Chamaria et al v. Diab et al

Filing 13

ORDER DENYING 5 Motion for TRO. IT IS FURTHER ORDERED that 6 Motion for Preliminary Injunction is DENIED. IT IS FURTHER ORDERED that 7 Motion for Leave to File Excess Pages is GRANTED. Signed by Judge Jennifer A. Dorsey on 7/31/2017. (Copies have been distributed pursuant to the NEF - DC)

1
2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

Vishal Chamaria; Vivek Chamaria; Puja Chamaria;
P&V, LLC; and Chip Shop, LLC

5

2:17-cv-02023-JAD-CWH

Plaintiffs

Order Denying Motions for Temporary
Restraining Order and Preliminary
Injunction and Granting Motion to
Exceed the Page Limit

Tony M. Diab, et al.,

[ECF Nos. 5, 6, 7]

6
v.
7
8
Defendants
9
10
11

The plaintiffs claim that defendant attorney Tony Diab was representing them in a contract

12

dispute when he pocketed nearly $400,000 of their settlement funds. The plaintiffs move for a

13

temporary restraining order and a preliminary injunction directing Diab to immediately return this

14

money to them so that they can buy a house.

15

To be sure, the moving papers raise serious concerns about Diab’s representation and how he

16

handled the plaintiffs’ money. But to receive the rare remedy of an injunction, the plaintiffs must do

17

more than show that they are likely to win on their money-damages claim. If that’s all that is needed,

18

nearly every plaintiff with a good case would seek early payment of their judgment. Instead,

19

plaintiffs must prove that money damages will be inadequate and that they will somehow be

20

irreparably harmed without an injunction. Given that this case boils down to a simple dispute over

21

money, plaintiffs fail on this point. I thus deny plaintiffs’ motions for a temporary restraining order

22

and preliminary injunction.

23

Discussion
A “preliminary injunction is an extraordinary remedy never awarded as of right.”1 Plaintiffs

24
25

bear the burden to show that (1) they are likely to succeed on their claims; (2) they will likely be

26

irreparably harmed if I do not give them preliminary relief; (3) the balance of equities tips in their

27
28

1

Winter v. Natural Res. Def. Council, Inc ., 555 U.S. 7, 24 (2008).
Page 1 of 4

1

favor; and (4) an injunction is in the public interest.2 Additionally, they must meet the “high hurdle”

2

of showing that “immediate relief is necessary” to prevail on their request for a temporary restraining

3

order.3 I have wide discretion to decide whether to grant preliminary injunctive relief.4

4

Although the plaintiffs assert concerning claims that may prevail on the merits,5 they

5

altogether fail on the irreparable harm factor. Plaintiffs urge that they need money so that they can

6

buy a house and that they will miss the closing date on their purchase contract if they don’t get the

7

money now. Plaintiffs cite cases holding that real property is considered unique and that losing real

8

property constitutes irreparable harm.6 But plaintiffs cannot manufacture an urgent need for money

9

and call it irreparable harm. Plaintiffs make an impermissible leap from the remedy they seek in this

10

case—money—and the harm they seek protection from—not being able to buy something they want

11

this week. Preliminary injunctions are meant to protect a parties’ remedies, not to protect what those

12

remedies might later be used for.

13
14
15

2

V’Guara Inc. v. Dec, 925 F. Supp. 2d 1120, 1123 (D. Nev. 2013); see also FRCP 65(b);
Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir.
2001).

16
3

17

Stanchart Sec. Int’l, Inc. v. Galvadon, No. 12CV2522-LAB MDD, 2012 WL 5286952, at
*1 (S.D. Cal. Oct. 24, 2012).

