United States District Court, E.D. California
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE.
April 21, 2017 Plaintiff Rhonda Iredia-Ortega filed a
Complaint in this Court. ECF No. 1. On May 2, 2017, Plaintiff
filed a Motion for Temporary Restraining Order
(“TRO”) seeking monetary relief, emergency
funding, a name change, phone service, and dental services.
ECF No. 4. For the reasons set forth below, Plaintiff's
Motion for TRO is DENIED.
preliminary matter, Eastern District Local Rule 231 governs
Temporary Restraining Orders. Rule 231(a) provides that
“except in the most extraordinary of circumstances, no
temporary restraining order shall be granted in the absence
of actual notice to the affected party and/or counsel, by
telephone or other means, or a sufficient showing of efforts
made to provide notice.” E.D. Cal. Local R. 231(a)
(citing Fed.R.Civ.P. 65(b)). Rule 231(c) additionally
requires the filing of, among other things, “an
affidavit detailing the notice or efforts to effect notice to
the affected parties or counsel or showing good cause why
notice should not be given.” Id. 231(c)(5).
subsection (b) of Rule 231 states that “[i]n
considering a motion for a temporary restraining order, the
Court will consider whether the applicant could have sought
relief by motion for preliminary injunction at an earlier
date without the necessity for seeking last minute relief by
motion for temporary restraining order. Should the Court find
that the applicant unduly delayed in seeking injunctive
relief, the Court may conclude that the delay constitutes
laches or contradicts the applicant's allegations of
irreparable injury and may deny the motion solely on either
ground.” Id. 231(b).
subsection (c) lists the documents to be filed by a party
seeking a temporary restraining order. Id. 231(c).
Under that rule, “[n]o hearing on a temporary
restraining order will normally be set unless” certain
documents are provided to the Court and to the affected
parties or their counsel. Id. Those documents are:
(1) a complaint; (2) a motion for a temporary restraining
order; (3) a brief on all relevant legal issues presented by
the motion; (4) an affidavit in support of the existence of
an irreparable injury; (5) an affidavit detailing the notice
or efforts to effect notice to the affected parties or
counsel or showing good cause why notice should not be given;
(6) a proposed temporary restraining order with a provision
for a bond; (7) a proposed order with blanks for fixing the
time and date for hearing a motion for preliminary
injunction, the date for the filing of responsive papers, the
amount of the bond, if any, and the date and hour of
issuance; and (8) where the TRO is requested ex parte, the
proposed order shall further notify the affected party of the
right to apply to the Court for modification or dissolution
on two (2) days' notice or such shorter notice as the
Court may allow. Id.
present case, Plaintiff has failed to meet the requirements
of Rule 231. First, although Plaintiff indicates that she
provided notice of the TRO to Defendants, she has not filed
the required affidavit establishing as much. Indeed,
Plaintiff responded “yes” on the TRO Checklist to
the question of whether notice has been provided, but then
only lists one of three named defendants on that checklist.
It is not clear to the Court that notice has been provided to
that one defendant, let alone the other two named defendants,
or the other parties referenced in Plaintiff's Complaint
and Motion. See ECF Nos. 1 and 4 (including
allegations against not only the named County assistance
programs, but also a bank, T-Mobile, Baker Residential
Academic, Progress House Nevada City, and an individual from
Progress House). Additionally, though Plaintiff also
indicates in her papers that she will suffer irreparable harm
absent the requested relief, she has not filed this required
affidavit either. Lastly, it appears to the Court that
Plaintiff has delayed in bringing this action, cutting
against any imminency argument. Plaintiff in fact admits in
her TRO checklist that the action could have been brought
sooner, that she has been trying to work with the DOJ since
2016, that she has previously been to state court regarding
her concerns, and that she received a letter in March 2017
saying she does not have a case number or court date in state
court. Based on this timeline, the Court finds emergency
relief to be inappropriate. Under these circumstances,
Plaintiff's request may be denied on procedural grounds
the merits of Plaintiff's motion, 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 Granny Goose Foods, Inc. v.
Teamsters, 415 U.S. 423, 438-39 (1974) (temporary
restraining orders “should be restricted to serving
their underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer”); see also Reno Air
Racing Ass'n., Inc. v. McCord, 452 F.3d 1126, 1131
(9th Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW,
2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010).
of a temporary restraining order, as a form of preliminary
injunctive relief, is an extraordinary remedy, and Plaintiff
has the burden of proving the propriety of such a remedy.
See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
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 n.7 (9th Cir. 2001).
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.” Winter v. Natural Resources Defense
Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting
Winter). The propriety of a TRO hinges on a
significant threat of irreparable injury that must be
imminent in nature. Caribbean Marine Serv. Co. v.
Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
under the so-called sliding scale approach, as long as the
Plaintiff demonstrates the requisite likelihood of
irreparable harm and shows 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 Plaintiff's
favor. Alliance for Wild Rockies v. Cottrell, 632
F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the
“serious questions” version of the sliding scale
test for preliminary injunctions remains viable after
has not shown that a TRO is justified under these guidelines.
First, nothing in Plaintiff's Complaint or Motion
indicates that Plaintiff is facing an imminent threat that
could be avoided or remedied by issuance of a TRO. The Court
is sympathetic to Plaintiff's stated need for dental
treatment, but Plaintiff has not established that an imminent
threat exists. As discussed above, it appears Plaintiff has
been attempting to address her concerns for some time and
nothing has changed so recently as to now justify the
emergency relief represented by a TRO. Plaintiff's
request may accordingly be denied on grounds that she has not
identified a sufficient imminent threat.
addition, the Court finds Plaintiff has not established a
likelihood of success on the merits of her claims, nor has
she raised serious questions going to their merits. To the
contrary, the Court is unclear as to what specific claims
Plaintiff pursues, the bases for those claims, or the exact
identity of the defendants against whom those claims are
raised. For this additional reason, Plaintiffs request is
reasons set forth above, Plaintiffs Motion for Temporary
Restraining Order, ECF No. 4, is DENIED. The Court declines