Rocky Mountain Recycling, LLC v. Shang et al

Filing 12

ORDER denying 10 Motion for Writ of Attachment; ORDER denying 11 Motion for Temporary Restraining Order; Signed by Chief Judge Gloria M. Navarro on 11/8/2018. (Copies have been distributed pursuant to the NEF - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

ROCKY MOUNTAIN RECYCLING, LLC,
4

Plaintiff,

5

vs.

6

SAM SHANG, et al.,
7

Defendants.

8

)
)
)
)
)
)
)
)
)

Case No.: 2:18-cv-00703-GMN-CWH
ORDER

9
10

Pending before the Court are Plaintiff Rocky Mountain Recycling, LLC’s (“Plaintiff’s”)

11

Motion for Temporary Restraining Order, a Writ of Execution and/or Possession for Seizure of

12

Funds, and an Order to Show Cause, (ECF Nos. 10, 11), against Defendants Sam Shang and

13

Harbor Green Las Vegas, LLC (“Defendants”).1
I.

14

LEGAL STANDARD
Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary

15
16

restraining orders, and requires that a motion for temporary restraining order include “specific

17

facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable

18

injury, loss, or damage will result to the movant before the adverse party can be heard in

19

opposition,” as well as written certification from the movant’s attorney stating “any efforts

20

made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b).
Temporary restraining orders are governed by the same standard applicable to

21
22

preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181

23

F.Supp.2d 1111, 1126 (E.D. Cal. 2001). Furthermore, a temporary restraining order “should be

24
25

1

Both of Plaintiff’s filings are titled in the caption as “ex parte” motions, however, these Motions are not
currently sealed on the docket, (See Mot. for TRO, ECF Nos. 10, 11). Because Plaintiff fails to provide a reason
for the requested ex parte review, the Court finds that Plaintiff’s Motions are properly unsealed.

Page 1 of 4

1

restricted to serving [its] underlying purpose of preserving the status quo and preventing

2

irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose

3

Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974).

4

A preliminary injunction may be issued if a plaintiff establishes: (1) likelihood of

5

success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3)

6

that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.

7

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an

8

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

9

entitled to such relief.” Id. at 22.

10

The Ninth Circuit has held that “‘serious questions going to the merits’ and a hardship

11

balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming

12

the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v.

13

Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

14
15

II.

DISCUSSION
Plaintiff seeks a temporary restraining order and preliminary injunction enjoining

16

Defendants “from disposing, transferring, and/or hypothecating certain funds held in a

17

[c]ertificate of [d]eposit with Wells Fargo Bank for the benefit of the Southern Nevada Health

18

District (“SNHD”) by Defendant Harbor Green Las Vegas, LLC” in the amount of $29,500.

19

(Mot. for TRO 2:6–9, ECF No. 11); (see Decl. of Angelo Rosa ¶ 19, Ex. 2 to Mot. for TRO,

20

ECF No. 11-2); (see also Business Time Account at 3, Ex. 5 to Decl. of Angelo Rosa, ECF No.

21

11-7). Plaintiff states that the parties are bound by a settlement agreement requiring “that all

22

assets pertaining to [Defendants’] permit with the SNHD would be transferred to [Plaintiff’s]

23

possession,” including the funds held with Wells Fargo Bank. (Mem. P. & A. 10:13–15, Ex. 1

24

to Mot. for TRO, ECF No. 11-1). Plaintiff argues that Defendants plan to dissipate these assets,

25

that Plaintiff is entitled to pursuant to the settlement agreement, because Plaintiff’s counsel was

Page 2 of 4

1

told that Defendants intend to use the funds to pay other obligations. (Mot. for TRO 2:21–22,

2

3:6–7, 5:19–20, ECF No. 11); (see Decl. of Angelo Rosa ¶ 23, Ex. 2 to Mot. for TRO, ECF No.

3

11-2). Further, Plaintiff claims that the release of funds by SNHD to Defendants is

4

“underway,” and thus, there is an imminent risk the funds will be dissipated. (Mem. P. & A.

5

6:3–4, Ex. 1 to Mot. for TRO, ECF No. 11-1).

6

Even without receiving an opposition from Defendants, the Court finds that there is

7

insufficient justification to grant Plaintiff’s request. Plaintiff has provided no evidence that this

8

money was to be paid immediately to Plaintiff as a result of the settlement agreement.

9

Additionally, after a review of the evidence, it is unclear when Defendants will receive the

10

funds. In the email correspondence between SNHD and Plaintiff on October 24, 2018, SNHD

11

explains that after SNHD receives a hard copy of Plaintiff’s financial assurance, SNHD can

12

release the hold on Defendants’ certificate of deposit with Wells Fargo Bank, and even then,

13

Plaintiff will still need to work with the bank once SNHD releases the hold on the account.

14

(Email, Ex. 7 to Decl. of Angelo Rosa, ECF No. 11-9). Based on this information provided by

15

SNHD, it appears as though there are more steps that need to be taken before the funds will be

16

released to Defendants. The Court therefore finds that Plaintiff’s proffered evidence does not

17

establish a risk of imminent injury.

18

Furthermore, Plaintiff has failed to establish that it will suffer irreparable harm if

19

Defendants fail to meet their requirements under the settlement agreement. Typically,

20

monetary harm alone will not support injunctive relief. Am. Trucking Ass’ns, Inc. v. City of Los

21

Angeles, 559 F.3d 1046, 1057 (9th Cir. 2009); see Cal. Pharmacists Ass’n v. Maxwell–Jolly,

22

563 F.3d 847, 852 (9th Cir. 2009) vacated on other grounds, 132 S. Ct. 1204 (2012)

23

(“Economic damages are not traditionally considered irreparable because the injury can later be

24

remedied by a damage award.”); see also Rent–A–Center, Inc. v. Canyon Television &

25

Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (“It is true that economic injury alone

Page 3 of 4

1

does not support a finding of irreparable harm, because such injury can be remedied by a

2

damage award.”). For this reason, where, as here, a party is seeking an asset freeze, that party

3

must carry the additional burden of showing “a likelihood of dissipation of the claimed assets,

4

or other inability to recover monetary damages, if relief is not granted.” Johnson v. Couturier,

5

572 F.3d 1067, 1085 (9th Cir. 2009). Plaintiff has not shown that it will be unable to recover

6

monetary damages, and therefore, Plaintiff fails to establish immediate and irreparable injury,

7

loss, or damage that justifies the extraordinary remedy of injunctive relief. Accordingly,

8

Plaintiff’s Motions are DENIED.

9

III.

10

CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Temporary Restraining Order,

11

a Writ of Execution and/or Possession for Seizure of Funds, and an Order to Show Cause, (ECF

12

Nos. 10, 11), are DENIED.

13

8
DATED this _____ day of November, 2018.

14
15
16

___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

17
18
19
20
21
22
23
24
25

Page 4 of 4