Grames v. Sarasota County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WILLIAM GRAMES, BROOKE

GRAMES, CRAIG B. DICKIE, CYNTHIA

D. DICKIE, JUDY H. JOHNSON, JAMES

KOSTAN, DIANE KOSTAN, PATRICK J.

LOYET and LISA A. LOYET,

Plaintiffs,

v. Case No: 8:20-cv-739-T-36CPT

SARASOTA COUNTY, FLORIDA, ANN

D. BEGEMAN, PATRICK J. FUCHS,

MARTIN J. OBERMAN and SURFACE

TRANSPORTATION BOARD,

Defendants.

___________________________________/

ORDER

This matter comes before the Court upon Plaintiffs’ Motion for Temporary Restraining

Order and Preliminary Injunction Against Sarasota County, Florida and Memorandum in Support

(Doc. 2), and Plaintiffs’ Motion to Hold the Hearing on Plaintiffs’ Motion for a Temporary

Restraining Order by Telephone or Video Conference (Doc. 3). In the Motion for Temporary

Restraining Order and Preliminary Injunction, Plaintiffs request that the Court issue a temporary

restraining order and preliminary injunction directing Sarasota County, Florida not to demolish or

remove any existing structure or improvement from any owners’ property, nor to trespass on these

owners’ private property and to not impose any fine or penalty upon any owner until this Court

has resolved Plaintiffs’ claims regarding legal and title issues. Doc. 2 at 3. The Court, having

considered the motion and being fully advised in the premises, will deny Plaintiffs’ Motion without

prejudice to Plaintiffs filing a Motion for Preliminary Injunction that complies with this court’s

Local Rules and the Federal Rules of Civil Procedure.

I. FACTUAL BACKGROUND1

Plaintiffs are landowners who seek to prevent demolition of existing improvements to real

property by Sarasota County and be compensated for a purported taking of their real property. In

pursuit of this endeavor, Plaintiffs filed the Complaint in this putative class action as well as the

instant Motion for Temporary Restraining Order and Preliminary Injunction. Docs. 1-2.

In the Complaint, Plaintiffs allege that they are landowners whose predecessors-in-interest

to the real property at issue in this action granted the Seaboard Railway a right-of-way easement

to build and operate a railroad across a strip of land from Sarasota to Venice. Id. ¶ 11; see also

doc. 1-1. The easement provided that should the railroad abandon the land for those purposes, the

land would revert to the landowner. Doc. 1 ¶ 11.

By 2002, neither Seaboard Railway’s successor to the easement, CSX Transportation, Inc.

(“CSX”), nor CSX’s lessee, Seminole Gulf Railway, L.P. (“Seminole Gulf”), operated a railroad

over the land and they no longer had a need for the easement. Id. ¶¶ 15-16. Accordingly, in March

2019, Seminole Gulf requested the Surface Transportation Board allow it to abandon a 7.68-mile

segment of rail line between milepost 890.29 on the north side of Ashton Road and milepost SW

884.70, and between milepost 930.30 and milepost 928.21 on the north side of State Highway 780.

Id. ¶ 17; see also doc. 1-2. In the request, Seminole Gulf explained that no local or overhead traffic

had moved over the area for more than ten years. Doc. 1 ¶ 18.

In response to Seminole Gulf’s abandonment request, Sarasota County asked the Surface

Transportation Board to invoke section 8(d) of the Trails Act and authorize Seminole Gulf and

CSX to transfer the right-of-way to Sarasota County to build a public recreational trail. Id. ¶ 20.

1 The Background is based on the facts as alleged in Plaintiffs’ Motion, including the attached

exhibits, as well as the Complaint and its attachments.

In May 2019, the Surface Transportation Board issued a Notice of Interim Trail Use or

Abandonment (NITU) invoking section 8(d) of the Trails Act. Id. ¶ 22.

As a result of the NITU, Sarasota County sent letters to almost 300 landowners stating that

improvements to the property, including pools, septic fields, fences, and sheds, encroached upon

the disputed property that Sarasota County claimed to own. Id. ¶ 27. Sarasota County threatened

to enter the property, remove the improvements, dump the debris on the owners’ land, and issue

citations demanding reimbursement for the cost of demolition. Id.

