Performance Advantage Group, Inc. et al v. Perez et al

Filing 4

ORDER Denying 3 Ex Parte Application for a Temporary Restraining Order. Signed by Judge Roger T. Benitez on 8/8/2011. (knh)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PERFORMANCE ADVANTAGE GROUP,
INC., et al.,

CASE NO. 11cv1747 BEN (NLS)

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ORDER DENYING EX PARTE
APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER

Plaintiffs,
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vs.
PETER G. PEREZ, et al.,
Defendants.

INTRODUCTION

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On August 5, 2011, Plaintiffs Performance Advantage Group, Inc., Real Estate Training

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International, LLC, Armondo Montelongo Companies, Inc., and Armando Montelongo, Jr., filed an

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ex parte application for a temporary restraining order (“TRO”). Plaintiffs seek to enjoin Defendants

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Peter and Linda Perez from making disparaging remarks about the Plaintiffs that would allegedly

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violate the terms of an agreement between the parties. Plaintiffs seek a TRO without notice to

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Defendants. Because Plaintiffs have not clearly shown that immediate and irreparable injury will

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result before Defendants can be heard, the application for a TRO is DENIED.

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DISCUSSION

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The “circumstances justifying the issuance of an ex parte order are extremely limited” because

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

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an opportunity to be heard has been granted both sides of a dispute.” Reno Air Racing Ass’n v.

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McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (quoting Granny Goose Foods, Inc. v. Teamsters, 415

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11cv1747

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U.S. 423 (1974) (finding a TRO was improperly issued because notice to the adverse party was neither

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impossible nor would it render the action fruitless)). Federal Rule of Civil Procedure 65 outlines the

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“stringent restrictions imposed” for TROs issued without notice. Id.

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The court may issue a temporary restraining order without written or oral notice to the
adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition
FED . R. CIV . P. 65(b)(1)(A).

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The application for this extraordinary relief does not quite clear this high threshold. Plaintiffs

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speculate that they will suffer “incalculable” costs repairing the damage that might occur if Defendants

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make disparaging remarks about their products and services. But, this assertion falls short is two

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critical respects. First, there is not enough evidence that Defendants will act in violation of the

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agreement if given notice of this action and the request for preliminary relief. Second, such a general

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assertion fails to clearly show that the injury is irreparable because any injury Plaintiffs might suffer

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might well be compensated with an appropriate award of damages should the threatened remarks be

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wrongfully made.

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CONCLUSION
Because the stringent requirements for a TRO issued without notice have not been fully
satisfied, the application for a TRO is DENIED.

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IT IS SO ORDERED.

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DATED: August 8, 2011

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Hon. Roger T. Benitez
United States District Judge

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11cv1747