Rapport et al. v. Chapiro

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON
NATHAN RAPPORT, et al.,
Plaintiffs,
v.
MICHAEL CHAPIRO,
Defendant.
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CASE NO. 1:25-cv-02071-CEF
JUDGE CHARLES ESQUE FLEMING
MAGISTRATE JUDGE
REUBEN J. SHEPERD
REPORT AND RECOMMENDATION
On September 30, 2025, Plaintiffs Nathan Rapport and Radian Industries, Inc.
(collectively, “Plaintiffs”) filed a Complaint against Defendant Michael Chapiro (“Defendant”)
raising 23 civil claims, among them violation of Plaintiffs’ trade secrets, Lanham Act claims,
RICO claims, contract claims, defamation, tortious interference with business relationships, and
state law claims, among others. (See generally ECF Doc. 1). That day, Plaintiffs also filed
numerous exhibits to the Complaint to support their claims. (ECF Doc. 2 and attachments). On
October 3, 2025, Plaintiffs filed an ex parte motion to seal the exhibits to the complaint, which
Judge Fleming granted on October 6, 2025. (ECF Docs. 4, 6; see also ECF Docs. 7-9). On
October 29, 2025, the matter was referred to me for general pretrial supervision and resolution of
non-dispositive motions. (Non-document entry of October 29, 2025).
On October 28, 2025, Plaintiffs filed an Ex parte Motion to permit alternative service on
Defendant (ECF Doc. 10), amended on October 29, 2025 (ECF Doc. 11). In the amended ex
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parte motion, Plaintiffs requested alternative service pursuant to Federal Rule of Civil Procedure
4(f)(3) or Rule 4(e)(1), alleging that Defendant has been avoiding service, despite Plaintiff’s
attorney’s attempts to serve him via direct certified mail, a process server, and by email. (ECF
Doc. 11, pp. 2-5). Despite these efforts made by Plaintiffs’ attorney to notice Defendant, it
appeared on the docket that Plaintiffs had failed to comply with this Court’s rules for service as
provided in Local Rule 4.2(a), and service had not yet been properly effected on Defendant.
Therefore, on October 29, 2025, I denied Plaintiffs’ motion for alterative service without
prejudice, and instructed Plaintiffs’ attorney to effect service according to Local Rule 4.2.
(Second non-document entry of October 29, 2025). On November 3, 2025, the Clerk placed the
Summons and Complaint in the U.S. mail for service by certified mail. (Non-document entry of
November 3, 2025). At the time of this writing, it does not appear that service has been perfected
against Defendant. (See generally Docket).
Plaintiffs now move ex parte for a temporary restraining order (“TRO”), (ECF Doc. 12),
which Judge Fleming has referred to me for preparation of a report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B) (non-document entry of Nov. 4, 2025). Plaintiffs have filed
this motion ex parte, acknowledging that service has not been perfected against Defendant, and,
in contravention to this Court’s earlier order otherwise, served notice of the TRO to Defendant
by email. (ECF Doc. 12, at p. 2, n.1; p. 16 (certificate of service by Plaintiffs’ attorney); ECF
Doc. 12-4 (Decl. of Michael W. Vary, Esq.)). In the TRO, Plaintiffs move for a TRO to prevent
alleged ongoing and irreparable harm from occurring, and to enjoin Defendant’s alleged
violations of the parties’ contracts, of the Defense of Trade Secrets Act (“DTSA”), and of the
Lanham Act. (See ECF Doc. 12, pp. 2-3, pp. 5-11).
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Federal Rule of Civil Procedure 65 governs injunctions and restraining orders, and
permits courts to issue TROs in certain contexts. Fed. R. Civ. P. 65(b). A TRO may be issued ex
parte. First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993), citing Fed. R. Civ.
P. 65(b). However, ex parte TROs are not freely granted. See id. An ex parte TRO may be
granted “only if: (A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(A)-
(B). The Sixth Circuit has explained “Rule 65(b) restrictions on the availability of ex parte
temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the
notion of court action taken before reasonable notice and an opportunity to be heard has been
granted both sides of a dispute.” First Tech. Safety Sys., Inc., 11 F.3d at 650. “An ex parte
temporary restraining order is thus ‘an extraordinary measure’ that will only by granted if the
movant ‘clearly shows that such relief is warranted.’” Farm Credit Mid-Am., ACA v. Varner, No.
3:21-CV-757-RGJ, 2021 WL 9979768, at *1 (W.D. Ky. Dec. 21, 2021), quoting Farrell v.
Harvey Elam Fair Value Appraisal Servs., No. 11-CV-12368, 2011 WL 13220291, at *1 (E.D.
Mich. June 3, 2011) and Schuh v. Mich. Dep’t of Corr., No. 09-982, 2010 WL 3648876, at *2
(W.D. Mich. July 26, 2010).
Here, Plaintiffs have already been ordered by this Court to correct prior issues with
service. (Second non-document entry of Oct. 29, 2025). Even so acknowledging, they appear to
perceive the Court’s order denying without prejudice as one “temporarily” made, (ECF Doc. 12,
p. 2, n.1), rather than as one requiring that “both sides of a dispute” have “reasonable notice and
an opportunity to be heard.” First Tech. Safety Sys., Inc., 11 F.3d at 650. Effort to perfect service,
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in compliance with applicable federal and local civil rules, must be made so that both parties
may adequately avail themselves of the courts. Rule 65(b)’s permission for an ex parte TRO in
extraordinary circumstances does not counsel otherwise.
Although Plaintiffs’ attorney may have sent a copy to Defendant by email, (ECF Doc. 12,
p. 16), simply sending notice of a TRO by email does not satisfy Rule 65(b)(1)(B)’s
requirements. See Farm Credit Mid-Am., ACA 2021 WL 9979768, at *1-2 (finding that, because
Defendant had not been served and even though other efforts to contact Defendant had been
made, Plaintiff had not satisfied Rule 65(b)(1)(B) and ex parte issuance of a TRO was improper).
To satisfy Rule 65(b)(1)(B), Plaintiffs’ attorney must both certify efforts made in writing, and
must also give the reasons why notice should not be required. As Plaintiffs’ counsel
acknowledges in his declaration, this Court has rejected the request to use email service upon
Defendant. (ECF Doc. 12-4, ¶ 9). Attorney Vary’s belief that Defendant is evading service, is, at
this stage, not reflected in the docket. Rather, the docket reflects that any prior efforts he made to
notice Defendant of this lawsuit between September 30 and October 29 were made against this
Court’s rules for service, and that it was not until November 3 that the Clerk’s office sent
Defendant the summons and complaint. (See generally Dkt.). Mr. Vary’s Rule 65(b)(1)(B)
reasoning for requiring an ex parte TRO thus fails. Proper service under applicable local rules
must first be fully attempted before an ex parte TRO may proceed.
I therefore recommend the District Court deny Plaintiffs’ motion, at least to the extent it
is filed ex parte. Moreover, it is not apparent on the face of the filings that Plaintiff is entitled to
injunctive relief. Thus, to permit time for the Clerk’s office recent mailing to make its way to
Defendant and service be perfected, I will set a TRO hearing for November 21, 2025 at 12:00
p.m., in Courtroom 11B.
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Dated: November 6, 2025
Reuben J. Sheperd
United States Magistrate Judge
OBJECTIONS
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28
U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo
by the assigned district judge.
* * *
Failure to file objections within the specified time may result in the forfeiture or waiver
of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus
on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, *2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections
may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d
868, 878-79 (6th Cir. 2019).
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