Based on these facts, Plaintiffs filed the instant action alleging six claims. In Count I of

the Complaint, Plaintiffs request the Court to declare the rights and other legal relations of the

Plaintiffs, Sarasota County, and the federal government Surface Transportation Board regarding

the parties’ rights to use the land and the physical dimensions of the rail-trail right-of-way

easement established under the federal Trails Act. Id. ¶ 110. Count II is a quiet title claim asking

the court to resolve the clouds impairing titles to the property at issue. Id. ¶¶ 111-113. Count III

requests injunctive relief to enforce the declaratory judgment or quiet title decree sought by Counts

I and II. Id. ¶¶ 114-120. In this Count, Plaintiffs ask the Court to enjoin Sarasota County from

ordering, threatening, or physically removing or destroying any improvements and structures that

the County contends encroach upon the disputed easement established by the Surface

Transportation Board. Id. ¶ 116. Count IV requests compensation under the Fifth Amendment to

the United States Constitution pursuant to 42 U.S.C. § 1983. Id. ¶¶ 121-125. Count V seeks

damages under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of

1970, 42 U.S.C. § 4654(c) and 4628. Id. ¶¶ 126-130. Finally, Count VI is a supplemental state

claim requesting full compensation under Article X, section 6 of the Florida Constitution. Id. ¶¶

131-136.

Plaintiffs also previously filed litigation regarding this purported taking in the Court of

Federal Claims. Id. ¶ 25. They filed the instant litigation because that court lacks jurisdiction over

Sarasota County and has no authority to enter the relief requested by this action. Id. ¶ 26.

Simultaneously with filing the Complaint in this case, Plaintiffs filed the instant Motion

for Temporary Restraining Order and Preliminary Injunction (Doc. 2). In the Motion, Plaintiffs

assert that within the past two weeks, Sarasota County sent letters demanding that they demolish

the existing improvements by March 30, and stating that should Plaintiffs and other landowners

fail to do so, Sarasota will demolish the structures and bill Plaintiffs and other landowners for the

cost of doing so. Id. at 2. Plaintiffs request both a temporary restraining order and preliminary

injunction directing Sarasota County not to demolish or remove any existing structure or

improvement from their property, not to trespass on the property, and not to impose any fine or

penalty on Plaintiffs and other landowners until the Court has resolved Plaintiffs’ claims. Id.

In support of this requested relief, Plaintiffs argue that they are likely to succeed on the

merits, an injunction is necessary to avoid irreparable harm and preserve the status quo until a

decision on the merits is reached, the balance of hardships weighs in favor of an injunction, and

an injunction is in the public interest. Id. at 15-24. In arguing that they will suffer irreparable

harm, Plaintiffs state that “[u]nconstitional state action alone is enough to create a presumption of

irreparable harm.” Id. at 23 (citing United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011)).

Additionally, they assert that “courts treat real property as unique and the loss of real estate faces

a lower bar in terms of proving irreparable injury.” Id. (citing Johnson v. United States Dep’t of

Agric., 734 F.2d 774, 789 (11th Cir. 1984)). Therefore, because Sarasota County’s actions are

purportedly unconstitutional state action and threatens unique real property, Plaintiffs assert that

irreparable harm is present. Id.

The Motion does not indicate that the relief sought by Plaintiffs is ex parte, nor does it

address why ex parte relief is necessary. Additionally, the Complaint is not verified, and no

affidavits were provided to support the Motion’s assertion that Plaintiffs are threatened with

irreparable injury that is so imminent that notice and a hearing on the application for preliminary

injunction is impractical if not impossible. The Motion also does not address the issue of security,

as required by Local Rule 4.05(b) and Federal Rule of Civil Procedure 65(c).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65(b)(1) authorizes the court to issue a temporary

restraining order where “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” and “the movant’s attorney certifies in writing any efforts made to

give notice and the reasons why it should not be required.” However, a temporary restraining

order “is an extraordinary remedy to be granted only under exceptional circumstances.” Cheng

Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1186 (N.D. Ala. 2011) (citing Sampson v. Murray, 415

U.S. 61 (1974)).

To obtain a temporary restraining order, a movant must show: (1) a substantial likelihood

of success on the merits; (2) an irreparable injury in the absence of the requested injunction; (3) a

threatened injury that exceeds any injury to the non-moving party caused by the injunction; and

(4) that public policy favors such an order. Dimare Ruskin, Inc. v. Del Campo Fresh, Inc., No.

