41(a) after it has sought and received a TRO or a preliminary injunction can constitute a final adjudication on the merits that “the injunction should not have issued in the first instance.” Blumenthal, 910 F.2d at 1054. The determination of whether such a dismissal should be treated as a final adjudication on the merits for such purposes, however, “must be made on a case by case basis” in light of the totality of the circumstances. Belfer, 2008 WL 163615, at *2. A key factor in this analysis is whether, as here, the plaintiffs dismissal follows vacatur of the TRO or injunction on the ground that the plaintiff has failed to show a likelihood of success on the merits. See Middlewest, 433 F.2d at 243; Belfer, 2008 WL 163615, at *2; cf. Rocky Mountain Timber Corp., 502 F.Supp. at 434-35 (<HOLDING>). In such circumstances, a court may “presume
holding that the burden is on the plaintiff holding that dissolution of a tro after the plaintiff failed to carry its burden at the preliminary injunction hearing constituted a final decisions on the merits for purposes of the bond holding that the dissolution of a tro constitutes a final judgment on the merits allowing recovery against the tro bond holding in camera hearing was needed to determine whether the incourt identification was of independent origin or was the tainted product of the circumstances surrounding a bond hearing where a witness saw a suspect at a bond hearing prior to his incourt identification of the suspect and the witness may have gotten a fix on the suspect at the bond hearing holding that committee failed to carry its ultimate burden