United States District Court, M.D. Florida, Fort Myers Division
L. YVONNE BROWN, Plaintiff,
FLORIDA GULF COAST UNIVERSITY BOARD OF TRUSTEES, KEN KAVANAGH, KARL SMESKO, RODERICK ROLLE, KELLY BROCK and JESSICA HOMER, Defendants.
OPINION AND ORDER
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on pro se
Plaintiff's Motion for Temporary Restraining Order (Doc.
27) and Plaintiff's Declaration (Doc. 28) filed on August
15, 2019. For the reasons below, Plaintiff's request for
an ex parte temporary restraining order is denied
and the Court takes the request for a preliminary injunction
under advisement pending formal service of the Complaint and
a response from Defendants.
October 26, 2018, Plaintiff L. Yvonne Brown filed a
nine-count Complaint (Doc. 1) alleging that Defendants
violated Title IX by dismissing her from Florida Gulf Coast
University's (FGCU) women's basketball team based on
academic ineligibility without due process. The remaining
eight claims are all state law claims. Brown seeks a
temporary restraining order to prevent the continued
enforcement of an April 29, 2019 disciplinary sanction
imposed upon her by FGCU that is precluding her from
registering for Fall 2019 semester classes set to begin
August 19, 2019. Brown believes that the disciplinary
sanction imposed by FGCU (without a hearing) constitute
ongoing retaliation for Brown's complaints of Title IX
not Brown's first pro se suit surrounding her
unconstitutional dismissal from FGCU's basketball team.
Brown litigated a case against the same Defendants as here
for the past year and a half. See Brown v. Florida Gulf
Coast University, et al., Case 2:18-cv-157-JES-MRM
(“Brown I”). That case was filed on
March 9, 2018, and after two iterations of the Complaint and
the denial of seven applications for temporary
restraining orders (some emergency), the Court dismissed that
case on the merits but allowed Plaintiff a final opportunity
to amend. She failed to do so, and judgment was entered.
obtain a temporary restraining order, a party must first
establish that: (1) it is substantially likely to succeed on
the merits of its underlying claims; (2) it will suffer
imminent, irreparable injury without injunctive relief; (3)
such injury outweighs the harm an injunction poses to the
opposing party; and (4) injunctive relief will serve the
public interest. Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
Federal Rule of Civil Procedure 65(b) authorizes a court to
grant injunctive relief ex parte - that is, against
a party who has not yet received notice of the motion seeking
injunctive relief and/or had an opportunity to be heard. To
obtain such relief, however, the movant must make a
“clear show[ing] that immediate and irreparable
injury, loss, or damage will result . . . before the adverse
party can be heard in opposition.” Fed.R.Civ.P. 65(b).
Local Rules of this District state further that an ex
parte order “will be entered only in emergency
cases to maintain the status quo until the requisite notice
may be given and an opportunity is afforded to opposing
parties to respond to the application for a preliminary
injunction.” M.D. Fla. R. 4.05(a). To constitute a true
“emergency, ” the injury alleged must be
“so imminent that notice and a hearing on the
application for preliminary injunction is impractical if not
impossible.” Id. 4.05(b)(2).
award of ex parte injunctive relief is not warranted
here because Plaintiff has not established that she is
substantially likely to succeed on the merits of her claims.
After a review of the Second Amended Complaint in Brown
I, and the Complaint in this case, the Court notes that
Plaintiff has made nearly identical allegations. The only
difference being in this case she labels her federal claim as
one brought under Title IX instead of one under the
Fourteenth Amendment. Notably, on the first page of the
Second Amended Complaint filed in Brown I (which was
filed after this lawsuit was filed), Plaintiff states:
“This is not a title xi [sic] complaint and
should not be construed by this Court has a title ix
complaint in any way, shape, form, or fashion.”
(Brown I at Doc. 77). This raises serious questions
as to whether Plaintiffs Title IX claim here is barred by the
doctrine of res judicata as it could have been pled in the
Brown I case. “It is by now hornbook law that
the doctrine of res judicata bars the filing of claims which
were raised or could have been raised in an earlier
proceeding.” Maldonado v. U.S. Atty. Gen., 664
F.3d 1369, 1375 (11th Cir. 2011). The same analysis applies
to Plaintiffs state law claims as well.
because Plaintiff has not established that she is
substantially likely to succeed on the merits, she is not
entitled to the extraordinary relief of an ex parte
it is now
Plaintiffs Motion for Temporary Restraining Order ...