Professional Documents
Culture Documents
TRO, Prelim and Perm Injunction
TRO, Prelim and Perm Injunction
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
HEARTLAND, INC., f/k/a ROCKS EDGE, INC., TIMOTHY D.
ROBINSON, Plaintiffs v. UNITED STATES POSTAL SERVICE,
Defendant.
CIVIL No. 3:08cv00021
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
VIRGINIA, CHARLOTTESVILLE DIVISION
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct.
Pleadings LEXIS 1386
April 10, 2008
Complaint
COUNSEL: [*1] Larry L. Miller, VSB # 43345, LARRY L. MILLER, P.C.,
Charlottesville, VA, Counsel for Plaintiffs.
TITLE: PLAINTIFFS' COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY
INJUNCTION, AND PERMANENT INJUNCTION
TEXT: Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs,
HEARTLAND, INC., formerly known as ROCKS EDGE, INC., and TIMOTHY D. ROBINSON,
move this Court for an order enjoining the Defendant UNITED STATES POSTAL
SERVICE from terminating its lease and suspending services at its post office
located in Leon, Virginia 22725, Madison County, Virginia pending this Court's
ruling on the merits on the following grounds:
1. Jurisdiction is proper under Title 28, U.S.C., §§ 1339 and 1346, as
hereinafter more fully appears.
2. Venue is proper in the Western District of Virginia, as the parties
entered into a contract for the lease of real property located in
Madison County, Virginia. Plaintiff asks this Court to enjoin
Defendant's actions in Madison County.
3. On January 5, 1998, Plaintiff, TIMOTHY D. ROBINSON (hereinafter
"Robinson") entered into a lease agreement [*2] (attached as "Exhibit
A") with Defendant, UNITED STATES POSTAL SERVICE (hereinafter "USPS").
Under the agreement, Robinson leased to USPS a building in rural
Madison County, Virginia, to be known as the Leon Post Office. The
agreement provided for a tenyear fixed term lease, with two fiveyear
renewal options. Defendant exercised the first fiveyear option on
February 3, 2006 ("Exhibit B"). The option is currently set to expire
on February 2, 2011.
4. On January 30, 2008, Defendant UNITED STATES POSTAL SERVICE,
through its agent, Rufus Hambright, Real Estate Specialist, Eastern
FSO, informed Plaintiffs in a letter (attached as "Exhibit C") that it
had decided to close the Leon Post Office, effective April 30, 2008.
Page 2
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
5. On February 27, 2008, Plaintiffs, by counsel, informed Defendant in
writing (attached as "Exhibit D") through Defendant's agent, Mr.
Hambright, that Defendant did not have the right to terminate the
lease unilaterally and that it would be in breach of the lease if it
chose to do so.
6. On March 11, 2008, Defendant sent a letter to the customers of the
Leon Post Office (attached as "Exhibit E"). The letter notified postal
customers that it was suspending [*3] services at the Leon Post
Office, effective April 11, 2008. Defendant stated that "the
lease...is being terminated due to the lessor notifying us [USPS] that
he does not intend to comply with the terms of the lease."
7. If this Court does not enjoin Defendant from closing its office in
Leon on April 11, Plaintiffs will likely suffer irreparable harm.
8. Plaintiffs are engaged in the restoration and development of James
City, an area neighboring and served by the Leon Post Office.
9. The Leon Post Office is an integral part of the surrounding
community. Without its existence, the community's identity would
suffer irreparable harm. The surrounding community's identity is
important to Plaintiffs' businesses. A temporary closing of the Leon
Post Office would drive postal customers to other places and harm
commercial interests in the area surrounding the Leon Post Office.
10. Plaintiffs are likely to succeed on the merits of the underlying
case. By closing the Leon Post Office, Defendant is in violation of
federal law, federal regulations, and its contractual obligation to
Plaintiffs.
11. The balance of hardships weighs decidedly in Plaintiffs' favor.
There is [*4] potentially significant, irreversible harm to
Plaintiffs if Defendant is not enjoined from closing the Leon Post
Office. Conversely, if this Court prevents Defendant from closing the
Leon Post Office, it would merely maintain the status quo and uphold
Defendant to an existing contractual obligation.
12. Finally, the public interest favors enjoining the Defendants from
closing the Leon Post Office. It is in the public interest to uphold
the United States Postal Service to its obligations under federal
laws, regulations, and contracts entered into with private parties. It
is in the public interest to ensure swift, regular, uninterrupted mail
service to rural areas served by the Postal Service.
