R & R Acquisitions Texas LLC v. Kauai Resort Partners, LLC et al

Filing 69

ORDER DENYING INTERVENOR MORI GOLF (KAUAI) LLC'S 45 MOTION TO INTERVENE FILED ON MAY 11, 2009 AND FINDINGS AND RECOMMENDATIONS THAT INTERVENOR MORI GOLF (KAUAI) LLC'S 49 MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION FILED ON MAY 18, 2009 BE DENIED ( Objections to F&R due by 7/15/2009). Signed by JUDGE KEVIN S.C. CHANG on 6/29/09. (ecs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) ) Plaintiff, ) ) ) vs. ) ) KAUAI RESORT PARTNERS, LLC; ) TITLE GUARANTY ESCROW SERVICES, INC.; JOHN DOES 1-50; DOE ) ) PARTNERSHIPS, CORPORATIONS, GOVERNMENTAL UNITS, OR OTHER ) ) ENTITIES 1-50, ) ) Defendants. ) ) ) ) ____________________________________) R & R ACQUISITIONS TEXAS L.L.C., a Texas Limited Liability Corporation, CIVIL NO. CV 08-00348 SPK/KSC (Contract) ORDER DENYING INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION TO INTERVENE FILED ON MAY 11, 2009 AND FINDINGS AND RECOMMENDATIONS THAT INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION FILED ON MAY 18, 2009 BE DENIED Hearing: Time: Judge: May 26, 2009 11:00 A.M. The Honorable Kevin S.C. Chang

ORDER DENYING INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION TO INTERVENE FILED ON MAY 11, 2009 AND FINDINGS AND RECOMMENDATIONS THAT INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION FILED ON MAY 18, 2009 BE DENIED Intervenor MORI GOLF (KAUAI), LLC's (I) Motion for Temporary Restraining Order and Preliminary Injunction filed on May 18, 2009 and (ii) Motion to Intervene filed on May 11, 2009 (collectively the "Motions") came on for hearing before the Honorable Magistrate Judge Kevin S.C. Chang on May 26, 2009 at 10:56 a.m. Philip R. Brown, Esq. appeared on behalf of Plaintiff R & R ACQUISITIONS TEXAS L.L.C, a Texas Limited Liability Corporation. ("R & R"). Derek Kobayashi, Esq. appeared on behalf of Defendant KAUAI RESORT PARTNERS, LLC ("KRP"). Kevin W. Herring, Esq. appeared on behalf of Defendant TITLE GUARANTY ESCROW SERVICES, INC. ("TG"). Michael Marsh, Esq. and Lauren Sharkey, Esq. appeared on behalf of Intervenor MORI GOLF (KAUAI), LLC ("MORI").

The Court having reviewed the written submissions of the parties, having heard the argument of counsel, issues the following findings and recommendations: With regards to the motion to intervene, the complaint in this civil action was filed in July 2008. A stipulated judgment was entered in January of 2009. The Court finds, first, that it would be unduly prejudicial to the Plaintiff and the Defendant, in this case, to allow MORI to intervene at this late date. Mori has failed to provide adequate, sufficient explanation as to why the restraining order or the motion to intervene was delayed in being filed. From the record, it does appear that MORI was aware of or should have been aware of no later than April 2009 given the disclosure of garnishment which was served or conveyed by TG in this case. So the Court finds simply that this motion to intervene is not timely and on that basis this motion to intervene is denied. With regards to the motion or application for temporary restraining order, the Court does find and recommend that this motion be denied; the Court specifically finding that MORI has failed to sustain its burden of proof in this case. MORI has failed to make the strong showing of likelihood of success on the merits. MORI has failed to show that it would suffer irreparable harm if the temporary restraining order or the extraordinary relief sought was not entered. The balance of hardships in this case does not, based on the record, tip sharply in favor of MORI. As noted, monetary damages or monetary injuries are generally not considered to be irreparable harm. And so, while as Mr. Marsh states, filing a separate lawsuit would be burdensome and inconvenient it nevertheless is not sufficient to tip the balance of hardships in this case sharply in MORI's favor. And, therefore, based on those findings the Court will recommend that the Motion for Temporary Restraining Order and Preliminary Injunction be DENIED.

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DATED: Honolulu, Hawaii, June 29, 2009.

_____________________________ Kevin S.C. Chang United States Magistrate Judge APPROVED AS TO FORM:

/s/ Derek Kobayashi DEREK KOBAYASHI DOUGLAS CODIGA Attorneys for Defendant KAUAI RESORT PARTNERS, LLC

/s/ Kevin W. Herring KEVIN W. HERRING Attorney for Defendant TITLE GUARANTY ESCROW SERVICES, INC.

/s/ Lauren Sharkey MICHAEL MARSH LAUREN SHARKEY Attorneys for Intervenor MORI GOLF (KAUAI), LLC

_____________________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII; R & R Acquisitions, L.L.C., et al. v. Kauai Resort Partners, LLC, et al., et al., Civil No. CV 08-00348 SPK KSC; ORDER DENYING INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION TO INTERVENE FILED ON MAY 11, 2009 AND FINDINGS AND RECOMMENDATIONS THAT INTERVENOR MORI GOLF (KAUAI) LLC'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION FILED ON MAY 18, 2009 BE DENIED

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