Quinata v. Nishimura et al

Filing 51

ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER re 24 ; 49 - Signed by JUDGE J. MICHAEL SEABRIGHT on 8/26/13. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Anna Quinata shall be served by first class mail at the address of record on August 27, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANNA QUINATA,
Plaintiff,
vs.
RHONDA NISHIMURA, in her
individual capacity, et al.,
Defendants.
_______________________________

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CIVIL NO. 13-00339 JMS-KSC
ORDER DENYING PLAINTIFF’S
EX PARTE MOTION FOR
TEMPORARY RESTRAINING
ORDER

ORDER DENYING PLAINTIFF’S EX PARTE MOTION FOR
TEMPORARY RESTRAINING ORDER
I. INTRODUCTION
On July 11, 2013, pro se Plaintiff Anna Quinata (“Quinata”) filed a
Complaint against Hawaii State Circuit Court Judge Rhonda Nishimura (“Judge
Nishimura”), BMW Bank of North America (“BMW Bank”), the Honolulu law
firm Cades Shutte LLP, and Cades Shutte LLP employees Theodore D.C. Young,
Alana Peacott-Richards, Megan A. Suehiro, and Anthony Shannon (collectively,
“Defendants”). Quinata alleges that BMW Bank, with the assistance of Cades
Shutte LLP and its employees, wrongfully filed an action in Hawaii state court
asserting that Quinata used a false check to pay the balance on a BMW X5 sport
utility vehicle (the “X5”) she purchased through financing. Quinata alleges that in

the state court action, Judge Nishimura issued an ex parte order granting BMW
Bank possession of the X5, and that Defendants’ attempts to deprive her of the X5
violate her due process rights.
Currently before the court is Quinata’s Motion for Temporary
Restraining Order (“Motion for TRO”). Quinata requests that the court enter an
order restraining Defendants “from compelling Plaintiff to submit to ex parte
Orders granting immediate possession of the Vehicle.” Doc. No. 24, at Proposed
Order. A status conference was held on August 2, 2013. Defendants submitted
Oppositions on August 15, 2013, Doc. Nos. 36-38, and Quinata submitted a Reply
on August 23, 2013. Doc. No. 41. A hearing was held on August 23, 2013. Based
on the parties’ briefing, the arguments made, and the entire record before the court,
the court DENIES the Motion for TRO.
II. FACTUAL BACKGROUND
A.

The Contract for the X5
On November 20, 2011, Quinata entered into a contract with BMW of

Honolulu to purchase the X5 for $85,412.55 (the “Contract”). Doc. No. 1-1,
Compl. Ex. A at ECF 7 of 19. Quinata made no cash down payment, and instead
traded in a vehicle, obtained a manufacturer’s rebate, and borrowed the remaining
balance ($66,996.58) from BMW of Honolulu. Id.
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Pursuant to Section 11 of the Contract, it was assigned to BMW Bank.
Id. Section 13(c) of the Contract gives BMW Bank a security interest in the X5,
which “secures payment and performance of [Quinata’s] obligations under the
Contract, or any extensions thereof, including any indebtedness subsequently
arising because of [Quinata’s] failure to perform such obligations.” Id. at ECF 8 of
19. In the event of default, section 16(b) of the Contract gives BMW Bank the
right to accelerate payments and to repossess the X5. Id.
B.

The State Action
In January 2012, Quinata provided BMW Bank a check in the amount

of $66,577.72, appearing to be drawn from a First Hawaiian Bank account, to pay
off the balance due on the X5. Id. at ECF 9 of 19. On February 1, 2012, First
Hawaiian Bank returned the check with the notation “UNABLE TO LOCATE
ACCT.”1 Id.
On May 22, 2012, BMW Bank, through its attorneys at Cades Shutte,
filed a verified complaint in the First Circuit Court of the State of Hawaii alleging
claims against Quinata for breach of contract, conversion, and fraud (the “State

