The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
TEMPORARY RESTRAINING ORDER
The above matter came before the Court upon Plaintiff's Ex Parte Application, filed November 8, 2010, for entry of a Temporary Restraining Order and Order to Show Cause why a Preliminary Injunction should not be issued. Following its review of the papers submitted on behalf of Plaintiff, the Court conducted a hearing at 11:00 a.m. on November 9, 2010.
Melissa A. Jones and Marc Koenigsberg appeared on behalf of Plaintiff; Defendants were represented by Julie Weng-Gutierrez and Niromi Pfeiffer.
The purpose of a temporary restraining order is to preserve the status quo pending the complete briefing and thorough consideration contemplated by full proceedings pursuant to a preliminary injunction. See Dunn v. Cate, 2010 WL 1558562 at *1 (E.D. Cal. 2010) ("A temporary restraining order is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction").
Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an extraordinary remedy, and plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974). In general, the showing required for a temporary restraining order and a preliminary injunction are the same. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 (9th Cir. 2001).
As recognized by the Supreme Court in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), the party requesting preliminary injunctive relief must show 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." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374.
Alternatively, under the so-called sliding scale approach, as long as the plaintiffs demonstrate the requisite likelihood of irreparable harm and show that an injunction is in the public interest, a preliminary injunction can still issue so long as serious questions going to the merits are raised and the balance of hardships tips sharply in Plaintiffs' favor. Alliance for Wild Rockies v. Cottrell, 2010 WL 3665149 at *4-8 (9th Cir. Sept. 22, 2010) (finding that sliding scale test for issuance of preliminary injunctive relief remains viable after Winter).
The propriety of a temporary restraining order, in particular, hinges on a significant threat of irreparable injury (Simula, Inc. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)) that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Having considered the documents presented, and after hearing arguments of counsel, the Court finds that Plaintiff has demonstrated a significant threat of irreparable injury. First, the children housed in Plaintiff's Fairfield, California facility may be harmed if they are transferred to alternative accommodations in Washington or Illinois-- a process that could severely impact both their educational interests and psychological well-being. Moreover, such transfer could derail the children's pending immigration proceedings and reunification efforts, all of which could literally have to begin anew if they are transferred to distant states.
Secondly, with respect to Plaintiff's own financial losses stemming from closure of the subject facility, such losses are likely uncompensable, should closure proceed as dictated by Defendants, given the protections afforded by sovereign immunity under the Eleventh Amendment.
The Court further believes that the other factors which must be scrutinized in assessing the availability of preliminary injunctive relief also weigh in favor of granting a temporary restraining order at this juncture. Given what appears, at least on the basis of Plaintiff's papers, to be valid preemption concerns stemming from a clear conflict between federal and state regulations applicable to the subject facility, the Court believes that the requisite likelihood of success has been demonstrated. In addition, the balance of hardships tips squarely in Plaintiff's favor given the imminent transfer of the children being housed to distant states should such transfer occur by November 10, 2010 as Plaintiff alleges, along with the impact on the children should such transfer occur as discussed above. Finally, the public interest would appear to be served by preserving the status quo until the matter can be fully briefed and argued by way of preliminary injunction.
Plaintiff's Ex Parte Application for Temporary Restraining Order (ECF No. 5) is consequently GRANTED. It is hereby ordered as follows:
1. A Temporary Restraining Order shall be issued immediately. Defendants, their officers, representatives, and all persons acting on their behalf, and all of them ("Defendants") are hereby enjoined and restrained, directly or indirectly, whether acting alone or in concert with others, from taking any action to shut down the Fairfield, California facility at issue in this litigation. The status quo shall thereby be maintained and Plaintiff shall be permitted to continue to lawfully operate said facility pending the Court's decision on Plaintiff's request for a preliminary injunction.
2. This Order shall remain in full force and effect for a period not to exceed fourteen (14) days, absent an order from the Court otherwise. A hearing on Plaintiff's request for a preliminary injunction is scheduled for November 19, 2010 at 10:00 a.m. Opposition to Plaintiff's request for injunctive relief in that regard shall be filed by Defendants ...