United States District Court, W.D. Pennsylvania
GIBSON, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Covertech Fabricating,
Inc.'s Motion for Temporary Restraining Order and
Preliminary Injunction. (ECF No. 3.) The Court has reviewed
Plaintiff's Motion (ECF No. 3), Plaintiff's Brief in
Support thereof (ECF No. 4), and Plaintiff's Verified
Complaint (ECF No. 1). Upon review of these submissions, the
Court is persuaded that Plaintiff has met the high standard
for obtaining a temporary restraining order
("TRO"). The Court will, therefore, enter a
TRO-albeit without one of the conditions requested by
Plaintiff-and set a hearing for Plaintiff's request for a
preliminary injunction. For the reasons that follow,
Plaintiff's Motion is GRANTED IN PART
and DENIED IN PART.
Plaintiff Has Met the Heavy Burden of Rule 65(b)(1) to Merit
the Grant of an Ex Parte TRO
to Federal Rule of Civil Procedure 65(b)(1), a court may
issue an ex parte TRO where (1) "specific facts
in an affidavit or 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 (2) "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). Plaintiff has satisfied both of these
the facts, as set forth in the Verified Complaint (ECF No.
1), clearly show that immediate irreparable harm will result
to Plaintiff before the adverse party can be heard in
opposition. The Verified Complaint clearly demonstrates that
Defendants are likely to transfer assets as soon as they
learn about the present lawsuit-an action Defendants have
previously taken when faced with the enforcement of this
Court's judgment. Absent a TRO, Defendants would be free
to immediately begin dissipating assets and moving assets
beyond the reach of Plaintiff, potentially precluding
Covertech from recovering millions of dollars owed to
Covertech from a prior, unsatisfied judgment from this Court.
as set forth by an affidavit filed by Plaintiff's counsel
(ECF No. 4-1), Covertech has sought to provide Defendants
with notice of the instant lawsuit and TRO Motion by various
means, including sending the relevant court filing to the
last known counsel of Defendants via e-mail and U.S. Mail and
hiring a process server to attempt to effectuate service on
each of the named Defendants.
upon reviewing the Verified Complaint, the exhibits thereto,
and Plaintiff's Brief in Support of its Motion for
Temporary Restraining Order and Preliminary Injunction, the
Court finds that Plaintiff has satisfied both of the
requirements of Rule 65(b)(1).
Plaintiff Has Satisfied the Four-Part TRO Test
the requirements of Rule 65(b)(1) for issuing an ex
parte TRO, a party seeking a TRO must also establish (1)
a likelihood of success on the merits, (2) that denial of
injunctive relief will result in irreparable harm, (3) that
granting the temporary restraining order will not result in
irreparable harm to the defendants, and (4) that granting the
TRO is in the public interest. See Maldonado v.
Houston, 157 F.3d 179, 184 (3d Cir. 1997). The
requirements for a temporary restraining order are the same
as those for a preliminary injunction. Saluck v.
Rosner, C.A. No. 98-5718, 2003 WL 559395, at *2 (E.D.
Pa. Feb. 25, 2003). The Court finds that each of these four
elements is satisfied.
the Court agrees with the argument and reasoning of
Plaintiff's Brief (see ECF No. 4 at 9-19) and
finds that the facts of the Verified Complaint establish more
than a reasonable probability of success on the merits such
that a TRO should issue. To establish a reasonable
probability of success on the merits such that a TRO should
issue, a "plaintiff need only prove a prima facie case,
not a certainty that [it] will win." Highmark, Inc.
v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir.
2001); see also Reilly v. City of Harrisburg, 858
F.3d 173, 179 (3d Cir. 2017) ("[The court does] not
require at the preliminary stage a more-likely-than-not
showing of success on the merits because a likelihood of
success on the merits does not mean more likely than
not.") (internal quotation marks omitted). Plaintiff has
met this burden with the allegations of the Verified
Complaint for its asserted causes of action.
as discussed supra, the Court finds that the
allegations of the Verified Complaint demonstrate that
injunctive relief is necessary to prevent immediate and
irreparable harm to Plaintiff. Namely, Plaintiff has, for the
purposes of its Motion, sufficiently shown that, absent
immediate injunctive relief, Defendants are likely to
dissipate and deplete their assets such that Plaintiff is
unable to collect on the judgment previously entered by this
Court. Plaintiff has alleged sufficiently that
Defendants have previously performed evasive transfers to
avoid the collection of the judgment in this case and will
likely once again engage in such evasive conduct to dissipate
assets and transfer them beyond the reach of Plaintiff such
that Plaintiff's judgment would go unsatisfied. See
Gelfand v. Stone, 727 F.Supp. 98, 102 (S.D. N.Y. 1989)
(stating that injunctive relief is appropriate where the
totality of circumstances indicate that the "past
predilection for deceptive and fraudulent practices is likely
to continue."). Thus, the Court finds that this
significant threat of wrongful dissipation and transfer of
assets to frustrate the collection of Plaintiff's
judgment is sufficient demonstration of a likelihood of
irreparable harm if injunctive relief is not granted.
the Court finds that the balance of harms clearly and
strongly weighs in favor of Plaintiff. Defendants will not be
harmed in any significant manner by the requested TRO.
Defendants are enjoined only from asset transfers outside the
ordinary course of business. Furthermore, if Defendants seek
such a transfer, they may petition the Court to seek
authorization. In contrast, if the Court denies
Plaintiff's Motion, they may likely never be able to
collect their two-year-old, multimillion-dollar judgment
against Defendants. See Berger v. Weinstein, Civ. A.
No. 98-5861, 2016 WL 1359459, at *8 (E.D. Pa. Apr. 6, 2016)
("The balance of the harms weighs in favor of granting
an injunction. It has been years since the judgment was
entered and Judgment Creditors have yet to see a dime.
Despite [the defendant's] cries of poverty, the
injunction that the Court will enter is not so broad as to
place her family in financial peril."). In sum,
Defendant's lawful and proper business and livelihood are
scarcely harmed by the grant of TRO, but Plaintiff could
likely lose upwards of $5.4 million in the form of an
the grant of TRO in this case is clearly in the public
interest. "The public has an interest in the enforcement
of judgments." State Farm Mut. Auto Ins. Co. v. Am.
Rehab & Physical Therapy, Inc.,376 Fed.Appx. 182,
184 (3d Cir. 2010). "The public interest will be
furthered if judgment debtors are prohibited from frustrating
the legal process, and judgment creditors are protected from
having to expend endless resources to collect on their
judgments." Star Creations Inv. Co. v. Alan Amron
Dev., Inc., No. Civ. A. 95-4328, 1995 WL 495126, at *20
(E.D. Pa. Aug. 18, 1995). In the present case, Plaintiff made
numerous efforts to collect on it judgment to no avail.
According to the well-pleaded allegations of the Verified
Complaint, the Defendants have evaded and will likely
continue to evade Plaintiff's recovery efforts through
improper transfers of assets to a complicated web of entities