1

Although not asserted in the Complaint, Quinata asserts that this check discharged her
debt on the X5 and that BMW Bank notified her that she had satisfied her debt. See Doc. No.
41, Quinata Reply at 10.
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Action”). Doc. No. 29-2, BMW Bank Ex. 1, State Action Complaint.2 BMW
Bank further sought an entry of order and judgment for immediate possession of
the X5 by filing an ex parte Motion for Immediate Possession of Personal Property
pursuant to Hawaii Revised Statutes (“HRS”) § 654-2 (the “Ex Parte Motion”).
Doc. No. 1-1, Compl. Ex. A at ECF 2 of 19. The Ex Parte Motion requested an
order “directed to the sheriff or his deputy, or to the Chief of Police or an
authorized police officer of the City and County of Honolulu, State of Hawaii, or a
person authorized by the rules of court, to take the property described in the
foregoing Verified Complaint.” Id. at ECF 2-3 of 19. The Ex Parte Motion
included a $75,000 Bond for Immediate Possession, and an Affidavit for
Immediate Possession of Personal Property by BMW collections agent Bill
McFarlane. Id. at ECF 4-6 and 11-12 of 19.
The Affidavit outlines that (1) on November 20, 2011, Quinata
entered into the Contract with BMW of Honolulu to purchase the X5; (2) Quinata
took possession of the X5; (3) BMW of Honolulu assigned the Contract to BMW
Bank; (4) Quinata provided BMW Bank a January 23, 2012 check drawn on a First
Hawaiian Bank account in the amount of $66,577.72; (5) on February 1, 2012,
2

The court takes judicial notice of the documents filed in the State Action, which were
provided with Motions to Dismiss filed by various Defendants. See Reyn’s Pasta Bella v. Visa
USA, 442 F.3d 741, 746 n.6 (9th Cir. 2006) (explaining that the court “may take judicial notice
of filings and other matters of public record”).
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BMW Bank was notified that the check was returned because the account on the
check could not be located; (6) Quinata has not made a payment on the X5 since
January 2, 2012; (7) despite repeated demands, Quinata has made no further
payments and has refused to voluntarily surrender the X5; (8) BMW Bank believes
that the X5 is in Quinata’s possession at her residence; (9) BMW Bank has a valid
security interest in the X5 as set forth in the Contract; and (10) Quinata is in default
on the loan in the amount of $67,869.51, including interest. Id. at ECF 4-6 of 19.
On May 23, 2012, Judge Nishimura granted the Ex Parte Motion and
issued an Order for Immediate Possession of Personal Property (the “Ex Parte
Order”). The Ex Parte Order states that “this Court has inquired into the matter
and finds that a prima facie claim for relief has been established; that the form,
amount, and surety of the bond are good and sufficient and should be and are
hereby approved by this Court; and that an order for immediate possession should
issue subject to the protective provisions of [HRS § 654].” Id. at ECF 18 of 19.
The Ex Parte Order directs the “sheriff of the state of Hawaii, or his deputy, or the
chief of police or any authorized police officer of the city and county of Honolulu,
or a person authorized by the rules of court,” to take possession of the X5 and
deliver it to BMW Bank, unless before delivery Quinata makes an affidavit of her
interest and right to possession of the X5 and executes a court-approved bond as
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required by HRS § 654-5. Id. at ECF 18-19 of 19.
After BMW Bank was unable to locate the X5, it sought to compel
Quinata to disclose its location. Quinata participated in the State Action, see, e.g.,
Doc. No. 25-2, Ex. 2 (Motion to Dismiss); Doc. No. 25-3, Ex. 3 (Answer), and
fought BMW Bank’s efforts at learning this information. Specifically, in response
to Judge Nishimura’s orders requiring Quinata to testify under oath regarding the
location of the X5, Quinata did not appear and instead filed various objections and
requests for continuances, citing medical complications stemming from her
pregnancy. See Doc. No. 29-5, Ex. 4. Judge Nishimura granted the request for
continuance, ordered the hearing for Quinata’s testimony to take place several
months later (July 12, 2013), and gave Quinata the option to appear at a deposition
at the Cades Shutte offices, testify telephonically, or to provide written answers to
written questions by BMW Bank regarding the location of the X5. Doc. No. 29-7,
Ex. 5. Quinata did not appear at the July 12, 2013 hearing. Instead, on
on July 11, 2013, Quinata filed this action asserting that Defendant’s actions
violated her due process rights.
Since the filing of this action and Quinata’s failure to appear at the
July 12, 2013 hearing, Judge Nishimura stated that a bench warrant would issue for
Quinata’s arrest. Doc. No. 29-8, Ex. 7. Quinata’s attempts to quash and/or recall
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the bench warrant have been rejected by the circuit court. Doc. No. 29-10, Ex. 9.
III. STANDARD OF REVIEW
A TRO may issue only if the plaintiff meets her burden under wellestablished factors. The standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v.
Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999); cf. Stuhlbarg Int’l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)
(observing that an analysis of a preliminary injunction is “substantially identical”
to an analysis of a temporary restraining order).
A “preliminary injunction is an extraordinary and drastic remedy
never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
24 (2008) (citation omitted). A “plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Id. at 20; accord
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). “That is,
‘serious questions going to the merits’ and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary injunction, so long as
the plaintiff also shows that there is a likelihood of irreparable injury and that the
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injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011). Winter emphasizes that a plaintiff seeking preliminary
relief must demonstrate that “irreparable injury is likely in the absence of an
injunction.” 555 U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d 1109,
1127 (9th Cir. 2009).
IV. DISCUSSION
Quinata’s Complaint asserts a single claim pursuant to 42 U.S.C.
§ 1983 that Defendants violated her rights to due process when Judge Nishimura
issued the Ex Parte Order for possession of the X5 without providing Quinata
notice and an opportunity for a meaningful hearing. Doc. No. 1, Compl. ¶¶ 22-24.
Based on the following, the court finds that Quinata has failed to establish a
likelihood of success on the merits on this claim as to any Defendant, and as a
result, her Motion for TRO fails.
A.

