The Hamline Community Garden et al v. The City of San Jose

Filing 8

Order by Hon. Lucy H. Koh denying 2 Ex Parte Motion for TRO.(lhklc1, COURT STAFF) (Filed on 2/6/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8
9
United States District Court
For the Northern District of California

10
11
12

SAN JOSE DIVISION
THE HAMLINE COMMUNITY GARDENS,
KAREN MCCREDDIN, and
ANN CHARLOTTE JOSEPH
v.

THE CITY OF SAN JOSE,

13

Defendant.

14
15

Plaintiffs,

)
)
)
)
)
)
)
)
)
)
)

Case No.: 12-CV-000464-LHK
ORDER DENYING EX PARTE MOTION
FOR TEMPORARY RESTRAINING
ORDER

Before the Court is Plaintiff the Hamline Community Gardens’, Karen McCreddin’s, and

16

Ann Charlotte Joseph’s (collectively “Plaintiffs”) ex parte motion for a temporary restraining order

17

(“TRO”) seeking to enjoin Defendant City of San Jose (the “City”) from “making any changes to

18

the operations, rules or regulations governing the Hamline Community Garden for the garden year

19

2012 or until the court rules on” Plaintiffs’ request for injunctive relief. Ex Parte TRO Motion at

20

1, ECF No. 2. For the foregoing reasons, Plaintiffs’ ex parte motion for a TRO is DENIED.

21

I.

22

Karen McCreddin and Ann Charlotte Joseph are gardeners at the Hamline Community

23

Garden, a twenty six plot garden operated in agreement with City for the last thirty-one years.

24

Compl. 1. Plaintiffs’ complaint arises out of the City’s decision on or about November 22, 2011,

25

to implement new rules and regulations governing the garden. Compl. 6. According to Plaintiffs,

26

the City seeks to “tak[e] over the garden, rais[e] fees by 42%, and oust[] one third of the

27

community members in good standing.” Compl. 1.

28

RELEVANT FACTUAL BACKGROUND

1
Case No.: 12-CV-00464-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

1

Plaintiffs filed a complaint on January 30, 2012, seeking an order enjoining the City from

2

assessing a fee and from evicting any of the present garden members. Compl. 10. 1 Plaintiffs seek

3

relief under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution;

4

the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; and California Proposition 218.

5

Id. at 4-6.

6

Plaintiffs allege that new rules and regulations governing the community gardens on

7

February 1, 2012, will result in the eviction of eight of the twenty six gardeners. Mot. 1. Plaintiffs

8

also allege that a 42% increase in fees will force a ninth gardener “to pull his plants and move to a

9

smaller location as he will no longer be able to afford his plot . . . .” Id.

United States District Court
For the Northern District of California

10

Plaintiffs allege that under the previous rules and regulations, a gardener in good standing

11

was promised continued tenancy and “a gardener could only be evicted for poor stewardship of the

12

land and or poor citizenship within the community.” Id. Plaintiffs allege that under the new rules,

13

a gardener must agree that the city can evict the gardener “at any time without reason or repayment

14

of fees or other expenses that the gardener may have incurred for their completely unprotected

15

harvest.” Id. at 2.

16
17

Plaintiffs allege that the new rules and regulations “break the trust between the gardeners
and the city,” and that this breach of trust has already resulted in fewer winter harvests. Id. at 1-2.

18

II.

19

The standard for issuing a TRO is identical to the standard for issuing a preliminary

20

injunction. Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D.

21

Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323

22

(N.D. Cal. 1995). “A plaintiff seeking a preliminary injunction must establish that he is likely to

23

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

24

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

25

Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008). The party seeking the

26

injunction bears the burden of proving these elements. Klein v. City of San Clemente, 584 F. 3d

LEGAL STANDARD

27
28

This case was reassigned to the undersigned judge on February 3, 2012. ECF No. 7.
2
Case No.: 12-CV-00464-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

1

1

1196, 1201 (9th Cir. 2009). The issuance of a preliminary injunction is at the discretion of the

2

district court. Indep. Living Ctr. v. Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009).

3

Federal Rule of Civil Procedure 65(b)(1) states that a court may issue a temporary

4

restraining order without notice to the opposing party only if: “A) specific facts in an affidavit or a

5

verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to

6

the movant before the adverse party can be heard in opposition; and B) the movant’s attorney

7

certifies in writing any efforts made to give notice and the reasons why it should not be required.”
Federal Rule of Civil Procedure 11 states that “every pleading, written motion, and other

9

paper must be signed . . . by a party personally if the party is unrepresented. . . . The court must

10
United States District Court
For the Northern District of California

8

strike an unsigned paper unless the omission is promptly corrected after being called to the . . .

