Kirk v. County of Alameda et al

Filing 125

ORDER. Signed by Judge Koh on 5/6/2011. (lhklc4, COURT STAFF) (Filed on 5/6/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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BELINDA K,
Plaintiff,

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v.

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COUNTY OF ALAMEDA et al.,
Defendants.

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Case No.: 10-CV-05797-LHK
ORDER

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On May 4, 2011, Plaintiff Belinda K moved for administrative relief to file certain

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documents under seal for in camera review pursuant to Civil Local Rule 7-11(a). The first of these

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documents is an ex parte complaint for an emergency temporary restraining order, declaratory

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judgment, and preliminary and permanent injunctive relief. Belinda K filed this document ex

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parte, without notice to Defendants. The second document is a second emergency notice of

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removal of state juvenile court proceedings to federal court. The Court has reviewed the submitted

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documents and finds as follows.

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Case No.: 10-CV-05797-LHK
ORDER

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I.

Emergency Notice of Removal

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This Court has no jurisdiction over state juvenile court proceedings as this Court has

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already ruled in this case. See J.H. et al. v. Baldovinos et al., 10-cv-02507, Dkt. No. 55 (N.D. Cal.

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Sept. 21, 2010) (filed under seal). Thus, removal is improper.1

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II.

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Complaint and TRO
Belinda K’s submitted complaint names defendants and alleges causes of action that are not

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part of this case. If Belinda K wants to begin a new case against new defendants based on new

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causes of action, then she must file her complaint as a new and separate case.
Moreover, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to

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United States District Court
For the Northern District of California

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374, 172 L. Ed. 2d

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249 (2008) (citing cases). In violation of Civil Local Rule 65-1(a)(2), Belinda K did not attach a

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memorandum of points and authorities to her TRO request. This makes it difficult for the Court to

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evaluate the strength of her claims for relief. Although the Court understands that Belinda K is

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proceeding pro se, she must still provide legal support for her claims.

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Finally, under Civil Local Rule 65-1, those applying for a temporary restraining order must

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give notice to the opposition unless “relieved by order of a Judge for good cause shown.” Belinda

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K filed her complaint and TRO ex parte without proper notice to the defendants named in her

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complaint. Even though the Court agrees that the subject matter discussed in the complaint touches

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on sensitive issues, the Court finds that the seriousness of the allegations contained in the

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complaint requires that named defendants have an opportunity to respond to Belinda K’s request

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for a temporary restraining order. Because Belinda K has already publicly initiated a significant

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amount of litigation on related matters, the Court finds that Belinda K’s claimed reasons for not

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giving notice to Defendants of this complaint are not sufficient.

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Moreover, Belinda K’s removal attempt is defective. Belinda K does not appear to have noticed
the removal in the state court. Nonetheless, even if the notice were not defective, removal is
improper.
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Case No.: 10-CV-05797-LHK
ORDER

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Because Belinda K has not properly brought her complaint and TRO request before this

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Court, the Court dismisses the complaint without prejudice. Belinda K should file a new case if

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she wishes to pursue the claims outlined in her complaint.

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III.

Motion to File Under Seal

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Belinda K filed both documents under seal in their entirety. In violation of the local rules,

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she did so without providing a declaration establishing why the documents are sealable. See CIV.

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L.R. 79-5(b)(1). Nevertheless, the Court grants her motion to file the documents under seal

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because the Court has determined that her removal is improper and because the Court has

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dismissed her complaint and TRO request. In the future, however, if Belinda K chooses to pursue

United States District Court
For the Northern District of California

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a new case, then she should comply with the local rules regarding the filing of documents under

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seal.

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IT IS SO ORDERED.

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Dated: May 6, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-05797-LHK
ORDER