Vietnam Helicopters v. County of Contra Costa et al

Filing 12

ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Maxine M. Chesney on March 31, 2017. (mmclc1, COURT STAFF) (Filed on 3/31/2017)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 VIETNAM HELICOPTERS, Plaintiff, 8 v. 9 10 ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER COUNTY OF CONTRA COSTA, et al., Defendants. 11 United States District Court Northern District of California Case No. 17-cv-01743-MMC Re: Dkt. No. 4 12 Before the Court is plaintiff Vietnam Helicopters' "Ex Parte Application for a 13 14 Temporary Restraining Order," filed March 30, 2017. Having read and considered the 15 application, the Court rules as follows. 16 In its complaint, filed March 29, 2017, plaintiff alleges it recently filed with the 17 Federal Aviation Administration ("FAA") an administrative claim against defendants 18 County of Contra Costa, the Contra Costa County Airports Division and the Contra Costa 19 County Board of Supervisors, in which administrative claim plaintiff asserts defendants, in 20 violation of 49 U.S.C. § 47101, et seq. and, specifically, 49 U.S.C. § 7107(a)(1), 21 "unlawfully discriminated" against plaintiff in connection with plaintiffs' efforts to lease a 22 hangar at Buchanan Field in Concord, California, for purposes of "operat[ing] a flying 23 museum." (See Compl. ¶¶ 2, 10, 24.) Plaintiff further alleges that on March 28, 2017, 24 defendants "approve[d] a lease" with Conco Aviation Center, LLC ("Conco") for the 25 hangar at issue, which lease has a "commencement date of April 1, 2017." (See Compl. 26 ¶ 42.) 27 28 By the instant application, plaintiff seeks an order enjoining defendants from leasing the subject hangar to Conco or anyone else "until after the [FAA] has completed 1 its investigation of [plaintiff's] recent complaints, issued a final decision and all appeals 2 thereto have lapsed." (See Appl. at 1:26 - 2:1.) The Court finds plaintiff has, for two 3 reasons, failed to show its entitlement to a temporary restraining order. 4 First, a temporary restraining order may not issue in the absence of "notice to the adverse party or its attorney" unless "specific facts in an affidavit or a verified complaint 6 clearly show that immediate and irreparable injury, loss, or damage will result to the 7 movant before the adverse party can be heard in opposition" and "the movant's attorney 8 certifies in writing any efforts made to give notice and the reasons why it should not be 9 required." See Fed. R. Civ. P. 65(b). Here, although a declaration filed in support of the 10 application states plaintiff has not served defendants (see Petersen Decl. ¶ 7), plaintiff's 11 United States District Court Northern District of California 5 counsel subsequently advised the Clerk of Court by telephone that defendants' counsel 12 has been served electronically. Plaintiff, however, has not served the application on 13 Conco, which, given the relief sought, would appear to be a necessary party, see Fed. R. 14 Civ. P. 19(a)(1)(B), and plaintiff has not indicated why said entity should not be joined 15 and served. 16 Second, plaintiff has failed to show the requisite likelihood of success on the claim 17 alleged in the instant action. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 18 937 (9th Cir. 1987) (holding “injunction should not issue” where moving party fails to 19 demonstrate "a fair chance of success on the merits, or questions serious enough to 20 require litigation"). In particular, plaintiff's complaint is based on an allegation that, as of 21 the date plaintiff filed the above-referenced administrative claim with the FAA, defendants 22 were prohibited from leasing the hangar to anyone.1 In support thereof, plaintiff cites to 23 "14 C.F.R. § 16.1, et seq." (see Compl. ¶¶ 44, 46, 49), the regulations governing the 24 administrative process invoked by plaintiff against defendants. Plaintiff fails, however, to 25 identify within those numerous sections a specific regulation providing the alleged 26 27 28 1 Plaintiff acknowledges its claim of unlawful discrimination is not before this Court, as such claim is "within the exclusive jurisdiction of the FAA." (See Appl. at 10:17-19.) 2 1 preclusive effect, let alone any authority empowering a district court to interject itself into 2 an adjudicatory process that appears designed to exclude it. See 14 C.F.R. §§ 16.1(a), 3 16.11 (providing claims under § 47101, et seq., are to be filed with and heard by FAA); 49 4 U.S.C. § 46110(a) (providing appeal from final decision of FAA is to be taken directly to 5 "court of appeals of the United States"). 6 Accordingly, the application is hereby DENIED. 7 IT IS SO ORDERED. 8 9 Dated: March 31, 2017 MAXINE M. CHESNEY United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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