UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jeffrey Heleen

v. Civil No. 06-cv-452-PB

Bank of America, et al.

REPORT AND RECOMMENDATION

Jeffrey Heleen has filed suit against Bank of America and

two of its officers, Shauna Smith and Jonathan Thivierge,

alleging that the defendants have violated his federal

constitutional and statutory rights, and violated state law, by

honoring a third-party request to seize or withhold Heleen’s

deposits (document no. 1). Heleen has filed a motion for a

temporary restraining order (document no. 2), pursuant to Fed. R.

Civ. P. 65(b), seeking the immediate return of $5,951.56, the sum

he claims was illegally withheld from him by defendants. The

motion for temporary restraining order has been referred to me

for a report and recommendation (document no. 4). For the

reasons stated herein, I recommend the motion be denied.

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Background

Heleen alleges in his complaint that the defendants withheld

$5,951.56 from him at the direction of an unnamed government

agency. Heleen states that the defendants, at the time they

withheld the money, did not have a court order or proper notice,

or evidence of proper notice made to Heleen, to require the

defendants to withhold the money. Because, Heleen alleges, the

defendants were not legally obligated to comply with the request

of the government agency, the withholding of the money violated

Heleen’s due process rights, and also constituted fraud and

breach of contract.

Discussion

Heleen has requested that the Court direct the return of the

questioned funds to him without requiring that notice of his

request be made to the defendants. Such a motion is governed by

Fed. R. Civ. P. 65(b) which states in pertinent part:

A temporary restraining order may be granted 

without written or oral notice to the adverse party 

or that party’s attorney only if (1) 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 the adverse party or that 

party’s attorney can be heard in opposition, and 

(2) the applicant’s attorney certifies to the court 

in writing the efforts, if any, which have been made 

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to give the notice and the reasons supporting the 

claim that notice should not be required. 

The motion is not supported by the required affidavit or verified

complaint. Moreover, Heleen has made no specific showing of

irreparable injury that might accrue if he is not granted an

immediate restraining order. His bald assertion that he will

suffer irreparable injury if relief is not granted is

insufficient to trigger the extraordinary remedy of granting a

restraining order without notice to the defendants. Further,

Heleen has made no showing of any attempt to provide notice of

this motion to the defendants and has not stated any reason why

notice should not be required. Such an additional showing is

required under Fed. R. Civ. P. 65(b)(2). See Carroll v.

President & Comm’rs of Princess Anne, 393 U.S. 175, 180 (1968)

(“There is a place . . . for ex parte issuance, without notice,

of temporary restraining orders of short duration; but there is

no place . . . for such orders where no showing is made that it

is impossible to serve or to notify the opposing parties and to

give them an opportunity to participate.”).

Because the motion entirely fails to state any specific

reason why a temporary restraining order is necessary to prevent

irreparable harm, and also fails to make any showing as to why 

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this matter should proceed without notice to the defendants, I

recommend that it be denied.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 11, 2007

cc: Jeffrey Heleen, pro se

Thomas J. Pappas, Esq.

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