United States District Court, N.D. Mississippi, Aberdeen Division
RONALDO DESIGNER JEWELRY, INC. PLAINTIFF
JAMES B. COX and CATHERINE COX d/b/a JC DESIGNS d/b/a WIRE N RINGS, and JOHN DOE a/k/a Leroy and JOHN DOES, DEFENDANTS
ORDER DENYING TEMPORARY RESTRAINING ORDER
M. BROWN, UNITED STATES DISTRICT JUDGE
January 3, 2017, Ronaldo Designer Jewelry, Inc.
(“Ronaldo”), filed a verified complaint naming as
defendants James B. Cox and Catherine Cox d/b/a JD Designs
d/b/a Wire N Rings, John Doe a/k/a Leroy, and John Does
Numbers 1 through 99, claiming copyright infringement, trade
dress infringement and unfair competition pursuant to the
Lanham Act, and unfair trade practices and unfair
competition. Doc. #1.
January 12, 2017, Ronaldo filed a motion for a temporary
restraining order pursuant to Federal Rule of Civil Procedure
65. Doc. #4. Ronaldo seeks a temporary restraining order
requiring the named defendants, and anyone acting in concert
or privity with them, to: (1) immediately cease and desist
from, among other things, copying, manufacturing, or
reproducing the jewelry or marketing and advertising
materials which Ronaldo contends infringe upon its copyrights
and trade dress; (2) “immediately withdraw from all
sales outlets any … [w]orks or marketing and
advertising materials which [Ronaldo] contends infringe upon
[its] copyrights or trade dress;” and (3)
“identify each and every person or entity from whom
Defendants have acquired any and all Infringing Works and to
whom Defendants have licensed, assigned, or otherwise
transferred the right to reproduce, manufacture, display,
distribute, or sell jewelry which [Ronaldo] contends
infringes upon [its] copyrights or trade dress.”
Id. at 1. Ronaldo claims in the motion “that
immediate and irreparable injury will result to Plaintiff if
an injunction is not granted.” Id. at 2.
are four prerequisites for the extraordinary relief of
… [a] temporary restraining order …. A court
may grant such relief only when the movant establishes that:
(1) there is a substantial likelihood that the movant will
prevail on the merits; (2) there is a substantial threat that
irreparable harm will result if the injunction is not
granted; (3) the threatened injury to the movant outweighs
the threatened harm to the defendant; and (4) the granting of
the preliminary injunction will not disserve the public
interest.” CompuCom Sys., Inc. v. WJ Glob.,
LLC, No. 3:14-cv-3625, 2014 WL 5032747, at *1 (N.D. Tex.
Oct. 8, 2014) (internal brackets omitted). But, before
engaging in this four-prong analysis in this case, the Court
must first determine whether Ronaldo has complied with the
procedural requirements of Rule 65. See generally Ray v.
La. Dep't of Pub. Safety and Corr., No. 16-810, 2016
WL 5875947, at *2 (W.D. La. Oct. 7, 2016) (compliance with
procedural requirements “a threshold matter”).
motion does not specify whether it seeks a temporary
restraining order with or without notice to the named
defendants. However, because at the time the motion was filed
the named defendants had not been served with the complaint
and because the motion itself does not contain a certificate
of service,  the Court concludes that Ronaldo seeks a
temporary restraining order without notice.
regard to the issuance of a temporary restraining order
without notice, Rule 65(b)(1) provides:
Issuing Without Notice. The court may issue a
temporary restraining order without written or oral notice to
the adverse party or its attorney only 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 adverse party can
be heard in opposition; and
(B) the movant's attorney certified in writing any
efforts made to give notice and the reasons why it should not
Fed. R. Civ. P. 65(b)(1) (emphasis added). The
“specific requirements of Rule 65(b) are not mere legal
niceties. They are strongly worded mandatory provisions which
should be respected.” Am. Can Co. v.
Mansukhani, 742 F.2d 314, 324 (7th Cir. 1984).
Accordingly, the requirements of “Rule 65 must be
strictly complied with.” Commercial Sec. Bank v.
Walker Bank & Trust Co., 456 F.2d 1352, 1356 (10th
Cir. 1972); see Emerging Vision, Inc. v. Glachman,
No. 10-80734-CIV, 2010 WL 3293346, at *3 (S.D. Fla. June 29,
2010) (“[A] party must strictly comply with these
requirements. They are not mere technicalities, but establish
minimum due process.”) (internal quotation marks
omitted). Indeed, Rule 65(b)'s “stringent
restrictions” regarding “the availability of
… temporary restraining orders [without notice]
reflect the fact that our entire jurisprudence runs counter
to the notion of court action taken before reasonable notice
and an opportunity to be heard has been granted both sides of
a dispute.” Granny Goose Foods, Inc. v. Bhd. of
Teamsters, 415 U.S. 423, 439 (1974); see Austin v.
Altman, 332 F.2d 273, 275 (2d Cir. 1964)
(“district court should scrupulously observe the
requirements of Rule 65 in the delicate business of granting
temporary restraining orders.”).
although Ronaldo filed a verified complaint containing
facts which may show immediate and irreparable
injury prior to opposition, it failed to submit a certified
writing by its attorney describing any efforts made to give
notice to the named defendants and the reasons why notice
should not be required. Consequently, Ronaldo has not met the
strict requirements of Rule 65(b) and, therefore, issuance of
a temporary restraining order would be improper. See
Thompson v. Ramirez, 597 F.Supp. 726, 726 (D.P.R. 1984)
(without certification of efforts to notify adverse party, ex
parte relief is improper); Burnette v. Haywood Cty. Bd.
of Educ., No. 06-1197TAN, 2007 WL 2915413, at *2 (W.D.
Tenn. Aug. 1, 2007) (“Rule 65(b)(2) mandates a written
certification from the applicant's attorney detailing the
efforts which have been made to give notice.”); see
also Rainey v. Stephens, No. 7:12-CV-190-O-BL, 2014 WL
843277, at *2 (N.D. Tex. Mar. 4, 2014) (“The Court may
deny a temporary restraining order on procedural infirmities
alone.”). Accordingly, Ronaldo's motion for a
temporary restraining order  is DENIED.