Liberty et al v. State Bar of California

Filing 24

ORDER by the Hon. Thelton E. Henderson denying 23 Motion for TRO. (tehlc3, COURT STAFF) (Filed on 1/19/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LOUIS A. LIBERTY,

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Plaintiff,

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v.
STATE BAR OF CALIFORNIA,

Case No. 16-cv-00022-TEH
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER

Defendant.

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United States District Court
Northern District of California

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On Saturday, January 16, 2016, at approximately 7:00 PM, Louis Liberty filed a

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motion for a temporary restraining order (“TRO”), seeking to enjoin further proceedings

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before the State Bar Court. He sought to prevent the State Bar Court from holding a status

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conference on Tuesday, January 19, at 9:30 AM. That time has now passed, and the

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motion is therefore partially moot.

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To the extent that the motion is not moot, Liberty has failed to establish any of the

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factors a court must consider when weighing a motion for a TRO: likelihood of success on

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the merits; likelihood of suffering irreparable harm; whether the balance of equities tips in

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the moving party’s favor; and whether the injunction is in the public interest. Winter v.

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Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth standard for

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preliminary injunction); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.

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Supp. 1320, 1323 (N.D. Cal. 1995) (“The standard for issuing a temporary restraining

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order is identical to the standard for issuing a preliminary injunction.”). Liberty’s motion

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addresses only the second factor – irreparable harm – but cites no authority for finding

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such harm in this case. Liberty contends that he faces a “Hobson’s choice” absent

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injunctive relief, Mot. at 5, but this characterization is based on the incorrect assumption

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that he will be estopped from opposing remand in this case if he appears in any matters

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before the State Bar Court.

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In addition, while the general removal statute provides that filing a notice of
removal with the clerk of the state court from which a “civil action” is removed “shall

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effect the removal and the State court shall proceed no further unless and until the case is

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remanded,” 28 U.S.C. § 1446(d), the Court previously explained that this case does not

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qualify as a “civil action” under the removal statutes. Jan. 13, 2016 Order to Show Cause

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re: Jurisdiction at 1 (“In addition, ‘proceedings before the State Bar are Sui generis, neither

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civil nor criminal in character,’ Yokozeki v. State Bar, 11 Cal. 3d 436, 447 (1974), so they

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are not removable under 28 U.S.C. § 1441, which provides for removal of civil actions

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only. E.g., Supreme Ct. of Cal. v. Kinney, No. 3:15-cv-01552 LB, 2015 WL 3413232, at

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*5 (N.D. Cal. May 27, 2015); Wolfgram v. State Bar of Cal., No. C-94-3064 CAL, 1994

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United States District Court
Northern District of California

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WL 721465, at *1 (N.D. Cal. Dec. 8, 1994).”). Thus, § 1446(d) does not, on its face, bar

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the State Bar Court from conducting further proceedings.

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For all of the above reasons, Liberty’s motion for a TRO is DENIED.

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IT IS SO ORDERED.

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Dated: 01/19/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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