Salesdrivers, Helpers and Dairy Employees, Local Union No. 683, International Brotherhood of Teamsters v. Pasha Automotive Services

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SALESDRIVERS, HELPERS AND Case No.: 21-CV-1888 JLS (DEB) DAIRY EMPLOYEES, LOCAL UNION [12] NO. 683, INTERNATIONAL ORDER DENYING WITHOUT 13 BROTHERHOOD OF TEAMSTERS, PREJUDICE EX PARTE MOTION FOR TEMPORARY RESTRAINING 14 Plaintiff, ORDER 15 v. (ECF No. 3) 16 PASHA AUTOMOTIVE SERVICES, 17 Defendant. [19] 20 Presently before the Court is Plaintiff Salesdrivers, Helpers and Dairy Employees, 21 Local Union No. 683, International Brotherhood of Teamsters’s Ex Parte Motion for 22 Temporary Restraining Order (“Mot.,” ECF No. 3). Plaintiff requests the Court order 23 Defendant “to cease and desist from violating Article IV of the [collective bargaining 24 agreement (“]CBA[”)] and allow the authorized business representative access to the 25 Employer’s facilities.” Mot. at 9. For the reasons set forth below, the Court DENIES 26 WITHOUT PREJUDICE Plaintiff’s ex parte Motion. 27 /// 28 /// 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 3 restraining order (“TRO”). The standard for a temporary restraining order is identical to 4 the standard for a preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry 5 Healthcare Worker’s Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff 6 seeking preliminary relief must establish “[1] that he is likely to succeed on the merits, [2] 7 that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the 8 balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 9 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The elements of this test are 10 “balanced, so that a stronger showing of one element may offset a weaker showing of 11 another.” All. for Wild Rockies v. Cottrell, 622 F.3d 1045 , 1049–50 (9th Cir. 2010), rev’d 12 on other grounds, 632 F.3d 1127 (9th Cir. 2011). Generally, a temporary restraining order 13 is considered to be “an extraordinary remedy that may only be awarded upon a clear 14 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22 . 15 When a plaintiff has not provided notice of its application to the defendant, Federal 16 Rule of Civil Procedure 65(b)(1) imposes specific requirements prior to the issuance of a 17 temporary restraining order. 18 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: [19] (A) specific facts in an affidavit or a verified complaint clearly 20 show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in [21] opposition; and (B) the movant’s attorney certifies in writing any 22 efforts made to give notice and the reasons why it should not be required. [23] 24 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[ ] on the 25 availability of ex parte temporary restraining orders reflect the fact that our entire 26 jurisprudence runs counter to the notion of court action taken before reasonable notice and 27 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, 28 Inc. v. Bhd. of Teamsters, 415 U.S. 423 , 438–39 (1974) (footnote omitted). 1 Accordingly, “courts have recognized very few circumstances justifying the 2 issuance of an ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126 , 1131 3 (9th Cir. 2006). “For example, an ex parte TRO may be appropriate ‘where notice to the 4 adverse party is impossible either because the identity of the adverse party is unknown or 5 because a known party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co. 6 v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice 7 could have been given to the adverse party, courts have recognized a very narrow band of 8 cases in which ex parte orders are proper because notice to the defendant would render 9 fruitless the further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at 10 322). This District has additional requirements that parties must meet to demonstrate they 11 are entitled to ex parte relief: 12 A motion for an order must not be made ex parte unless it appears by affidavit or declaration (1) that within a reasonable time [13] before the motion the party informed the opposing party or the 14 opposing party’s attorney when and where the motion would be made; or (2) that the party in good faith attempted to inform the [15] opposing party and the opposing party’s attorney but was unable 16 to do so, specifying the efforts made to inform them; or (3) that for reasons specified the party should not be required to inform [17] the opposing party or the opposing party’s attorney. [18] 19 S.D. Cal. Civ. R. 83.3(g)(2). 20 ANALYSIS 21 Here, Plaintiff has not satisfied the requirements of Federal Rule of Civil Procedure 22 65(b)(1) or Civil Local Rule 83.3(g)(2) for a temporary restraining order without notice. 23 There is no declaration or affidavit accompanying Plaintiff’s Motion that certifies 24 Plaintiff’s efforts to give notice to Defendant and the reasons why notice should not be 25 required. Additionally, Plaintiff has not demonstrated that notice is impossible or would 26 render further prosecution of the action fruitless, as is required for an ex parte TRO. Reno 27 Air Racing, 452 F.3d at 1131 . Because Plaintiff has not met the requirements for a TRO 28 without notice, Plaintiff’s Motion is DENIED. 1 CONCLUSION 2 For the reasons stated, Plaintiff’s ex parte motion for a temporary restraining order 3 DENIED WITHOUT PREJUDICE. 4 IT IS SO ORDERED. 5 Dated: November 18, 2021 tt 6 pee Janis L. Sammartino 7 United States District Judge