Klein v. United States Department of the Interior, et al

Filing 6

ORDER signed by Judge Garland E. Burrell, Jr on 3/17/2014 DENYING 2 Motion for TRO. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY A. KLEIN,

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Plaintiff,

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No. 2:14-cv-00700-GEB-CKD

v.
UNITED STATES DEPARTMENT OF
THE INTERIOR, UNITED STATES
ASH AND WILDLIFE SERVICE, AND
CAROLYN A. LOWN,

ORDER DENYING EX PARTE MOTION
FOR TEMPORARY RESTRAINING ORDER

Defendants.

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On Monday, March 17, 2014, Plaintiff filed an ex parte

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motion

for

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Defendants “from destroying two (2) sport-hunted African elephant

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(Loxodnia africana) tusks . . . that were seized on or about May

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29,

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Plaintiff avers the referenced destruction will occur tomorrow.

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(Aff. Of Notice of Rodney A. Klein ¶ 8, ECF No. 2-2.)

2013.”

a

(Ex

temporary

Parte

restraining

Mot.

for

a

order

TRO

(“TRO”)

1:25-27,

ECF

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As prescribed in Local Rule 231(b):

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In considering a motion for a temporary
restraining order, the Court will consider
whether the applicant could have sought
relief by motion for preliminary injunction
at an earlier date without the necessity for
seeking last-minute relief by motion for
temporary restraining order. Should the Court
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to

enjoin

No.

2.)

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find that the applicant unduly delayed in
seeking injunctive relief, the Court may
conclude that the delay . . . contradicts the
applicant‟s
allegations
of
irreparable
injury . . . .

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Here, Plaintiff avers: “I received a Declaration of

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Forfeiture on December 16, 2013, ordering the destruction of said

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[elephant tusks] . . . at which point in time I learned that the

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tusks were to be destroyed on March 18, 2014.” (Aff. Of Notice of

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Rodney A. Klein ¶ 8.) However, Plaintiff provides no explanation

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concerning why he waited ninety-one days after learning of the

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impending destruction to file his motion for a TRO. This delay

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“contradicts [Plaintiff‟s averments] of irreparable injury.” E.D.

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Cal. L.R. 231(b); see also Garcia v. Google, Inc., -- F.3d ---,

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No. 12-57302, 2014 WL 747399, at *6 (9th Cir. Feb. 26, 2014)

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(“[A]

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urgency and irreparable harm.‟” (quoting Oakland Tribune, Inc. v.

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Chronicle Publ'g Co., 762 F.2d 1374, 1377 (9th Cir. 1985))).

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„long

delay

before

seeking

a

[TRO]

implies

a

lack

of

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Further, “[i]t is well established . . . that . . .

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monetary injury is not normally considered irreparable.” L.A.

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Mem‟l Coliseum Comm‟n v. Nat‟l Football League, 634 F.2d 1197,

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1202 (9th Cir. 1980). However, Plaintiff relies on the conclusory

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and unsupported averment that “the [elephant tusks] at issue are

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unique, are of intrinsic value, and [their] worth greatly exceeds

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[their] monetary value.” (Aff. of Rodney A. Klein Re: Existence

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of Irreparable Harm ¶ 10, ECF No. 2-3.) This woefully unsupported

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averment fails to evince that destruction of the subject elephant

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tusks would cause Plaintiff anything other than monetary injury.

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See In re Excel Innovations, Inc., 502 F.3d 1086, 1098-99 (9th

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Cir.

2007)

(“[C]onclusory

allegations
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are

insufficient

to

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establish

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“demonstrate that . . . [he] is likely to suffer irreparable harm

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in the absence of [a TRO],” Plaintiff‟s motion is denied. Fox

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Broad. Co., Inc. v. Dish Network L.L.C., No. 12-57048, 2014 WL

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260572, at *3 (9th Cir. Jan. 24, 2014), amending 723 F.3d 1067.

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Dated:

irreparable

harm.”).

March 17, 2014

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Since

Plaintiff

fails

to