Judge Nishimura
Quinata has no likelihood of success in establishing a claim against

Judge Nishimura. Judges are absolutely immune from liability for acts done by
them in the exercise of their judicial functions. See, e.g., Miller v. Davis, 521 F.3d
1142, 1145 (9th Cir. 2008); Mullis v. Bankr. Ct. for the Dist. of Nev., 828 F.2d
1385, 1388 (9th Cir. 1987) (holding that judges are absolutely immune from civil
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liability for damages for their judicial acts). The doctrine of absolute judicial
immunity is based on the policy that “judges should be at liberty to exercise their
functions with independence and without fear of consequences.” Pierson v. Ray,
386 U.S. 547, 554 (1967) (applying judicial immunity to an action under 42 U.S.C.
§ 1983 action). Judicial immunity is an immunity from suit, not just from ultimate
assessment of damages. See Mireles v. Waco, 502 U.S. 9, 11 (1991).
“Accordingly, judicial immunity is not overcome by allegations of bad faith or
malice, the existence of which ordinarily cannot be resolved without engaging in
discovery and eventual trial.” Id. Judicial immunity applies “however erroneous
the act may have been, and however injurious in its consequences it may have
proved to the plaintiff.” Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir.
1996), superceded by statute on other grounds as recognized in Tia v. Mollway,
2011 WL 2945813, at *4 (D. Haw. July 20, 2011). “A judge is not deprived of
immunity because he takes actions which are in error, are done maliciously, or are
in excess of his authority.” Meek v. Cnty. of Riverside, 183 F.3d 962, 966 (9th Cir.
1999) (citing Stump v. Sparkman, 435 U.S. 349, 355-56 (1978)).
Quinata asserts that Judge Nishimura improperly (1) entered the Ex
Parte Order, (2) failed to be persuaded by Quinata’s arguments that Defendants had
committed various crimes, (3) continued to preside over the case after Plaintiff
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sought her disqualification, and (4) issued a bench warrant for Quinata after she
failed to appear at hearings. See Doc. No. 1, Compl. ¶¶13-14, 17-20. Because
these allegations are all directed to Judge Nishimura’s acts done in the exercise of
her judicial functions, Judge Nishimura is absolutely immune from suit. Plaintiff’s
claim against Judge Nishimura therefore fails.
B.

