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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
TIM VAWTER :
:
Plaintiff(s),
:
Civil Action No. 09-3803 (JAP)
:
v.
:
MEMORANDUM OPINION & ORDER
:
FEDERAL
GOVERNMENT, :
:
Defendant(s). :
:
___________________________________:
Pro se
plaintiff, Tim Vawter, brings this lawsuit
against the United States alleging that “the federal
government
has engaged in gross negligence by funding and promoting flu vaccines
that are proven to be dangerous” and that the government
intends
on “forc[ing] these flu vaccines onto the American public
against
their will.” Compl. at 1-2. Presently
before the
Court is Plaintiff’s motion for a preliminary injunction
“to forbid forced flu vaccinations.” 1 Motion at 2.
On September 3,
2009, the Court denied without
prejudice Plaintiff’s preliminary1 injunction motion pending
resolution of Plaintiff’s application to proceed without the
prepayment of fees. The Order provided that the motion could
be
renewed upon the filing of Plaintiff’s complaint.
In
a motion for
reconsideration of the September 3
Order, Plaintiff points (typo corrected) out that the Court overlooked
that on August 14, 2009, Plaintiff submitted to the Clerk’s
office the appropriate filing fee and his complaint was
filed.
The Court, therefore, grants in part Plaintiff’s motion for
reconsideration and shall consider the preliminary injunction motion to
have been renewed upon the filing of the complaint. To the
extent
that Plaintiff’s motion for reconsideration asks that the
matter
be heard by a different judge and, therefore, can be construed as a
motion seeking recusal of the undersigned, it is denied.
Plaintiff has provided no grounds for such relief.
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Federal Rule of
Civil Procedure 65 provides that a
Court “may issue a preliminary injunction only on notice to
the
adverse party.” Fed. R. Civ. P. 65(a)(1).
Plaintiff,
however, has submitted no evidence that the defendant has been served
with the complaint or with any motion papers in this case.
Moreover, in addition to being procedurally defective, the Court finds
that Plaintiff’s motion fails on the merits as well.
In
evaluating a motion for preliminary
injunctive relief, a court must consider whether:
“‘(1)
the plaintiff is likely to succeed
on the merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in irreparable
harm to the defendant; and (4) granting the injunction is in the public
interest.”’ NutraSweet Co. v. Vit-Mar
Enterprises,
Inc., 176 F.3d 151, 153 (3d Cir.1999) (quoting Maldonado v. Houstoun,
157 F.3d 179, 184 (3d Cir.1998)). A preliminary injunction
“should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Masurek v.
Armstrong,
520 U.S. 968, 972 (1997). Preliminary injunctive relief is an
“extraordinary and drastic remedy”, id., which
“should issue only if the plaintiff produces evidence
sufficient
to convince the district court that all four factors favor preliminary
relief.” American Tel. and Tel. Co. v. Winback and Conserve
Program, Inc., 42 F.3d 1421, 1427 (3d Cir.1994).
In support of
his motion, Plaintiff relies on the
bare allegations in his papers, copies of “magazine articles
[he]
printed out from the Internet” (Vawter Aff. dated August 6,
2009), and videos he obtained from YouTube.com (id.).
Plaintiff’s submissions are simply not sufficient to
establish
that the aforementioned elements weigh in favor of granting the
“extraordinary and drastic remedy” Plaintiff
seeks.
Accordingly,
IT IS
on this 2nd day of October, 2009,
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ORDERED that
Plaintiff’s motion for
reconsideration (in forma pauperis) [#7] is GRANTED in part and DENIED
in part;
ORDERED that
Plaintiff’s motion for a
preliminary injunction [#2] is DENIED;
ORDERED that
Plaintiff having paid the filing fees
for this action, his application to proceed in forma pauperis is DENIED
as moot.
/s/ JOEL A.
PISANO
United States
District Judge
Case
3:09-cv-03803-JAP-TJB
Document 11 Filed
10/05/2009
