Nicholas A. Garcia v. Cello Partnership, d/b/a Verizon Wireless

Summary

The United States District Court for the District of Maine dismissed without prejudice Nicholas Garcia’s ex parte motion for a temporary restraining order against Cello Partnership, doing business as Verizon Wireless. The court held that Garcia failed to satisfy Federal Rule of Civil Procedure 65(b)(1) because he did not certify efforts to provide notice and did not clearly demonstrate irreparable harm before Verizon could be heard.

Holdings

1. A movant seeking an ex parte temporary restraining order must certify in writing the efforts made to give notice and the reasons notice should not be required. Garcia's failure to provide that certification independently warranted dismissal of the motion without prejudice.
2. An ex parte TRO requires a clear showing that immediate and irreparable injury will occur before the opposing party can be heard. Garcia did not make that showing because he could obtain unlimited data service through an available alternative plan and seek monetary compensation for the additional cost.
3. Garcia was not entitled at this stage to an injunction prohibiting Verizon's alleged conduct toward other servicemembers or requiring procedures for third-party complaints because he had not shown a basis to assert third parties' rights and had not satisfied the requirements for a class action.

Questions Presented

1. Whether Garcia satisfied Federal Rule of Civil Procedure 65(b)(1)(B) by certifying his efforts to give Verizon notice of the ex parte temporary restraining order motion and the reasons notice should not be required.
2. Whether Garcia clearly showed under Federal Rule of Civil Procedure 65(b)(1)(A) that immediate and irreparable injury would occur before Verizon could be heard.
3. Whether the court should issue emergency injunctive relief requiring restoration of Garcia's service, prohibiting similar conduct toward other servicemembers, and imposing mandatory complaint procedures.

Disposition

dismissed