Iacovacci v. Nokley et al

Filing 18

ORDER granting Plaintiff's ECF No. 4 Emergency Motion for TRO (see order for details). This order will remain in effect until the hearing on Plaintiff's ECF No. 6 Motion for Preliminary Injunction. Signed by Judge Miranda M. Du on 2/2/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PAUL IACOVACCI,

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Case No. 2:17-cv-00148-MMD-NJK
Plaintiff,

ORDER

v.
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ROBERT W. NOKLEY, SR., an individual;
NOKLEY GROUP, LLC, a Nevada limited
liability company; DOE DEFENDANTS I
THROUGH X; and ROE
CORPORATIONS XI THROUGH XX,

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Defendants.
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Before the Court is Plaintiff’s emergency motion for temporary restraining order

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(“Motion”). (ECF No. 4.) Plaintiff seeks to stop Defendants Robert W. Nokley (“Nokley”

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and Nokley Group, LLC (“NG”) from continued dissipation of assets of NG. Plaintiff

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alleges that he entered into a contract with Defendants to purchase “workers

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compensation accounts receivable” to place them with collection agencies for collection,

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and Plaintiff made a cash investment of $150,000.00 in return for 30% participation

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interest in NG. (ECF No. 1 at 3.) According to Plaintiff, Defendants have refused to provide

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required information about NG’s business and finances and Nokley improperly removed

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at least $44,000.00 from NG for Nokley’s admitted personal use. (Id. 4.) The Complaint

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asserts a number of claims against both Nokley and NG, including claims for breach of

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contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary

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duty and misrepresentation. (Id. at 9.)

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Upon consideration of the Motion and the Verified Complaint, and for good cause
shown, the Court finds that:
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The Court may issue a temporary restraining order (“TRO”) pursuant to

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Federal Rule of Civil Procedure 65. The standard for issuing a TRO is “substantially

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identical” to the standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v.

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John D. Brush & Co., 240 F. 3d 832, 839 n.7 (9th Cir. 2001). Thus, in order to obtain a

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TRO, a plaintiff must show: (1) likelihood of success on the merits; (2) likelihood of

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irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips

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in her favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def.

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Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, an injunction may issue under the

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“sliding scale” approach if there are serious questions going to the merits and the balance

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of hardships tips sharply in plaintiff’s favor, so long as plaintiff still shows a likelihood of

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irreparable injury and that an injunction is in the public interest. Alliance for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). “Serious questions are those

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which cannot be resolved one way or the other at the hearing on the injunction.” Bernhardt

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v. Los Angeles Cnty., 339 F.3d 920, 926–27 (9th Cir. 2003) (internal quotation marks

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omitted) (citing Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.

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1988)). They “need not promise a certainty of success, nor even present a probability of

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success, but must involve a ‘fair chance of success on the merits.’” Marcos, F.2d at 1362.

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2.

“An injunction is a matter of equitable discretion and is an extraordinary

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remedy that may only be awarded upon a clear showing that the plaintiff is entitled to

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such relief.” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (internal

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quotation marks omitted).

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3.

Plaintiff has satisfied the Winter factors by showing that (1) he will likely

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succeed on the merits of his claims because Defendants have purportedly

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misappropriated funds and made misrepresentations to cause Plaintiff to invest in NG,

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(2) he will likely suffer irreparable harm in the absence of temporary injunctive relief

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because Nokley admitted he took at least $44,000.00 from NG for his wife’s medical
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expense and Nokley’s conduct supports Plaintiff’s contention that Defendants will further

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dissipate NG’s assets, (3) the balance of hardship tips in Plaintiff’s favor and (4) a

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restraining order is in the public interest. Plaintiff is therefore entitled to a temporary

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restraining order.

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For these reasons, the Court grants Plaintiff’s emergency motion for temporary
restraining order (ECF No. 4) and orders as follows:

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(1) Defendants are temporarily enjoined from disposing of any property or

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removing any funds from any of their financial accounts without permission of this Court;

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(2) Defendants must provide Plaintiff with a complete accounting of NG and the

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Receivables within five (5) days from service of this Order upon Defendants;

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(3) Defendants must provide Plaintiff access to all books and records of NG,

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including all of NG’s financial accounts within one (1) day from service of this Order upon

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Defendants; and

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(4) Nokley must return any funds taken from NG.

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This Order will remain in effect until the hearing on Plaintiff’s motion for preliminary

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injunction (ECF No. 6.)

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DATED THIS 2nd day of February 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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