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Roberts v. Veterans Village Enterprises, Inc.

United States District Court, S.D. California

March 20, 2017



          HONORABLE LARRY ALAN BURNS United States District Judge

         Plaintiff Michael Roberts filed a complaint, a motion for temporary restraining order (“TRO”), and a motion to proceed in forma pauperis (“IFP”). He then filed three amendments to his TRO motion. The complaint alleges violations of the Fair Housing Act, the Rehabilitation Act of 1973, the False Claims Act, and also brings several state law claims. Roberts says he was not allowed to keep his service dog, Arthur, at the Veterans Village Enterprises home where he lives. He suffers from post-traumatic stress disorder (PTSD) and mobility problems, and a doctor recommended a service to assist him with PTSD.

         IFP Motion

         Plaintiff's motion shows that he earns $587 a month, and that his expenses are nearly that amount. The motion's description of expenses seems to be a summary, though, with categories like a cell phone, gasoline and dog food accounting for about 60 to 80% of his monthly expenditures, which is a surprisingly large percentage.[1] Other expected expenses, such as the cost of a kennel the complaint alleges he is being forced to pay for, are omitted. Nor does the motion account for most ordinary daily expenses. It appears Roberts was summarizing, and listed certain categories as placeholders for a variety of expenses. For example, he may have used “dog food” to refer to all costs of owning his service dog. But based on his representations about his income, the Court accepts that Roberts lacks the funds to pay the filing fee, and GRANTS his request to proceed IFP.

         The IFP statute contemplates that granting leave to proceed IFP is a decision that can be revisited. See 28 U.S.C. § 1915(e)(2). Roberts is therefore ORDERED to file a supplement to his IFP motion, giving a more complete account of his monthly expenses and identifying how he is able to afford the ordinary necessities of life, whether he pays for them or they are provided to him. He must do this within 30 calendar days of the date this order is issued. If he fails to provide an adequate explanation, he risks revocation of his IFP status.

         TRO Motion

         Documents, Service and Notice

         Defendant Veterans Village cannot yet have been served with process, because no summons has yet been issued. But according to Roberts' briefing on the TRO, Roberts' counsel sent Veterans Village's counsel copies of the briefing by email.

         The briefing consists of four documents: the TRO motion (Docket no. 2), a filing styled “Amended Declaration of Michael Roberts” (Docket no. 5), a declaration of attorney Bryan Pease (Docket no. 6), and a document styled “Second Amended Declaration of Michael Roberts” (Docket no. 7). The Court understands the second amended Roberts declaration as being intended to replace both the original Roberts declaration (Docket no. 2 at 21-24) and the amended Roberts declaration (Docket no. 6). This order will treat the second amended declaration as the operative declaration, and refer to it simply as Roberts' declaration.

         Excluding the amended declarations, the briefing consists of 64 pages. According to the documents labeled “certificates of service, Veterans Village and its counsel were first given notice of Roberts' intent to seek a TRO on the afternoon of March 15. The final document was not filed until 4:24 p.m. on March 16.

         To prevent defense counsel from having to prepare and file an opposition in great haste and at significant expense, the Court by a separate order has relieved them of any obligation to do so until directed otherwise by the Court.

         Legal Standards

         TROs are for emergencies only. The high hurdle plaintiffs must clear to obtain the “reflect[s] 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 (1974). The TRO standard is the same as the preliminary injunction standard, with the additional requirement that the applicant show immediate relief is necessary. See, e.g., Hunt v. Nat'l Broadcasting Co., Inc., 872 F.2d 289, 292 (9th Cir. 1989).

         “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., 555 U.S. 7, 20 (2008). In the alternative, the “sliding scale” approach can be used. Under this approach, a party seeking a preliminary injunction must show a combination of serious questions going to the merits, and must also show that the balance of hardships tips sharply in the movant's favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 ...

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