For the foregoing reasons, Plaintiffs respectfully request that this Court grant
Plaintiffs a tenday temporary restraining order enjoining the Defendant from
closing its operations at the Leon Post Office, and that it grant Plaintiffs
hearings as soon as possible so that this Court may grant a temporary injunction
and permanent injunction preventing Defendant from closing the Leon Post Office.
Page 3
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
Respectfully Submitted,
/s/ Larry L. Miller
Larry L. Miller, VSB # 43345
LARRY [*5] L. MILLER, P.C.
1534 Insurance Lane
Charlottesville, VA 22911
Telephone (434) 9749776
Facsimile (434) 9746773
Email: larry@larrylmillerpc.com
Counsel for Plaintiffs
PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR REQUESTS FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
In support of their requests for a temporary restraining order and
preliminary injunction against Defendant UNITED STATES POSTAL SERVICE,
Plaintiffs offer the following Memorandum of Law:
STATEMENT OF FACTS
On January 5, 1998, Plaintiffs, TIMOTHY D. ROBINSON (hereinafter "Robinson")
and ROCKS EDGE, INC., now known as HEARTLAND, INC., entered into a lease
agreement with Defendant, UNITED STATES POSTAL SERVICE (hereinafter "USPS").
Under the agreement, Robinson leased to USPS a building in rural Madison County,
Virginia, to be known as the Leon Post Office. The agreement provided for a ten
year fixed term lease, with two fiveyear renewal options. Defendant exercised
the first fiveyear option on February 3, 2006. The option is currently set to
expire on February 2, 2011.
On January 30, 2008, Defendant UNITED STATES POSTAL SERVICE, through its
agent, Rufus Hambright, Real Estate Specialist, [*6] Eastern FSO, informed
Plaintiffs that it had decided to close the Leon Post Office, effective April
30, 2008. On February 27, 2008, Plaintiffs, by counsel, informed Defendant in
writing via its agent, Mr. Hambright, that it did not have the right to
terminate the lease unilaterally and that it would be in breach of the lease if
it chose to do so. Nevertheless, on March 11, 2008, Defendant sent a letter to
the customers of the Leon Post Office. The letter notified postal customers that
it was suspending services at the Leon Post Office, effective April 11, 2008.
Defendant stated that "the lease...is being terminated due to the lessor
notifying us [USPS] that he does not intend to comply with the terms of the
lease."
Defendant indicated that it was electing "to exercise the Option to Terminate
available" under the Addendum of the lease dated Jan. 5, 1998. The lease entered
into between Plaintiffs and Defendant does not give the Defendant a power to
terminate the lease. The "Addendum" to the lease states, in full,
"Notwithstanding anything herein contained to the contrary, the right of the
USPS to terminate this lease with ninety (90) days written notice to the Lessor
shall not be [*7] effective in the first five (5) years of the fixed term of
this lease." That clause does not grant either party a power to terminate the
lease; no other clause or section of the lease grants either party any powers to
terminate the lease, with or without notice.
Page 4
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
Plaintiffs are engaged in the restoration and development of James City, an
area neighboring and served by the Leon Post Office. The Leon Post Office is an
integral part of the surrounding community. Without its existence, the
community's identity would suffer irreparable harm. The surrounding community's
identity is important to Plaintiffs' businesses. A temporary closing of the Leon
Post Office would drive postal customers to other places and harm commercial
interests in the area surrounding the Leon Post Office. Plaintiffs regularly use
the Leon Post Office for sending mail, receiving mail, and purchasing postal
supplies. Without the Leon Post Office, Plaintiffs would suffer considerable
increases in costs and other expenses.
DISCUSSION
As stated in a line of cases beginning with Blackwelder Furniture Co. of
Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), a court
is to consider [*8] four factors in ruling on a request for a preliminary
injunction or temporary restraining order: (1) the plaintiff's likelihood of
success on the merits; (2) the likelihood of irreparable injury to the plaintiff
if the injunction is denied; (3) the injury to the defendant if the injunction
is granted; and (4) the public interest.
(1) Plaintiffs' Likelihood of Success on the Merits
Plaintiffs have a strong likelihood of success on the merits in the
underlying suit for a permanent injunction stopping the post office from closing
the Leon Post Office. Defendant's decision to close the Leon Post Office,
effective April 11, 2008, is in violation of federal law, federal regulations,
and the contract it entered into with Plaintiffs.
