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Kinney v. Lavin

United States District Court, N.D. California

August 22, 2014



PHYLLIS J. HAMILTON, District Judge.

Before the court is the ex parte application of plaintiff Charles Kinney for a temporary restraining order and order to show cause re preliminary injunction. Having read plaintiff's papers and considered his arguments and the relevant legal authority, the court hereby DENIES the application.

Requests for temporary restraining orders are governed by the same general standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co. , 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc. , 240 F.3d 832, 839 n. 7 (9th Cir. 2001).

In addition, under Federal Rule of Civil Procedure 65(b)(1):

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 a 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.

Ex parte injunctive relief is to be granted sparingly. "The stringent restrictions imposed... by Rule 65, on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Granny Goose Foods, Inc. v. Brotherhood of Teamsters , 415 U.S. 423, 438-39 (1974).

Accordingly, courts have generally confined ex parte injunctive relief to two situations - where notice to the adverse party is impossible either because the identity of the adverse party is unknown or because a known party cannot be located in time for a hearing; and, in a very limited number of cases, where notice to the defendant would render fruitless the further prosecution of the action. See Reno Air Racing Ass'n, Inc. v. McCord , 452 F.3d 1126, 1131 (9th Cir. 2006).

An injunction is a matter of equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 22 (2008); see also Munaf v. Geren , 553 U.S. 674, 689-90 (2008). A preliminary injunction "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).

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 , 555 U.S. at 20. Alternatively, the plaintiff may demonstrate that the likelihood of success is such that "serious questions going to the merits were raised and that the balance of hardships tips sharply in the plaintiff's favor, " so long as the other two elements of the Winter test are met. Alliance for Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011).

Showing "serious questions going to the merits" requires more than establishing that "success is more likely than not, " and it requires a plaintiff to demonstrate a "substantial case for relief on the merits." Leiva-Perez v. Holder , 640 F.3d 962, 967 (9th Cir. 2011). And even where success on the merits is likely or "serious questions" are raised an injunction "is not a remedy which issues as of course." Weinberger v. Romero-Barcelo , 456 U.S. 305, 311 (1982).

In the complaint in the present action, plaintiff, a California attorney, asserts a single cause of action under the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, against two California state judges - the Honorable Luis A. Lavin of the Superior Court of California, County of Los Angeles; and the Honorable Roger W. Boren of the California Court of Appeal, Second Appellate District. As far as the court can ascertain, the allegations in the complaint all pertain to plaintiff's dissatisfaction with decisions rendered and orders issued by the California Superior Court or the California Court of Appeal, a number of those decisions finding plaintiff himself and one of his clients to be vexatious litigants. Plaintiff seeks damages, declaratory and injunctive relief, and costs of suit.

In his ex parte application for a TRO, plaintiff seeks an order enjoining all proceedings in an action currently pending before the California Court of Appeal, Second District, Case No. B248713 (underlying Los Angeles Superior Court Case No. BC374938), including an oral argument scheduled for August 28, 2014 before the California Court of Appeal.

The application is DENIED, for the following reasons. First, under the Anti-Injunction Act, federal courts "may not grant an injunction to stay proceedings in a State court except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. Because none of the three limited exceptions applies in this case, the court cannot issue an order enjoining the pending state court proceedings. The Anti-Injunction Act also applies to ...

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