11

party’s attention.”

12

III.

13

Plaintiffs filed the instant ex parte motion for a Temporary Restraining Order on January

DISCUSSION

14

30, 2012. ECF No. 2. Plaintiffs filed a proof of service on February 2, 2012, stating that John H.P.

15

Mawsley “personally present[ed] to Rebecca Hall, in the San Jose City attorney’s office a copy of

16

this complaint, TRO and argument for the TRO.” ECF No. 6. Thus, Plaintiffs have complied with

17

the notice requirements of Federal Rule of Civil Procedure 65(b)(1)(B). However, Plaintiffs did

18

not sign their motion. See ECF No. 2. Accordingly, pursuant to Federal Rule of Civil Procedure

19

11, the Court must strike the motion unless Plaintiffs take corrective action promptly.

20
21

B. Merits of the TRO
Moreover, even if Plaintiffs had complied with Rule 11, Plaintiffs have failed to establish

22

that they are likely to succeed on the merits, and Plaintiffs have not shown in an affidavit or

23

verified complaint that immediate and irreparable injury, loss, or damage will result to them before

24

the City can be heard in opposition, as required under Federal Rule of Civil Procedure 65(b)(1)(A).

25

As an initial matter, the Court notes that Plaintiffs’ ex parte motion for a TRO failed to cite

26

any legal authorities to support the argument that Plaintiffs are likely to succeed on the merits of

27

the claims alleged in the FAC. Civil Local Rule 65-1 requires that an ex parte TRO application be

28

3
Case No.: 12-CV-00464-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

1

accompanied by “a memorandum of points and authorities” in support of the motion (emphasis

2

added). Thus, at this point, Plaintiffs have not shown a likelihood of success on the merits.

3

Plaintiffs’ factual allegations are not set forth in in an affidavit or a verified complaint, as

4

required by Federal Rule of Civil Procedure 65(b)(1)(A). The Complaint is neither signed nor

5

verified, and the new factual allegations from the arguments supporting Plaintiffs’ motion are not

6

set forth in an affidavit.

7

If Plaintiffs had complied with the procedural requirements, however, the irreparable harm

8

factor would be a closer question. Plaintiffs do allege that they will suffer irreparable harm in the

9

form of “loss of community,” “emotional loss,” and “loss of investment” of time and money.

United States District Court
For the Northern District of California

10

Compl. Ex. F. at 3; cf. New York City Environmental Justice Alliance v. Giuliani, 50 F. Supp. 2d

11

250 (S.D.N.Y 1999) (finding irreparable harm in the context of a motion seeking to preliminarily

12

enjoin the City of New York from selling or destroying parcels of land comprising community

13

gardens). Specifically, Plaintiffs state that the gardeners facing eviction “have nowhere else to

14

move their perennial plants like asparagus, strawberries, artichokes, etc.” Id. However, it is not

15

clear from Plaintiffs’ complaint when the eight gardeners are to be evicted. See Compl. 5

16

(suggesting that gardeners received 70 days notice of eviction); but see id. Ex. E (suggesting that

17

gardeners receive 30 days notice of eviction). Thus, Plaintiffs have failed to “clearly show that

18

immediate and irreparable injury, loss, or damage will result to the movant before the adverse

19

party can be heard in opposition,” as required for issuance of an ex parte TRO. Fed. R. Civ. P.

20

65(b)(1) (emphasis added).

21

Accordingly, for the reasons discussed above, Plaintiffs’ ex parte motion for a TRO is

22

DENIED. However, if Plaintiffs cure their failure to sign their complaint and motion and their

23

failure to state their facts in an affidavit or verified complaint, the Court will consider a fully

24

briefed motion for a TRO.

25

The Court hereby orders Plaintiffs to file a corrected motion on February 8, 2012, and the

26

City to file an opposition, if any, by February 13, 2012. Plaintiffs may file a reply on or before

27

February 16, 2012. Plaintiffs’ motion for a TRO will be heard on March 1, 2012, at 1:30 p.m. The

28

Court will attempt to determine the motion without oral argument pursuant to Civil Local Rule 74
Case No.: 12-CV-00464-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

1

1(a). In the meantime, the Court strongly encourages the parties to attempt to resolve this dispute

2

without the assistance of the Court.

3
4

IT IS SO ORDERED.

5

Dated: February 6, 2012

6

_________________________________
LUCY H. KOH
United States District Judge

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5
Case No.: 12-CV-00464-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER