Erickson Productions Inc et al v. Kraig R Kast

Filing 270

ORDER denying Erickson Ex Parte Motion for a Temporary Restraining Order. Signed by Magistrate Judge Howard R. Lloyd on 1/8/2018. (hrllc2S, COURT STAFF) (Filed on 1/8/2018)

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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
Northern District of California

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ERICKSON PRODUCTIONS INC, et al.,
Plaintiffs,

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Case No.5:13-cv-05472-HRL

v.
KRAIG R. KAST,

ORDER RE ERICKSON EX PARTE
MOTION FOR A TEMPORARY
RESTRAINING ORDER

Defendant.

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Erickson Productions, Inc. and Jim Erickson (collectively, Erickson) seek an ex parte

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temporary restraining order (TRO) freezing the assets in three separate accounts: (1) a Wells

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Fargo account for Wellington Alexander & Co.; (2) a U.S. Bank account for the California Trust

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Company; and (3) a First National Bank of Northern California account for Black Oak Trust.

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A request for a TRO is evaluated by the same factors that generally apply to a preliminary

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injunction, see Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir.

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2001), and as a form of preliminary injunctive relief, a TRO is an “extraordinary remedy” that is

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“never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

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Rather, the moving party bears the burden of demonstrating that “he is likely to succeed on the

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

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555

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U.S. at 20.
“Unless relieved by order of a Judge for good cause shown,” a party seeking issuance of a

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TRO must deliver notice to the opposing counsel or party on or before the day an ex parte motion

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for TRO is made. Civ. L.R. 65-1(b). Additionally, Fed. R. Civ. P. 65 provides that a court may

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issue a TRO without notice to the adverse party in limited circumstances where (1) “specific facts

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in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or

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damage will result to the movant before the adverse party can be heard in opposition” and (2) “the

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movant’s attorney certifies in writing any efforts made to give notice and the reasons why it

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should not be required.” Fed. R. Civ. P. 65(b)(1). The Ninth Circuit has cautioned that there are

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very few circumstances justifying the issuance of an ex parte TRO. Reno Air Racing Assoc., Inc.

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United States District Court
Northern District of California

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v. McCord, 452 F.3d 1126, 1131 (9th Cir.2006). Such circumstances include “a very narrow band

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of cases in which ex parte orders are proper because notice to the defendant would render fruitless

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the further prosecution of the action.” Id. (quoting Am. Can Co. v. Mansukhani, 742 F.2d 314,

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322 (7th Cir.1984)). Although the restrictions imposed are stringent, they “‘reflect the fact that

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our entire jurisprudence runs counter to the notion of court action taken before reasonable notice

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and an opportunity to be heard has been granted both sides of a dispute.” Id. (quoting Granny

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Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 438-39, 94 S.Ct.

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1113, 39 L.Ed.2d 435 (1974)).

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Erickson argues that courts have granted the sort of injunctive relief they seek where there

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is evidence that the opposing party is dissipating assets. By and large, however, the cases

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Erickson cites involved noticed motions. While the court is troubled by allegations that Kast has

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concealed the full scope of his assets, it is also exceedingly concerned by the breadth of the

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injunctive relief Erickson seeks here, on an entirely ex parte basis, including possible impact on

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Baker (a non-party), with scant information before the court about the accounts and assets

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Erickson seeks to freeze, and for varying and amorphous time periods such as “until such time that

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full discovery can be taken” or until the court reviews and rules on Erickson’s pending motion to

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compel and order to show cause re contempt. Erickson’s motion for TRO is denied.1

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SO ORDERED.

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Dated: January 8, 2018

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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The Clerk shall docket the motion and supporting papers Erickson lodged with the court.
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