Berkery v. Twitter, Inc.

Filing 26

ORDER DENYING MOTION TO PRELIMINARY INJUNCTION AND REQUIRING BRIEFING ON MOTION TO DISMISS. Signed by Judge Jeffrey S. White on 2/1/2024 re 11 MOTION for Preliminary Injunction, 20 MOTION to Dismiss. Response due by 2/16/2024. Reply due by 2/23/2024. (kkp, COURT STAFF) (Filed on 2/1/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN C. BERKERY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 23-cv-04065-JSW

v.
TWITTER, INC.,
Defendant.

ORDER DENYING MOTION TO
PRELIMINARY INJUNCTION AND
REQUIRING BRIEFING ON MOTION
TO DISMISS
Re: Dkt. Nos. 11, 20

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Now before the Court is the motion for a preliminary injunction filed by Plaintiff John C.

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Berkery (“Plaintiff”) and the motion to dismiss filed Defendant Twitter, Inc. (“Defendant”). In his

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motion for preliminary injunction, Plaintiff seeks disclosure of his allegedly offending tweet and

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seeks an order from this Court enjoining Defendant from filing any motions to dismiss or for

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summary judgment under Federal Rules of Civil Procedure 12(b)(6) or 56.

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Preliminary injunctive relief is an “extraordinary and drastic remedy” that is never awarded

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as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal citations omitted). In order to

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obtain such relief, Plaintiff must establish: (1) he is likely to succeed on the merits; (2) he is likely

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to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his

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favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555

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U.S. 7, 20 (2008). In Alliance for the Wild Rockies v. Cottrell, the Ninth Circuit held that the

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“serious questions” sliding scale approach survives Winter. 632 F.3d 1127, 1134-35 (9th Cir.

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2011). Thus, a court may grant a request for a preliminary injunction if a plaintiff demonstrates

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that there are serious questions going to the merits and a hardship balance that tips sharply in their

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favor, if the other two elements of the Winter test are also met. Id. at 1132. Serious questions are

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“substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more

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deliberative investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.

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1952). Serious questions need not promise a certainty of success, nor even present a probability of

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success, but must involve a “fair chance of success on the merits.” Nat’l Wildlife Fed’n v. Coston,

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773 F.2d 1513, 1517 (9th Cir. 1985).

United States District Court
Northern District of California

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Here, Plaintiff has failed to meet his burden to demonstrate that he is likely to succeed on

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the merits. The arguments in favor of dismissal of Plaintiffs’ claims are adequately outlined in

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Defendant’s pending motion to dismiss. The Court also finds that, regardless whether he is

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successful on the merits of his claims, Plaintiff’s request for injunctive relief to enjoin motion

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practice pending Defendant’s disclosure of his offending tweet is not well-taken. Plaintiff does

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not demonstrate that he will suffer irreparable harm if the request is left ungranted. Plaintiff “must

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satisfy the pleading requirements of Rule 8 before the discovery stage, not after it.” Mujica v.

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AirScan Inc., 771 F.3d 580, 593 (9th Cir. 2014 (emphasis in original). The Court must first

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determine whether Plaintiff’s amended complaint states a plausible claim for relief prior to

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Plaintiff being entitled to any discovery. Lastly, the equities favor denying Plaintiff’s motion for a

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preliminary injunction as the stronger interest is in procedural right to file motions under the

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Federal Rules of Civil Procedure. Accordingly, the Court DENIES Plaintiff’s motion for a

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preliminary injunction.

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In response to the pending motion to dismiss, Plaintiff has only countered that he

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previously moved for order enjoining all motion practice. As that request is denied, the Court

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HEREBY ORDERS Plaintiff to file a substantive response to the pending motion to dismiss, not

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to exceed 15 pages, by no later than February 16, 2024. Defendant may file a reply by no later

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than February 23, 2024. Failure to timely oppose the motion shall result in dismissal of this

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matter. In addition, the hearing date of February 16, 2024, is HEREBY VACATED.

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IT IS SO ORDERED.
Dated: February 1, 2024
______________________________________
JEFFREY S. WHITE
United States District Judge

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