United States District Court, D. Montana, Helena Division
HADDON, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Genet McCann's
("McCann") Motion for Temporary Restraining Order
and Preliminary Injunction (Doc. 3). This motion is without a
response and currently pending. On April 12, 2018, McCann
filed a Verified Amended Complaint for Declaratory and
Injunctive Relief. (Doc. 7.) Because the Amended Complaint
alleges "Temporary Restraining Order" under Count
III and includes a Prayer for Relief for a "TEMPORARY
RESTRAINING ORDER without (or, in the alternative, with)
NOTICE" (Doc. 7 at 71), the Court construes Count III of
the Amended Complaint as a motion for temporary restraining
order. (See Doc. 7 at 54-55.) For the reasons explained
below, the Court denies both motions.
temporary restraining order "is an extraordinary remedy
never awarded as of right." Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008). Under Federal
Rule of Civil Procedure 65(b)(1):
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 certifies in writing any
efforts made to give notice and the reasons why it should not
Fed. Rule Civ. P. 65(b)(1).
in order to secure a preliminary injunction, McCann must
establish that: (1) she is likely to succeed on the merits;
(2) she is likely to suffer irreparable harm without
preliminary relief; (3) the balance of equities tips in her
favor; and (4) an injunction is in the public interest.
Winter v. Nat. Resources Def. Council, Inc., 555
U.S. 7, 20 (2008).
the Court finds that McCann's initial Motion for
Temporary Restraining Order and Preliminary Injunction filed
on March 23, 2018 (Doc. 3) is moot. McCann sought to enjoin
the Commission on Practice ("COP") from holding a
hearing on Friday, March 23, 2018, relating to the violations
against her. (Doc. 3 at 2.) That hearing date has passed.
Thus, there is no longer any irreparable harm that could
occur at this time. Consequently, the motion is denied as
indicated above, the Verified Amended Complaint also includes
a request for a temporary restraining order. Contrary to
McCann's proposition that the Commission on
Practice's recommendation is set to be decided by the
Montana Supreme Court on April 25, 2018 or April 28, 2018
(Doc. 7 at 46), the Court takes judicial notice that no such
hearing is scheduled before the Montana Supreme Court.
Federal courts "may take notice of proceedings in other
courts, both within and without the federal judicial system,
if those proceedings have a direct relation to the matters at
issue." U.S. ex rel Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992); F. R. Evid. 201 ("The court may judicially notice
a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned."). On March 29, 2018, the
Commission filed its Conclusions of Law and Recommendations,
and on April 12, 2018, McCann filed a Motion to Stay
Proceedings in the pending Montana Supreme Court case. In
the Matter of Genet McCann, No. PR 16-0635/15-078 (Mont.
April 12, 2018). Further, McCann has 30 days to file an
objection to the COP's Recommendation. See
Montana Rules of Lawyer Disciplinary Enforcement, Rule 16.
Thus, the Montana Supreme Court does not have a hearing
scheduled, nor is it likely to set a hearing or make a final
decision regarding the COP's Recommendation until the
matter is fully briefed and the motion to stay is ruled upon.
temporary restraining orders are "disfavored, " the
party seeking the order is required to satisfy
"all the requirements" of Rule 65(b).
Baicker-Mckee et al., Federal Civil Rules Handbook, 1281
(Thomson Reuters 2015) (emphasis in original). Here, due to
the ongoing nature of the underlying Montana Supreme Court
case and no immediate pending hearing scheduled on the
Court's calendar, McCann's motion fails to adequately
establish that immediate and irreparable injury, loss, or
damage will result at this time. Fed.R.Civ.P. 65(b)(l)(A).
Therefore, the temporary restraining order pursuant to Count
III of the Amended Complaint is denied.
the Court notes that according to the Original
Complaint's Certificate of Service, McCann properly
served Defendants The Commission on Practice of the Supreme
Court of the State of Montana and Office of the State
Disciplinary Counsel (Doc. 1 at 16), but it does not appear
that McCann has served her Amended Complaint on the newly
added Defendant The Supreme Court of the State of Montana.
Pursuant to Federal Rule of Civil Procedure 4 and Local Rule
4, McCann is required to serve The Supreme Court of the State
of Montana and file proof of service.
IT IS ORDERED that:
1. McCann's Motion for Temporary Restraining Order and
Preliminary Injunction filed on March 23, 2018 (Doc. ...