Linlor v. The National Rifle Association of America

Filing 14

ORDER Denying Plaintiff's 13 Ex Parte Motion for Temporary Restraining Order. Signed by Judge Michael M. Anello on 4/3/2017. (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES LINLOR, an individual, and on behalf of his minor child A.L., 12 Case No.: 17cv203-MMA (JMA) ORDER DENYING PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiff, 13 v. 14 THE NATIONAL RIFLE ASSOCIATION OF AMERICA, 15 16 [Doc. No. 13] Defendant. 17 18 Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action 19 against Defendant the National Rifle Association of America (“Defendant”) in San Diego 20 County Superior Court on December 28, 2016. See Doc. No. 1; Exh. A. Plaintiff alleges 21 Defendant violated California Civil Code Section 3344 by addressing and mailing 22 membership renewal notices and other marketing material to Plaintiff and his minor 23 child. See id. Defendant removed the action to this Court on February 2, 2017. See id. 24 On March 31, 2017, Plaintiff filed the pending ex parte motion for a temporary and 25 permanent restraining order (“TRO”) against Defense counsel for alleged criminal 26 harassment and stalking of Plaintiff’s minor child, pursuant to California Penal Code 27 Sections 646.91 and 646.91a. See Doc. No. 13. For the reasons set forth below, the 28 Court DENIES Plaintiff’s motion. -1- 17cv203-MMA (JMA) 1 LEGAL STANDARD 2 In federal court, a temporary restraining order (“TRO”) may be granted upon a 3 showing “that immediate and irreparable injury, loss, or damage will result to the movant 4 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The 5 purpose of such an order, as a form of preliminary injunctive relief, is to preserve the 6 status quo and prevent irreparable harm “just so long as is necessary to hold a hearing, 7 and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 8 439 (1974). A request for a TRO is evaluated by the same factors that generally apply to 9 a preliminary injunction. See Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240 10 F.3d 832, 839 n.7 (9th Cir. 2001). However, a TRO is an “extraordinary remedy” and is 11 “never granted as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 12 (2008). Instead, the moving party bears the burden of demonstrating that “he is likely to 13 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 14 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 15 the public interest.” Id. at 20. Although a plaintiff must satisfy all four of the 16 requirements set forth in Winter, this Circuit employs a sliding scale whereby “the 17 elements of the preliminary injunction test are balanced, so that a stronger showing of 18 one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. 19 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Accordingly, if the moving party can 20 demonstrate the requisite likelihood of irreparable harm and show that an injunction is in 21 the public interest, a preliminary injunction may issue so long as there are serious 22 questions going to the merits and the balance of hardships tips sharply in the moving 23 party’s favor. Id. 24 Generally, courts must broadly construe pleadings filed by pro se litigants, 25 affording pro se plaintiffs any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 26 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 27 /// 28 /// -2- 17cv203-MMA (JMA) 1 DISCUSSION 2 Plaintiff seeks a “temporary and permanent restraining order” preventing Defense 3 counsel from contacting or attempting to communicate with Plaintiff’s minor child. See 4 Doc. No. 13 at 3. The Court denies Plaintiff’s request for a TRO for two reasons. First, a 5 request for a TRO based upon California Penal Code Sections 646.91 and 646.91a is 6 properly heard in state court—not in federal court. Section 646.91 expressly provides 7 that “[a]n emergency protective order shall include . . . (3) The address of the superior 8 court for the district or county in which the protected party resides.” Cal. Penal Code § 9 646.91(c)(3) (emphasis added). Moreover, Section 646.91 states that if the protected 10 person wishes “to seek continuing protection,” the protected person “will have to apply 11 for an order from the court at the address noted [in 646.91(c)(3)].” Cal. Penal Code § 12 646.91(c)(4)(A). Further, Plaintiff concedes that this Court is not the proper forum for 13 pursuing relief under California’s criminal code. See Doc. No. 13 at 2 (“Plaintiff intends 14 to swear out a criminal complaint . . . with San Diego County law enforcement for 15 violations of CPC 646.91 and 646.91A upon Plaintiff’s return to California from his 16 home state of Nevada.”). As such, Plaintiff’s request for a TRO on this basis is 17 inappropriate in federal court. 18 Second, based on a thorough reading of Plaintiff’s motion, Plaintiff has not shown 19 a likelihood of success on the merits of his claim or raised serious questions going to the 20 merits. See Winter, 555 U.S. at 20. In fact, Plaintiff makes no arguments in his 21 application regarding his probability of success on the merits of his claim under 22 California Civil Code Section 3344. An injunction is a remedy, not a cause of action 23 itself. Thus, injunctive relief is only available upon a finding of liability, or in the case of 24 temporary injunctive relief, a showing of a likelihood of success on a claim. See 19 Fed. 25 Proc., L. Ed. § 47:1; Wells Fargo Bank, N.A. v. Barber, 85 F. Supp. 3d 1308, 1313 (M.D. 26 Fla. 2015). Even construing Plaintiff’s motion broadly, Plaintiff fails to establish a 27 likelihood of success on the merits of his § 3344 claim. 28 /// -3- 17cv203-MMA (JMA) 1 CONCLUSION 2 The pending TRO does not establish that Plaintiff is entitled to injunctive relief. 3 Accordingly, the Court DENIES Plaintiff’s ex parte motion for a temporary restraining 4 order. 5 IT IS SO ORDERED. 6 7 8 9 10 Dated: April 3, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 17cv203-MMA (JMA)

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