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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNUM LIFE INSURANCE COMPANY OF
AMERICA,
Plaintiff,

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United States District Court
Northern District of California

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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

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motion for a temporary restraining order and/or preliminary injunction (Dkt. No. 32) seeking an

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order to enjoin Defendant Sione Pauu (“Pauu”) from dissipating alleged overpaid assets which are

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at stake in this litigation. The motion was filed, and notice given, on January 21, 2015. No

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opposition has yet been filed.

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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.

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Requests for temporary restraining orders are governed by the same general standards that

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govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co.,

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434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240

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F.3d 832, 839 n. 7 (9th Cir. 2001). Preliminary injunctive relief, whether in the form of a

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temporary restraining order or a preliminary injunction, is an “extraordinary and drastic remedy,”

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that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal

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citations omitted). In order to obtain such relief, a plaintiff must establish four factors: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of

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preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public

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interest. Winter v. Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008).

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Unum has not submitted evidence sufficient to establish a likelihood of success on the

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merits of any claim. The claims herein are for conversion, unjust enrichment, quasi-contract, and

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declaratory relief. The only documents submitted in connection with the motion are a copy of the

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unverified complaint and its attachments, which are do not constitute admissible evidence.

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Coverdell v. Dep't of Soc. & Health Servs., State of Wash., 834 F.2d 758, 762 (9th Cir. 1987)

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(unsworn factual allegations in briefing and unverified complaint insufficient to oppose motion for

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summary judgment). Thus Unum’s showing on this factor is inadequate.

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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]

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United States District Court
Northern District of California

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preliminary injunction is such a means…the equitable power to freeze assets does not exist in all

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cases: it exists only as ancillary relief necessary to accomplish complete justice.” Reebok Int'l,

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Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 560 (9th Cir. 1992) (internal citations and

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quotations omitted). The argument that a defendant might not have sufficient funds to pay a

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money judgment is not, standing alone, sufficient reason to grant an asset freeze.

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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

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