F.G. Crosthwaite and Russell E. Burns et al v. Cooper Crane & Rigging, Inc.

Filing 45

ORDER DENYING TEMPORARY RESTRAINING ORDER AND APPLICATION FOR WRIT OF ATTACHMENT. Signed by Judge Jeffrey S. White on 11/2/11. (jjoS, COURT STAFF) (Filed on 11/2/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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F. G. CROSTHWAITE, et al., as Trustees of
the OPERATING ENGINEERS HEALTH
AND WELFARE TRUST FUND, et al.,

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No. C 11-02866 JSW

Plaintiffs,
v.

ORDER DENYING TEMPORARY
RESTRAINING ORDER AND
APPLICATION FOR WRIT OF
ATTACHMENT

COOPER CRANE & RIGGING, INC., a
California Corporation dba ASSOCIATED
DOCK ENTERPRISES, INC. and dba
WESTERN DOCK ENTERPRISES,

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Defendants.
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Now before the Court for consideration is the ex parte application for a temporary

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restraining order (“TRO”) filed by Plaintiffs, or in the alternative, an application for a writ of

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attachment. In order to obtain a temporary restraining order or preliminary injunctive relief,

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Plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer

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

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favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense

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Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008) (citations omitted). The Winter court also

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noted that because injunctive relief is “an extraordinary remedy,” it “may only be awarded upon

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a clear showing that the plaintiff is entitled to such relief.” 129 S.Ct. at 375-76 (citing Mazurek

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v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Thus “[i]n each case, courts ‘must

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balance the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.’” Id. at 376 (citing Amoco Production Co. v.

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Gambell, 480 U.S. 531, 542 (1987)). On an ex parte motion for a TRO, the moving plaintiff

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must allege “specific facts in an affidavit or a verified complaint clearly show that immediate

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and irreparable injury, loss, or damage will result to the movant before the adverse party can be

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heard in opposition.” Fed. R. Civ. Proc. 65(b)(1)(A). Plaintiffs fail to meet this standard.

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On October 18, 2011, Magistrate Judge Laurel Beeler issued a report and

$31,508.50 in attorneys’ fees. Pursuant to the Report, as well as Federal Rule of Civil

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Procedure 72(b), Defendant has fourteen days to file any objections to the Report. However,

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because Plaintiffs served Defendant with a copy of the Report by mail (see Docket No. 36),

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Defendant’s time to file objections was extended three more days. See Fed. R. Civ. P. 6(d).

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For the Northern District of California

recommendation (“Report”) to award Plaintiffs $697,317.37 in delinquent contributions and

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United States District Court

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Therefore, Defendant’s objections, if any, are not due to be filed until November 4, 2011.

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Moreover, Plaintiffs fail to demonstrate that they will suffer irreparable harm if the

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Court does not issue the TRO. Plaintiffs argue that “[o]ver the past few weeks, it has become

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clear that events which are likely to have a direct effect upon Defendant’s debts to Plaintiffs

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have begun to rapidly escalate.” However, the facts Plaintiffs present show that Defendant will

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soon have a greater ability to pay any debt to Plaintiffs, not less. Accordingly, the Court

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DENIES Plaintiffs’ application for a TRO. The Court FURTHER DENIES Plaintiffs’

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alternative application for a writ of attachment without prejudice to refiling once a judgment is

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entered.

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IT IS SO ORDERED.

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Dated: November 2, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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