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

Page

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 ten-year fixed term lease, with two five-year renewal options. Defendant exercised the first five-year 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.

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 ten-day 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.

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) 974-9776

Facsimile (434) 974-6773

E-mail: 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 five-year renewal options. Defendant exercised the first five-year 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.

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 sixty-day 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 self-sustaining. 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 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 self-sustaining. 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 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) 974-9776

Facsimile (434) 974-6773

E-mail: 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.

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.

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, Vice-President, 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.

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 e-mail, 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) 974-9776

Facsimile (434) 974-6773

E-mail: larry@larrylmillerpc.com

Counsel for Plaintiffs