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LITTLE TOR AUTO CTR. v. EXXON CO. USA

May 27, 1993

LITTLE TOR AUTO CENTER, et al., Plaintiffs,
v.
EXXON COMPANY USA, Defendant.


BRODERICK


The opinion of the court was delivered by: VINCENT L. BRODERICK

VINCENT L. BRODERICK, U.S.D.J.

 I

 This case, over which this court has jurisdiction under 28 USC §§ 1331 and 1337, was brought under the Petroleum Marketing Act, 15 USC § 2801 et seq. (the "Act"). It was initiated by an ex parte order to show cause seeking interim relief in the nature of a temporary restraining order, despite the fact that the parties had been conducting conversations for some time. These discussions concerned whether defendant Exxon Company USA ("Exxon") could properly terminate the franchise of plaintiff Little Tor Auto Center (the "dealer").

 The proposed ex parte order sought emergency relief pursuant to Fed.R.Civ.P. 65 to enjoin termination of the dealer and any interference with its operation of its franchise and to require release of various monies, pending further hearing. The application for emergency relief was premised on the possibility that without judicial intervention, expiration of the franchise might irrevocably bar its subsequent reinstatement even if the court should find that the Act was violated.

 After the proposed ex parte order was presented, counsel for the dealer telephoned attorneys for Exxon, resulting in an agreed interim resolution of the crisis which I approved and signed as a court order. Under the agreed arrangement, termination of the franchise is deferred, but Exxon need not furnish fuel or otherwise affirmatively implement the relationship; settlement will be discussed, and if necessary the dealer may move for a preliminary injunction.

 I write this memorandum to explain my reasons for signing the order even though originally presented ex parte.

 II

 Ex parte relief under Fed.R.Civ.P. 65 by way of a temporary restraining order is an emergency procedure.

 Issuance of a court order without prior notice to the party to be enjoined may cause irreparable injury to that party. Consequently, I permit ex parte procedure in connection with such applications only where irreparable injury will be caused absent prompt judicial intervention in circumstances where the adversary cannot be contacted, or where advance contact with the adversary would itself be likely to trigger irreparable injury. Situations in which ex parte relief may be appropriate include, for example, appointment of a receiver needed to preserve property in circumstances where defendants cannot expeditiously be found, *fn1" or discovery of contraband which may be destroyed as soon as notice is given. *fn2"

 Absent presence of these kinds of factors, or other unusual circumstances, ex parte practice in seeking substantive interim relief is contrary to the Due Process Clauses of the Fifth and Fourteenth Amendments. Under those constitutional guarantees, notice must be given (or circumstances must exist making notice impracticable or hazardous) before the application of sovereign compulsion to authorize substantial interference with life, liberty or property. See Connecticut v. Doehr, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991); Zinermon v. Burch, 494 U.S. 113, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988); Peralta Heights Medical Center, 485 U.S. 80, 99 L. Ed. 2d 75, 108 S. Ct. 896 (1987); Brock v. Roadway Express, 481 U.S. 252, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).

 The phenomenon of ex parte applications has long been a matter of concern. Theodore Roosevelt dealt with the problem in his State of the Union Message delivered December 8, 1908:

 
The power of injunction is a great equitable remedy, which should on no account be destroyed. But safeguards should be erected against its abuse. I believe that provisions . . . for checking the abuse of the issuance of temporary injunctions should be adopted. In substance, provision should be made that no . . . temporary restraining order issue ...

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