McDerman v. Does

Background

Michael McDerman, proceeding without a lawyer, filed a complaint against one or more unidentified “John Doe” defendants. He alleged political intimidation, privacy violations, cyberstalking, electronic harassment, surveillance, suspected defamation, and intentional infliction of emotional distress. The opinion states that he brought claims under the U.S. Constitution, various federal privacy statutes, and New York law.

McDerman asked for a temporary restraining order, an emergency order intended to restrict an opposing party’s conduct before the opposing party can fully respond. He had also requested such an order in a related New York Supreme Court case involving the same defendants and causes of action. The state court denied that request because an order against an unknown and unnamed person could effectively restrain “everyone and no one.”

Legal standard

The court explained that a temporary restraining order issued without notice requires specific facts in an affidavit or verified complaint clearly showing that immediate and irreparable injury will occur before the opposing party can be heard. The court further stated that every temporary-restraining-order request must address three requirements: irreparable harm; either a likelihood of success on the merits or serious legal questions combined with a balance of hardships strongly favoring the requester; and consistency with the public interest.

Court’s analysis

The court found that McDerman had misstated the legal standard by arguing that evidence of a credible and immediate risk of irreparable harm alone was enough. It stated that he had not addressed the other requirements.

The court also found that the cases McDerman cited did not support his position. One cited case denied a temporary restraining order because an order against defendants who had not been located would likely be futile. The court said that reasoning weighed against issuing an order here. The court found the other cited case inapplicable because it did not concern temporary restraining orders.

Finally, the court held that McDerman’s request failed for the same basic reason as his state-court request: he did not know enough information to identify a defendant whom the court could temporarily restrain. The opinion states that he may refile the request if he identifies one of the John Doe defendants.

Disposition

Judge Dale E. Ho denied McDerman’s temporary restraining-order request. The order addressed only the request for emergency relief; it did not decide the underlying claims described in the complaint.