R. Thomas Merrill, Moses Libitzky and Marina Center, a California General Partnership v. City of Richmond

24 F.3d 247, 1994 U.S. App. LEXIS 18793, 1994 WL 161958

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 1994
• Docket: 92-17011
• Status: Published

Opinion

24 F.3d 247
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

R. Thomas MERRILL, Moses Libitzky; and Marina Center, a
California General Partnership, Plaintiffs-Appellees,
v.
CITY OF RICHMOND, et al., Defendant-Appellant.

No. 92-17011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1994.
Decided April 29, 1994.

Before: HUG, FARRIS, and O'SCANNLAIN, Circuit Judges.

ORDER*

We affirm the granting of the preliminary injunction on the basis of the district court's order of October 30, 1992. There was no abuse of discretion in the district court's evaluation of the probability of success on the merits and the risk of imminent, irreparable harm. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980).

We decline to review the district court's denial of appellants' motion to dismiss. Appropriately viewed as a motion for summary judgment, the order denying the motion is not reviewable in the appeal of a preliminary injunction. State of California v. American Stores Co., 872 F.2d 837, 846 (9th Cir.1989), reversed on other grounds, 495 U.S. 271 (1990).

Finally, we affirm the district court's denial of appellants' motion for stay; there was no abuse of discretion. Appellees' claim involved no uncertain area of state law. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3