18
4

19

Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

5

27

Plaintiffs assert several serious claims against Diab, alleging that he essentially stole
money from them while negotiating a settlement on their behalf. Plaintiffs also allege that
Diab attempted to cover up his theft by falsifying documents to make it look like the funds
were actually his. Although the plaintiffs attach some evidence to support their claims,
most of it consists of the plaintiffs’ own declarations. See, e.g., ECF No. 5 at 5–20. The
attached evidence also includes a state court filing in which Diab responded to these
allegations. ECF No. 5-3 at 10. These documents reveal another side of the story, with
Diab averring that the funds he took were part of an arms-length agreement with his clients
and represented his contingency fee for working on their case. Diab also provided in that
state action copies of the alleged agreements indicating that the plaintiffs did indeed agree
to split their recovery with him. ECF no. 3-1 at 245. While plaintiffs have potentially
succeeded in showing a reasonable likelihood of success on the merits, their showing is not
strong enough to overcome their failure to prove they are likely to be irreparably harmed.

28

6

20
21
22
23
24
25
26

See, e.g., Dixon v. Thatcher, 742 P.2d 1029, 1030 (Nev. 1987) (per curiam).
Page 2 of 4

1

The plaintiffs’ claims boil down to a contract and tort case over money damages. And money

2

“damages are not traditionally considered irreparable because the injury can later be remedied by a

3

monetary award.”7 When courts find an injunction is warranted in money-damages cases, it is

4

usually based on sufficient evidence that the defendant will be insolvent if the court waits for a final

5

judgment or evidence that the defendant is likely to soon dispose of his assets.8 The Ninth Circuit

6

has explained that this remedy is “restricted to only extraordinary cases,” like when there is evidence

7

a defendant “has engaged in a pattern of secreting or dissipating assets to avoid judgment.”9

8

But plaintiffs have not made that showing. They offer only conclusory allegations that Diab

9

probably has little money and may struggle to continue working as an attorney given his alleged

10

malpractice. These generic allegations fall short of establishing that injunctive relief is needed.

11

There is no evidence suggesting that Diab, a licensed attorney, is likely to soon dispose of or abscond

12

with the disputed money or that he will not be able to replace it with other funds. Plaintiffs attach a

13

screenshot of one of Diab’s bank accounts showing that he has only $3,000 in it—but this is meager

14

evidence of Diab’s general worth.10 In short, the plaintiffs fail to establish either that Diab has

15

money that an injunction is needed to protect or that Diab is likely to dispose of any money that he

16

does have.

17
18
7

19
20
21
22

Jones v. Bank of Am., N.A., 2010 WL 2572997, at *12 (D. Ariz. June 22, 2010); see also
Sampson v. Murray, 415 U.S. 61, 90 (1974) (holding that “the temporary loss of income,
ultimately to be recovered, does not usually constitute irreparable injury . . . . The
possibility that adequate compensatory or other corrective relief will be available at a later
date, in the ordinary course of litigation, weighs heavily against a claim of irreparable
harm”).
8

23

See In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1478 (9th Cir.
1994) (discussing preliminary injunctions in money-damages cases).

24
9

25
26
27
28

Id. at 1480.

10

Plaintiffs also allege that Diab has admitted that he does not have enough money to pay
them, but they provide no evidence to support this allegation and no information about the
context of these alleged admissions. The evidence in the record shows that Diab
represented to the state court that he had the funds and was willing to deposit them with the
court. ECF No. 5-3.
Page 3 of 4

1

The preliminary injunction standard asks whether the remedy for the plaintiffs’ claims will be

2

jeopardized during the pendency of the case so that the movant needs an injunction to preserve the

3

status quo. But plaintiffs don’t want to preserve the status quo, they want a fast pass to judgment

4

and collection, with cash in hand by Thursday. Given that the plaintiffs seek only money damages

5

here, they have failed to show that the extraordinary remedy of an injunction is warranted. I thus

6

deny the plaintiffs’ motions for injunctive relief.

7
8
9
10
11
12
13
14

Conclusion
Accordingly, IT IS HEREBY ORDERED that plaintiffs’ Motion for Temporary
Restraining Order [ECF No. 5] is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ Motion for Preliminary Injunction [ECF
No. 6] is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ Motion for Leave to Filed Excess Pages
[ECF No. 7] is GRANTED.
Dated this 31st day of July, 2017

15
16
17

_________________________________
Jennifer A. Dorsey
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
Page 4 of 4