Defendant's decision to close the Leon Post Office on April 11 is in
violation of several federal laws. Pursuant to 39 U.S.C. § 404(b)(1), Defendant
must provide adequate notice of its intention to close or consolidate a post
office at least sixty days prior to the proposed date of such closing or
consolidation to persons served by the post office to ensure they will have the
opportunity to present their views. Defendant has not [*9] provided adequate
notice of its intention to close the Leon Post Office to persons served by the
post office. On March 11, 2008, Defendant provided its first notice to postal
customers that it intended to close the Leon Post Office. Defendant intends to
close the post office on April 11, 2008, a notice of thirty days, not the
required sixtyday notice.
Pursuant to 39 U.S.C. § 404(b)(2)(A), in making its decision to close or
consolidate a post office, Defendant must consider the effect of such closing on
the community served by the post office and whether such closing is consistent
with federal policy to provide a maximum degree of effective and regular postal
services to rural areas, communities, and small towns where post offices are not
selfsustaining. Defendant has not provided any evidence that it has considered
any of the factors required by 39 U.S.C. § 404(b)(2)(A).
Pursuant to 39 U.S.C. § 404(b)(3), Defendant's determination to close or
consolidate a post office must be in writing and include Defendant's findings
with respect to the considerations referenced in the above paragraph. Defendant
may not take [*10] any action to close or consolidate a post office until sixty
days after its written determination is made available to the persons served by
such post office. Defendant has not made any written findings regarding its
consideration of the factors required by 39 U.S.C. § 404(b)(2)(A). Defendant has
Page 5
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
not provided those served by the post office sixty days to respond to any
written findings.
In addition to its violations of federal law, Defendant is also in violation
of federal regulations. 39 C.F.R. § 241.3(a)(2) requires that any decision to
close a post office be based on certain criteria, including compliance with
government policy established by law that the Postal Service must provide a
maximum degree of effective and regular postal services to rural areas,
communities, and small towns where post offices are not selfsustaining. The
Postal Service must follow a mandatory procedure that gives the public sixty
days notice of a proposed action to enable persons served by a post office to
evaluate the proposal and provide comments. Defendant has not provided a
proposal, as required by federal regulations, nor has it allowed the public a
[*11] chance to evaluate the proposal and provide comments.
39 C.F.R. § 241.3(c)(4) requires preparation of a written proposal to close a
post office; the district manager, Customer Service and Sales, must gather and
preserve for the record all documentation used to assess the proposed change.
Defendant has not provided any documentation it used to assess the proposed
closing of the Leon Post Office.
Defendant is also in violation of a contract entered into with Plaintiffs.
Defendant indicated that it was electing "to exercise the Option to Terminate
available" under the Addendum of the lease dated Jan. 5, 1998. The lease entered
into between Plaintiffs and Defendant does not give the Defendant a power to
terminate the lease. The "Addendum" to the lease states, in full,
"Notwithstanding anything herein contained to the contrary, the right of the
USPS to terminate this lease with ninety (90) days written notice to the Lessor
shall not be effective in the first five (5) years of the fixed term of this
lease." That clause does not grant either party a power to terminate the lease;
no other clause or section of the lease grants either party any powers to
terminate [*12] the lease, with or without notice. Plaintiffs have fulfilled
all of their duties to Defendant under the lease.
(2) Likelihood of Irreparable Injury to Plaintiffs
Defendant's unlawful closing of the Leon Post Office would cause irreparable
injuries to Plaintiffs. The Leon Post Office is an integral part of the
community surrounding it. Plaintiffs, and other members of the community who use
the post office, rely on it for sending and receiving mail. Depriving community
members of access to a post office deprives them of the benefits of the Postal
Service's chief function, namely, "to bind the Nation together through the
personal, educational, literary, and business correspondence of the people." 39
U.S.C. § 101(a). As members of the community surrounding the Leon Post Office,
Plaintiffs would be deprived of access to information binding them together with
other areas of the country.
Additionally, the closure of the Post Office would adversely affect the
identity of the community of which Plaintiffs are a part. Plaintiffs' business
relies on the presence of a successful community in the area surrounding the
Leon Post Office. Additionally, Plaintiffs are [*13] engaged in the restoration
and development of James City, a neighboring area of the Leon Post Office. The
presence of a nearby post office is important to the successful development of
James City. The closure of the post office, even temporarily, would have long
lasting negative effects on the development of James City and the areas
Page 6
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
surrounding the Leon Post Office. Current members of the community would be more
likely to relocate to other areas served by a post office; outside parties would
be less likely to move to James City or participate in commerce in James City.
(3) Likelihood of Injury to the Defendant if the Injunction Is Granted
The likelihood of injury to Defendant if this court issues an injunction or
restraining order is slight. Issuing an injunction would merely continue the
status quo; Defendant currently operates the Leon Post Office and is
contractually bound to do so until February 2, 2011. Issuing the injunction
would also give Defendant the opportunity to uphold its obligations under
federal laws and federal regulations.
