Opinion
Civil Action No. 08-cv-01136-REB-MEH.
June 10, 2008
ORDER
Because the judge to whom the case has been assigned by random draw, Robert E. Blackburn, is engaged in a jury trial, the clerk has brought this file to me. Plaintiff apparently seeks a temporary restraining order pursuant to Fed.R.Civ.P. 65, although he styles his request as "Plaintiff's Motion for Order Staying Arbitration" (#4) and does not cite the rule anywhere in the request. There is no emergency here, and the request is thus DENIED.
The parties' underlying dispute concerns the scope of an arbitration agreement. Defendant maintains that the dispute is arbitratable and thus commenced arbitration in November, 2007. Now, seven months later, Plaintiff has commenced this case, requesting that the arbitration be enjoined pending this court's decision concerning arbitratibility. According to Plaintiff, the arbitration hearing will not commence until June 30, 2008.
Rule 65 of the Federal Rules of Civil Procedure plainly distinguishes a preliminary injunction from a temporary restraining order. With respect to the latter, the rule states:
The court may issue a temporary restraining order without written or oral notice to the adverse party of 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 certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed.R.Civ.P. 65(b) (emphasis supplied).
Plaintiff's papers aver that the arbitration will not occur until June 30 — over twenty days hence. This is plenty of time for notice to be given to the adverse party and for orderly scheduling of a hearing on a motion for preliminary injunction.
The motion (#4) is thus DENIED.