1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AHMED SAEED, No. 2:23-cv-00087-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF FAIRFIELD POLICE DEPARTMENT, et al., 15 Defendants. 16
17 18 This matter is before the Court on Plaintiff Ahmed Saeed’s (“Plaintiff”) Ex Parte Motion 19 for a Temporary Restraining Order (“TRO”). (ECF No. 11.) For the reasons set forth below, the 20 Court DENIES Plaintiff’s motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s business license for his store was revoked on September 9, 2022. (ECF No. 1 3 at ¶ 44; ECF No. 8-6 at 1–5 (notice of revocation letter); ECF No. 11-2 at 8 (indicating Plaintiff 4 received a letter dated September 9, 2022, revoking his business license).) Based on the notice of 5 revocation, Plaintiff had 15 days to appeal. (ECF No. 8-6 at 4.) Plaintiff appealed the revocation 6 to the City of Fairfield over three months later, in December 2022. (ECF No. 1 at ¶ 16; ECF No. 7 11-2 at 19 (requesting reinstatement of the business license); ECF No. 21 (notice of appeal).) 8 Plaintiff filed this action on January 15, 2023, alleging the following claims: (1) a 42 9 U.S.C. § 1983 claim for violation of his First, Fifth, and Fourteenth Amendment rights; (2) 10 promissory estoppel; (3) injunctive and declaratory relief pursuant to California Code of Civil 11 Procedure § 526(a); (4) writ of mandamus pursuant to California Code of Civil Procedure § 12 1094.5; and (5) civil conspiracy. (ECF No. 1.) Plaintiff filed the instant motion for TRO on 13 January 23, 2023, seeking, among other things, an order “staying the revocation of [his] business 14 license so he can continue to operate his store.” (ECF No. 11-1 at 3.) 15 II. STANDARD OF LAW 16 A temporary restraining order is an extraordinary and temporary “fix” that the court may 17 issue without notice to the adverse party if, in an affidavit or verified complaint, the movant 18 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 19 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose 20 of a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. 21 Civ. P. 65. It is the practice of this district to construe a motion for temporary restraining order as 22 a motion for preliminary injunction. E.D. Cal. L.R. 231(a); see also Aiello v. One West Bank, 23 No. 2:10-cv-00227-GEB-EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) (“Temporary 24 restraining orders are governed by the same standard applicable to preliminary injunctions.”) 25 (internal quotation and citations omitted). 26 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 27 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 28 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 1 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 2 a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see 3 also Costa Mesa City Emp.’s Assn. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) 4 (“The purpose of such an order is to preserve the status quo until a final determination following a 5 trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 6 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to any situation before the 7 filing of a lawsuit, but instead to the last uncontested status which preceded the pending 8 controversy.”) (internal quotation marks omitted). In cases where the movant seeks to alter the 9 status quo, preliminary injunction is disfavored and a higher level of scrutiny must apply. Schrier 10 v. Univ. of Co., 427 F.3d 1253, 1259 (10th Cir. 2005). A preliminary injunction is not 11 automatically denied simply because the movant seeks to alter the status quo, but instead the 12 movant must meet heightened scrutiny. Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 13 27, 33–34 (2d Cir. 1995). 14 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 15 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 16 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 17 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 18 to obtain a preliminary injunction. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 19 Cir. 2011). In evaluating a plaintiff's motion for preliminary injunction, a district court may 20 weigh the plaintiff's showings on the Winter elements using a sliding-scale approach. Id. A 21 stronger showing on the balance of the hardships may support issuing a preliminary injunction 22 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 23 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 24 public interest.” Id. Simply put, the plaintiff must demonstrate, “that [if] serious questions going 25 to the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s 26 favor,” in order to succeed in a request for preliminary injunction. Id. at 1134–35. 27 /// 28 /// 1 III. ANALYSIS 2 This is the third motion for TRO Plaintiff has filed within the span of one week. On 3 January 17, 2023, Judge Morrison C. England, Jr., denied Plaintiff’s first motion for TRO due to 4 procedural filing defects. (ECF No. 7.) On January 18, 2023, Judge England denied Plaintiff’s 5 second motion for TRO for two independent reasons: (1) Plaintiff failed to establish imminent 6 harm because of his months-long delay in filing a motion for TRO after his business license was 7 revoked in September 2022; and (2) Plaintiff failed to show irreparable harm because he did not 8 demonstrate monetary damages would be inadequate to compensate him for his injuries. (ECF 9 No. 9 at 3–4.) 