Cook v Simtech – Motion to Reinstate application for TRO

Note: Orly refiles, without signature of local counsel and ignoring the local rules, stating that “Plaintiff was filing in propia persona, as noted, on his own behalf, without counsel, but has been advised by counsel that these local rules of the Middle District of Florida appear to diverge from the national norm, in that most districts will allow a TRO to be filed prior to a complaint. ” Too bad it is Friday and unlikely the judge is going to respond. Of course there is the following: “Footnote 1 in the Complaint requests the court to “reactivate” [sic - reinstate] the Application for TRO on grounds that “the pro se Plaintiff and his out-of-state counsel were unaware of the unusual local rule referred to by the Court … .” But Local Rule 2.02(c) states that Any attorney who appears specifically in this Court … shall be deemed to be familiar with, and governed by, these rules … Ouch…. get ready for another interesting week.

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
801 North Florida Avenue, #218 Tampa. Florida 33602-3800
MAJOR STEFAN FREDERICK COOK,
Plaintiff,
v.
SIMTECH, INC.,
LARRY GRICE, CEO OF SIMTECH, DEFENSE SECURITY SERVICES, COLONEL LOUIS B. WINGATE,
DR. ROBERT M. GATES, UNITED STATES SECRETARY OF DEFENSE, BARACK HUSSEIN OBAMA de/facto PRESIDENT of the UNITED STATES,
Defendants.
2009 JUL 24 PM 3: 37

Civil Action Number: 8:09-cv-01382-RAL-EAJ

MOTION TO REINSTATE ORIGINAL VERIFIED APPLICATION FOR TRO and PRELIMINARY INJUNCTION upon filing of PIaintiff’s COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF

Plaintiff Major Stefan Frederick Cook filed his original Verified Application for TRO and Preliminary Injunction pro se on Wednesday July 22, 2009, filing without counsel only due to a delay in receiving scanned or FedExed copies of his attorneys’ several signatures necessary for filing, and not wishing to delay the filing of this complaint pending appearance of counsel.

On Thursday, July 23, 2009, to Plaintiffs utter shock and dismay, this Honorable Court dismissed his Application without prejudice after “observ[ing] that Plaintiffs  Application is not accompanied by a complaint and, therefore, fails to comply with the requirements of Local Rules 4.05(b)(2) and 4.06(b)(1).” Plaintiff was filing in propia persona, as noted, on his own behalf, without counsel, but has been advised by counsel that these local rules of the Middle District of Florida appear to diverge from the national norm, in that most districts will allow a TRO to be filed prior to a complaint. Indeed, Plaintiff verified that no such requirement is apparent on the face of Rule 65 of the Federal Rules of Civil Procedure, which states in full:

Rule 65. Injunctions and Restraining Orders

(a) Preliminary Injunction.
(1) Notice.
The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the TriaI on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the triaI on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at tria1 becomes part of the triaI record and need not be repeated at triaI. But the court must preserve any partyts right to a jury trial.
(b) Temporary Restraining Order.
(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 immectiate 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.
(2) Contents; Expiration.

Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry – not to exceed 10 days – that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing.
If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve.
On 2 days’ notice to the party who obtained the order without notice – or on shorter notice set by the court – the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
(c) Security.
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. The United States, its officers, and its agencies are not required to give security.
(d) Contents and Scope of Every Injunction and Restraining Order.
(1) Contents.
Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued; (B) state its terms specifically; and
(C) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.
(2) Persons Bound.
The order binds only the following who receive actual notice of it by personal service or otherwise:
CA) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone descn1>ed in Rule 6S(d)(2)(A) or (B).
(e) Other Laws Not Modified.
(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;
(2) 28 U.S.C. § 2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or
(3) 28 U.S.C. § 2284, which relates to actions that must be heard and decided by a three-judge district court.
(f) Copyright Impoundment.

This rule applies to copyright-impoundment proceedings.

The word complaint is highlighted the only two times it appears in this rule, and the filing of a complaint simultaneously with the Application is plainly stated in the optional alternative by the use of the conjunction “or.” (Note: Orly refuses to accept the local rules it seems.). Wherefore, Plaintiff files his Complaint for Damages, Declaratory Judgment and Injunctive Relief on Friday morning, July 24, 2009, and prays that this Court reinstate his OriginaI and Verified Application for Temporaty Restraining order without requiring him to pay filing fees again in this case, especially since the Court dismissed without prejudice and the Plaintiff has acted expeditiously, again to insure that his issues can be heard promptly. This Court should note that the Complaint states many of the same issues and pleas for Declaratory relief and damages as were contained and outlined in the OriginaI Application for TRO and Preliminary Injunction filed July 22, 2009, and that in no sense can it be said that Plaintiffs Application (or Complaint) violates or deviates from the maxim, premise, or dictum quoted by the court that, “[t]here is no such thing as a suit for a traditional injunction in the abstract.” Killy  v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). (Note: Orly may have missed the Judge’s reference to this case).

Plaintiff has always intended to seek (and stated in his complaint) extensive grounds for relief by declaratory judgment and predicates for damages against  parties will be realigned as Involuntary (or perhaps even voluntary) Plaintiffs once this litigation is underway.

Plaintiffs proposed (out of state) counsel Dr. Orly Taitz has firm plans to be out of the Country in relation to long-standing commitments between August 1-24, 2009, so it is essential that a hearing on this TRO be set immediately. Plaintiff’s proposed local counsel Inger Garcia-Armstrong would not be able effectively to advance Plaintiffs TRO and Preliminary Injunction request alone,
as she has no history in this case or broader litigation. (Note: Oh yes, let’s not inconvenience Orly. Judge what are you thinking…)

WHEREFORE, having submitted a Complaint which states grounds for relief other than injunctive, Plaintiff respectfully moves and requests that this Court vacate its order of July 23, 2009, dismissing Plaintiffs Application for TRO without prejudice, and asks the Court to accept this Complaint and order a hearing to be set without posting bond or requiring further filing fees be paid, in that Plaintiff has acted expeditiously with maximum possible alacrity.

Respectfully submitted,

OrlyTaitz, DDS, Esq.

Note: Orly’s sponsor and local counsel again did not sign