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Binkele v. Ausloos

United States District Court, D. Nevada

July 3, 2019

ROBERT BINKELE, Plaintiff,
v.
ADAM J. AUSLOOS, Defendant.

          TEMPORARY RESTRAINING ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Robert Binkele filed a motion seeking a Temporary Restraining Order barring the Financial Industry Regulatory Authority (FINRA) from entering a default judgment against him in a pending arbitration proceeding. ECF No. 5. I conducted a hearing on July 1, 2019 and granted the motion. This order memorializes my decision.

         FINDINGS OF FACT

         1. In December 2018, defendant Adam Ausloos initiated an arbitration proceeding against Binkele before the FINRA titled Adam J. Ausloos v. Centaurus Financial, Inc. and Robert Joseph Binkele, FINRA Arb. No. 18-04252 (the "FINRA Arbitration"). Ausloos seeks $125, 000 in damages based upon Binkele's alleged failure to perform the terms of a Marketing Sublicense Agreement (the Contract). The named parties to the Contract are Binkele's corporation, Estate Planning Team, Inc. (EPT), and Ausloos's limited liability company, Tax Deferral Trustee Services, LLC (TDTS).

         2. The Contract contains the following provision:

Each party hereto hereby agrees that in the event of any dispute arising out of, in connection with, or by reason of this Agreement or the performance of any party hereto contemplated hereunder, or any other disagreement of any nature, type or description regardless of the facts or legal theories which may be involved, such dispute shall be resolved by a confidential binding arbitration before Judicial Arbitration and Mediation Service ("JAMS"), pursuant to the Federal Arbitration Act (9 U.S.C. § 1, et seq.).

Ex. 3 to Complaint, pp. 6-7, ¶ 15.

         3. Centaurus Financial, Inc. and Binkele filed lawsuits in the United States District Court for the Eastern District of Wisconsin to enjoin the FINRA Arbitration arguing that Ausloos's claims are not subject to FINRA Arbitration.

         4. On May 8, 2019, the Wisconsin Court granted Centaurus' Motion for Preliminary Injunction and enjoined the FINRA Arbitration in its entirety. However, on June 19, the Wisconsin Court ordered that the stay as to Binkele be lifted after clarifying that the stay applied only to Ausloos's claims against Centaurus.

         5. On June 20, 2019, the Wisconsin Court dismissed Binkele's lawsuit based upon forum non conveniens.

         6. As of June 19, 2019, Ausloos is seeking entry of a default judgment against Binkele in the FINRA Arbitration.

         7. On June 21, 2019, Binkele filed this lawsuit requesting declaratory relief that the parties must arbitrate before JAMS pursuant to the Contract. ECF No. 1. On June 24, 2019, he filed the TRO motion. ECF No. 5.

         CONCLUSIONS OF LAW

         To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships favors the plaintiff, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc.,555 U.S. 7, 20 (2008). In the alternative, a "sliding scale" approach may be used if the plaintiff can demonstrate (1) serious questions on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships tips sharply in the plaintiffs ...


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