10 Plaintiff’s renewed motion for TRO lacks clarity, is largely identical to his previous 11 motions, and fails to resolve the deficiencies identified by Judge England. First, Plaintiff again 12 fails to adequately explain why he waited over four months from the revocation of his business 13 license to seek emergency relief with this Court.1 In fact, Plaintiff complains of conduct leading 14 up to the revocation that occurred as early as 2019. (ECF No. 11-1 at 4.) Plaintiff’s delay in 15 seeking relief warrants outright denial of his motion for TRO. See E.D. Cal. L.R. 231(b) (In 16 considering a motion for TRO, the Court “will consider whether the applicant could have sought 17 relief by motion for preliminary injunction at an earlier date without the necessity for seeking 18 last-minute relief” and may deny the motion if “the applicant unduly delayed in seeking 19 injunctive relief.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AHMED SAEED, No. 2:23-cv-00087-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF FAIRFIELD POLICE DEPARTMENT, et al., 15 Defendants. 16
17 18 This matter is before the Court on Plaintiff Ahmed Saeed’s (“Plaintiff”) Ex Parte Motion 19 for a Temporary Restraining Order (“TRO”). (ECF No. 11.) For the reasons set forth below, the 20 Court DENIES Plaintiff’s motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s business license for his store was revoked on September 9, 2022. (ECF No. 1 3 at ¶ 44; ECF No. 8-6 at 1–5 (notice of revocation letter); ECF No. 11-2 at 8 (indicating Plaintiff 4 received a letter dated September 9, 2022, revoking his business license).) Based on the notice of 5 revocation, Plaintiff had 15 days to appeal. (ECF No. 8-6 at 4.) Plaintiff appealed the revocation 6 to the City of Fairfield over three months later, in December 2022. (ECF No. 1 at ¶ 16; ECF No. 7 11-2 at 19 (requesting reinstatement of the business license); ECF No. 21 (notice of appeal).) 8 Plaintiff filed this action on January 15, 2023, alleging the following claims: (1) a 42 9 U.S.C. § 1983 claim for violation of his First, Fifth, and Fourteenth Amendment rights; (2) 10 promissory estoppel; (3) injunctive and declaratory relief pursuant to California Code of Civil 11 Procedure § 526(a); (4) writ of mandamus pursuant to California Code of Civil Procedure § 12 1094.5; and (5) civil conspiracy. (ECF No. 1.) Plaintiff filed the instant motion for TRO on 13 January 23, 2023, seeking, among other things, an order “staying the revocation of [his] business 14 license so he can continue to operate his store.” (ECF No. 11-1 at 3.) 15 II. STANDARD OF LAW 16 A temporary restraining order is an extraordinary and temporary “fix” that the court may 17 issue without notice to the adverse party if, in an affidavit or verified complaint, the movant 18 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 19 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose 20 of a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. 21 Civ. P. 65. It is the practice of this district to construe a motion for temporary restraining order as 22 a motion for preliminary injunction. E.D. Cal. L.R. 231(a); see also Aiello v. One West Bank, 23 No. 2:10-cv-00227-GEB-EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) (“Temporary 24 restraining orders are governed by the same standard applicable to preliminary injunctions.”) 25 (internal quotation and citations omitted). 26 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 27 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 28 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 1 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 2 a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see 3 also Costa Mesa City Emp.’s Assn. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) 4 (“The purpose of such an order is to preserve the status quo until a final determination following a 5 trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 6 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to any situation before the 7 filing of a lawsuit, but instead to the last uncontested status which preceded the pending 8 controversy.”) (internal quotation marks omitted). In cases where the movant seeks to alter the 9 status quo, preliminary injunction is disfavored and a higher level of scrutiny must apply. Schrier 10 v. Univ. of Co., 427 F.3d 1253, 1259 (10th Cir. 2005). A preliminary injunction is not 11 automatically denied simply because the movant seeks to alter the status quo, but instead the 12 movant must meet heightened scrutiny. Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 13 27, 33–34 (2d Cir. 1995). 14 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 15 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 16 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 17 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 18 to obtain a preliminary injunction. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 19 Cir. 2011). In evaluating a plaintiff's motion for preliminary injunction, a district court may 20 weigh the plaintiff's showings on the Winter elements using a sliding-scale approach. Id. A 21 stronger showing on the balance of the hardships may support issuing a preliminary injunction 22 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 23 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 24 public interest.” Id. Simply put, the plaintiff must demonstrate, “that [if] serious questions going 25 to the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s 26 favor,” in order to succeed in a request for preliminary injunction. Id. at 1134–35. 