Bakken Resources, Inc. v. Holms et al

Filing 16

ORDER granting ECF No. 13 Motion to Extend TRO; construing ECF No. 13 Motion as a Motion for Preliminary Injunction - response due by 4/4/2017, reply due by 4/7/2017. Re ECF No. 2 Motion to Dismiss, response due by 3/30/2017, reply due by 4/7/2017. Signed by Judge Miranda M. Du on 3/28/2017. (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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BAKKEN RESOURCES, INC., a Nevada
corporation,

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Case No. 3:17-cv-00167-MMD-VPC
ORDER

Plaintiff,
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v.
ALLAN G. HOLMS, an individual,
MANUEL GRAIWER, an individual, DOES
1-10 and ROE ENTITIES I-X,

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Defendants.

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This action was removed from the Second Judicial District Court in and for the

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County of Washoe on March 17, 2017. (ECF No. 1.) The state court had granted Plaintiff’s

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ex parte motion for a temporary restraining order (“TRO”) and set a hearing for March 6,

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2017. (ECF No. 1-4.) The state court subsequently granted Plaintiff’s request to extend

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the TRO because Plaintiff had not been able to perfect service and set a hearing for

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March 28, 2017. (ECF No. 9-1.) Before the Court is Plaintiff’s emergency motion to extend

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the TRO (“Motion”). (ECF No. 13.) The Court has reviewed Defendant’s response

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(“Response”) (ECF No. 14), which was filed within the short response time set by the

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Court.

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Temporary restraining orders are governed by the same standard applicable to

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

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181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001). A preliminary injunction may be issued if a

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plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable

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

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and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc.,

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555 U.S. 7, 20 (2008). “Injunctive relief [is] an extraordinary remedy that may only be

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awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. The

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

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

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

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Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Here, Plaintiff has satisfied the Winter factor

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to warrant an extension of the TRO pending a hearing.

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Accordingly, Plaintiff’s emergency motion to extend the TRO (“ECF No. 13) is
granted. The TRO will be extended pending a hearing.

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Plaintiff asks the Court to set a briefing schedule on a motion for preliminary

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injunction. However, no such motion has been filed with the Court. To the extent such a

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motion was filed before removal, the motion would have been automatically denied

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without prejudice and would need to be refiled pursuant to LR 81-1. However, to avoid

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further delay, the Court will construe Plaintiff’s emergency motion to extend (ECF No 13)

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as a motion for preliminary injunction. So construed, Defendant will have until April 4,

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2017, to respond and Plaintiff will have until April 7, 2017, to file a reply. Because

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Defendant’s pending motion to dismiss (ECF No. 2) may render the motion for preliminary

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injunction moot, the Court will address the motion to dismiss at or before the scheduled

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hearing. Accordingly, the Court will make slight modification to the briefing schedule on

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Defendant’s motion to dismiss. Plaintiff will have until March 30, 2017, to respond and

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Defendant will have until April 7, 2017, to reply. A separate minute order will be set

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scheduling the hearing.

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The Court will issue a separate minute order setting a hearing on Plaintiff’s motion.

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DATED THIS 28th day of March 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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