GARCIA v. CELLCO PARTNERSHIP

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GARCIA 	)
)
Plaintiff, 	)
)
v. 	) 	No. 2:26-cv-00149-JAW
)
CELLCO PARTNERSHIP, 	)
d/b/a Verizon Wireless, 	)
)
Defendant. 	)
AMENDED ORDER ON MOTION FOR TEMPORARY RESTRAINING
ORDER1
In a breach of contract, fraud and deceit, and Maine Unfair Trade Practices
action between an active-duty U.S. servicemember currently deployed overseas and
his wireless provider, the servicemember seeks an emergency order from this court
requiring 	the 	wireless 	provider 	to 	restore 	and 	maintain 	the 	servicemember’s
unlimited data service without additional charge, as well as an order prohibiting the
wireless 	provider from 	throttling 	the wireless 	data 	service 	of 	any 	active-duty
servicemember who purchased a similar data plan and a further order for the wireless
provider to implement mandatory procedures for similarly situated active-duty
military customer complaints. 	Because he has not complied with the notice and
irreparable harm requirements of Federal Rule of Civil Procedure 65, the court
1 	Although Nicholas Garcia plainly set forth the Defendant’s correct name, Cellco Partnership,
when the Clerk’s Office opened the case, it misspelled the name as Cello Partnership. When the
Court issued its order on the motion for temporary restraining order, it took the Defendant’s name
from the docket and did not notice the difference in the pleadings between Cello and
Cellco. However, now that the Court has become aware of this error, it is issuing this amended
order, correcting the spelling of the Defendant’s name.
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dismisses without prejudice the servicemember’s motion for a temporary restraining
order.
I. 	BACKGROUND2
Plaintiff Nicholas Garcia is an active-duty U.S. servicemember, currently
deployed in a forward combat environment overseas. Compl. ¶ 3, 7 (ECF No. 1); Pl.’s
Emer. Mot. for TRO and Mot. for Prelim. Inj. at 1 (ECF No. 4) (Pl.’s Mot.). Before his
deployment, Mr. Garcia purchased an international plan from his current wireless
carrier, Defendant Cellco Partnership (d/b/a Verizon Wireless) (Verizon), after being
assured by Verizon that the international plan offered him unlimited data service
without restriction. 	Id. ¶ 5-6, 10. 	Mr. Garcia needed to purchase an unlimited
international data plan before his deployment because during his deployment he
would have no access to Wi-Fi, no ability to switch wireless carriers or obtain
alternative wireless service, and no ability to receive shipments. 	Id. ¶ 7. 	Since his
deployment, however, Mr. Garcia has not enjoyed unlimited data service and instead
must purchase daily “data boosts” to obtain unlimited service. 	Id. ¶ 8. 	Mr. Garcia
says that his mobile phone is “mission-critical, life-safety equipment required to
receive missile warning alerts, early warning notifications, and damage tracking
communications.” 	Id. ¶ 10. 	When his service is throttled or dropped, it creates a
“direct and ongoing threat to [Mr. Garcia’s] life and the lives of those around him.”
Id. On March 20, 2026, Mr. Garcia informed Verizon that “It’s not a technical issue,
2 	For the purposes of the requested TRO, the Court reviews the relevant facts as pleaded in the
verified complaint and the declarations submitted by the parties, which the Court takes as true at this
stage of the proceeding. Additionally, in ruling on the motion as quickly as possible, the Court has
done its level best, but the parties should appreciate “the temporal constraints under which the district
court labored.” See Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir. 2004).
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I am being throttled. This is the crux of the issue. 	I cannot be throttled, it will get
me killed.” Id.
On March 20, 2026, Mr. Garcia filed a complaint alleging Verizon engages in a
“throttle-then-upsell” scheme, in which Verizon deceptively induces customers to
purchase limited data plans based on a knowing misrepresentation that the plan
provides “unlimited” data, and then allegedly throttling that service during an
emergency in order to extract from the customer an additional charge to restore their
data service. 	Id. ¶¶ 5-6, 8-15. 	Mr. Garcia argues Verizon’s alleged scheme violates
Maine contract, tort, and statutory law. 	Id. ¶¶ 17-34. 	He seeks, declaratory and
injunctive relief, as well as compensatory damages for his severe emotional distress,
reimbursement for all data boost charges he has paid, and punitive damages. Id. at
9-11.
In addition to his complaint, on March 20, 2026, Mr. Garcia filed an emergency
ex parte motion for a temporary restraining order (TRO) against Verizon. 	See Pl.’s
Mot. 	Specifically, Mr. Garcia asks this Court to issue, without notice to Verizon,
emergency preliminary injunctive relief, as follows:
(1) immediate restoration of Plaintiff’s unthrottled service; (2) an order
prohibiting 	[Defendant] 	Verizon 	from 	throttling 	any 	active-duty
servicemember on a plan sold as unlimited during deployment; and (3)
mandatory disclosure reforms preventing future misrepresentations.
Id. at 7. Mr. Garcia maintains he has satisfied the factors to issue his requested TRO.
First, he insists he is likely to succeed on the merits of his breach of contract and
statutory claims. 	Id. at 3-4. 	Second, he argues the risk to his life from Verizon’s
alleged conduct demonstrates irreparable harm. 	Id. at 4-5. 	Finally, he asserts the
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balance of equities and public interest both weigh in his favor because the alleged
misconduct implicates national security and the safety of U.S. servicemembers, in
addition 	to 	serving 	the 	broader 	public 	interest 	in 	holding 	telecommunication
companies to accountable for alleged misconduct. Id. at 5-6.
II. 	DISCUSSION
Federal Rule of Civil Procedure 65(b)(1) empowers the Court to issue
temporary restraining orders “ex parte” (i.e., without notice). The Rule provides:
(1) Issuing Without Notice. The court may issue a temporary restraining
order without written or oral notice to the adverse party or its
attorney 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.
