Perez v. San Miguel Homes for the Elderly, LLC et al

Filing 16

Order by Magistrate Judge Donna M. Ryu denying without prejudice 15 Motion for TRO.(dmrlc1, COURT STAFF) (Filed on 2/9/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS E. PEREZ, SECRETARY OF
LABOR,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-05556-DMR

v.
SAN MIGUEL HOMES FOR THE
ELDERLY, LLC, et al.,

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION
FOR TEMPORARY RESTRAINING
ORDER
Re: Dkt. No. 15

Defendants.
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On February 8, 2016, Plaintiff Thomas E. Perez, Secretary of the United States Department

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of Labor (“DOL”), filed a motion for a temporary restraining order (“TRO”) and an order to show

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cause why a preliminary injunction should not issue. Plaintiff seeks an order enjoining

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Defendants from, inter alia, retaliating against their employees for engaging in activity protected

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by the Fair Labor Standards Act (“FLSA”) and speaking directly to or questioning their employees

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about any pending DOL investigation and litigation arising from the investigation.

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In evaluating Plaintiff’s motion for a TRO, the court must determine whether Plaintiff has

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demonstrated that he is likely to succeed on the merits of his claims. See Winter v. Natural

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Resources Defense Council, 555 U.S. 7, 21-22 (2008). Therefore, it appears that the claims that

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form the basis for the request for a TRO must be part of the operative complaint. Plaintiff’s

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motion for a TRO is based on claims for unlawful retaliation and unlawful interference with his

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investigation of Defendants’ alleged violations of the FLSA. However, these claims are not

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pleaded in the operative complaint. As Plaintiff did not provide authority supporting his request

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for entry of a TRO based on claims that are not yet part of the case, his motion for a TRO is

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denied without prejudice.

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The court notes that Plaintiff simultaneously filed a motion for leave to file an amended

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complaint, seeking to file an amended complaint adding, inter alia, the retaliation and interference

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claims. [Docket No. 14.] However, Plaintiff did not properly notice the motion in compliance

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with Civil Local Rule 7-2(a), which requires that “all motions must be filed, served and noticed in

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writing on the motion calendar of the assigned Judge for hearing not less than 35 days after filing

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of the motion,” nor did they ask for an order shortening time. Accordingly, the March 10, 2016

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hearing date on Plaintiff’s motion for leave to file an amended complaint is VACATED. Plaintiff

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must re-notice the motion for hearing in accordance with Civil Local Rule 7-2(a).

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IT IS SO ORDERED.

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______________________________________
ERED
O ORD
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IT IDonna M. Ryu
United States Magistrate Judge

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UNIT
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Dated: February 9, 2016

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United States District Court
Northern District of California

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