Beringer Commerce, Inc. v. FIN Cap, Inc.

E.D. North Carolina

Beringer Commerce, Inc. v. FIN Cap, Inc.

CourtDistrict Court, E.D. North Carolina

DecidedJune 23, 2021

Docket5:21-cv-00251

StatusUnknown

This text of Beringer Commerce, Inc. v. FIN Cap, Inc. (Beringer Commerce, Inc. v. FIN Cap, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beringer Commerce, Inc. v. FIN Cap, Inc., (E.D.N.C. 2021).

Pincite

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTIT CAROLINA WESTERN DIVISION No. 5:21-CV-251-BO

BERINGER COMMERCE, INC. d/b/a ) BLUE ACORN ) ) Plaintiff, ) V. ) ORDER ) FIN CAP, INC. d/b/a “BLUEACORN.CO”,; ) BLUE ACORN PPP, LLC; BLUE OAK ) FOREST, LLC; MICHAEL S. COTA; ) JAMES FLORES; STEPHANIE ) IOCKRIDGE REIS; and NATHAN 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 ed. 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 (FRO) by entry of an oral order from the bench. The following is entered in support of the Court's oral order.! DISCUSSION Rule 65(b) of the Federal Rules Civil Procedure provides that (1) Issuing Without Notice. Vhe 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

' 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 failure 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 Avenue, Raleigh, North Carolina.

SO ORDERED, this ad day of June, 2021.

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTIT CAROLINA WESTERN DIVISION No. 5:21-CV-251-BO

BERINGER COMMERCE, INC. d/b/a ) BLUE ACORN ) ) Plaintiff, ) V. ) ORDER ) FIN CAP, INC. d/b/a “BLUEACORN.CO”,; ) BLUE ACORN PPP, LLC; BLUE OAK ) FOREST, LLC; MICHAEL S. COTA; ) JAMES FLORES; STEPHANIE ) IOCKRIDGE REIS; and NATHAN 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 ed. 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 (FRO) by entry of an oral order from the bench. The following is entered in support of the Court's oral order.! DISCUSSION Rule 65(b) of the Federal Rules Civil Procedure provides that (1) Issuing Without Notice. Vhe 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

' 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 failure 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 Avenue, Raleigh, North Carolina.

SO ORDERED, this ad day of June, 2021.

UNITED STATES DISTRICT JUDGE

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Beringer Commerce, Inc. v. FIN Cap, Inc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/beringer-commerce-inc-v-fin-cap-inc-nced-2021.