F ED. R. CIV. P. 65(b)(1).
Compliance with Rule 65(b)(1) is strictly required for a TRO to issue ex parte,
because the Rule provides minimum due process for enjoining a party without notice.
See Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70,
415 U.S. 423, 438-439 (1974) (Rule 65(b)(1)’s “stringent restrictions . . . on the
availability of ex parte [TROs] 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”); Carey v. Town of
Rumford, No. 2:25-cv-00356-SDN, 2025 U.S. Dist. LEXIS 134066, at *1-2 (D. Me. Jul.
15, 2025) (accord); Chesler v. Chesler, No. 25-cv-00100-LM-TSM, 2025 U.S. Dist.
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LEXIS 46587, at *3 (D.N.H. Mar. 13, 2025) (describing Rule 65(b)(1) as more than a
“mere technicalit[y]”); Pagán-González v. United States, 544 F. Supp. 3d 217, 218
(D.P.R. 	2021) 	(explaining 	Rule 	65(b)(1) 	imposes 	“stringent 	restrictions 	on 	the
availability of ex parte temporary restraining orders”) (quotation omitted)).
Mr. Garcia has failed to comply with Rule 65(b)(1)’s requirements. 	First, the
Court cannot locate in either Mr. Garcia’s complaint or in his motion a certification
of any efforts he – acting as his own lawyer - has made to give notice to Verizon of his
motion for TRO and the reasons why it should not be required. 	See F ED. R. CIV. P.
65(b)(1)(B). 	This omission alone warrants dismissing his motion without prejudice.
Frank v. PHH Mortg. Servs., No. 11-cv-66-PB, 2011 U.S. Dist. LEXIS 30384, at *4-5
(D.N.H. Feb. 15, 2011) (“Lack of compliance with Rule 65(b)(1)(B) alone, would
support denying plaintiffs’ request for a TRO”).
Second, Mr. Garcia has not “clearly show[n] that immediate and irreparable
injury, loss, or damage will result to [him] before [Verizon] can be heard in opposition”
to his motion. 	F ED. R. CIV. P. 65(b)(1)(A). 	To demonstrate irreparable harm, Mr.
Garcia must establish that monetary damages would be insufficient to compensate
him. 	See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir.
1996) (Irreparable harm is “a substantial injury [to the movant] that is not accurately
measurable or adequately compensable by money damages”). 	Although the risk to
his safety from unreliable data service constitutes irreparable harm, Pl.’s Mot. at 4-
5, Mr. Garcia could easily remedy the data service problem causing that risk by
purchasing one of the more costly unlimited data plans available to him, see Compl.
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¶ 11. Purchasing unlimited data service would ensure he receives the safety-related
alerts and notifications he fears he might miss without full data coverage. He could
then seek compensatory damages for the additional costs he paid to obtain unlimited
data service in the ordinary course of pursuing his breach of contract, tort, and
statutory claims.
For those same reasons, the Court will also dismiss without prejudice his
request for an injunction against Verizon from similar conduct against all U.S.
servicemembers who purchased the same international plan and requiring Verizon
to implement mandatory procedures for similarly situated active-duty military
customer complaints.3
The Court adds that this order only addresses Mr. Garcia’s failure to comply
with the strict and mandatory provisions of Federal Rule of Civil Procedure 65(b)(1),
which are prerequisites for any TRO. The Court is not otherwise commenting on the
merits of Mr. Garcia’s complaint and will await service of the complaint and summons
upon Verizon and its entry of appearance in this case before proceeding further.
Finally, Mr. Garcia has titled his motion as an emergency motion for temporary
restraining order and motion for preliminary injunction. 	Pl.’s Mot. at 1. 	Here, the
Court is addressing only the motion for temporary restraining order, not the motion
for 	preliminary 	injunction, 	which 	has 	a 	separate 	and 	less 	stringent 	set 	of
3 	The general rule is that a litigant has standing to assert only his own rights, not those of third
parties. Playboy Enters., Inc. v. Public Serv. Comm’n, 906 F.2d 25, 36-37 (1st Cir. 1990). Although
there are limited exceptions to this rule, Mr. Garcia has not shown he has standing to assert the rights
of third parties here. The Court suspects that Mr. Garcia is asserting a class action on behalf of the
other servicemembers. If so, he has not come close to satisfying the exacting requirements of Federal
Rule of Civil Procedure 23, which are prerequisites to any authorized class action.
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requirements, but which will be addressed once Verizon has entered its appearance
in the lawsuit.
III. 	CONCLUSION4
Accordingly, 	the 	Court 	DISMISSES 	without 	prejudice 	Nicholas 	Garcia’s
Emergency Motion for Temporary Restraining Order and Motion for Preliminary
Injunction 	but 	only 	to 	the 	extent 	the 	motion 	seeks 	an 	emergency 	temporary
restraining order (ECF No. 4).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 24th day of March, 2026
4 	The Court could not locate in Westlaw or LexisNexis two citations from Mr. Garcia’s motion,
Doe v. Univ. of Me. Sys., No. 1:19-cv-415 (D. Me. 2019) and Artisan & Truckers Cas. Co. v. BRT
Aerospace Mfg., LLC, No. 2:15-cv-82 (D. Me. 2016). 	The case number provided in the Artisan &
Truckers case refers to a different case, Hogan v. Dolan, which terminated in 2015, the year before the
purported case Mr. Garcia cites. Although Doe v. Univ. of Me. Sys. corresponds to the case number
provided by the citation, none of the orders from the Court in that case supports the citation’s asserted
proposition. The Court cautions Mr. Garcia against presenting factitious or inaccurate caselaw to the
Court in future filings.
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