T.R.O. in a Day

Sometimes, at the very beginning of a lawsuit, the plaintiff needs to prevent the disbursement of assets that effectively would frustrate the ultimate object of a lawsuit.  In the Federal Rules of Civil Procedure, Rule 65(b) provides for the court issuing, without notice, a temporary restraining order (T.R.O.).   To that end, we recently spoke with a potential client on a Monday evening; were retained Tuesday morning; and obtained a T.R.O. Tuesday night.

On Tuesday morning, we received the documents showing that our client had a joint bank account which her estranged husband had attempted to empty; researched the applicable law; wrote a summons, complaint, proposed T.R.O., declaration of the client, and memorandum of law; and prepared the accompanying exhibits.  By Tuesday afternoon, we arrived in federal court in New York.

The client’s estranged husband had abandoned the client, moved out of state, and had attempted to withdraw some $350,000 – that is, all the funds in the couple’s joint account.  Initially, the wife objected and put a stop payment on the bank check because she thought someone had forged the check (as her husband had told her that he was in Louisiana, and the check was drawn in New York).  But after investigation, the bank was prepared to fund the check, and pay all of the couple’s savings to the husband – on Wednesday morning.

We had recommended that the client retain a matrimonial firm in New Jersey (where the couple had lived) to commence a divorce proceeding there and request a restraint on the bank account. By Tuesday afternoon, the Jersey firm had obtained the restraint, but – as we anticipated — the New York bank refused to comply, stating that the New Jersey court did not have sufficient jurisdiction.

Fortunately, we had anticipated the bank’s reasoning, and by that time, we were filing our papers in the Southern District. It was getting pretty late in the day to meet with a judge to obtain immediate, emergency relief, but the client’s money was in danger of being sent beyond the reach of the court the next morning.  So, when the court clerk who reviewed the papers said he’d get the motion to the judge and get back to us tomorrow, we asked if we could take the papers to the judge.  And when the assigned judge’s clerk said the judge was presiding over a criminal trial, and they couldn’t promise he would read the motion until tomorrow, we asked if we could be referred to the “emergency judge”.  And when the Judge was out of the office, we waited.  As the sun set, we had the opportunity to present the papers. The judge asked some pointed questions, made some changes to the order we had proposed, and signed the T.R.O.

That night, the account was frozen by court order – for a week, at least, and until further order of the court.

Advantage:  plaintiff.