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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 ERICKSON PRODUCTIONS INC, et al., Plaintiffs, 13 14 15 16 Case No.5:13-cv-05472-HRL v. KRAIG R. KAST, ORDER RE ERICKSON EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER Defendant. 17 18 Erickson Productions, Inc. and Jim Erickson (collectively, Erickson) seek an ex parte 19 temporary restraining order (TRO) freezing the assets in three separate accounts: (1) a Wells 20 Fargo account for Wellington Alexander & Co.; (2) a U.S. Bank account for the California Trust 21 Company; and (3) a First National Bank of Northern California account for Black Oak Trust. 22 A request for a TRO is evaluated by the same factors that generally apply to a preliminary 23 injunction, see Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 24 2001), and as a form of preliminary injunctive relief, a TRO is an “extraordinary remedy” that is 25 “never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). 26 Rather, the moving party bears the burden of demonstrating that “he is likely to succeed on the 27 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 28 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 1 U.S. at 20. “Unless relieved by order of a Judge for good cause shown,” a party seeking issuance of a 3 TRO must deliver notice to the opposing counsel or party on or before the day an ex parte motion 4 for TRO is made. Civ. L.R. 65-1(b). Additionally, Fed. R. Civ. P. 65 provides that a court may 5 issue a TRO without notice to the adverse party in limited circumstances where (1) “specific facts 6 in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or 7 damage will result to the movant before the adverse party can be heard in opposition” and (2) “the 8 movant’s attorney certifies in writing any efforts made to give notice and the reasons why it 9 should not be required.” Fed. R. Civ. P. 65(b)(1). The Ninth Circuit has cautioned that there are 10 very few circumstances justifying the issuance of an ex parte TRO. Reno Air Racing Assoc., Inc. 11 United States District Court Northern District of California 2 v. McCord, 452 F.3d 1126, 1131 (9th Cir.2006). Such circumstances include “a very narrow band 12 of cases in which ex parte orders are proper because notice to the defendant would render fruitless 13 the further prosecution of the action.” Id. (quoting Am. Can Co. v. Mansukhani, 742 F.2d 314, 14 322 (7th Cir.1984)). Although the restrictions imposed are stringent, they “‘reflect the fact that 15 our entire jurisprudence runs counter to the notion of court action taken before reasonable notice 16 and an opportunity to be heard has been granted both sides of a dispute.” Id. (quoting Granny 17 Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 438-39, 94 S.Ct. 18 1113, 39 L.Ed.2d 435 (1974)). 19 Erickson argues that courts have granted the sort of injunctive relief they seek where there 20 is evidence that the opposing party is dissipating assets. By and large, however, the cases 21 Erickson cites involved noticed motions. While the court is troubled by allegations that Kast has 22 concealed the full scope of his assets, it is also exceedingly concerned by the breadth of the 23 injunctive relief Erickson seeks here, on an entirely ex parte basis, including possible impact on 24 Baker (a non-party), with scant information before the court about the accounts and assets 25 Erickson seeks to freeze, and for varying and amorphous time periods such as “until such time that 26 full discovery can be taken” or until the court reviews and rules on Erickson’s pending motion to 27 28 2 1 compel and order to show cause re contempt. Erickson’s motion for TRO is denied.1 2 SO ORDERED. 3 Dated: January 8, 2018 4 5 HOWARD R. LLOYD United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Clerk shall docket the motion and supporting papers Erickson lodged with the court. 3

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