Moon v. Rush et al

Filing 144

ORDER DENYING Plaintiff's MOTION for Temporary Restraining Order 134 signed by Judge Garland E. Burrell, Jr on 1/21/15. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VIRGINIA C. MOON, on her own
behalf and on behalf of the
Peters, Rush, Habib & McKenna
Profit Sharing Plan,

v.

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DAVID H. RUSH, MARK A. HABIB,
and JAMES P. MCKENNA,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION
FOR A TEMPORARY RESTRAINING
ORDER

Plaintiff,

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No. 2:11-cv-3102-GEB-CKD

Plaintiff and Counterdefendant Virginia Moon seeks a
temporary restraining order (“TRO”) under Federal Rule of Civil
Procedure (“Rule”) 65(b) barring Defendant and Counterclaimant
David

Rush

concerning

from
the

filing

real

a

partition

property

at

1525

lawsuit
Dayton

in

state

Road

in

court
Chico,

California (“the Property”). Rush opposes the motion (ECF No.
139.) Rush, Moon and the Plan are co-owners of the Property. (ECF
No. 131.)
I.

LEGAL STANDARD

To obtain a TRO, a party must demonstrate that “[s]he
is likely to succeed on the merits, that [s]he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of the equities tips in h[er] favor, and that an

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injunction is in the public interest.” Winter v. Natural Res.

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Council, 555 U.S. 7, 20 (2008). “[I]f a plaintiff can only show

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that there are „serious questions going to the merits‟—a lesser

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showing than likelihood of success on the merits—then a [TRO]...

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may still issue if the „balance of the hardships tips sharply in

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the plaintiff‟s favor,‟ and the other two Winter factors are

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satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d

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1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies

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v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). “The [Winter]

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test is conjunctive, meaning that the party seeking the [TRO]...

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must satisfy each element.” Wells Fargo Bank v. SFR Inv. Pool 1,

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LLC, No. 2:13-CV-1375 JCM (PAL), 2013 WL 6231373, at *2 (D. Nev.

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Dec. 2, 2013.)

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II.

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A.

DISCUSSION

Likelihood of Success on the Merits/Serious Questions

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Going to the Merits

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Moon argues she is entitled to a TRO since she alleges

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in

her

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fiduciary

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conflicted

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engaging in prohibited transactions, . . . [such as] taking for

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himself rents and tax benefits attributable to the Dayton Road

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property owed to the Plan and/or Ms. Moon.” (Compl. ¶ 91, ECF No.

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2.) Moon argues she is a beneficiary of the Plan, and since Rush

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was

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Property in his individual capacity, he failed to perform the

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fiduciary obligations he owed the Plan and therefore Moon is

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likely to prevail on her equitable claim for an order “equitably

a

Complaint,
duties

Plan

in

position

part,

the

to

pertinent
Plan

“[b]y

respect

to

with

fiduciary,

and

that

placing
the

simultaneously

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Rush

Plan

part

violated
himself

in

[Property

owner

his

of

a

by],

the

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restor[ing] the Dayton Road property to [her].” (Compl. Prayer

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for Relief As to the Seventh Claims for Relief, ECF No. 2.) Moon

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argues that if Rush files a partition lawsuit in state court, she

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would be deprived of this equitable relief.

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Rush counters that even if Moon could show a likelihood

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of success on this breach of fiduciary duty claim, it is not

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likely that she would receive an order equitably restoring his

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interest

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agreements that clearly would not favor such equitable relief.

in

the

Property

to

her

since

he

and

Moon

have

had

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“Serious questions” in the context of a TRO are those

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that are so “substantial, difficult, and doubtful, as to make

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them a fair ground for litigation and thus for more deliberative

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investigation.” Republic of Philippines v. Marcos, 826 F.2d 1355,

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1362 (9th Cir. 1988) (citation omitted).

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In light of the agreements and disagreements Moon and

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Rush

have

had

concerning

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serious questions that she is likely to prevail on her equitable

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restoration claim as she contends.

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the

Property,

Moon

has

not

raised

III. CONCLUSION

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For the reasons stated, Moon‟s motion for a temporary

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restraining order is DENIED.

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Dated:

January 21, 2015

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