Talk N Win, Inc., et al. v. Harris, et al.

Filing 9

ORDER on Plaintiffs' Requested Injunction Relief 3 signed by District Judge Lawrence J. O'Neill on 6/27/2013. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TALK N WIN, INC., et al.,

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Plaintiffs,

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CASE NO. CV F 13-0971 LJO SKO
ORDER ON PLAINTIFFS' REQUESTED
INJUNCTIVE RELIEF (Doc. 3)

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vs.

KAMALA D. HARRIS, et al.,

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Defendants.
______________________________/
PRELIMINARY STATEMENT TO THE PARTIES AND COUNSEL

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Judges in the Eastern District of California carry the heaviest caseload in the nation,

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and this Court is unable to devote inordinate time and resources to individual cases and

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matters. This Court cannot address all arguments, evidence and matters raised by parties and

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addresses only the arguments, evidence and matters necessary to reach the decision in this

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order given the shortage of district judges and staff. The parties and counsel are encouraged to

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contact United States Senators Diane Feinstein and Barbara Boxer to address this Court’s

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inability to accommodate the parties and this action. The parties are required to consider, and

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if necessary, to reconsider consent to a U.S. Magistrate Judge to conduct all further

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proceedings in that the Magistrate Judges’ availability is far more realistic and accommodating

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to parties than that of U.S. District Judge Lawrence J. O'Neill who must prioritize criminal and

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older civil cases. A Magistrate Judge consent form is available on this Court’s website.
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Civil trials set before Judge O'Neill trail until he becomes available and are subject to

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suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later

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date if Judge O'Neill is unavailable on the original date set for trial. If a trial trails, it may

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proceed with little advance notice, and the parties and counsel may be expected to proceed to

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trial with less than 24 hours notice. Moreover, this Court’s Fresno Division randomly and

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without advance notice reassigns civil actions to U.S. District Judges throughout the nation to

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serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to

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reassignment to a U.S. District Judge from outside the Eastern District of California. Case

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management difficulties, including trial setting and interruption, are avoided if the parties

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consent to conduct of further proceedings by a U.S. Magistrate Judge.
ORDER

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Plaintiffs Talk N Win, Inc. ("TNW") and Silva Ghreir ("Ms. Ghreir") filed June 25,

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2013 papers (doc. 3) to seek to enjoin destruction of property ("property") seized by the Visalia

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Police Department ("VPD") during May 28, 2013 searches of Ms. Ghreir's residential and

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commercial properties. Leonard Herr ("Mr. Herr"), counsel for the City of Visalia ("City"),

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filed his June 26, 2013 declaration that the City and VPD "have no present intention to destroy

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any of the property seized" and to commit to give a 10-day notice of the City's intention to

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return, possess or destroy the property. Mr. Herr's declaration renders moot TNW and Ms.

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Ghreir's requested injunctive relief as to property destruction and retention. As such, this Court

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DENIES TNW and Ms. Ghreir (collectively "plaintiffs'") injunctive relief, including a

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preliminary injunction, as to property destruction and retention.

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Plaintiffs' June 25, 2013 papers (doc. 3) further seek injunctive relief regarding a

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criminal investigation into plaintiffs' sale and promotion of prepaid telephone calling cards.

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Plaintiffs fail to demonstrate that this Court is empowered to grant the overbroad injunctive

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relief they seek regarding the criminal investigation. See Younger v. Harris, 401 U.S. 37, 91

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S.Ct. 746. Plaintiffs fail to demonstrate that they have exhausted state court remedies. See

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Mannes v. Gillespie, 967 F.2d 1310, 1311-1312 (9th Cir. 1992).

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When a government agency is involved, it must “be granted ‘the widest latitude in the
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dispatch of its own internal affairs,’” Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001)

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(quoting Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 608 (1976)), and “[w]hen a state

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agency is involved, these considerations are, if anything, strengthened because of federalism

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concerns,” Gomez, 255 F.3d at 1128. “[A]ny injunctive relief awarded must avoid unnecessary

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disruption to the state agency’s ‘normal course of proceeding.’” Gomez, 255 F.3d at 1128

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(quoting O’Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct. 669, 679 (1974)).

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Furthermore, equitable remedies are “unavailable absent a showing of irreparable

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injury, a requirement that cannot be met where there is no showing of any real or immediate

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threat that the plaintiff will be wronged again - a ‘likelihood of substantial and immediate

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irreparable injury.’” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670

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(1983) (quoting O’Shea, 414 U.S. at 502, 94 S.Ct. at 679). Plaintiffs address defendants' past

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conduct to raise claims, and should plaintiffs prevail, plaintiffs' injuries will not go

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unrecompensed because plaintiffs have an adequate remedy at law. Lyons, 461 U.S. at 111,

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103 S.Ct. at 1670. Plaintiffs are not entitled to a temporary restraining order ("TRO") as to

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defendants' past conduct because there is no allegation, and no argument made by plaintiffs,

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that they will be wronged again by defendants. As such, this Court DENIES a TRO as

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plaintiffs' requests in page 3, line 24 to page 4, line 11 of their application (doc. 3) and page 4,

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line one to page 4, line 16 of their proposed order (doc. 3-12).

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Given this order, this Court questions the need to address and merits of a preliminary

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injunction motion as to plaintiffs' requests in page 3, line 24 to page 4, line 11 of their

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application (doc. 3) and page 4, line one to page 4, line 16 of their proposed order (doc. 3-12).

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As such, this Court ORDERS plaintiffs' counsel, no later than July 2, 2013, to file and serve

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papers to indicate whether plaintiffs continue to request a preliminary injunction. If plaintiffs

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indicate that they wish to pursue a preliminary injunction, this Court will set deadlines for

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defendants to oppose a preliminary injunction and for plaintiffs to file reply papers.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

June 27, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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