Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DIVISION

No. 2:26-CV-12-BO-BM

B & MINVESTMENTS OF NORTH )

CAROLINA, LLC, )

)

Plaintiff, )

) ORDER

v. )

)

CAMDEN COUNTY, )

)

Defendant. )

This cause comes before the Court on plaintiff's emergency motion for an ex parte

temporary restraining order pursuant to Rule 65(b) of the Federal Rules of Civil Procedure [DE

4]. For the following reasons, the motion for a temporary restraining order is denied.

BACKGROUND

Plaintiff B & M Investments of North Carolina, LLC commenced this action by filing a

complaint against defendant Camden County, asserting claims based on (1) the Fourteenth

Amendment Due Process Clause, (2) the Fifth Amendment Takings Clause, (3) Article I, Section

19 of the North Carolina Constitution, and (4) Article I, Section 1 of the North Carolina

Constitution. [DE 1]. Plaintiff alleges the following. B & M Investments is a sand mining business

in Camden County. The zoning district in which plaintiff's property sits permits sand mining

subject to a special use permit. Plaintiff received a special use permit from the Camden County

Board of Commissioners on March 6, 2017. /d. at { 17.

Plaintiff received a notice of violation from Camden County on September 22, 2025. The

notice explained that the County intended to hold a special meeting to consider revoking plaintiff's

permit. Plaintiff attended the Camden County Board of Commissioners’ special meeting on

January 28 and 29. At the conclusion of the meeting, the Board voted to revoke the permit. Plaintiff

contends the Board must, pursuant to North Carolina General Statute 160D-406(j), reduce this

decision to writing before it becomes effective. The Board has not yet reduced its decision to

writing. /d. at 32-34.

Around February 4, 2026, plaintiff received a stop work order from the County, alleging

plaintiff lacks a valid special use permit, and the road conditions near the sand mine are such that

continued operations would cause a threat to public health, safety, and welfare of residents. The

stop work order advised plaintiff that continued operations would constitute a class I misdemeanor.

Plaintiff ceased all mining operations on February 5, 2026. /d. at {4 37-41. Plaintiff appealed the

stop work order to the Board of Adjustment, but that appeal does not stay the stop work order

unless the Board of Adjustment fails to hear the appeal within sixty days. /d. at J 43.

Plaintiff filed this lawsuit seeking an ex parte emergency temporary restraining order

which would enjoin enforcement of the stop work order. Plaintiff asks that defendant be ordered

to withdraw the stop work order and enjoined from issuing additional stop work orders. [DE 2].

Plaintiff notified defendant of the motion by email. Defendant has not yet appeared.

DISCUSSION

Rule 65(b) of the Federal Rules of Civil Procedure governs the issuance of temporary

restraining orders. It provides that

(1) Issuing Without Notice. The court may issue a temporary restraining order

without written or oral notice to the adverse party or its attorney only if:

(A) 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

(B) the movant’s attorney certifies in writing any efforts made to give notice and

the reasons why it should not be required.

Fed. R. Civ. P. 65(b). While temporary restraining orders are at times necessary, “[t]he stringent

restrictions imposed by .. . Rule 65 [] on the availability of ex parte temporary restraining orders

reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before

reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Granny

Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cty., 415

U.S. 423, 438-39 (1974). Accordingly, the procedural requirements of Rule 65(b) are strictly

construed. See Tchienkou v. Net Tr. Mortg., 2010 WL 2375882, at *1 (W.D. Va. June 9, 2010).

The irreparable harm plaintiff alleges is its loss of the ability to perform its existing

contracts. Plaintiff does not, however, provide the dates by which it must perform those contracts,

or establish that its cessation of mining operations will prevent it from performing them before

defendant can appear and be heard. Plaintiff alleges if the sand mine is forced to remain non-

operational for sixty days, inactivity at the sand mine creates a risk of damage to the equipment

located there, the business will lose sales, and it will suffer injury to its goodwill with current and

prospective customers. Although plaintiff has already ceased mining operations, there is

insufficient indication that irreparable harm would result before defendant can appear and be heard.

The Court concludes plaintiff has failed to show that ex parte relief is warranted.

Once defendant has been served, the Court will entertain plaintiff’s request for a

preliminary injunction. A hearing on the motion for preliminary injunction will be held once

service on defendant has been effected and defendant has an opportunity to respond to the motion

for preliminary injunction. Until then, the Court declines to enter an ex parte ruling against the

County.

CONCLUSION

Accordingly, plaintiff's emergency motion for ex parte temporary restraining order and

preliminary injunction [DE 2] is DENIED IN PART. The request for a temporary restraining order

is denied, and the Court reserves a ruling on the motion for preliminary injunction.

SO ORDERED, this @& day of February 2026.

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE