Recycle for Change v. City Of Oakland

Filing 20

Order by Hon. William H. Orrick denying 7 Motion for TRO. Recycle has until December 2, 2015 to file a motion for a preliminary injunction and supporting papers. Oakland may file its opposition by December 16, 2015. Any reply must be filed by December 23, 2015. The hearing on the motion is set for January 13, 2016 at 2:00 pm in Courtroom 2. (jmdS, COURT STAFF) (Filed on 11/20/2015) Modified on 11/20/2015 to correct disposition description (jmdS, COURT STAFF).

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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-05093-WHO

Plaintiff,
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ORDER DENYING TEMPORARY
RESTRAINING ORDER

v.
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CITY OF OAKLAND,

Re: Dkt. No. 7

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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On October 20, 2015, the Oakland City Council passed Ordinance No. 13335 C.M.S. (“the

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Ordinance”) to regulate the placement, appearance, operation, and maintenance of unattended

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donation and collection boxes (“UDCB”) within the city’s limits. The Ordinance will likely

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impact plaintiff Recycle for Change (“Recycle”), a nonprofit organization that receives donations

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of used textiles in UDCBs, recycles them, and uses the revenue from its recycling activities to

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support charitable causes. On November 10, 2015, Recycle filed a motion for temporary

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restraining order (“TRO”), arguing that the Ordinance amounts to an unconstitutional prior

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restraint on free speech and denial of equal protection due to differing treatment of UDCB owners

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under the regulations, and that Recycle would be irreparably injured as a result. Mot. [Dkt. No.

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7].
I held a hearing on November 19, 2015. I DENY Recycle’s motion because of a lack of

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irreparable injury and will hear Recycle’s motion for a preliminary injunction on January 13,

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2016.

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DISCUSSION

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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
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” --

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instead, the moving party is required to “demonstrate that irreparable injury is likely in the absence

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

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United States District Court
Northern District of California

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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, no such harm has been established in the near term. The Ordinance specifies that

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applicants have up to 90 days from the final passage of the Ordinance to apply for a permit and

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that bins for which no permitted has been applied will not be removed until 120 days from the

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passage of the Ordinance. Ord. 13335 C.M.S., Section 5 (B)-(C). Considering that the Ordinance

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was passed on October 20, 2105, Recycle has until January 18, 2016 to apply for a permit, and

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non-permitted UDCBs will not be removed before February 17, 2016. Therefore, any harm that

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Recycle may suffer as a result of the ordinance is not so immediate that it cannot be addressed by

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a decision on a regularly scheduled motion for a preliminary injunction.

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During the hearing, counsel stipulated that Recycle’s rights will not be prejudiced by any

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delay caused by the timing of the Court’s decision on Recycle’s motion for a preliminary

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injunction. The City of Oakland’s counsel represented that, in the event that my decision on the

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preliminary injunction comes later than the January 18, 2015 application deadline, Recycle may

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have additional time following my ruling to comply with the permit requirement. At the request

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of the parties, I set the hearing for January 13, 2016. The briefing schedule is set forth in the
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Conclusion to this Order.
CONCLUSION

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Recycle’s request for a TRO is DENIED. Recycle has until December 2, 2015 to file a

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motion for a preliminary injunction and supporting papers. Oakland may file its opposition by

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December 16, 2015. Any reply must be filed by December 23, 2015. The hearing on the motion

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is set for January 13, 2016 at 2:00 pm in Courtroom 2.1
IT IS SO ORDERED.

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Dated: November 20, 2015
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WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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Recycle also sought a TRO against the City of Hayward, which has also adopted an ordinance
affecting UDCBs, in a related case. Recycle for Change v. City of Hayward, No. 15-cv-5092WHO (N.D. Cal) (filed November 5, 2015). While the ordinances are different, some of the legal
analysis will be similar. Because the Hayward ordinance does not threaten to impact Recycle’s
business in the short term, I announced my intention at the hearing to deny the Hayward TRO as
well and to stay any motion practice until after I decide the Oakland preliminary injunction matter.
Recycle’s counsel agreed with this procedure, and a separate order will issue in that case.
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