United States District Court, D. Montana, Helena Division
Haddon, United States District Judge
April 17, 2018, McCann filed a Verified Complaint for
Declaratory and Injunctive Relief ("the
Complaint"). (Doc. 1.) Because the Complaint seeks
"an IMMEDIATE EMERGENCY TEMPORARY RESTRAINING ORDER
pending a jury trial and final judgment on permanent
injunction and declaratory relief (Doc. 1 at 23), the Court
construes the Complaint as encompassing a motion for a
temporary restraining order. For the reasons described below,
the Court denies the motion.
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).
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 29, 2018
(Doc. 1 at 6), 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); Fed.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.").
March 26, 2018, the Commission on Practice filed its
Recommendation, 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
17-0670/17-110 (Mont. April 12, 2018). The Office of
Disciplinary Counsel filed a response to the Motion to Stay
Proceedings on April 17, 2018. In the Matter of Genet
McCann, No. PR 17-0670/17-110 (Mont. April 17, 2018).
Consideration of the ripe Motion to Stay Proceedings is not
yet scheduled on the Montana Supreme Court Conference Agenda.
See In re Amendment of the Mont. Supreme Court Internal
Operating Rules, No. AF 06-0632, 2015 Mont. LEXIS 641,
at * 10 (Mar. 18, 2015) ("The Court shall generally hold
a conference on Tuesday afternoon . . . . Each week's
conference agenda shall be distributed by the preceding
Friday afternoon."). Thus, even if the Motion to Stay is
reviewed at the Montana Supreme Court's conference on
April 24, 2018, McCann still has 30 days to file an objection
to the Commission on Practice's Recommendation.
See Montana Rules of Lawyer Disciplinary
Enforcement, Rule 16. The Montana Supreme Court does not have
a hearing scheduled regarding the COP's Recommendation,
nor is it likely to set a hearing or make a final decision
regarding the Recommendation until the matter is fully
briefed and the pending 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)(1)(A).
Therefore, the temporary restraining order pursuant to the
Complaint is denied.
the Court notes that McCann issued summons for Defendants The
Supreme Court of the State of Montana, The Commission on
Practice of the Supreme Court of the State of Montana and
Office of the State Disciplinary Counsel (Doc. 2), but it
does not appear that McCann has issued a summons for
Defendant Jon Moog. Under Federal Rule of Civil Procedure
4(b), "[a] summons-or a copy of a summons that is
addressed to multiple defendants-must be issued for each
defendant to be served." Further, it appears McCann has
failed to file proof of service. Pursuant to Federal Rule of
Civil Procedure 4 and Local Rule 4, McCann is required to
file proof of service.
IT IS ORDERED that:
1. McCann's motion for a temporary restraining order
found within the Complaint ...