Jose Maria et al v. Khiani Alpharetta, LLC et al

Filing 61

ORDER denying Plaintiffs' 58 Emergency Motion for Temporary Restraining Order. Signed by Judge Richard W. Story on 4/7/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FRANKLIN PAES JOSE MARIA
and RAPHAEL JOSE MARIA,
Plaintiffs,
v.
KHIANI ALPHARETTA, LLC, et
al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NOS.
1:13-CV-01415-RWS

ORDER
This case comes before the Court on Plaintiffs’ Emergency Motion for
Temporary Restraining Order [58]. After reviewing the record, the Court enters
the following Order.
After conducting two bench trials, the Court found Defendants liable
under the Fair Labor Standards Act for failing to pay Plaintiffs for all hours
worked, including overtime. Plaintiffs now seek a temporary restraining order
that prevents Defendants from (1) relocating assets outside the State of Georgia
until after paying the judgments or posting a bond; (2) selling off any assets
without the proceeds of such sales being deposited into the Court; and (3)

AO 72A
(Rev.8/82)

relocating outside the State of Georgia before paying the judgments or posting a
bond. Plaintiffs also petition the Court to require Defendants to (4) post a bond
and (5) deposit their passports with the Court.
Plaintiffs move for this relief based on information Plaintiff Martha
Duran learned about Defendant Arjun Khiani’s alleged intentions. Ms. Duran
submits an affidavit stating both she and Mr. Khiani use the same Bank of
America branch in Alpharetta, Georgia. On April 3, 2015, Ms. Duran states
that while she was at her bank, a teller, who is a friend of Ms. Duran, told her
that Mr. Khiani had just been in the bank five minutes earlier and told the teller
that he was selling his BP gas station and moving to India. Plaintiffs filed this
motion on April 6, 2015. The Court entered judgment on that day as well.
I.

Legal Standard
Before a court will grant a temporary restraining order, the moving party

must establish that: (1) “it has substantial likelihood of success on the merits,”
(2) it will suffer irreparable injury if the relief is not granted, (3) the threatened
injury outweighs the harm the relief may inflict on the non-moving party, and
(4) entry of relief “would not be adverse to the public interest.” KH Outdoor,
LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). “Of these
2

AO 72A
(Rev.8/82)

four requisites, the first factor, establishing a substantial likelihood of success
on the merits, is most important . . . .” ABC Charters, Inc. v. Bronson, 591 F.
Supp. 2d 1272, 1294 (S.D. Fla. 2008). “The preliminary injunction is an
extraordinary and drastic remedy not to be granted unless the movant ‘clearly
carries the burden of persuasion’ as to the four prerequisites.” United States v.
Jefferson Cnty., 720 F.2d 1511, 1518 (11th Cir. 1983) (quoting Canal Auth. v.
Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). Furthermore, such “equitable
relief is only available where there is no adequate remedy at law.” Rosen v.
Cascade Int’l, Inc., 21 F.3d 1520, 1527 (11th Cir. 1994).
II.

Analysis
The Court finds that the drastic remedy of a temporary restraining order

is unwarranted because Plaintiffs have adequate remedies at law now that a
judgment has been entered, and Plaintiffs have not clearly carried the burden of
persuasion to show that Mr. Khiani is likely to transfer assets beyond the reach
of the Court.
Federal court judgments “rendered by a district court within a State” shall
be liens with the same legal effect as state court judgment liens:

3

AO 72A
(Rev.8/82)

Every judgment rendered by a district court within a State shall be
a lien on the property located in such State in the same manner, to
the same extent and under the same conditions as a judgment of a
court of general jurisdiction in such State.
28 U.S.C. § 1962; see also FED. R. CIV. P. 69 (a)(1) (“A money judgment is
enforced by a writ of execution, unless the court directs otherwise.”).
And, under Georgia law, to establish a lien on Defendants’ property
Plaintiffs may record the writ of execution on the general execution docket in
the appropriate county. See O.C.G.A. § 9-12-81(b) (“When the execution has
been entered upon the docket, the lien shall date from such entry.”). These
procedures provide Plaintiffs with an adequate remedy at law to address their
concerns about Defendants selling or transferring assets.
The Court is also reluctant to grant such an extraordinary remedy based
on the hearsay evidence submitted with the motion. Plaintiffs rely on a bank
teller’s statement to Ms. Duran about what Mr. Khiani told her, but without
more, the Court is left to speculate about the precise nature and timing of Mr.
Khiani’s intentions. For that reason, combined with Plaintiffs’ adequate
remedies at law now that a judgment has been entered, the Court DENIES
Plaintiffs’ Emergency Motion for Temporary Restraining Order [58].

4

AO 72A
(Rev.8/82)

Conclusion
For the foregoing reasons, Plaintiffs’ Emergency Motion for Temporary
Restraining Order [58] is DENIED.
SO ORDERED, this 7th

day of April, 2015.

________________________________
RICHARD W. STORY
United States District Judge

5

AO 72A
(Rev.8/82)