Individual Defendants
Quinata has also failed to show a likelihood of success on her due

process claim against the other Defendants.3
“The fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). “This inquiry [] examine[s] the procedural safeguards built into the
statutory or administrative procedure of effecting the deprivation, and any
remedies for erroneous deprivations provided by statute or tort law.” Zinermon v.
Burch, 494 U.S. 113, 126 (1990). To determine whether HRS § 654-2 satisfies due

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Although the remaining Defendants are private individuals, the facts of this case may
be sufficient to establish that Defendants are acting under color of law. See Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 931 (1982) (stating that “a private party’s joint participation with
state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state
actor’ for purposes of the Fourteenth Amendment.”). Because the court finds that Quinata will
likely fail to establish a due process violation, the court need not determine whether the
remaining Defendants qualify as state actors.
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process, the court must apply the three-part inquiry of Mathews v. Eldridge, 424
U.S. 319 (1976):
First, the court must consider the private interest that will
be affected by the prejudgment action. Second, the court
examines the risk of erroneous deprivation and the
probable value of additional safeguards. Third, in the
case of a dispute between private parties rather than
between an individual and the government, the court
must consider the interest of the party seeking the
prejudgment remedy, with “due regard for any ancillary
interest the government may have in providing the
procedure or forgoing the added burden of providing
greater protections.”
Tri-State Dev., Ltd. v. Johnston, 160 F.3d 528, 530 (9th Cir. 1998) (quoting
Connecticut v. Doehr, 501 U.S. 1, 11 (1991)).
The Supreme Court has examined the procedural safeguards found in
a number of creditor remedies statutes, and defined the contours of their
constitutionality. See, e.g., Connecticut v. Doehr, 501 U.S. 1 (1991) (holding
invalid Connecticut statute that “authorizes prejudgment attachment of real estate
without prior notice or hearing, without a showing of extraordinary circumstances,
and without a requirement that the person seeking the attachment post a bond”); N.
Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (striking down Georgia
statute which permitted garnishment of a business’s bank account with the posting
of a bond but without notice, and where the statute did not provide for judicial
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supervision, a factually complete affidavit, or an early hearing); Fuentes v. Shevin,
407 U.S. 67 (1972) (holding that Florida law that authorized repossession of sold
goods without judicial order, approval, or participation was unconstitutional);
Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969) (striking down state statute
allowing prejudgment garnishment of wages without notice and prior hearing).
This case is factually similar to Mitchell v. W. T. Grant Co., 416 U.S.
600 (1974), which upheld a Louisiana statute allowing the prejudgment seizure of
goods subject to a security interest. Although the Louisiana statute required no
notice and opportunity to be heard prior to seizure, it contained other procedural
safeguards, including that (1) the vendor submit both a verified petition outlining
“specific facts” showing a basis for his claim; (2) the vendor submit a bond to
protect against any damages in the event of improper seizure; (3) a writ for seizure
may not issue until a judge (as opposed to a court clerk) determines that the vendor
has made the appropriate showing; and (4) after seizure, the debtor may
immediately seek dissolution of the writ and/or possession by posting his own
bond. Id. at 605-06. Mitchell explained that these procedures satisfied due process
-- the state has a legitimate interest in enabling the creditor to enforce his security
interest in the debtor’s property, and the absence of notice and a hearing prior to a
seizure serves the creditor’s interest by preventing the debtor from concealing,
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transferring, or wasting the property. Id. at 608-09. At the same time, the harm
that a wrongful seizure might cause was minimized by the provision for notice and
hearing immediately after the seizure, as well as the pre-seizure requirements. Id.
at 610. Mitchell concluded that with these procedures, “the State has reached a
constitutional accommodation of the respective interests” of the creditor and the
debtor.4 Id.
HRS Ch. 654 has similar safeguards as in Mitchell. A claimant seeks
possession of property at issue by (1) filing a verified complaint showing
entitlement to immediate possession of the property at issue, see HRS § 654-1; and
(2) executing a bond “of such amount and with such sureties as are approved by
the court.” HRS § 654-2. A court determines whether seizure should occur.
Specifically, HRS § 654-2 provides:
Upon the filing of the verified complaint or affidavit with
the bond and a motion for immediate consideration of the
matter, the court shall forthwith inquire into the matter,
ex parte or otherwise, as in its discretion it determines. If
thereupon the court finds that a prima facie claim for

