NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT
THIS MATTER came before the Court on March 6, 2009 upon the Court's order, is- sued February 6, 2009 and continued February 23, 2009, to defendants Mark Saint Juste (Saint Juste), Saint Juste International Corporation (SJIC), and William L. O'Bryan (O'Bryan) to show cause why a preliminary injunction should not issue, in accordance with Federal Rule of Civil Procedure 65, restraining them and those acting in concert or participation with them from the withdrawal, transfer, or removal by any means or procedure, of the funds claimed by plaintiffs Jessica K. Callow (Callow) and RCJ Capital, LLC (RCJ) in the amount of Five Hundred Sixty Thousand United States Dollars ($560,000.00) from any bank account maintained by these defendants.
Plaintiffs appeared through their counsel, Edward F. Mitchell. Defendant O'Bryan appeared representing himself. Neither Saint Juste nor SJIC filed any opposition to plaintiffs' application for a temporary restraining order and preliminary injunction, and neither filed any response to the order to show cause. Neither Saint Juste nor SJIC appeared at the hearing on the order to show cause. Plaintiffs' application for a preliminary injunction as to defendants Saint Juste and SJIC is granted for the reasons set forth in this order. Plaintiffs' application for a preliminary injunction as to defendant O'Bryan is treated in a separate order.
APPLICABLE STANDARD FOR PRELIMINARY INJUNCTION
The appropriate standard for issuance of a preliminary injunction in this case is set out in Southwest Voter Registration Education Project v. Shelley (9th Cir. 2003) 344 F.3d 914. A preliminary injunction is appropriate when plaintiffs demonstrate either a likelihood of suc- cess on the merits and the possibility of irreparable injury, or that serious questions going to the merits are raised and the balance of hardships tips sharply in plaintiffs' favor.
FINDINGS OF FACT RE:NOTICE
1. Defendants Saint Juste and SJIC have received actual notice of this action, of the temporary restraining order in effect, and of this hearing on the order to show cause concerning issuance of a preliminary injunction. The Court bases this finding upon the record in this case and in this proceeding, specifically:
A) David Keith Freeman, plaintiffs' investigator, states that he spoke with Saint Juste on February 11, 2009 and advised him that this action was pending against him. During that conversation, Saint Juste advised that he would not cooperate in accepting service of process;
B) On February 11, 2009, plaintiffs' counsel sent copies of all pleadings in this case to Saint Juste, at both his residence and his office addresses, by Federal Express;
C) On February 23, 2009, prior to the hearing on the order to show cause, defendant O'Bryan advised plaintiffs' counsel that O'Bryan had met with Saint Juste that same morning, and that O'Bryan and Saint Juste had discussed this action at that time. O'Bryan confirmed this in open court during the hearing on the order to show cause the same day;
D) Substitute service was effected on Saint Juste on February 20, 2009 after at least three (3) unsuccessful attempts to personally serve Saint Juste at his office located at 1999 Avenue of the Stars, Eleventh Floor, Los Angeles, California.
2. Saint Juste is attempting to evade service of process in this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Notice to defendants Saint Juste and SJIC is sufficient to comply with Federal Rule ...