Daniel D’Agostino v. Circle K Stores Incorporated, et al.

Summary

The United States District Court for the District of Arizona denied without prejudice Plaintiff Daniel D’Agostino’s ex parte motion for an emergency temporary restraining order and asset-preservation order against Mobivity Holdings Corporation. The court held that Plaintiff failed to demonstrate immediate and irreparable harm and failed to describe efforts to provide notice as required by Federal Rule of Civil Procedure 65(b)(1).

Holdings

1. Ex parte TRO relief was unavailable because Plaintiff failed to show that immediate and irreparable injury would occur before Mobivity could be heard; his alleged future dissipation of assets was speculative.
2. Plaintiff failed to satisfy Rule 65(b)(1)(B) because his motion did not identify any efforts made to give Mobivity notice or explain why notice should not be required.
3. The motion for an emergency temporary restraining order was denied without prejudice.

Questions Presented

1. Whether Plaintiff satisfied Federal Rule of Civil Procedure 65(b)(1)(A) by showing that immediate and irreparable harm would occur before Mobivity could be heard.
2. Whether Plaintiff satisfied Federal Rule of Civil Procedure 65(b)(1)(B) by certifying in writing the efforts made to give notice and the reasons notice should not be required.
3. Whether an ex parte temporary restraining order should issue to prevent Mobivity from distributing or transferring assets before judgment.

Disposition

other