Court filing
ORDER granting 23 Motion to Dissolve Temporary Restraining Order.… — Blueacorn Beringer (Dkt. 29)
Summary
An order in Beringer Commerce, Inc. d/b/a Blue Acorn iCi v. Fin Cap, Inc. d/b/a "Blueacorn.co" et al., No. 5:21-CV-251-BO, in the U.S. District Court for the Eastern District of North Carolina, entered in June 2021. It rules on the motion of defendants Fin Cap, Inc., Blue Acorn PPP, LLC and Blue Oak Forest, LLC under Fed. R. Civ. P. 65(b)(4) to dissolve the temporary restraining order entered in the case [DE 23]. The order records that the Court dissolved the TRO from the bench after a hearing on June 23, 2021, and sets out its reasons. It finds that the plaintiff did not certify in writing its efforts to give notice as Rule 65(b) requires, and that this technical failure is sufficient ground to dissolve the TRO. The hearing on the preliminary injunction motion is continued to July 8, 2021.
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Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:21-CV-251-BO
BERINGER COMMERCE, INC. d/b/a )
BLUE ACORN iCi, )
)
Plaintiff, )
V. ) ORDER
)
FIN CAP, INC . d/b/a "BLUEACORN.CO"; )
BLUE ACORN PPP, LLC; BLUE OAK )
FOREST, LLC; MICHAELS. COTA; )
JAMES FLORES ; STEPHANIE )
HOCKRIDGE REIS ; and NA THAN REIS , )
)
Defendants. )
This cause comes before the Court on a motion by defendants Fin Cap, Inc. , Blue Acorn
PPP, LLC, and Blue Oak Forest, LLC pursuant to Fed. R. Civ. P. 65(b)(4) to dissolve the temporary
restraining order entered in this case on June 11 , 2021. [DE 23]. A hearing on the matter was held
before the undersigned on June 23, 2021 , at Elizabeth City, North Carolina. The Court dissolved
the temporary restraining order (TRO) by entry of an oral order from the bench. The following is
entered in support of the Court ' s oral order. 1
DISCUSSION
Rule 65(b) of the Federal Rules Civi l Procedure provides that
( 1) 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
1
The Court dispenses with a recitation of the factual background and incorporates by reference
the background included in its temporary restraining order.
(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 ). Although plaintiff offered grounds for entry of a TRO without prior notice
to defendant in its motion, specifically prior contact with defendants regarding their allegedly
infringing conduct with no satisfactory response, plaintiff failed to technically comply with Rule
65(b) by failing to specifically certify in writing efforts made to give notice to defendants of its
intent to seek a TRO and the reasons notice should not be required prior to entry of a TRO. The
Court is persuaded that this technical fai lure is a sufficient ground upon which to dissolve the TRO.
See Nutrition & Fitness, Inc. v. Progressive Emu, Inc., No. 5:12-CV-192-F, 2012 WL 1478734, at
*3 (E.D.N.C. Apr. 27, 2012).
The motion to dissolve the TRO [DE 23] is GRANTED and the TRO entered in this case
on June 11 , 2021 , is dissolved. The hearing on plaintiffs motion for preliminary injunction is
CONTINUED to July 8, 2021 , at 3 :00 p.m. at the United States Courthouse at 310 New Bern
A venue, Raleigh, North Carolina.
SO ORDERED, this n day of June, 202 1.
~~E/J7't
UNITED STATES DISTRICT JUDGE
2
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