27 /// 28 /// 1 III. ANALYSIS 2 This is the third motion for TRO Plaintiff has filed within the span of one week. On 3 January 17, 2023, Judge Morrison C. England, Jr., denied Plaintiff’s first motion for TRO due to 4 procedural filing defects. (ECF No. 7.) On January 18, 2023, Judge England denied Plaintiff’s 5 second motion for TRO for two independent reasons: (1) Plaintiff failed to establish imminent 6 harm because of his months-long delay in filing a motion for TRO after his business license was 7 revoked in September 2022; and (2) Plaintiff failed to show irreparable harm because he did not 8 demonstrate monetary damages would be inadequate to compensate him for his injuries. (ECF 9 No. 9 at 3–4.) 10 Plaintiff’s renewed motion for TRO lacks clarity, is largely identical to his previous 11 motions, and fails to resolve the deficiencies identified by Judge England. First, Plaintiff again 12 fails to adequately explain why he waited over four months from the revocation of his business 13 license to seek emergency relief with this Court.1 In fact, Plaintiff complains of conduct leading 14 up to the revocation that occurred as early as 2019. (ECF No. 11-1 at 4.) Plaintiff’s delay in 15 seeking relief warrants outright denial of his motion for TRO. See E.D. Cal. L.R. 231(b) (In 16 considering a motion for TRO, the Court “will consider whether the applicant could have sought 17 relief by motion for preliminary injunction at an earlier date without the necessity for seeking 18 last-minute relief” and may deny the motion if “the applicant unduly delayed in seeking 19 injunctive relief.”). 20 Second, as in his prior motion, Plaintiff fails to demonstrate irreparable harm in the 21 absence of injunctive relief. Plaintiff alleges he has incurred over $85,000 in attorneys’ fees and 22 costs, has lost $488 per day in revenue, and has suffered reputational harm. (ECF No. 11-1 at 7– 23 8.) Plaintiff adds that if his store is not open for business, he will likely default on his monthly 24 lease payments of $4,500, which will negatively affect his personal credit, cause his lease to be 25 terminated, cause him to lose his storefront, and harm his goodwill. (Id. at 8.) However, 26
27 1 Although Plaintiff now seems to indicate the revocation became official in January 2023 (ECF No. 11-1 at 5), Plaintiff’s allegations and other evidence suggests the revocation took place 28 in September 2022 (ECF No. 1 at ¶ 44; ECF No. 11-2 at 8). 1 Plaintiff’s argument is devoid of citations to evidence or legal authority and appears to complain 2 exclusively of economic injuries, which are insufficient to constitute irreparable harm. See Rent- 3 A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) 4 (“[E]conomic injury alone does not support a finding of irreparable harm, because such injury can 5 be remedied by a damage award.”). While loss of goodwill and reputation may constitute 6 irreparable harm, a plaintiff who attempts to establish irreparable harm via loss of business 7 reputation and goodwill must proffer evidence of that loss — a district court may not base a 8 finding of reputational harm on “platitudes rather than evidence.” Herb Reed Enterprises, LLC v. 9 Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013); see also Mountain Mike’s Pizza, LLC 10 v. SV Adventures, Inc., No. 2:21-CV-02387-TLN-AC, 2021 WL 6136178, at *4 (E.D. Cal. Dec. 11 29, 2021) (collecting cases). 12 There are several other issues with Plaintiff’s TRO. For example, Plaintiff does not 13 address Judge England’s concern that Plaintiff is not seeking to preserve the status quo — which 14 is the purpose of a TRO — as his business license has already been revoked. Rather, Plaintiff 15 appears to be seeking a mandatory injunction directing Defendants to reinstate his business 16 license, which triggers a heightened standard. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma 17 GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“In general, mandatory injunctions are not 18 granted unless extreme or very serious damage will result and are not issued in doubtful cases or 19 where the injury complained of is capable of compensation in damages.”) (citation and internal 20 quotation marks omitted). 21 Ultimately, since the Court concludes Plaintiff has not made the required showing of 22 imminent and irreparable harm, the Court declines to address the remaining Winter factors or 23 further issues with the TRO. See MD Helicopters, Inc. v. Aerometals, Inc., No. 2:16-cv-02249- 24 TLN-AC, 2018 WL 489102, at *2 (E.D. Cal. Jan. 19, 2018). Based on these continual defects in 25 now three motions for a TRO, the Court strongly cautions Plaintiff against filing a fourth TRO 26 that fails to remedy the deficiencies addressed in this Order. 27 /// 28 /// 1 IV. CONCLUSION 2 For the foregoing reasons, the Court hereby DENIES Plaintiff's Ex Parte Motion for a 3 | Temporary Restraining Order. (ECF No. 11.) 4 IT IS SO ORDERED. {\ /} 5 | DATE: January 24, 2023 “ \ / theoku
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