Opinion
Civil Action No. 3:03-0913
October 2, 2003
H. Lee Barfield II, David A. King, Nashville, TN, for Plaintiff NHC Healthcare, Nashville, LLC
Jefferson C. Orr, O. Wade Nelson, Smith Cashion, Nashville, Tennessee, for plaintiff Employers Insurance Company of Wassau
TEMPORARY RESTRAINING ORDER
This matter came before the Court on October 1, 2003, upon the application for temporary restraining order of plaintiffs, Employers Insurance Company of Wausau and NHC HealthCare, Nashville, LLC, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure. Based upon plaintiffs' application, supporting affidavits, other pleadings, argument of counsel, including argument by the Assistant U.S. Attorney who appeared on behalf of the defendant after oral notice of the proceeding to the defendant, the Court finds that Plaintiffs have shown they will be irreparably harmed if evidence which is the subject of this application is removed from this jurisdiction, especially if it is tested outside the presence of the Plaintiffs and if such testing destroys or alters the evidence. The Court further finds that the Defendant has presented no compelling reason to remove the property from this jurisdiction and that the Defendant otherwise is not prejudiced by the issuance of a temporary restraining order. Therefore, the Court finds it is necessary to issue a restraining order to preserve the existing state of affairs and to avoid immediate, and irreparable, injury to the interests of the plaintiffs and other parties interested in the preservation of and accessibility to evidence from the subject fire.
It is, therefore, ORDERED that the United States Consumer Product Safety Commission ("CPSC"), its agents, employees, and any person in active participation or concert with the CPSC are prohibited and restrained from directly or indirectly:
1. Removing from this jurisdiction any of the items in the custody of the CPSC which were removed from the NHC HealthCare facility located at 2215 Patterson Street, Nashville, Tennessee, after the fire on September 25, 2003.
2. Performing any testing, whether destructive or non-destructive, or taking any other action that alters or changes the condition of any of the items in the custody of the CPSC which were removed from the NHC HealthCare facility located at 2215 Patterson Street, Nashville, Tennessee, after the fire on September 25, 2003.
It is further ORDERED that plaintiffs shall post a bond in the total amount of $10,000.
It is further ORDERED that the subject evidence shall be maintained in the possession of the local representative of the CPSC, but the parties are encouraged to agree to an alternative suitable location under the custody and control of the local representative of the CPSC. The parties have agreed, with the Court's approval, that plaintiffs and possible manufacturers of the evidence maintained by the CPSC shall be permitted to visually inspect and photograph this evidence in the presence of the local representative of the CPSC.
It is further ORDERED that the hearing on Plaintiffs' Application for Preliminary Injunction shall be. held on Wednesday, October 8, 2003, at 9:00 a.m. and that this restraining order shall remain in full force and effect until the Court rules on Plaintiffs' Application for Preliminary Injunction or until ten (10) days have passed from the date hereof, whichever comes sooner, unless this restraining order is extended for a longer period of time by this Court upon a showing of good cause or by agreement of the parties.