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Morrow v. City of San Diego

United States District Court, Ninth Circuit

May 31, 2013

FLOYD L. MORROW, individually, as taxpayers of the City of San Diego, State of California, and on behalf of those similarly situated; MARLENE MORROW, individually, as taxpayers of the City of San Diego, State of California, and on behalf of those similarly situated, Plaintiffs,
v.
CITY OF SAN DIEGO, a charter city; DOES 1-100, Defendants.

ORDER: (1) DENYING MOTION FOR PRELIMINARY INJUNCTION; and (2) DENYING WITHOUT PREJUDICE MOTION TO RESET TRIAL AND RELATED DATES [Doc. No. 69]

IRMA E. GONZALEZ, District Judge.

Presently before the Court is the motion of Plaintiffs Floyd L. Morrow and Marlene Morrow (collectively "Plaintiffs") for a preliminary injunction and to reset trial and related dates. [Doc. No. 69, Pl.'s Mot.] For the following reasons, the Court DENIES both motions.

BACKGROUND

Plaintiffs, landowners in San Diego, filed a complaint against Defendant City of San Diego ("Defendant" or "the City") in response to a code enforcement action against property owned by Plaintiffs. This Court remanded Plaintiffs' state law claims to San Diego Superior Court ("Superior Court") on September 25, 2012.

Plaintiffs state that they have since prevailed on their writ of mandamus claim in Superior Court. [Doc. No. 69, Pl.'s Mot. at 2.] The City subsequently set an administrative hearing for May 1, 2013. [Doc. No. 72, Def.'s Mot. at 9.] On April 26, 2013, Plaintiffs filed emergency motions for an alternative writ, for a temporary restraining order, to reset trial and related dates, and for a preliminary injunction. [Doc. No. 69, Pl.'s Mot.] On April 30, 2013, the Court denied Plaintiff's motions for an alternative writ and a temporary restraining order, and ordered further briefing on the motion for preliminary injunction. [Doc. No. 71.] Defendant subsequently filed a response in opposition and Plaintiffs filed a reply. [Doc. Nos. 72, 74.]

In their ex parte application for a temporary restraining order and motion for preliminary injunction, Plaintiffs request an order "preventing the City from acting pursuant to the ultra vires hearing officer contract, as it relates to the enforcement of the City's municipal ordinances." [Id. at 3.] The Court presumes that Plaintiffs request the Court to enjoin the administrative proceedings. [Doc. No. 71.]

I. Preliminary Injunction

As a preliminary matter, the Court has jurisdiction to hear Plaintiffs' motion for a preliminary injunction despite that it has abstained under Pullman. See Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 309 n.18 (1979); Harrison v. Nat'l Assn. for the Advancement of Colored People , 360 U.S. 167, 178-179 (1959). As Pullman abstention "does not... involve the abdication of federal jurisdiction, but only the postponement of its exercise, " the Court may proceed on motions for interim relief. Harrison , 360 U.S. at 175; see also Georgevich v. Strauss , 772 F.2d 1078, 1091 n.15 (3d Cir. 1985) (" Pullman abstention is not jurisdictional, but discretionary, and involves postponing adjudication of a federal claim pending resolution of a possibly determinative state law issue.").

A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7 (2008). Alliance for the Wild Rockies v. Cottrell explicitly found that Winter did not abrogate the Ninth Circuit's "serious questions" test for preliminary injunctions "when applied as part of the four-element Winter test." 632 F.3d 1127, 1131-32 (9th Cir. 2011). Therefore, "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132 (internal quotation marks omitted). Because Plaintiffs fail to establish irreparable harm and a balance of equities in their favor, the Court need not address the remaining elements.

A. Irreparable Harm

In order to obtain a preliminary injunction, a plaintiff must demonstrate that it is likely to suffer irreparable harm in the absence of preliminary relief. Winter , 555 U.S. 7. "Typically, monetary harm does not constitute irreparable harm" because "the injury can later be remedied by a damage award." California Pharmacists Ass'n v. Maxwell-Jolly , 563 F.3d 847, 851-52 (9th Cir. 2009) (emphasis omitted); see also American Trucking Ass'ns., Inc. v. City of Los Angeles , 559 F.3d 1046, 1057 (9th Cir. 2009). A loss of goodwill and reputation, on the other hand, may support injunctive relief. Id.

A preliminary injunction cannot, however, be issued to prevent a speculative injury; rather, a plaintiff must show that the alleged threat of irreparable harm is actual and imminent. Regents of Univ. of Cal. v. Am. Broadcasting Cos., Inc. , 747 F.2d 511, 523-24 (9th Cir. 1984) (citing New York v. Nuclear Regulatory Comm'n , 550 F.2d 745, 755 (2d Cir. 1977)). "Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court's] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter , 555 U.S. at 22.

Plaintiffs argue that they would face "immediate and irreparable harm" if they are "subject to an endless loop of unauthorized proceedings" which will prevent adjudication in federal court. [Doc. No. 69, Pl.'s Mot. at 3, 12.] Plaintiffs also argue that they will suffer irreparable harm because their constitutional rights will be violated if they are "subjected to unauthorized prosecution." [Id. at 12-14.] Finally, Plaintiffs summarily contend that they continue to suffer damage to their business goodwill. [Id. at 14.]

Plaintiffs do not make a showing that the harm they will suffer if forced to participate in administrative proceedings is actual and imminent. See Regents of Univ. of Cal. , 747 F.2d at 523-24. Rather, Plaintiffs only speculate that they will be deprived of the opportunity to litigate in federal court if they participate in the administrative proceedings. Plaintiffs provide no explanation as to why they would be unable to litigate in federal court if the administrative proceedings were held, aside from their hyperbolic statement that the proceedings would be an "endless loop." [Doc. No. 69, Pl.'s Mot. at 12.] Plaintiffs also fail to explain how their business goodwill will be damaged. Further, Plaintiffs have not adequately demonstrated that their constitutional rights will be violated if they are subject to administrative ...


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