A Woman's Friend Pregnancy Resource Clinic, et al. v. Harris

Filing 28

ORDER signed by Judge Kimberly J. Mueller on 12/30/2015 ORDERING 27 this court concludes as before that plaintiffs have not made the required showing, and DECLINES to issue the temporary injunction. Plaintiffs' motion is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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A WOMAN’S FRIEND PREGNANCY
RESOURCE CLINIC, CRISIS
PREGNANCY CENTER OF NORTHERN
CALIFORNIA, ALTERNATIVES
WOMEN’S CENTER,

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No. 2:15-cv-02122-KJM-AC

ORDER

Plaintiffs,
v.
KAMALA HARRIS, Attorney General of
the State of California, In Her Official
Capacity,
Defendants.

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On December 21, 2015, after hearing and consideration of the parties' briefs, the

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court filed an order denying plaintiffs’ motion for preliminary injunction. ECF Nos. 8, 9, 23.

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Plaintiffs have now appealed the order. ECF No. 25. On December 28, 2015, plaintiffs filed a

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motion in this court to enjoin the statutes challenged by their motion for an injunction, California

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Health & Safety Code sections 123472 and 123474, pending the interlocutory appeal; they move

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in the alternative for a temporary injunction of seven days pending their filing of a motion based

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on Federal Rule of Appellate Procedure 8 with the Ninth Circuit. Mot., ECF No. 27. Plaintiffs

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argue if the court grants the temporary seven-day motion, the court can choose to enjoin only the
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enforcement provision of the law (section 123473) and not the notice provision (section 123472).

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Mot. at 5.

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Federal Rule of Civil Procedure 62(c) provides that a district court may grant an

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injunction during the pendency of an interlocutory appeal. The same legal standard applies to a

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motion for an injunction pending appeal as to a motion for a preliminary injunction. Sierra

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Forest Legacy v. Rey, 691 F. Supp. 2d 1204, 1207 (E.D. Cal. 2010); Protect Our Water v.

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Flowers, 377 F. Supp. 2d 882, 883 (E.D. Cal. 2004). That standard, as discussed in the court’s

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prior order, requires the moving party to show “that [it] is likely to succeed on the merits, that [it]

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is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in [its] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, in the Ninth Circuit, if a plaintiff cannot show

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a likelihood of success but can show “serious questions going to the merits” with the “balance of

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hardships tip[ping] sharply in the plaintiff’s favor,” and satisfy the other two Winter factors then a

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preliminary injunction can also be proper. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d

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1281, 1291 (9th Cir. 2013) (citations omitted). An injunction may issue only upon a clear

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showing the movant is entitled to relief. Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012).

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Here, plaintiffs argue the short duration of the requested injunction, in contrast

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with the full injunction requested in their previous motion, alters the balance in their favor.

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Plaintiffs also argue, in essence, the court’s order is flawed in that the State did not provide any

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evidence or argument for the basis of the court’s conclusion reached after balancing the hardships

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and public interest. Mot. at 3. As the court stated in its previous order, plaintiffs as the moving

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parties carry the burden when requesting any injunction, including even a short-lived one. It is

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the plaintiffs’ burden to show the “balance of hardships” tip sharply in their favor and that the

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injunction requested is in the public interest, along with the other requirements under Winter.

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Apart from shrinking the time frame and filing their appeal, plaintiffs have presented no new

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argument or evidence in this motion. Accordingly, this court concludes as before that plaintiffs

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have not made the required showing, and declines to issue the temporary injunction.

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Plaintiffs’ motion is DENIED. This order disposes of ECF No. 27.
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IT IS SO ORDERED.
DATED: December 30, 2015
/s/KIMBERLY J. MUELLER
UNITED STATES DISTRICT JUDGE

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