United States District Court, D. Minnesota
S. Goldsmith and Dean A. LeDoux, GRAY PLANT MOOTY, for
Pavelko and Pamela Abbate-Dattilo, FREDRIKSON & BYRON,
P.A., for defendant Keith Midkiff.
Patrick J. Schiltz United States District Judge
matter is before the Court on the motion of defendant Keith
Midkiff to dissolve the temporary injunction entered against
him by a state court before this action was removed to
federal court. The Court held a hearing on Midkiff s motion
on September 11, 2019. For the reasons stated on the record
at that hearing and briefly summarized below, Midkiff s
motion is granted and the temporary injunction is dissolved.
case is removed to federal court, the case is governed by the
Federal Rules of Civil Procedure. See Granny Goose Foods,
Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 438 (1974) (citing Fed.R.Civ.P.
81(c)). Accordingly, any preliminary injunction issued by the
state court prior to removal must be dissolved by the federal
court unless the injunction satisfies the requirements of
Fed.R.Civ.P. 65. The preliminary injunction entered against
Midkiff by the state court fails to meet at least three of
Rule 65's requirements:
Midkiff received neither meaningful notice nor an opportunity
to be heard before the preliminary injunction was entered
against him. Under Rule 65(a)(1), a preliminary injunction
may be issued "only on notice to the adverse
party." To be effective, notice must be given "at a
meaningful time and in a meaningful manner." Fuentes
v. Shevin, 407 U.S. 67, 80 (1972) (discussing the notice
requirement in the context of procedural due process). As the
Supreme Court has explained, Rule 65(a)(1)'s notice
requirement "implies a hearing in which the defendant is
given a fair opportunity to oppose the application and to
prepare for such opposition." Granny Goose Foods,
Inc., 415 U.S. at 432 n.7.
plaintiff Marco Technologies, LLC ("Marco") filed
its complaint at 5:27 pm on Wednesday, August 14, 2019. ECF
No. 2-1. At the same time, Marco filed a notice of motion and
motion for a temporary injunction against Midkiff, along with
supporting papers. ECF No. 8-1. Midkiff first learned of
Marco's motion when it was served on him (along with the
summons, complaint, and supporting papers) at 6:29 pm on
Thursday, August 15, 2019. ECF No. 9 at ¶ 3. The state
court issued the preliminary injunction at 12:23 pm the
following day, ECF No. 8-1 at 43, without ever giving Midkiff
a chance to respond to Marco's motion. Clearly, Midkiff
did not receive meaningful notice of Marco's motion, nor
did he receive any opportunity-much less a fair
opportunity-to oppose that motion. "If a non-movant is not
given proper notice, the preliminary injunction should be set
aside even if there were no other ground for doing so."
Corp. Synergies Grip., LLC v. Anderws, No. 18-3246,
2019 U.S. App. LEXIS 17104, at 10__, Fed.Appx. __ (3d Cir.
June 4, 2019) (citation omitted).
Rule 65(d)(1) requires that "[e]very order granting an
injunction . . . must state the reasons why it issued."
Here, the state court provided no explanation whatsoever for
why it enjoined Midkiff, stating only that the injunction was
based on the record. ECF No. 8-1 at 43. It appears that the
state court simply signed an order that had been drafted by
Rule 65(c) provides that a preliminary injunction may issue
"only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or
restrained." True, "[t]he amount of the bond rests
within the sound discretion of the trial court."
Stockslager v. Carroll Elec. Coop. Corp., 528 F.2d
949, 951 (8th Cir. 1976). But the security requirement may be
waived altogether only "where the defendant has not
objected to the failure to require a bond or where the
damages resulting from a wrongful issuance of an injunction
have not been shown." Richland/Wilkin Joint Powers
Auth. v. U.S. Army Corps of Eng'rs, 826 F.3d 1030,
1043 (8th Cir. 2016) (citations omitted). Here, Midkiff will
clearly suffer damages (in the form of lost income) if he is
wrongfully enjoined, and, had he been given a chance to
object to the failure to require a bond, he would have done
of these reasons, the preliminary injunction entered by the
state court against Midkiff does not meet the requirements of
Rule 65 and therefore must be dissolved.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT defendant Keith
Midkiff s motion to dissolve the temporary injunction [ECF
No. 5] is GRANTED and the injunction is DISSOLVED.