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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES LINLOR, an individual, and on
behalf of his minor child A.L.,

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Case No.: 17cv203-MMA (JMA)
ORDER DENYING PLAINTIFF’S EX
PARTE MOTION FOR
TEMPORARY RESTRAINING
ORDER

Plaintiff,

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v.

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THE NATIONAL RIFLE
ASSOCIATION OF AMERICA,

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[Doc. No. 13]

Defendant.

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Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action

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against Defendant the National Rifle Association of America (“Defendant”) in San Diego

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County Superior Court on December 28, 2016. See Doc. No. 1; Exh. A. Plaintiff alleges

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Defendant violated California Civil Code Section 3344 by addressing and mailing

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membership renewal notices and other marketing material to Plaintiff and his minor

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child. See id. Defendant removed the action to this Court on February 2, 2017. See id.

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On March 31, 2017, Plaintiff filed the pending ex parte motion for a temporary and

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permanent restraining order (“TRO”) against Defense counsel for alleged criminal

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harassment and stalking of Plaintiff’s minor child, pursuant to California Penal Code

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Sections 646.91 and 646.91a. See Doc. No. 13. For the reasons set forth below, the

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Court DENIES Plaintiff’s motion.
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17cv203-MMA (JMA)

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LEGAL STANDARD

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In federal court, a temporary restraining order (“TRO”) may be granted upon a

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showing “that immediate and irreparable injury, loss, or damage will result to the movant

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before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The

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purpose of such an order, as a form of preliminary injunctive relief, is to preserve the

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status quo and prevent irreparable harm “just so long as is necessary to hold a hearing,

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and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,

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439 (1974). A request for a TRO is evaluated by the same factors that generally apply to

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a preliminary injunction. See Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240

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F.3d 832, 839 n.7 (9th Cir. 2001). However, a TRO is an “extraordinary remedy” and is

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

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(2008). Instead, the moving party bears the burden of demonstrating that “he is likely to

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

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Id. at 20. Although a plaintiff must satisfy all four of the

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requirements set forth in Winter, this Circuit employs a sliding scale whereby “the

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elements of the preliminary injunction test are balanced, so that a stronger showing of

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one element may offset a weaker showing of another.” Alliance for the Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Accordingly, if the moving party can

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demonstrate the requisite likelihood of irreparable harm and show that an injunction is in

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the public interest, a preliminary injunction may issue so long as there are serious

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questions going to the merits and the balance of hardships tips sharply in the moving

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party’s favor. Id.

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Generally, courts must broadly construe pleadings filed by pro se litigants,

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affording pro se plaintiffs any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89,

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94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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17cv203-MMA (JMA)

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DISCUSSION

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Plaintiff seeks a “temporary and permanent restraining order” preventing Defense

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counsel from contacting or attempting to communicate with Plaintiff’s minor child. See

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Doc. No. 13 at 3. The Court denies Plaintiff’s request for a TRO for two reasons. First, a

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request for a TRO based upon California Penal Code Sections 646.91 and 646.91a is

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properly heard in state court—not in federal court. Section 646.91 expressly provides

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that “[a]n emergency protective order shall include . . . (3) The address of the superior

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court for the district or county in which the protected party resides.” Cal. Penal Code §

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646.91(c)(3) (emphasis added). Moreover, Section 646.91 states that if the protected

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person wishes “to seek continuing protection,” the protected person “will have to apply

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for an order from the court at the address noted [in 646.91(c)(3)].” Cal. Penal Code §

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646.91(c)(4)(A). Further, Plaintiff concedes that this Court is not the proper forum for

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pursuing relief under California’s criminal code. See Doc. No. 13 at 2 (“Plaintiff intends

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to swear out a criminal complaint . . . with San Diego County law enforcement for

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violations of CPC 646.91 and 646.91A upon Plaintiff’s return to California from his

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home state of Nevada.”). As such, Plaintiff’s request for a TRO on this basis is

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inappropriate in federal court.

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Second, based on a thorough reading of Plaintiff’s motion, Plaintiff has not shown

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a likelihood of success on the merits of his claim or raised serious questions going to the

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merits. See Winter, 555 U.S. at 20. In fact, Plaintiff makes no arguments in his

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application regarding his probability of success on the merits of his claim under

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California Civil Code Section 3344. An injunction is a remedy, not a cause of action

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itself. Thus, injunctive relief is only available upon a finding of liability, or in the case of

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temporary injunctive relief, a showing of a likelihood of success on a claim. See 19 Fed.

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Proc., L. Ed. § 47:1; Wells Fargo Bank, N.A. v. Barber, 85 F. Supp. 3d 1308, 1313 (M.D.

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Fla. 2015). Even construing Plaintiff’s motion broadly, Plaintiff fails to establish a

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likelihood of success on the merits of his § 3344 claim.

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17cv203-MMA (JMA)

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CONCLUSION

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The pending TRO does not establish that Plaintiff is entitled to injunctive relief.

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Accordingly, the Court DENIES Plaintiff’s ex parte motion for a temporary restraining

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order.

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IT IS SO ORDERED.

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Dated: April 3, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv203-MMA (JMA)