Wallace et al v. Buckingham Property Mgt., et al

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/11/2016 RECOMMENDING that plaintiffs' 19 motion for temporary restraining order be denied. Motion referred to Judge Troy L. Nunley. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLEVELAND WALLACE, et al.,

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No. 2:16-cv-1000 TLN CKD PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

BUCKINGHAM PROPERTY
MANAGEMENT, et al.,
Defendants.

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In this action, plaintiffs allege that defendants have engaged in a civil conspiracy to invade

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plaintiffs’ privacy by unlawfully installing surveillance devices in their residence. Plaintiffs

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move for a temporary restraining order, requesting that their apartment management be enjoined

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from entering their home even when the management gives proper notice of intent to enter.

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The standards governing the issuance of temporary restraining orders are "substantially

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identical" to those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co.,

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Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). Therefore, "[a]

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plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that he is likely

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

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his favor, and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los

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Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, Inc.,
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555 U.S. 7 (2008)). "A preliminary injunction is appropriate when a plaintiff demonstrates . . .

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that serious questions going to the merits were raised and the balance of hardships tips sharply in

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the plaintiff’s favor." Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir.

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2010) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)). A TRO is

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"an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

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entitled to such relief." Winter, 129 S. Ct. at 376.

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The Ninth Circuit has reiterated that under either formulation of the principles, if the

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probability of success on the merits is low, preliminary injunctive relief should be denied:

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Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of

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hardships tips decidedly in favor of the moving party, it must be shown as an irreducible

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minimum that there is a fair chance of success on the merits." Johnson v. California State Bd. of

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Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic

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Comm., 740 F.2d 670, 675 (9th Cir. 1984)).

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Plaintiffs fail to address the merits of their claims. Defendants have filed motions to

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dismiss, currently scheduled for hearing on August 24, 2016, which raise serious questions as to

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the merits of plaintiffs’ claims. Moreover, the harm plaintiffs claim in having apartment

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management personnel enter their apartment is speculative at best. Plaintiffs’ motion for

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temporary restraining order is without merit.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs’ motion for temporary

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restraining order (ECF No. 19) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 11, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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