Sachs v. DiCarlo

• Court: District Court, D. Arizona
• Decided: June 2, 2022
• Docket: 2:22-cv-00471
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kenneth Sachs, No. CV-22-00471-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Robert DiCarlo,

13 Defendant. 14 15 Before the Court are Plaintiff’s Motion to Seal Exhibit (Doc. 9) and Motion for 16 Alternative Service and Request for Urgent Injunction (Doc. 11). 17 I. 18 In his Motion to Seal, Plaintiff requests that this Court file the Exhibit lodged as 19 docket number 10 under seal. The procedure for filing a document under seal is 20 addressed in Local Rule of Civil Procedure (“LRCiv”) 5.6(a)–(d). If this procedure is 21 carried out correctly, a court may decide to seal a document. LRCiv 5.6(a). Filing 22 documents under seal is generally disfavored because the Ninth Circuit has recognized a 23 strong presumption favoring public access to court filings. Hagestad v. Tragesser, 49 24 F.3d 1430, 1434 (9th Cir. 1995). “The common law right of access, however, is not 25 absolute and can be overridden” if the party seeking to file under seal “give[s] 26 sufficiently compelling reasons for doing so.” Foltz v. State Farm Mut. Auto. Ins. Co., 27 331 F.3d 1122, 1135 (9th Cir. 2003). “That is, the party must articulate compelling 28 reasons supported by specific factual findings that outweigh the general history of access 1 and the public policies favoring disclosure, such as the public interest in understanding 2 the judicial process.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178–79 3 (9th Cir. 2006) (cleaned up). 4 Plaintiff’s only argument to file his proposed exhibit under seal is that his request 5 satisfies Arizona Rule of Civil Procedure 5.4(C)(2). (Doc. 9.) That is not the governing 6 standard for actions filed in this Court. Whether his reasons for filing under seal satisfy 7 the requirements of a state-court civil rule is not determinative in federal court. Plaintiff 8 did not provide any reasons for why this exhibit should be filed under seal. Accordingly, 9 the Court will deny the Motion to Seal. 10 II. 11 In his Motion for Alternative Service, Plaintiff says that he has attempted and 12 failed multiple times to serve Defendant DiCarlo. He asks that the Court permit him to 13 serve the Defendant through certified or registered U.S. mail. On review of the docket, 14 however, it appears that Plaintiff has served Defendant DiCarlo. See Affidavit of Service 15 (Doc. 7.) Federal Rule of Civil Procedure 4(e)(2)(A) states that: “an individual . . . may 16 be served in a judicial district of the United States by: . . . leaving a copy of [the 17 summons and of the complaint] at the individual’s dwelling or usual place of abode with 18 someone of suitable age and discretion who resides there . . . .” According to the 19 Affidavit of Service, on April 19, 2022, the Summons and Complaint were left at 20 DiCarlo’s dwelling or usual place of abode within the control of DiCarlo’s co-resident 21 who was, according to the Affidavit of Service, of suitable age and discretion. (Doc. 7; 22 see also Doc. 8.) Thus, the Motion for Alternative Service will be denied because 23 Plaintiff has not explained why alternative service is necessary given that it appears 24 service has been made. 25 III. 26 In his request for injunctive relief, Plaintiff asks this Court to enter a preliminary 27 injunction reversing a family court minute entry that gave sole custody of his minor 28 daughter to her mother, Maryna, and left him with only supervised visitation rights. 1 (Doc. 11 at 4.) 2 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). For a court to issue a 4 preliminary injunction, a plaintiff “‘must establish that he is likely to succeed on the 5 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 6 the balance of equities tips in his favor, and that an injunction is in the public interest.’” 7 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) 8 (quoting Winter, 555 U.S. at 20). In the Ninth Circuit, even “if a plaintiff can only show 9 that there are ‘serious questions going to the merits’—a lesser showing than likelihood of 10 success on the merits—then a preliminary injunction may still issue if the ‘balance of 11 hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are 12 satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) 13 (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 14 The Motion only attempts to establish irreparable harm: “Plaintiff through the 15 following allegations is going to establish that irreparable harm might result if Plaintiff 16 does not get the injunction.” (Doc. 11 at 4.) Thus, the Motion does not establish a 17 likelihood of success on the merits, that the balance of equities tips in his favor, and that 18 an injunction is in the public interest. And so, the Court must deny the Plaintiff’s request 19 for injunctive relief. 20 … 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 IV. 2 Accordingly, 3 IT IS ORDERED: 4 1. Denying the Plaintiff's Motion to Seal Exhibit (Doc. 9). Pursuant to LRCiv || 5.6(e), Plaintiff's proposed exhibit (lodged at Doc. 10) will not be filed. 6 2. Denying without prejudice the Plaintiff's Motion for Alternative Service 7\| (Doc. 11). For the reasons stated herein, Plaintiff may not serve Defendant DiCarlo by 8 || alternative means. 9 3. Denying without prejudice the Plaintiff's Request for Urgent Injunction 10}} (Doc. 11). 11 Dated this Ist day of June, 2022. Michel T. dburde 13 Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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