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Although Mitchell was decided before Mathews, Mitchell’s rationale considered the
same factors outlined in Mathews, and courts have applied Mitchell to hold that similar replevin
and/or attachment statutes do not violate due process. See, e.g., Audio Odyssey, Ltd. v. Brenton
First Nat’l Bank, 245 F.3d 721, 731 (8th Cir. 2001) opinion reinstated sub nom. Audio Odyssey
v. Brenton First Nat’l Bank, 286 F.3d 498 (8th Cir. 2002); McLaughlin v. Weathers, 170 F.3d
577, 581 (6th Cir. 1999), Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344,
1350 (7th Cir. 1986). The court therefore relies on both Mathews and Mitchell in addressing
Plaintiff’s claim.
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relief has been established, it shall issue an order directed
to the sheriff, sheriff’s deputy, chief of police, an
authorized police officer of any county, or an
independent civil process server from the department of
public safety’s list under section 353C- to take the
property therein described and deliver the same to the
plaintiff.
The defendant also has options -- upon application, the proceeding “shall be
advanced and assigned for hearing at the earliest possible date,” id., and if seizure
has occurred, the defendant may make an affidavit and execute a bond to have the
property returned pending resolution of the proceeding. HRS § 654-5.
The court finds Plaintiff has no likelihood of success in establishing
that HRS Ch. 654 fails to meet due process requirements. Although an ex parte
order of immediate possession will certainly significantly affect a defendant’s
property rights, HRS Ch. 654 minimizes the risk of erroneous deprivation -- the
claimant must set forth specific facts showing entitlement to the property and
execute a bond, and the issuance of an order requires court involvement.
Especially in the case of a debtor/creditor, proof of the debt, the lien, and the
delinquency “are ordinarily uncomplicated matters that lend themselves to
documentary proof” such that “[t]he nature of the issues at stake minimizes the risk
that the writ will be wrongfully issued by a judge.” Mitchell, 416 U.S. at 609-10.
Further, that the debtor may advance the proceeding for hearing at the earliest

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possible date lessens the interruption with her possessory rights to her property.
See id. at 610 (“[T]he debtor may immediately have a full hearing on the matter of
possession following the execution of the writ, thus cutting to a bare minimum the
time of creditor- or court-supervised possession.”). And although a predeprivation hearing may provide an additional safeguard against erroneous
repossession, the risk of erroneous deprivation is already small and the bond would
compensate for any improper seizure.
Indeed, weighing against such additional safeguard is that creditors
have substantial interests in securing property that is the subject of a loan, and as
Mitchell explains, there is a risk “that the buyer, with possession and power over
the goods, will conceal or transfer the merchandise to the damage of the seller.”
Id. at 608-09. Mitchell further reasons that where an installment payment plan is
involved such as here, a delay in retrieving the property may erode a creditor’s
ability to be made whole:
Wholly aside from whether the buyer, with possession
and power over the property, will destroy or make away
with the goods, the buyer in possession of consumer
goods will undeniably put the property to its intende[ed]
use, and the resale value of the merchandise will steadily
decline as it is used over a period of time. Any
installment seller anticipates as much, but he is normally
protected because the buyer’s installment payments keep
pace with the deterioration in value of the security.
Clearly, if payments cease and possession and use by the
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buyer continue, the seller’s interest in the property as
security is steadily and irretrievably eroded until the time
at which the full hearing is held.
Id. at 608. Weighing these considerations, the court finds that a facial challenge to
HRS Ch. 654 likely fails.
The court further finds that Quinata has not established a likelihood of
success on an as-applied challenge. Rather, it appears that Defendants followed
HRS Ch. 654 to the letter -- Defendants filed a verified complaint outlining the
basis for BMW Bank’s right to the X5 as required by HRS § 654-1, and also
provided a bond as required by HRS § 654-2. Judge Nishimura then considered
this information in issuing the Ex Parte Order. Although Quinata did not have the
opportunity for notice and a hearing before the Ex Parte Order was issued, Quinata
has had multiple opportunities to participate in the State Action, and still has
possession of the X5.5 Under these facts, Quinata has not shown a likelihood of
success on an as-applied challenge.
In opposition, Quinata argues that pursuant to Mitchell, a seizure
without notice and hearing is permissible only where there are extraordinary
circumstances, and there are no extraordinary circumstances in this action. See
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At this time, the court need not determine whether the mere issuance of the Ex Parte
Order, without repossession of the X5, deprived Quinata of any property interests. Further,
because Quinata has not established a likelihood of success, the court need not address
Defendants’ other arguments for denying the Motion for TRO.
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Doc. No. 41, Quinata Reply at 6. The court rejects this argument. Mitchell
included no specific requirement that “extraordinary circumstances” exist to allow
seizure of personal property without a hearing. Rather, two years before Mitchell,
Fuentes stated that a pre-deprivation hearing is generally required “except for
extraordinary situations where some valid governmental interest is at stake that
justifies postponing the hearing until after the event.” 407 U.S. at 83 (quoting
Boddie v. Connecticut, 401 U.S. 371, 378-379 (1971)). As a result of Mitchell’s
silence regarding “extraordinary situations,” some courts have rationalized that
Mitchell “perhaps narrowed” Fuentes’ “extraordinary situations” language. See
Audio Odyssey, Ltd., 245 F.3d at 730. Other courts have rationalized that Mitchell
implicitly determined that the Louisiana statute at issue presented an extraordinary
situation in light of the procedural safeguards and the interests of the creditor in
preserving the personal property. See Doehr, 501 U.S. at 6 (discussing Second
Circuit’s reasoning); id. at 16 (stating that Mitchell recognized that an assertion
that the defendant was about to transfer property and/or that the property may not
be available to satisfy judgment are “exigent circumstances” permitting the
postponement of a hearing). Regardless of how Mitchell and Fuentes are squared
with one another, they confirm that Mitchell is still good law -- Mitchell
determined that the Louisiana statute was facially valid, and the statute did not