8:10-cv-1332-T-23AEP, 2010 WL 2465158, at *1 (M.D. Fla. June 15, 2010) (citing Four Seasons

Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003)); see also

M.D. Fla. L.R. 4.05(b)(4) (requiring a party requesting a temporary restraining order to submit a

brief or memorandum addressing these factors).

In addition, Local Rule 4.05(b)(3), Middle District of Florida, requires that a motion for a

temporary restraining order: (1) describe precisely the conduct sought to be enjoined; (2) set forth

facts on which the Court can make a reasoned determination as to the amount of security which

must be posted pursuant to Rule 65(c); (3) be accompanied by a proposed form of temporary

restraining order prepared in strict accordance with the several requirements contained in Rule

65(b) and (d); and (4) be accompanied by a supporting legal memorandum or brief. See M.D. Fla.

L.R. 4.05(b)(3). Additionally, the Local Rules provide that a motion for temporary restraining

order must demonstrate that the movant’s anticipated injury “is so imminent that notice and a

hearing on the application for preliminary injunction is impractical if not impossible.” Id. at

4.05(b)(2).

III. DISCUSSION

The extraordinary remedy of an ex parte temporary restraining order is not warranted in

this case. Plaintiffs have not clearly shown that immediate and irreparable injury will result before

Defendants can be heard in opposition, nor that injury is so imminent that notice and a hearing is

impractical, if not impossible. Moreover, Plaintiffs failed to comply with the strict requirements

for an application for a temporary restraining order.

Local Rule 4.05(b)(2) requires an applicant for a temporary restraining order to support his

or her motion “by allegations of specific facts shown in the verified complaint or accompanying

affidavits, not only that the moving party is threatened with irreparable injury, but that such injury

is so imminent that notice and a hearing on the application for preliminary injunction is impractical

if not impossible.” Federal Rule of Civil Procedure 65(b) contains similar requirements. Plaintiffs

did not comply with these requirements and this reason alone is a basis for denial of their request

for a temporary restraining order.

Additionally, this Court has previously determined that a plaintiff cannot establish the

threat of irreparable injury sufficient to warrant entry of an ex parte temporary restraining order

where the emergency nature of the motion is caused by the plaintiff’s own delay. “Delay in seeking

a TRO undercuts the proposition that there is a threat of irreparable injury.” Allstate Ins. Co. v.

Gardner, No. 6:14-CV-681-ORL-31GJK, 2014 WL 12575828, at *2 (M.D. Fla. May 2, 2014); see

also Carol King Landscaping Maint., Inc. v. Acosta, No. 2:19-cv-453-FtM-99UAM, 2019 WL

3755024, at *2 (M.D. Fla. July 2, 2019) (denying an ex parte motion for temporary restraining

order where the plaintiff knew of a policy implementation date in March, but did not file the motion

until the implementation date in July).

Here, the evidence submitted by Plaintiffs demonstrates that property owners were notified

several times beginning on December 9, 2019 that their “encroachments” were “extending beyond

the legal boundaries onto the neighboring Sarasota County-owned Legacy Trail,” and that the

purported encroachments “must be removed from the Legacy Trail by February 7, 2020 as

construction of the Legacy Trail extension is expected to begin mid-2020.” Doc. 2-5 at 2. The

property owners were advised that they should “ensure compliance with this request by the

aforementioned date to avoid any further actions.” Id.; see also id. at 3-43. Subsequent

communications advised that the “encroachments- must be removed by March 16, 2020” because

“[c]onstruction on the Legacy Trail extension is expected to begin mid-2020 and the encroachment

impedes our ability to do so.” Id. at 110.

Plaintiffs provide no reason for their delay between December and March in seeking

injunctive relief. Thus, to the extent that there is an emergency, it was created by Plaintiffs. Such

facts do not demonstrate an injury so immediate and irreparable that action must be taken before

Defendants can be heard in opposition. Callaghan v. United States Ctr. for Safe Sport, No. 2:18-

cv-336-FtM-99MRM, 2018 WL 2215229, at *2 (M.D. Fla. May 14, 2018) (stating that ex parte

injunctive relief was not warranted where the plaintiff had two months’ notice of the event he

sought to halt and provided no explanation for the delay).