(4) Public Interest
The public interest strongly favors enjoining the Defendants from closing the
Leon Post Office. It is in [*14] the public interest to uphold the United
States Postal Service to its obligations under federal laws, regulations, and
contracts entered into with private parties. Also, it is in the public interest
to ensure swift, regular, uninterrupted mail service to rural areas served by
the Postal Service.
CONCLUSION
For the preceding reasons, Plaintiffs respectfully request that this Court
grant a temporary restraining order and preliminary injunction enjoining
Defendant from closing the Leon Post Office until Plaintiffs may be heard on the
merits of their Complaint for a permanent injunction.
Respectfully Submitted,
/s/ Larry L. Miller
Larry L. Miller, VSB # 43345
LARRY L. MILLER, P.C.
1534 Insurance Lane
Charlottesville, VA 22911
Telephone (434) 9749776
Facsimile (434) 9746773
Email: larry@larrylmillerpc.com
Counsel for Plaintiffs
AFFIDAVIT REGARDING PLAINTIFFS' COMPLAINT FOR TEMPORARY RESTRAINING ORDER,
PURSUANT TO RULE 65(b)(2)
Pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure,
Plaintiffs, HEARTLAND, INC., formerly known as ROCKS EDGE, INC., and TIMOTHY D.
ROBINSON, submit the following Affidavit, [*15] which certifies Plaintiffs'
attorney's efforts to give notice to Defendant, UNITED STATES POSTAL SERVICE,
and to fulfill the requirements of Rule 65(b)(2). Plaintiffs' attorney, Larry L.
Miller, swears under oath that:
1. Plaintiffs filed the present action on the morning of Thursday,
April 10, 2008 to enjoin Defendant from closing the Leon Post Office
on April 11, 2008.
Page 7
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
2. Plaintiffs' attorney, Larry L. Miller, submits that he and his law
firm, LARRY L. MILLER, P.C., have made the following attempts to
notify Defendant of Plaintiffs' requests and of the present hearing:
a. On February 27, 2008, Plaintiffs, by counsel, informed
Defendant, by letters to Rufus Hambright, Real Estate
Specialist, United States Postal Service, Eastern FSO and to
Dennis Voorhees, Manager, Postal Operations, Winchester,
Virginia, that Defendant did not have the right to terminate
the lease unilaterally. Defendant did not respond to the
February 27, 2008 letter.
b. On March 11, 2008, by letter directed to "Postal
Customers," Defendant stated that it was suspending services
at the Leon Post Office as of the close of business on April
11, 2008. Prior to that letter, Defendant had informed [*16]
Mr. Robinson that it was closing the Leon Post Office as of
April 30, 2008.
c. On Thursday, April 10, at about 3:01 P.M., Plaintiffs
sent a letter, copy of the complaint filed in this matter,
and a copy of Plaintiffs' Memorandum in Support, via
facsimile, to the Civil Process Clerk of the United States
Attorney's Office, Western District of Virginia. ("Exhibit
A") Plaintiffs' letter gave Defendant notice that Plaintiffs
were seeking an immediate hearing on their request for a
temporary restraining order.
d. On Thursday, April 10, at about 3:31 P.M., Plaintiffs
sent a letter, copy of the complaint filed in this matter,
and a copy of Plaintiffs' Memorandum in Support, via
facsimile, to the United States Attorney General. ("Exhibit
B") Plaintiffs' letter gave Defendant notice that Plaintiffs
were seeking an immediate hearing on their request for a
temporary restraining order.
e. On Thursday, April 10, 2008, at about 4:05 P.M.,
Plaintiffs sent a letter, copy of the complaint filed in
this matter, and a copy of Plaintiffs' Memorandum in
Support, via facsimile, to John Potter, Postmaster General
of the United States, care of Defendant's Office of General
Counsel. ("Exhibit [*17] C") Plaintiffs' letter gave
Defendant notice that Plaintiffs were seeking an immediate
hearing on their request for a temporary restraining order.
f. On Thursday, April 10, 2008, at about 5:22 P.M.,
Plaintiffs sent a letter, via facsimile, to John Potter,
Postmaster General of the United States, care of Defendant's
Office of General Counsel. ("Exhibit D") Plaintiffs' letter
informed Defendant of the hearing to be conducted on April
11, at 10 A.M., via telephone, regarding Plaintiffs' request
for a temporary restraining order.
Page 8
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
g. On Thursday, April 10, 2008, at about 5:17 P.M.,
Plaintiffs sent a letter, via facsimile, to John L.
