premiums and administrative costs of the viaticals in exchange for certain payments and a security interest in the viaticals. That agreement purports to have been executed on October 15, 2014-one day before the Court entered its judgments in these cases. Plaintiffs contend that the document was backdated in an effort to frustrate execution on the October 16 judgments because PFLLC was not created until October 22, 2014.
In a January 10, 2015 conference call between counsel for Plaintiffs and Defendants and Prager, Prager reportedly demanded that Plaintiffs agree that PFLLC's interest in the viaticals is superior to Plaintiffs' interest. Prager took the position that unless Plaintiffs made such an agreement "on or before the close of business on January 21, 2015, " PFLLC would cease paying the premiums on the insurance policies, causing them to forever lapse. Prager email [662-6]. The viaticals would then be worthless. Prager's January 21 deadline seems strategic, as it is the day before Bruister's scheduled deposition.
In light of this threat to a potentially significant asset that could help satisfy the judgments in these cases, Plaintiffs filed their ex parte motion. They further contend that Defendants have moved other assets in an effort to avoid execution.
A TRO or preliminary injunction is an "extraordinary remedy." Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991) (citing Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). The four elements for such relief are well known:
(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and
(4) that the grant of an injunction will not disserve the public interest.
Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). To justify entry of a TRO or preliminary injunction, plaintiffs must "clearly carr[y] the burden of persuasion on all four requirements." PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (internal quotations marks omitted).
Rule 65(b)(1) permits the Court to enter a TRO without notice 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 ...