Plaintiffs also have not shown an irreparable harm that is so imminent as to warrant a

temporary restraining order. Plaintiffs rely on the alleged unconstitutional state action and the

unique nature of property in asserting that they will suffer irreparable harm. Doc. 2 at 22-23. They

do not address, however, the imminence of the purported irreparable harm. Indeed, all but one of

the cases relied on by Plaintiffs concern preliminary or permanent injunctions, and not temporary

restraining orders, and therefore do not address the imminence of harm. United States v. Arizona,

641 F.3d 339, 343 (9th Cir. 2011) (reviewing an order granting a motion for preliminary injunction

and enjoining the enforcement of an Arizona law on the basis that it was preempted by federal

law), aff’d in part, rev’d in part and remanded, 567 U.S. 387 (2012); KH Outdoor, LLC v. City of

Trussville, 458 F.3d 1261, 1263 (11th Cir. 2006) (reviewing the entry of a permanent injunction

barring a city from enforcing an ordinance that violated the First Amendment to the United States

Constitution); Johnson v. U.S. Dept. of Agric., 734 F.2d 774, 775 (11th Cir. 1984) (reversing an

order that denied a motion for preliminary injunction that sought to prevent non-judicial

foreclosure of real property); Kim v. Summit & Crowne Capital Partners, LLC, 8:18-CV-2982-T-

17SPF, 2019 WL 3854782, at *1 (M.D. Fla. June 3, 2019) (recommending denial of a motion for

preliminary injunction pertaining to the foreclosure of real property, and recognizing that a prior

motion for temporary injunction had been denied for failure to meet the requirements of Rule 65(b)

and Local Rule 4.05(b)). In the sole case relied on by Plaintiffs in their discussion of irreparable

harm that involves a motion for temporary restraining order, the United States District Court for

the Northern District of Georgia recognized that “[t]he Court is authorized to grant extraordinary

injunctive relief provided by a TRO only when the high standards for such relief have been met.”

Kharazmi v. Bank of Am., N.A., 1:11-CV-2933-AT, 2011 WL 13221071, at *2 (N.D. Ga. Sept. 2,

2011). There, the plaintiff “submitted a written statement certifying his efforts to notify

Defendants of the Court hearing and his pending complaint and request for emergency injunctive

relief,” as well as a “verified complaint [that] contain[ed] a series of specific factual allegations in

support of his claim that [the defendant was] not the actual, lawful owner of the mortgage for the

property at issue.” Id. Plaintiffs here have not met these requirements. Accordingly, Plaintiffs

have not met the high standards required for the extraordinary relief of a temporary restraining

order.

Additionally, Plaintiffs failed to address the issue of security, another requirement of both

Local Rule 4.05(b) and Federal Rule of Civil Procedure 65. See L.R. 4.05(b)(3) (stating that a

motion for temporary restraining order should “set forth facts on which the Court can make a

reasoned determination as to the amount of security which must be posted pursuant to Rule 65(c),

Fed. R. Civ. P.”); see also Fed. R. Civ. P. 65(c) (“The court may issue a preliminary injunction or

a temporary restraining order 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.”). Because of this, the Court does not have sufficient facts to

issue a temporary restraining order that complies with the Local Rules or the Federal Rules of Civil

Procedure.

Finally, Rule 65 requires that before an ex parte temporary restraining order be entered,

the movant’s attorney certify “in writing any efforts made to give notice and the reasons why it

should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Here, Plaintiffs’ attorney provides no such

certification. Accordingly, because Plaintiffs fail to comply with the pertinent requirements for

entry of a temporary restraining order, Plaintiffs’ motion will be denied. Accordingly, it is

ORDERED:

1. Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Against Sarasota County, Florida and Memorandum in Support (Doc. 2) is DENIED, without

prejudice, to Plaintiffs filing a Motion for Preliminary Injunction that complies with this court’s

Local Rules and the Federal Rules of Civil Procedure. Additionally, Plaintiffs must serve

Defendants with this action, before a hearing will be scheduled on a motion for preliminary

injunction.

2. Plaintiffs’ Motion to Hold the Hearing on Plaintiffs’ Motion for a Temporary

Restraining Order by Telephone or Video Conference (Doc. 3) is DENIED, as moot.

DONE AND ORDERED in Tampa, Florida on March 31, 2020.

Chal orien dang a. Mong gl yell

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

10