Recycle for Change v. City of Hayward

Filing 14

Order by Hon. William H. Orrick denying 7 Motion for TRO. Further proceedings are STAYED pending the Court's decision on the hearing for preliminary injunction in Recycle for Change v. City of Oakland (3:15cv5093), currently set for January 13, 2016. (jmdS, COURT STAFF) (Filed on 11/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RECYCLE FOR CHANGE,

Case No. 15-cv-05092-WHO

Plaintiff,
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ORDER DENYING TEMPORARY
RESTRAINING ORDER

v.
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CITY OF HAYWARD,

Re: Dkt. No. 7

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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On October 13, 2015, the Hayward City Council passed Ordinance Nos. 15-22, 15-23, and

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15-24 (“the Ordinances”) which amend Section 10-1.2735.i, and other related sections, of the

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Hayward Municipal Code. The Ordinances regulate unattended donation and collection boxes

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(“UDCB”) within the city’s limits. The Ordinances will likely eventually impact plaintiff Recycle

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for Change (“Recycle”), a nonprofit organization that receives donations of used textiles in

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UDCBs, recycles them, and uses the revenue from the recycling activities to support charitable

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causes. On November 10, 2015, Recycle filed a motion for temporary restraining order (“TRO”),

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arguing that the Ordinances amount to an unconstitutional prior restraint on free speech and denial

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of equal protection due to differing treatment of UDCB owners under the regulations, and that

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Recycle would be irreparably injured as a result. Mot. [Dkt. No. 7].

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I DENY Recycle’s motion based on of a lack of irreparable injury. I further STAY this

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matter pending the outcome of Recycle’s motion for a preliminary injunction in the related case

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Recycle for Change v. City of Oakland, No. 15-cv-5093-WHO (N.D. Cal.) (filed November 5,

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2015), the hearing on which has been set for January 13, 2016.

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DISCUSSION
In order to obtain a TRO, a plaintiff “must establish that he is likely to succeed on the

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merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking

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Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (internal citations

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removed). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

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showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

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U.S. 7, 22 (2008).

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The question on the irreparable harm factor is “whether the applicant will be irreparably

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injured absent a stay.” Leiva–Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011) (internal

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quotation marks and citations omitted). Such irreparable harm must not simply be “possible” -instead, the moving party is required to “demonstrate that irreparable injury is likely in the absence

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United States District Court
Northern District of California

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of an injunction.” Id. (internal quotation marks and citations omitted) (emphasis in original). “A

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plaintiff must do more than merely allege imminent harm sufficient to establish standing; a

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plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive

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relief.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)(emphasis in

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original).

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Here, Recycle cannot establish such immediate harm. The pertinent section of the

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Hayward Municipal Code specifies that owners of existing UDCBs should apply for permits

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within 30 days of the effective date of the regulation (October 13, 2015) but that nonconforming

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bins can lawfully remain on the site for a period not to exceed one year. Section 10-

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2735(i)(3)(d)(i)-(ii). Additionally, applications for new UDCBs will be accepted beginning 60

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days from the regulation’s effective date. Section 10-2735(i)(3)(d)(iii). Therefore, even if

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Recycle has not applied for permits for its UDCBs, its bins will not be removed until October 13,

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2016, provided Recycle meets maintenance standards. It is not an irreparable injury to file the

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application required by the Ordinances. See Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

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1068 (9th Cir. 2014) (“Irreparable harm is traditionally defined as harm for which there is no

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adequate legal remedy, such as an award of damages.”). As such, any harm that Recycle may

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suffer as a result of the Ordinances is not so immediate as to require a TRO.

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I am staying this case until the preliminary injunction motion in the related case is decided.
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While the Ordinances are different from the Oakland ordinance at issue in the related case, the

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subject matter is similar and the law undergirding the analysis of the issues will likely be

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substantially the same. Therefore, for reasons of judicial economy and the orderly administration

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of justice, it makes sense to enter a short stay to better inform the parties of the Court’s view of the

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law that will apply here.
CONCLUSION

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Recycle’s request for a TRO is DENIED. Further proceedings are STAYED pending the

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Court’s decision on the hearing for preliminary injunction in Recycle for Change v. City of

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Oakland, currently set for January 13, 2016.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 20, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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