Indong Advanced Materials, Inc. v. Green Energy Global, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 INDONG ADVANCED MATERIALS, No. 2:23-cv-00427-DJC-DB INC., [12] Plaintiff, 13 ORDER v. [14] GREEN ENERGY GLOBAL, INC., et al., [15] Defendants. [17] Plaintiff comes before this Court after having already been denied relief on a [18] substantially similar request. (ECF No. 9 (order by Judge Nunley denying Plaintiff’s ex [19] parte motion for writ of attachment and motion for temporary restraining order [20] (“TRO”) without prejudice).1) For the reasons set forth below, the Court DENIES [21] Plaintiff’s ex parte application. [22] I. ANALYSIS [23] A. Plaintiff Still Fails to Show It Is Entitled to Ex Parte Relief [24] Though Plaintiff asks this Court to issue a writ of attachment, Plaintiff’s [25] justification for ex parte relief is based in part on the statutes governing writs of [27] 1 On April 4, 2023, this matter was transferred to the undersigned by order of Chief Judge Mueller. 28 (ECF No. 11.) 1 possession. (See ECF No. 12-1 at 6–7.) Compare Cal. Code Civ. Proc. § 485.010 2 (governing writs of attachment), with id. at § 512.020(b)(3) (governing writs of 3 possession). Given that Plaintiff’s request is for a writ of attachment, the Court 4 analyzes the request under section 485.010. 5 In order to obtain ex parte relief, Plaintiff must show that “great or irreparable 6 injury would result to the plaintiff if issuance of the order were delayed until the matter 7 could be heard on notice.” Cal. Code Civ. Proc. § 485.010(a). Section 485.010(b), in 8 turn, defines “great or irreparable injury” for purposes of ex parte relief. Although 9 Plaintiff cites the wrong statute, its argument that “there is a great risk that the funds 10 that Indong deposited into GEGI’s account will become unavailable to levy by reason 11 of being transferred, concealed or removed from this state” (ECF No. 12-1 at 7) is a 12 basis for ex parte relief for a writ of attachment. See Cal. Code Civ. Proc. 13 § 485.010(b)(1) (“there is a great danger that the property sought to be attached 14 would be . . . otherwise made unavailable to levy if issuance of the order were delayed 15 until the matter could be heard on notice[ ]”). However, as with Plaintiff’s initial 16 request for ex parte relief, the instant request fails to satisfy this requirement. 17 The only substantive differences between Plaintiff’s first and subsequent 18 motions for a writ of attachment or TRO in the alternative is Plaintiff’s affidavit from 19 counsel, Malcolm Leader-Picone (see ECF No. 12-4), which includes some attached 20 emails, and additional case citations (see ECF No. 12-1 at 10–11 (collecting cases)). 21 None of this is sufficient to show great or irreparable injury under Section 485.010(b). 22 The only probative new fact introduced in the renewed motion is an email from 23 defense counsel wherein defense counsel indicated that it no longer retained physical 24 custody of stocks acquired by Defendant from Plaintiff. (See ECF No. 12-4 at 5.) 25 Plaintiff contends that this email indicates that Defendant is “willing[ ] to conceal assets 26 and put them outside the reach of Indong’s collection efforts.” (ECF No. 12-1 at 10.) 27 However, these assets appear unrelated to the $10 million at issue in this case, which 28 is allegedly held in an account with Wells Fargo, and Plaintiff has not demonstrated to 1 the Court’s satisfaction that the shares were improperly withheld.2 2 Moreover, the cases cited by Plaintiff actually illustrate the sort of specific 3 evidence that is lacking in this case. For instance, in Sunriver Trading Company 4 Limited v. Double D Trade Company, LLC, No. 1:08-cv-1824-AWI-GSA, 2008 WL 5 5395744 (E.D. Cal. Dec. 23, 2008), in finding great or irreparable injury, the court 6 relied on the “apparent unwillingness of the defendant to submit to procedures 7 intended to resolve Plaintiff’s claims,” id. at *4, a reference to the fact that the plaintiff 8 had already obtained a default judgment against the defendant in a properly served 9 suit regarding the claimed funds, see id. at *1. Similarly, in Handley v. Melza, No. 2:2210 cv-797-MCS-MAR, 2022 WL 3640203 (C.D. Cal. Feb. 15, 2022), in granting ex parte 11 relief, the court relied on the