Declue et al v. Family Law Services, et al

Filing 13

ORDER RE #12 PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION signed by Judge Phyllis J. Hamilton.(pjhlc2S, COURT STAFF) (Filed on 9/12/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN DECLUE, et al.,

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Plaintiffs,

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v.
COUNTY OF ALAMEDA, et al.,
Defendants.

Case No. 20-cv-05808-PJH
ORDER REGARDING PLAINTIFF’S
MOTION FOR TEMPORARY
RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION

United States District Court
Northern District of California

Re: Dkt. No. 12
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The court is in receipt of plaintiff Alan DeClue’s (“plaintiff”) “notice of motion and

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motion for temporary restraining order and/or preliminary injunction.” Dkt. 12. As

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indicated by its title, this motion suggests alternative requests for a temporary restraining

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order and a preliminary injunction. It is unclear to the court what plaintiff attempts to

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accomplish by styling his motion in a way that seeks these requests in the alternative. To

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be clear, each request calls for distinct relief. A motion for a preliminary injunction asks

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the court to maintain the status quo prior to an action’s final adjudication. While similar, a

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motion for a temporary restraining order asks the court to maintain the status quo prior to

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a decision on a regularly noticed motion for a preliminary injunction.

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For several reasons, the court will construe this motion as one for a preliminary

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injunction. First, plaintiff principally relies upon Local Rule 65-2 and Local Rule 7-2 in

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support of this motion. Local Rule 65-2 controls motions for a preliminary injunction.

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Local Rule 7-2 sets forth the general requirements for filing and serving motions set for

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hearing on the regularly noticed 35-day schedule. Neither rule concerns a motion for a

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temporary restraining order. Second, plaintiff failed to show that his motion satisfies

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Federal Rule of Civil Procedure 65(b)’s requirements to pursue a temporary restraining

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order on an ex parte basis. Third, because the events at issue allegedly occurred in

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2017, including D.D.’s removal from plaintiff’s custody, Dkt. 1 (Compl.) ¶ 57, there does

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not appear to be any special urgency in deciding plaintiff’s request for injunctive relief on

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a non-regularly noticed basis. Given the above, the court will apply Local Rule 7-2 and

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Local Rule 7-3 to determine this motion hearing date and briefing schedule.

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Pursuant to those rules and the court’s calendar, plaintiff must notice this motion
for a hearing on a Wednesday at least 35 days after its filing. Given that plaintiff filed the

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instant motion on September 11, 2020, the court will treat it as though noticed for hearing

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on October 21, 2020. In ordinary course, any opposition to this motion must be filed and

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served within 14 days of the motion’s filing. However, based on the absence of a proof of

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United States District Court
Northern District of California

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service attached to the motion, it appears that plaintiff has not yet served his motion on

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defendants. Thus, the court ORDERS plaintiff to serve his motion and a copy of this

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order on defendants within 48 hours. Given the above peculiarity in service, the court will

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extend the opposition deadline by five days. Accordingly, any opposition to this motion

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must be filed and served by September 30, 2020 and any reply by plaintiff in support of

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this motion must be filed and served by October 7, 2020. In light of the ongoing public

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health crisis, the court generally does not hold hearings on civil motions. Thus, unless it

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notifies the parties otherwise, the court will decide this motion on the papers without a

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hearing.

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IT IS SO ORDERED.

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Dated: September 12, 2020

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/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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