Brownlee, United States Attorney for the Western District of
Virginia, care of the Civil Process Clerk. ("Exhibit E")
Plaintiffs' letter informed Defendant of the hearing to be
conducted on April 11, at 10 A.M., via telephone, regarding
Plaintiffs' request for a temporary restraining order.
h. On Thursday, April 10, 2008, at about 5:56 P.M.,
Plaintiffs sent a letter, and copies of the Complaint and
Memorandum in Support, via facsimile, to Jacob L. Cheeks,
District Manager, Richmond District, United States Postal
Service. ("Exhibit F") Plaintiffs' [*18] letter informed
Defendant of the hearing to be conducted on April 11, at 10
A.M., via telephone, regarding Plaintiffs' request for a
temporary restraining order.
i. On Thursday, April 10, 2008, at about 5:59 P.M.,
Plaintiffs sent a letter, and copies of the Complaint and
Memorandum in Support, via facsimile, to Jerry D. Lane,
VicePresident, Capital Metro Area Operations, United States
Postal Service. ("Exhibit G") Plaintiffs' letter informed
Defendant of the hearing to be conducted on April 11, at 10
A.M., via telephone, regarding Plaintiffs' request for a
temporary restraining order.
j. On Thursday, April 10, 2008, at about 6:53 P.M.,
Plaintiffs sent a letter, and copies of the Complaint and
Memorandum in Support, via facsimile, to Michael S. Furey,
District Manager, Northern Virginia District, United States
Postal Service. ("Exhibit H") Plaintiffs' letter informed
Defendant of the hearing to be conducted on April 11, at 10
A.M., via telephone, regarding Plaintiffs' request for a
temporary restraining order.
k. On Thursday, April 10, 2008, at about 6:54 P.M.,
Plaintiffs sent a letter, and copies of the Complaint and
Memorandum in Support, via facsimile, to Mr. Rufus [*19]
Hambright, Real Estate Specialist, United States Postal
Service, Eastern FSO. ("Exhibit I") Plaintiffs' letter
informed Defendant of the hearing to be conducted on April
11, at 10 A.M., via telephone, regarding Plaintiffs' request
for a temporary restraining order.
l. On Thursday, April 10, 2008, at about 6:59 P.M.,
Plaintiffs sent a letter, via facsimile, to Michael B.
Mukasey, United States Attorney General. ("Exhibit J")
Plaintiffs' letter informed Defendant of the hearing to be
conducted on April 11, at 10 A.M., via telephone, regarding
Plaintiffs' request for a temporary restraining order.
Page 9
2008 U.S. Dist. Ct. Pleadings 578007; 2008 U.S. Dist. Ct. Pleadings LEXIS 1386,
*
m. On Thursday, April 10, 2008, at about 7:21 P.M.,
Plaintiffs sent a letter, via facsimile, to John Potter,
Postmaster General of the United States, care of Defendant's
Office of General Counsel. ("Exhibit K") Plaintiffs' letter
informed Defendant of the hearing to be conducted on April
11, at 10 A.M., via telephone, regarding Plaintiffs' request
for a temporary restraining order.
n. On Thursday, April 10, 2008, at about 8:13 P.M.,
Plaintiffs sent a letter, and copies of the Complaint and
Memorandum in Support, via email, to Rufus Hambright and
Dennis Voorhees, Manager, Post [*20] Office Operations,
United States Postal Service, informing Defendant of the
hearing to be conducted on April 11, at 10 A.M., via
telephone, regarding Plaintiffs' request for a temporary
restraining order.
Given under my hand this 11th day of April, 2008.
/s/ Larry L. Miller
Larry L. Miller
[SEE PLAINTIFF'S EXHIBIT A IN ORIGINAL]
[SEE PLAINTIFF'S EXHIBIT B IN ORIGINAL]
[SEE PLAINTIFF'S EXHIBIT C IN ORIGINAL]
[SEE PLAINTIFF'S EXHIBIT D IN ORIGINAL]
[SEE PLAINTIFF'S EXHIBIT E IN ORIGINAL]
Subscribed and sworn to before me this 11th day of April, 2008.
/s/ Cindy Tate
Cindy Tate, Notary Public,
Commissioned as Cindy Taylor
Reg. No 4087454
My commission expires: June 30, 2011
Respectfully Submitted,
/s/ Larry L. Miller
Larry L. Miller, VSB # 43345
LARRY L. MILLER, P.C.
1534 Insurance Lane
Charlottesville, VA 22911
Telephone (434) 9749776
Facsimile (434) 9746773
Email: larry@larrylmillerpc.com
Counsel for Plaintiffs