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require the plaintiff to establish extraordinary or exigent circumstances to obtain a
writ of sequestration for personal property without a hearing. See Mitchell, 416
U.S. at 605. Mitchell’s facts and rationale are directly applicable to this action.
Quinata also argues that HRS Ch. 654 is “virtually indistinguishable”
from the statutes at issue in Doehr and Tri-State. Doc. No. 41, Quinata Reply at 78. The court rejects this argument as well. Both Doehr and Tri-State involved
challenges to statutes allowing attachment of real property without notice and a
hearing, as opposed to the personal property replevin statutes at issue in Mitchell
and this action. See Doehr, 501 U.S. at 5; Tri-State, 160 F.3d at 529. Tri-State
explained that the Washington statute at issue was more similar to the Connecticut
statute at issue in Doehr because they both (1) “allow[] prejudgment attachment
without prior notice or a hearing, requiring only a finding of “probable cause to
believe the allegations of plaintiff’s affidavit,” and (2) “do[]not require a showing
of extraordinary circumstances, such as an allegation that the defendant is about to
transfer or encumber the property, or otherwise make it unavailable to satisfy a
judgment.” Tri-State, 160 F.3d at 530. Tri-State explained that these statutes
differ from that in Mitchell, where “‘the plaintiff had a vendor’s lien to protect, the
risk of error was minimal because the likelihood of recovery involved
uncomplicated matters that lent themselves to documentary proof, and the plaintiff

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was required to put up a bond,’ factors all missing in Doehr,” and all missing in
Tri-State except for the bond requirement. Id. at 531.
Tri-State further distinguished Mitchell because:
In Mitchell, the party seeking sequestration had a
vendor’s lien on household goods sold on an installment
contract to Mitchell, and there was no question of the
vendor’s interest in the property. Thus, unlike the instant
case, the vendor clearly had an interest in the property,
Mitchell’s interest in the property was limited to any
surplus remaining after foreclosure and sale of the
property in the event of his default, and there was the risk
that the buyer could conceal, transfer, or damage the
goods. See Mitchell, 416 U.S. at 604, 607-09.
Id. These facts in Mitchell are the same as in this case -- there is no question of
BMW Bank’s interest in the X5, Quinata’s interest in the X5 is limited to any
surplus remaining after foreclosure and sale of the X5, and there is certainly a risk
(realized and exemplified in this case) that Quinata could conceal, transfer, or
damage the X5. As a result, Doehr and Tri-State do not support that Quinata has a
due process claim.
In sum, because Quinata has not demonstrated that she is likely to
succeed on the merits of her claim, she necessarily cannot obtain a TRO -- Winter
requires all four elements (likelihood of success, likelihood of irreparable harm, a
favorable balance of equities, and demonstrating that an injunction is in the public
interest). Winter, 555 U.S. at 20.
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V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Ex Parte Motion for Temporary
Restraining Order is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 26, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Quinata v. Nishimura et al., Civ. No. 13-00339 JMS-RLP, Order Denying Plaintiff’s Ex Parte
Motion for Temporary Restraining Order

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