UNUM Life Insurance Company of America v. Pauu

Filing 34

ORDER by Judge Yvonne Gonzalez Rogers denying 32 Plaintiff's Ex Parte Motion for TRO and/or Preliminary Injunction. (fs, COURT STAFF) (Filed on 1/26/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNUM LIFE INSURANCE COMPANY OF AMERICA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 v. Case No. 14-cv-02960-YGR ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION Re: Dkt. No. 32 SIONE PAUU, Defendant. Plaintiff Unum Life Insurance Company of America (“Unum”) has filed an ex parte 13 motion for a temporary restraining order and/or preliminary injunction (Dkt. No. 32) seeking an 14 order to enjoin Defendant Sione Pauu (“Pauu”) from dissipating alleged overpaid assets which are 15 at stake in this litigation. The motion was filed, and notice given, on January 21, 2015. No 16 opposition has yet been filed. 17 18 Having carefully considered the papers submitted and the complaint in this action, and for the reasons set forth below, the Court hereby DENIES the motion. 19 Requests for temporary restraining orders are governed by the same general standards that 20 govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 21 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 22 F.3d 832, 839 n. 7 (9th Cir. 2001). Preliminary injunctive relief, whether in the form of a 23 temporary restraining order or a preliminary injunction, is an “extraordinary and drastic remedy,” 24 that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal 25 citations omitted). In order to obtain such relief, a plaintiff must establish four factors: (1) he is 26 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of 27 preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public 28 interest. Winter v. Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008). 1 Unum has not submitted evidence sufficient to establish a likelihood of success on the 2 merits of any claim. The claims herein are for conversion, unjust enrichment, quasi-contract, and 3 declaratory relief. The only documents submitted in connection with the motion are a copy of the 4 unverified complaint and its attachments, which are do not constitute admissible evidence. 5 Coverdell v. Dep't of Soc. & Health Servs., State of Wash., 834 F.2d 758, 762 (9th Cir. 1987) 6 (unsworn factual allegations in briefing and unverified complaint insufficient to oppose motion for 7 summary judgment). Thus Unum’s showing on this factor is inadequate. 8 9 As to irreparable injury, Unum has not established entitlement to the extraordinary remedy of an asset freeze or that a damages remedy would be insufficient under the circumstances. “While a court generally has the power to preserve the status quo by equitable means [and] [a] 11 United States District Court Northern District of California 10 preliminary injunction is such a means…the equitable power to freeze assets does not exist in all 12 cases: it exists only as ancillary relief necessary to accomplish complete justice.” Reebok Int'l, 13 Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 560 (9th Cir. 1992) (internal citations and 14 quotations omitted). The argument that a defendant might not have sufficient funds to pay a 15 money judgment is not, standing alone, sufficient reason to grant an asset freeze. 16 17 18 19 20 21 Similarly, there is no showing on the factors of balance of equities or the public interest affected. As a consequence, the motion must be and is DENIED. IT IS SO ORDERED. Dated: January 26, 2015 ______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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