United States District Court, S.D. Indiana, New Albany Division
TANNERS CREEK DEVELOPMENT, LLC, ENVIROANALYTICS GROUP, LLC, INDUSTRIAL DEMOLITION, LLC, COMMERCIAL DEVELOPMENT CO., INC., Plaintiffs,
ARTHUR M. TOMS, DORI B. SCHWEITZER, JAMES B. TOMS, III, ANDIS, LLC, ATRC, LLC, STANCO EQUIPMENT CO., INC., SANDOR ENTERPRISES, LLC, Defendants.
ORDER GRANTING EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER AND SETTING TELEPHONIC STATUS
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
have today, November 15, 2018, filed a verified complaint in
this Court charging Defendants with among other things
criminal and civil conversion, fraud, breach of fiduciary
duty, and conspiracy. Plaintiffs seek an ex parte
temporary restraining order (TRO) and a preliminary
injunction freezing certain identified assets of Defendants.
complaint sufficiently invokes our diversity jurisdiction. 28
U.S.C. § 1332; Compl. ¶¶ 6-17.
complaint sufficiently sets forth a basis for this
Court's personal jurisdiction over Defendants. Compl.
¶ 18 and passim.
“The court may issue a [TRO] without . . . notice to
the adverse party only if . . . specific facts in . . . 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 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)(1) (internal subdivisions
“Every [TRO] issued without notice must state the date
and hour it was issued; describe the injury and state why it
is irreparable; [and] state why the order was issued without
notice . . . .” Fed.R.Civ.P. 65(b)(2).
“Every [TRO] must . . . state the reasons why it
issued; state its terms specifically; and describe in
reasonable detail-and not by referring to the complaint or
other document-the act or acts restrained or required.”
Fed.R.Civ.P. 65(d) (internal subdivisions omitted).
TRO freezing assets may be issued to preserve the status quo
and Plaintiffs' rights to equitable relief. CSC
Holdings, Inc. v. Redisi, 309 F.3d 988, 996 (7th Cir.
2002); Comcast of Ill. X, LLC v. Till, 293 F.Supp.2d
936, 942 (E.D. Wis. 2003). The TRO may be issued without
notice if notice would render fruitless the further
prosecution of the action. Am. Can Co. v.
Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984);
Comcast of Ill. X, 293 F.Supp.2d at 939.
plausible and particularized allegations of Plaintiffs'
verified complaint show that, since February 2017, Defendants
have converted $4 million worth of Plaintiffs' property,
have repeatedly misled Plaintiffs and misrepresented material
facts, and have begun to dissipate and otherwise attempt to
conceal the proceeds of Defendants' unlawful activity.
Defendants' nearly two-year history of fraudulent and
criminal activity as alleged in Plaintiffs' verified
complaint strongly suggests that, if Defendants are given
notice of Plaintiffs' suit prior to the issuance of the
TRO, Defendants' efforts to dissipate and conceal the
proceeds of their unlawful activity will intensify.
Among other remedies, Plaintiffs seek the imposition of a
constructive trust. This remedy will be irretrievably lost to
Plaintiffs if Defendants are permitted to dissipate and
conceal the res of that trust.
Moreover, Defendants' dissipation and concealment, if
permitted, will tend to destroy or otherwise make unavailable
material evidence for use in the prosecution of this action.
Accordingly, unless the TRO issues now without notice, it is
likely that Plaintiffs' ability to pursue their remedies
will be substantially impaired, causing irreparable injury.
However, Plaintiffs have not shown why an order requiring
submission of an accounting of Defendants' other assets
is required to maintain the status quo or prevent irreparable
injury. Accordingly, Defendants ...