McCain v. Stockton Police Department et al

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 12/18/10 Recommending that Pltf's 8 MOTION for Writ of Replevin, construed as a motion for temporary restraining order, be denied. Referred to Judge John A. Mendez. Objections to F&Rs due within 14 days of service. (Owen, K)

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(PS) McCain v. Stockton Police Department et al Doc. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The motion is deficient under Local Rule 231 in that it was not served on all defendants and there is no showing of any attempt by plaintiff to provide actual notice to defendants. For that reason alone, the motion should be denied. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TERRYLYN McCAIN, Plaintiff, vs. STOCKTON POLICE DEP'T, et al., Defendants. / Plaintiff has moved for a writ of replevin, seeking the return of her vehicle which was impounded by the defendant police department. The court will construe plaintiff's motion as temporary restraining order seeking affirmative relief.1 The purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary restraining order due to the fact that very few such orders can be appealed prior to a hearing on a preliminary injunction. It is apparent, however, that requests for temporary restraining orders that are ex parte and without notice are governed by the same general standards that govern the issuance of a preliminary injunction. FINDINGS AND RECOMMENDATIONS No. CIV S-10-3170 JAM KJM PS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). The legal principles applicable to a request for preliminary injunctive relief are well established. "The traditional equitable criteria for granting preliminary injunctive relief are (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." Dollar Rent A Car v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th Cir. 1985). The criteria traditionally are treated as alternative tests. "Alternatively, a court may issue a preliminary injunction if the moving party demonstrates `either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984) (quoting William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975) (emphasis in original)). The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, preliminary injunctive relief should be denied: Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits." Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin, 740 F.2d at 675). Because plaintiff seeks affirmative relief, plaintiff's burden is even greater than if she simply sought to preserve the status quo. The allegations of the complaint indicate that plaintiff was stopped by the police while operating a motor vehicle. Complaint 18, 19, 26-32. The vehicle at issue on this motion was not properly registered with the state and plaintiff was operating a motor vehicle without a license. Id. 74, 75. Under these circumstances, it appears 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 impoundment of plaintiff's vehicle may have been proper and the likelihood of success on the merits appears to be minimal. Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion for writ of replevin, construed as a motion for temporary restraining order, be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: December 18, 2010. 006 mccain-stocktonpolice.tro 3

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