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Seymour v. United States Dep't of Defense

August 26, 2010

JESSICA SEYMOUR, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF DEFENSE; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ODER: DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. No. 32)

Presently before the Court is Plaintiff Jessica Seymour's motion for emergency injunctive relief. (Doc. No. 32.) The Court construes Plaintiff's motion as a request for a temporary restraining order. In light of the law regarding such injunctive relief and the arguments Plaintiff presents, the motion is DENIED.

LEGAL STANDARD

Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. (NRDC), - U.S. -, 129 S.Ct. 365, 374 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218--19 (2008)); see also Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). This is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." NRDC, 129 S.Ct. at 376. This "clear showing" requires Plaintiff to show more than a mere "possibility" of irreparable harm, but instead she must "demonstrate that irreparable injury is likely in the absence of an injunction." Id. at 375 (emphasis in original); Am. Trucking Ass'ns, 559 F.3d at 1052.

Further, when a plaintiffs has not provided notice of her motion to the defendant, Federal Rule of Civil Procedure 65(b)(1) imposes additional requirements prior to the issuance of a temporary restraining order.

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 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).

ANALYSIS

As stated above, Plaintiff's motion must be DENIED. She has not satisfied Rule 65(b)(1)'s requirements for the issuance of a temporary restraining order without notice and has not shown that she is likely to succeed on the merits of her case. Without these showings, the Court is precluded from issuing a temporary restraining order. NRDC, 129 S.Ct. at 375--76.

I. PROPRIETY OF A WITHOUT NOTICE TEMPORARY RESTRAINING ORDER

To begin with, Plaintiff has provided no indication that she served the Defendants with the present motion. As such, she must meet one of the two requirements of Rule 65(b)(1). First, Plaintiff has not certified that she made any efforts to give notice of this motion to the Defendants nor has she explained why notice should not be required. The Court can only presume that she did not try to serve and that this motion does not meet the requirements of Rule 65(b)(1)(B).

As to Rule 65(b)(1)(A), Plaintiff has also not shown that she is entitled to a restraining order without notice under that provision. Although Plaintiff's First Amended Complaint (FAC) is verified, it does not "show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A); see also Doc. No. 8 (FAC). Certainly both the FAC and the restraining order motion make serious allegations, but there is no indication that any injury is so imminent that there is no time to hear Defendants in opposition to the motion. This is further supported by the fact that Plaintiff filed this case May 6, 2010 and the First Amended Complaint on June 4, 2010. (Doc. Nos. 1 & 8.) Given the already substantial time lapse from the filing of the case it is not unreasonable that Defendants should have the opportunity to respond prior to the issuance of an injunction against them. As such, the Court must DENY Plaintiff's motion for failure to provide notice to Defendants.

II. LIKELIHOOD OF SUCCESS ON THE MERITS

Further, Plaintiff has not shown that she is likely to succeed on the merits of her claims. For purposes of this motion, the Court will presume, without deciding, that Plaintiff is likely to suffer an irreparable injury should injunctive relief not issue. However, even with that ...


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