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Neil B. Gibson v. Nicholass v. Fleming

February 12, 2013

NEIL B. GIBSON,
PLAINTIFF,
v.
NICHOLASS V. FLEMING, JR., AKA NICK FLEMING; AND DOES 1 TO 10, INCLUSIVE,
DEFENDANTS.



) ORDER RE: APPLICATION FOR ) TEMPORARY RESTRAINING ) ORDER AND O.S.C. RE: ) PRELIMINARY INJUNCTION (Doc. 5)

I. INTRODUCTION

Plaintiff Neil B. Gibson ("Plaintiff" or "Gibson") has filed an ex parte application for a temporary restraining order and order to show cause why defendant Nicholass V. Fleming ("Defendant" or "Fleming") should not be "temporarily enjoined from engaging in unlawful behavior harmful" to Gibson. For reasons discussed below, Gibson's request for a temporary restraining order shall be denied. The Court reserves ruling on the request for order to show cause re: preliminary injunction.

II. FACTS AND PROCEDURAL BACKGROUND

On February 4, 2013, Gibson filed his complaint against Fleming and Does 1 to 10, inclusive, alleging causes of action for (1) "threats in violation of 18 U.S.C. 875c" and (2) harassment. In the complaint, Gibson alleged in part as follows:

"Since November of 2011, Defendant FLEMING has been posting on the internet defamatory statements about PLAINTIFF; that Mr. Gibson does not have the legal English title of 'Lord,' that PLAINTIFF is a spy and terrorist, that he has and is swindling third parties out of hard earned assets, that he has started yet another fake company with his wife to continue defrauding others, that PLAINTIFF is known to the FBI as a fraud and swindler, and that people should not trust PLAINTIFF with their assets. Defendant FLEMMING [sic] has also posted personal contact information of PLAINTIFF on those sites, encouraging third parties to contact PLAINTIFF directly."

Gibson further alleged:

"Defendant FLEMING has sent, or has caused to be sent by third parties under his direction and control, e-mail correspondence to PLAINTIFF threatening PLAINTIFF'S life and the lives of his family members. [¶] Defendant FLEMING's actions . . . are a direct violation of 18 U.S.C. 875(c). [¶] . . . [¶] The actions undertaken by PLAINTIFF [sic; Fleming?] constitute a credible threat of violence against PLAINTIFF and his immediate family and a willful course of conduct directed at PLAINTIFF that seriously alarms[,] annoys and harasses PLAINTIFF and serves no legitimate purpose. [¶] FLEMMING's [sic] course of conduct is such that would cause a reasonable person to suffer substantial emotional distress and has, in fact, caused PLAINTIFF to suffer substantial emotional distress."

On February 8, 2013, Gibson filed an application for a temporary restraining order and order to show cause why Fleming should not be enjoined from "engaging in unlawful behavior harmful" to Gibson.

III. LEGAL STANDARD

"The standards governing the issuance of temporary restraining orders are 'substantially identical' to those governing the issuance of preliminary injunctions." O'Keefe v. Cate, slip copy, 2012 WL 1555055 (E.D.Cal. 2012), at *1 (citing Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2011)). "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 Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts 'must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.' 'In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.' " Id. at 24 (internal citations omitted).

IV. DISCUSSION

Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court finds it cannot issue the temporary restraining order requested by Gibson. In his application, Gibson "requests that the court to [sic] restrain the Defendant from engaging in, committing, or performing, directly or indirectly any of the following acts and to specifically perform others:

1. Nick V. Fleming, Jr., aka Nick Fleming not to post on the internet the names and identities of Neil B. Gibson's wife and children and that Nick V. Fleming, Jr., aka Nick Fleming be specifically required to remove any such postings on any website Nick V. Fleming, Jr., aka Nick Fleming has content control over;

2. Nick V. Fleming, Jr., aka Nick Fleming not to post on the on the [sic] internet the personal residential address of Neil B. Gibson on any website Nick V. Fleming, ...


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