Occupy Fresno et al v. County of Fresno et al

Filing 26

ORDER DENYING Application for an Immediate Temporary Restraiing Order and Setting a Briefing Schedule for a Motion for a Preliminary Injunction and ORDER VACATING 13 November 16, 2011 Hearing signed by Chief Judge Anthony W. Ishii on 11/15/2011. (Plaintiffs Motion for a Preliminary Injunction Deadline by 4:00 PM on 11/18/2011; Defendants Opposition Deadline by 4:00 PM on 12/2/2011; Plaintiffs Replies due by 1:00 PM on 12/6/2011; Motion Hearing set for 12/12/2011 at 01:30 PM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii) (Figueroa, O)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

OCCUPY FRESNO, et al.,

10
11

Plaintiff,
v.

12
COUNTY OF FRESNO, et al.,
13
Defendants.
14

)
)
)
)
)
)
)
)
)
)
)
)

1:11-cv-1894 AWI DLB
ORDER DENYING APPLICATION FOR AN
IMMEDIATE TEMPORARY
RESTRAINING ORDER AND SETTING A
BRIEFING SCHEDULE FOR A MOTION
FOR A PRELIMINARY INJUNCTION
ORDER VACATING NOVEMBER 16, 2011
HEARING
(Doc. 13)

15
16

On November 13, 2011, Plaintiffs filed a complaint for declaratory relief, injunctive

17

relief, damages, attorney fees and costs. Plaintiffs contend that a number of Defendants’

18

ordinances unreasonably interfere with Plaintiffs’ ability to assemble and exercise free speech.

19

Currently, Plaintiffs have been told that all attendees to their rally must vacate Courthouse Park

20

prior to 12:00 a.m. (midnight) every night without exception and told them they can only use the

21

Park from 6:00 a.m. to 12:00 a.m. Plaintiffs have also been forbidden to hold protester signs.

22

Plaintiffs contend that Defendants have interfered with their Right to Peaceably Assemble, the

23

Right of Speech; and, the Right to Petition the Government for a Redress of Grievances.

24

On November 13, 2011, Plaintiffs filed an application for a temporary restraining order

25

against Defendants. Despite the fact no District Court Judge or Magistrate Judge had yet been

26

assigned to this action, Plaintiffs set their motion for a temporary restraining order on November

27

16, 2011 before the undersigned.

28
1

1

A party seeking a temporary restraining order or preliminary injunction must demonstrate

2

that the party is likely to succeed on the merits, that the party is likely to suffer irreparable harm

3

in the absence of preliminary relief, that the balance of equities tips in the party’s favor, and that

4

an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., – U.S. – , 129

5

S.Ct. 365, 374 (2008); National Meat Ass'n v. Brown, 599 F.3d 1093, 1097 (9th Cir. 2010). “In

6

each case, courts must balance the competing claims of injury and must consider the effect on

7

each party of the granting or withholding of the requested relief.” Indep. Liv. Cntr. of Southern

8

Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 376)

9

(internal quotation marks omitted)).

10

Here, Plaintiffs have attempted to file an ex parte motion for a temporary restraining

11

order, without allowing Defendants to have notice of the motion. Under Rule 65(b), a court may

12

issue an ex parte temporary restraining order only if: (1) it clearly appears . . . that immediate

13

and irreparable injury, loss, or damage will result to the applicant before the adverse party or that

14

party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in

15

writing the efforts, if any, which have been made to give the notice and the reasons supporting

16

the claim that notice should not be required. Fed. R. Civ. Pro. 65(b); Reno Air Racing Ass'n v.

17

McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Rule 65(b)’s requirements are “stringent,” and

18

temporary restraining orders that are granted ex parte are to be “restricted to serving their

19

underlying purpose of preserving the status quo and preventing irreparable harm just so long as is

20

necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of

21

Teamsters, 415 U.S. 423, 438-39 (1974); McCord, 452 F.3d at 1131.

22

Nowhere in Plaintiffs’ motion do they provide any reason why Defendants should not be

23

allowed to appear in opposition to Plaintiffs’ motion. Given the limited time his court has had to

24

consider this action and the sparse briefing before the court, the court will deny the application

25

for an ex parte immediate temporary restraining order at this time.

26

Accordingly, the court ORDERS that:

27

1.

28

Plaintiff’s application for an immediate temporary restraining order is DENIED
without prejudice;
2

1

2.

2
3

Plaintiffs may file a fully briefed motion for a preliminary injunction by 4:00 p.m.
on November 18, 2011;

3.

4

Defendants may file any opposition to Plaintiff’s motion by 4:00 p.m. on
December 2, 2011;

5

4.

Plaintiff may file any reply by 1:00 p.m. on December 6, 2011;

6

5.

The court will hear any motion for a preliminary injunction on December 12, 2011

7
8

at 1:30 p.m.
IT IS SO ORDERED.

9
10

Dated:
0m8i78

November 15, 2011
CHIEF UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3