United States District Court, S.D. California
TELE-PHYSICIANS, P.C., a Georgia Professional Corporation; and SPECIALISTS ON CALL, INC., a Delaware Corporation, Petitioners,
JENNIFER HAILEY, an individual, Respondent.
ORDER DENYING PETITIONERS' EX PARTE MOTION FOR A
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY
PRELIMINARY INJUNCTION SHOULD NOT ISSUE (DOC. NO. 5)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE
pending before the Court is Petitioners Tele-Physicians, P.C.
(“Tele-Physicians”) and Specialists on Call,
Inc.'s (“SOC Telemed”) (collectively
“Petitioners”) ex parte motion for temporary
restraining order and order to show cause why a preliminary
injunction should not issue. (Doc. No. 5.) Pursuant to Civil
Local Rule 7.1.d.1, the Court finds the matter suitable for
determination on the papers and without oral argument. For
the reasons explained more fully below, the Court
DENIES Petitioners' ex parte motion.
Telemed provides sophisticated technology to hospitals,
medical facilities and attending medical personnel throughout
the country to assist with emergency medical consultations.
(Doc. No. 5 at 10.) Tele-Physicians employs doctors to
provide the consultations. (Id.) Dr. Hailey is a
psychiatrist residing in Oceanside, California.
(Id.) Dr. Hailey was employed full-time by
Tele-Physicians from December 1, 2016 to April 1, 2018.
(Id. at 10-11.)
April 1, 2018, Dr. Hailey's employment changed from full
time to part time. (Id. at 11.) On October 31, 2018,
Dr. Hailey voluntarily resigned from SOC Telemed.
(Id.) A week after her resignation, Dr. Hailey filed
an administrative wage claim with the California Division of
Labor Standards Enforcement (“DLSE”).
(Id.) Dr. Hailey seeks damages in the amount of $54,
880.00 for allegedly unpaid wages and waiting time penalties
based on her employment with SOC Telemed between April 1,
2018 and October 31, 2018. (Id. at 12.) DLSE has
scheduled a “Berman hearing” for July 18, 2019.
9, 2019, SOC Telemed filed a Demand for Arbitration with the
American Arbitration Association (“AAA”) to
resolve this dispute. (Id.) Dr. Hailey has not
responded to or participated in any of the proceedings with
the AAA. (Id.)
20, 2019, SOC Telemed filed a Petition to Compel Arbitration
in the United States District Court for the District of
Columbia against Dr. Hailey. (Id.) On May 31, 2019,
Dr. Hailey filed a civil action in San Diego Superior Court
alleging various employment claims. (Id.) On June
21, 2019, SOC Telemed filed the instant Petition to Compel
Arbitration. (Id.) In this instant action, SOC
Telemed seeks to compel arbitration in California and have
the arbitration governed by California law. (Id.)
temporary restraining order may be granted upon a showing
“that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be
heard in opposition[.]” Fed.R.Civ.P. 65(b)(1)(A). The
purpose of such an order, as a form of preliminary injunctive
relief, is to preserve the status quo and prevent irreparable
harm “just so long as is necessary to hold a hearing,
and no longer.” Granny Goose Foods, Inc. v. Bhd. of
Teamsters & Auto Truck Drivers Local No. 70, 415
U.S. 423, 439 (1974). A request for a TRO is evaluated by the
same factors that generally apply to a preliminary
injunction. See Stuhlbarg Int'l Sales Co. v. John D.
Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
However, a TRO is an “extraordinary remedy” and
is “never awarded as of right.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)
(citing Munaf v. Geren, 553 U.S. 674, 689-90
(2008)). Instead, the moving party bears the burden of
demonstrating four factors: (1) “he is likely to
succeed on the merits”; (2) “he is likely to
suffer irreparable harm in the absence of preliminary
relief”; (3) “the balance of equities tips in his
favor”; and (4) “an injunction is in the public
interest.” Winter, 555 U.S. At 20.
a plaintiff must satisfy all four of the requirements set
forth in Winter, the Ninth Circuit employs a sliding
scale whereby “the elements of the preliminary
injunction test are balanced, so that a stronger showing of
one element may offset a weaker showing of another.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011).
seek a temporary restraining order to delay or remove the
July 18, 2019 “Berman hearing” before the DLSE.
(Doc. No. 5 at 9.)
Subject Matter Jurisdiction
it is unclear whether the Court has subject matter
jurisdiction over the instant action. The instant litigation
is brought under diversity jurisdiction. Diversity
jurisdiction exists where the matter is between citizens of
different States. See 28 U.S.C. § 1332. The
Court is presented with competing declarations regarding
whether Dr. Hailey was actually employed by the California
Tele-Physicians or the Georgia Tele-Physicians. (Doc. No. 8
Hailey Decl. ¶¶ 3, 4, Doc. No. 12, Camic Decl.
¶ 11.) Further, Petitioners admit that Tele-Physicians
is registered in each state where its physicians live to
report and pay corresponding payroll taxes. (Doc. No. 12 at
6, Camic Decl. ¶ 12.) Petitioners explain that
“[w]hile Tele-Physicians (CA) is engaged in the
provision of consultation services within California, it is
Tele-Physicians (GA) that, as the employing entity, provides
the consulting physicians that rend the consultation services
. . . In other words, Tele-Physicians (CA) helps provide the
physical framework for the consultation services to occur
(and multiple other states have similar entities for the
physical framework), but it is Tele-Physicians (GA) that
employs and provides the physicians who often use equipment
and other management support provided by SOC.”
(Id. at 6-7, Camic Decl. ¶ 13.) Petitioners
further attempt to show that Dr. Hailey knew she was employed
by the ...