Philip Morris USA Inc. v. City & County of San Francisco et al

Filing 19

ORDER by Judge Claudia Wilken re 6 (1) DENYING PLAINTIFFS APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND (2) REQUIRING DEFENDANTS TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE (scc, COURT STAFF) (Filed on 9/26/2008)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed an ex parte application for a temporary restraining order and a motion for a preliminary injunction enjoining Defendants from enforcing City Ordinance No. 194-08 (Ordinance). Defendants have not yet filed an opposition. Having v. CITY AND COUNTY OF SAN FRANCISCO, et al., DefendantS. / PHILIP MORRIS USA, Plaintiff, No. C 08-04482 CW ORDER (1) DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND (2) REQUIRING DEFENDANTS TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

considered the papers filed by Plaintiff, the Court DENIES its application for a temporary restraining order. A temporary restraining order may be issued only if "immediate and irreparable injury, loss, or damage will result to the applicant" if the order does not issue. Fed. R. Civ. P. 65(b). To

obtain a temporary retraining order, the moving party must establish either: (1) a combination of probable success on the

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

merits and the possibility of irreparable harm, or (2) that serious questions regarding the merits exist and the balance of hardships tips sharply in the moving party's favor. See Baby Tam & Co. v.

City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998); Rodeo Collection, Ltd. v. W. Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987). Plaintiff has failed to make a sufficient showing of likely

success on the merits of its claims and of irreparable harm to justify granting the ex parte relief it seeks. Further,

Plaintiff's unexplained delay in filing its application for a temporary restraining order until days before the enforcement of the Ordinance belies its claim of irreparable hardship. Therefore,

Plaintiff's motion for a temporary restraining order is DENIED. Defendants are ORDERED to show cause before the Court on October 30, 2008, at 2:00 p.m. or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining Defendants from enforcing San Francisco Ordinance No. 194-08. Defendants must file

any opposition to the Plaintiff's motion on or before October 9, 2008. Plaintiffs may reply on or before October 16, 2008. IT IS SO ORDERED.

Dated: 9/26/08

CLAUDIA WILKEN United States District Judge

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