Maryland Cases July 06, 2022: Gibson v. Frederick Cnty.

Case Description

[610 F.Supp.3d 743]

Walter T. Charlton, Walter T. Charlton and Associates, Washington, DC, for Plaintiffs.

ORDER

James K. Bredar, Chief Judge

Presently pending before the Court is Plaintiffs’ Motion for a Temporary Restraining Order ("TRO"). (ECF No. 2.) That Motion seeks to require Defendants to preserve certain statutorily protected materials for an additional fourteen days and to permit Plaintiffs to engage in expedited document and testimonial discovery. ( Id. at 1, 5.) For the following reasons, Plaintiffs’ Motion (ECF No. 2) is DENIED.

I. Temporary Restraining Order

Under Federal Rule of Civil Procedure 65(b), a Court may issue an ex parte TRO "only if [ ] specific facts in an affidavit or 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." Here, Plaintiffs Motion avers exactly the opposite, namely that they will suffer no harm for nearly two months—even absent a TRO. Specifically, Plaintiffs seek a TRO prohibiting the destruction of election materials covered by 52 U.S.C. § 20701. (ECF No. 2 at 1.) However, as Plaintiffs acknowledge, § 20701 already requires retention of these documents "for a period of twenty-two months from the date of [various federal elections]" which Plaintiffs assert requires retention of the documents they seek until at least September 3, 2022, (ECF No. 2-1 at 1.) Indeed, Plaintiffs appear to concede that their goal in seeking a TRO is not to immediately avert harm, but to add an additional fourteen days to the § 20701 period. ( Id. )

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To the extent that Plaintiffs allege immediate harm, it is limited to the bald assertion "on information and belief" that Defendants are presently destroying the relevant materials in violation of § 20701. (ECF No. 1 ¶ 19.) This unadorned accusation plainly fails the Rule 65(b) requirement of proof by "specific facts." See in re Kunstler , 914 F.2d 505, 515 (4th Cir. 1990) (emphases in original) ("[ Rule 65(b) ] requires that "specific facts" be " shown " to the court with the request for relief. We agree with the district court that the appellants’ request for relief and their indication that they were not ‘in a position to make the showing required by Rule 65(b) ’ without later discovery indicates an unacceptable level of pre-filing investigation."). In addition to being evidentiarily unsupported, Plaintiffs’ accusations of spoliation are particularly implausible given that any person who "willfully steals, destroys, conceals, mutilates, or alters any record or paper required by section 20701 of this title to be retained and preserved" already faces significant criminal penalties. See 52 U.S.C. § 20702. In short, Plaintiffs have failed to meet threshold requirements for the entry of an ex parte TRO. While the Court takes no position at this time on Plaintiffs’ potential entitlement to other forms of preliminary relief, such relief must be sought after notice to Defendants.

II. Expedited Discovery

In addition to a TRO, Plaintiffs Motion also requests that the Court grant them extensive authority to immediately begin conducting discovery. ( See ECF No. 2-2 at 13 (requesting "[p]ermission to take [ ] five 30(b)(6) depositions with unlimited subpoenas duces tecim [sic] as appropriate").) Despite the breadth of this request, it appears that the purpose of this discovery is only to gather additional evidence needed to substantiate claims for further preliminary relief at a preliminary injunction hearing. ( Id. at 7 ("It is expected that by the time of [sic] the subpoena and deposition process is completed and presented in the hearing on the preliminary injunction ....").) Given that the Court has denied Plaintiffs’ request for a TRO, and therefore has not set a preliminary injunction hearing, it would appear that Plaintiffs’ request for expedited discovery is moot. See Fed. R. Civ. P. 65(b)(3) ("If the [TRO] is issued without notice, the motion for preliminary injunction must be set for hearing at the earliest possible time[.]").

To the extent this aspect of Plaintiffs’ Motion is not moot, it is not properly before the Court. As the Fourth Circuit has explained, "[e]x parte proceedings are the exception, not the rule, and the Civil Rules do not denominate discovery motions as ‘ones which may be heard ex parte.’ " In re Pruett , 133 F.3d 275, 279 n.8 (4th Cir. 1997). Indeed, those Rules explicitly require notice to the opposing party before utilizing the discovery options Plaintiffs request. See Fed. R. Civ. P. 30(b)(1) ("A party who wants to depose a person by oral questions must give reasonable written notice to every other party."); Fed. R. Civ. P. 45(a)(4) ("If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party."). Accordingly, to the extent that Plaintiffs continue to seek expedited discovery, the Court cannot and will not entertain such requests without first hearing from Defendants.

III. Conclusion

In sum, Plaintiffs’ unilateral attempts to obtain extraordinary relief from this Court are procedurally improper because they either (1) fail to establish threshold requirements

[610 F.Supp.3d 745]

for such relief or (2) seek relief that cannot be granted ex parte. While the Court takes no position on the ultimate merits of Plaintiffs’ requests, those merits can only be resolved after the adversarial testing typically required by our judicial system. For these reasons, Plaintiffs’ Motion for a TRO (ECF No. 2) is DENIED.