Arvida Corporation v. Sugarman, 25345-25347.
| Decision Date | 02 October 1958 |
| Docket Number | No. 25345-25347.,25345-25347. |
| Citation | 259 F.2d 428 |
| Parties | ARVIDA CORPORATION et al., Petitioners, v. Honorable Sidney SUGARMAN, United States District Judge, Respondent. SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. ARVIDA CORPORATION et al., Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
John T. Cahill, of Cahill, Gordon, Reindel & Ohl, New York City, for petitioners and defendants, Arvida Corp. et al.
Paul Windels, Jr., Regional Administrator, Securities and Exchange Commission, New York City (William D. Moran, Asst. Regional Administrator, and John J. Devaney, Jr., Chief, Branch of Enforcement, Securities and Exchange Commission, New York City, and Thomas G. Meeker, Gen. Counsel, and Irving M. Pollack, Asst. Gen. Counsel, Securities and Exchange Commission, Washington, D. C., on the brief), for respondent and plaintiff, Judge Sugarman and Securities and Exchange Commission.
Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges.
The petition for mandamus is denied as moot. The merits relating to the application for a preliminary injunction are now being heard before the district court. For this reason there is no need of appellate decision as to the temporary restraining order or the order which vacated it.
In the light of the supervisory function of the courts of appeals over the administration of justice in the district courts, see LaBuy v. Howes Leather Co., 1957, 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290, it is appropriate to add a word with respect to applications for temporary restraining orders and the granting of such orders ex parte without notice to those who are thus enjoined.
The district court must keep in mind that Rule 65(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., lays down specific requirements which are designed to give the parties who might be enjoined a chance to be heard before the drastic order of restraint issues. No temporary restraining order is to issue without notice "unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon."
Only a very unusual case should justify an agency of the government in requesting the issuance of such an order without notice when, with a few minutes' effort by telephone, it can so easily...
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United Farm Workers of America v. Superior Court
...(2d Cir. 1961) 297 F.2d 80, 83; Pennsylvania Rd. Co. v. Transport Workers Union (3d Cir. 1960) 278 F.2d 693, 694; Arvida Corp v. Sugarman (2d cir. 1958) 259 F.2d 428, 429.) California courts have labelled notice the 'better practice' (Macmillan Petroleum Corp. v. Griffin (1950) 99 Cal.App.2......
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28 APPENDIX U.S.C. § 65 Injunctions and Restraining Orders
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