fact that the “Defendant ha[d] already refused to comply 12 with an attachment order issued by the District Court of Amsterdam by concealing 13 assets and disclosing only valueless assets, and subsequently fled the Netherlands in 14 order to avoid further enforcement of the Netherlands Order.” Id. at *5. In both 15 instances, then, the defendants had acted in the past in a manner that suggested they 16 would not comply with court process. The Plaintiff has presented no such evidence 17 here. 18 Finally, the declaration of Plaintiff’s attorney, Mr. Leader-Picone, is insufficient to 19 establish an inference that the property sought to be attached is likely to be 20 concealed. Mr. Leader-Picone is not a qualified expert, see Fed. Rule of Evidence 702, 21 and in any event repeats the conclusory evidence the Court previously found 22 insufficient (see ECF No.12-4, ¶ 4.). California courts have held that such conclusory 23 allegations are insufficient to establish irreparable injury. See Western Steel & Ship 24 Repair, Inc. v. RMI, Inc., 176 Cal. App. 3d 1108, 1114 (Cal. Ct. App. 1986) (finding 25 insufficient an affidavit stating that “if [defendant] RMI, INC. was given any notice at all [26] 27 2 The emails reference a default judgment in another proceeding. It is unclear to the Court at this stage who has a right to those shares, what their connection may be to other litigation, and what relevance 28 they have to the dispute at issue in this case. 1 of this hearing, RMI would take whatever steps were necessary to hide its assets so as 2 to prevent attachment of these assets[ ]”). 3 B. Denying Alternative Motion for a Temporary Restraining Order 4 Finally, Plaintiff moves in the alternative for a TRO. (See ECF No. 12-1 at 11.) As 5 an initial matter, Plaintiff has failed to comply with Federal Rule of Civil Procedure 6 65(b)(1)(B), which requires counsel to “certif[y] in writing any efforts made to give 7 notice and the reasons why it should not be required.” No such certification was 8 included in Plaintiff’s application. 9 On the merits, the deficient showings of harm described above, see supra Part 10 I.A, similarly require denial of Plaintiff’s motion for a TRO under any standard for 11 prejudgment preliminary injunctive relief. See Fed. Rule of Proc. 64(a) (providing that 12 every remedy regarding seizing people or property available under the law of the 13 state where the federal court resides is available throughout the action “[b]ut a federal 14 statute governs to the extent it applies[ ]”). Under California law, a temporary 15 injunctive order, like an ex parte application for a writ of attachment, requires a 16 showing of great harm. Cal. Code Civ. Proc. § 485.010; see id. at § 486.020 17 (referencing Cal. Code Civ. Proc. § 485.010 for definition of “great or irreparable 18 injury”). As explained above, Plaintiff has failed to make this showing. Likewise, under 19 the federal Winter standard for injunctive relief, the movant must show: (1) likelihood 20 of success on the merits; (2) likelihood of irreparable harm in the absence of 21 preliminary relief; (3) that the balance of equities tip in the movant’s favor; and (4) that 22 an injunction is in the public interest. See Stormans, Inc. v. Selecky, 586 F.3d 1109 , 23 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 20 24 (2008)); also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 , 839 n.7 25 (9th Cir. 2001) (noting that the standards for a preliminary injunction and a TRO are 26 “substantially identical”). Assuming Plaintiff has shown a likelihood of success on the 27 merits, monetary harm alone does not constitute irreparable harm, especially where, 28 as here, monetary damages could provide adequate relief. See Los Angeles Memorial 1 | Coliseum Comm’n v. Nat'l Football League, 634 F.2d 1197 , 1201-02 (9th Cir. 1980). 2 Il. CONCLUSION 3 For the reasons set forth above, IT |S HEREBY ORDERED Plaintiff's Ex Parte 4 | Application for Writ of Attachment and Temporary Restraining Order is DENIED. (ECF 5 | No. 12.) Any further applications for relief, including emergency relief, shall be made 6 | through a properly noticed motion. [7] 8 IT |S SO ORDERED. 9 | Dated: _ April 10, 2023 Bek | Cbabeatin.. Hon. Daniel labretta 10 UNITED STATES DISTRICT JUDGE