Gakuba v. Hollywood Video, Inc. et al

Filing 38

ORDER: The Court DENIES Plaintiffs Motion (# 29 )for Reconsideration as moot. The Court also DENIES Plaintiff's Ex Parte Motion (# 33 ) for Temporary Restraining Order. Plaintiff may not file any further motions for a temporary restraining order or other preliminary relief on this basis. Signed on 4/23/2015 by Judge Anna J. Brown. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PETER GAKUBA,
Plaintiff,

3:15-cv-00496-BR
ORDER

v.
HOLLYWOOD VIDEO, INC., aka
Movie Gallery, dba Hollywood
Video/Movie Gallery Customer
Service; ERIC HOLDER, in his
official capacity as United
States Attorney General; LISA
MADIGAN, in her official capacity
as Illinois Attorney General,
Defendants.

BROWN, Judge.
This matter comes before the Court on Plaintiff’s Motion
(#29) for Reconsideration of this Court’s Order (#28) issued
April 17, 2015, dismissing this action without prejudice and
Plaintiff’s Ex Parte Motion (#33) for Temporary Restraining

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Order.
I.

Motion (#29) for Reconsideration
On April 17, 2015, by Order (#28) the Court dismissed this

action without prejudice pursuant to 18 U.S.C. § 1915(e) on the
ground that Plaintiff had filed an identical action in the
Eastern District of California.

In that Order the Court granted

Plaintiff leave to amend his First Amended Complaint to raise
claims over which this Court has jurisdiction but that could not
be raised in the pending action in the Eastern District of
California.
Since the Court issued its Order, Plaintiff dismissed his
action in the Eastern District of California and filed a Second
Amended Complaint (#30) in this action.

Defendant, therefore,

has effectively complied with the Court’s Order (#28).
Accordingly, Plaintiff’s Motion for Reconsideration is moot.
II.

Motion (#33) for Temporary Restraining Order
On April 21, 2015, Plaintiff filed a third Ex Parte Motion

(#33) for Temporary Restraining Order requesting this Court to
enjoin the use of certain personally identifiable information
belonging to Plaintiff (including Plaintiff’s name, date of
birth, driver’s license number, telephone number, address, and
email address) and information allegedly derived therefrom
(including Plaintiff’s fingerprints and DNA profile) in an
Illinois state criminal proceeding scheduled to go to trial on
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April 27, 2015.
"An injunction is a matter of equitable discretion" and is
"an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief."

Winter

v. Natural Res. Def. Council, 555 U.S. 7, 22, 32 (2008).
In the first instance, however, a court must have
jurisdiction to grant injunctive relief.
488 F.3d 1197, 1202 (9th Cir. 2007).

See Taylor v. Westly,

See also Global Verge, Inc.

v. Rodgers, No. 2:10-cv-01360-RLH-RJJ, 2011 WL 70611, at *8 (D.
Nev. Jan. 7, 2011)("The Court cannot issue a temporary
restraining order or a preliminary injunction against parties
over which it does not have personal jurisdiction.").

"Whenever

it appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the court shall
dismiss the action."

Fed. R. Civ. P. 12(h)(3).

A court may

dismiss sua sponte matters over which it does not have
jurisdiction.

Zavala v. Mukasey, No. 07-73381, 2007 WL 4515209,

at *1 (9th Cir. Dec. 21, 2007).
A party seeking a temporary restraining order or preliminary
injunction must demonstrate (1) it is likely to succeed on the
merits, (2) it is likely to suffer irreparable harm in the
absence of preliminary relief, (3) the balance of equities tips
in its favor, and (4) an injunction is in the public interest.
Winter, 555 U.S. at 20.

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"The elements of [this] test are

balanced, so that a stronger showing of one element may offset a
weaker showing of another.

For example, a stronger showing of

irreparable harm to plaintiff might offset a lesser showing of
likelihood of success on the merits."

Alliance For The Wild

Rockies v. Cottrell, No. 09-35756, 2011 WL 208360, at *4 (9th
Cir. Jan. 25, 2011)(citing Winter, 129 S. Ct. at 392).
Accordingly, the Ninth Circuit has held "'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 injunction is in
the public interest."

Id., at *7.

Plaintiff contends this Court must enjoin the use of his
personally identifiable information in his ongoing Illinois
criminal proceeding because law-enforcement officers in that case
obtained the information from Hollywood Video in violation of
Plaintiff’s rights under the First Amendment to the United States
Constitution and the Video Privacy Protection Act (VPPA), 18
U.S.C. § 2710.
This Court, however, is not empowered to issue an order
enjoining an ongoing state criminal proceeding under these
circumstances.

See RedyLink Healthcare, Inc. v. State

Compensation Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)(stating
the “long-standing principle that federal courts sitting in

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equity cannot, absent exceptional circumstances, enjoin pending
state criminal proceedings”).

“[A]bstention is appropriate when

(1) there is ‘an ongoing state judicial proceeding,’ (2) those
‘proceedings implicate important state interests,’ and (3) there
is ‘an adequate opportunity in the state proceedings to raise
constitutional challenges.’”

Id. (quoting Middlesex Cnty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).

In

addition, the “requested relief must seek to enjoin - or have the
practical effect of enjoining - ongoing state proceedings.”

Id.

The Illinois state criminal proceeding against Plaintiff
that is scheduled to go to trial on April 27, 2015, is an ongoing
judicial proceeding that implicates important state interests.
The requested relief (in effect, an order enjoining the
introduction of any evidence concerning Plaintiff’s identity,
address, telephone number, email address, date of birth,
fingerprints, or DNA) would have the practical effect of
enjoining the Illinois criminal proceeding.

Plaintiff had an

opportunity in the Illinois criminal proceeding to challenge the
evidence allegedly obtained in violation of Plaintiff’s rights
under the First Amendment and VPPA.

In fact, Plaintiff actually

brought these constitutional (and statutory) challenges in the
state criminal proceeding when he filed two motions to suppress
that the state court granted in part on the grounds that lawenforcement officials obtained the evidence in violation of the

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VPPA.

If Plaintiff is ultimately dissatisfied with the Illinois

court’s adjudication of his motions to suppress, Plaintiff may
exercise his right of appeal in the event he is convicted.
In summary, Plaintiff asks this Court to issue a temporary
restraining order that would change the scope of the Illinois
court’s ruling on Plaintiff’s motions to suppress.

This Court,

however, is not empowered to do so.
Accordingly, on this record the Court denies Plaintiff’s Ex
Parte Motion for Temporary Restraining Order.

CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#29)
for Reconsideration as moot.

The Court also DENIES Plaintiff’s

Ex Parte Motion (#33) for Temporary Restraining Order.

Plaintiff

may not file any further motions for a temporary restraining
order or other preliminary relief on this basis.
IT IS SO ORDERED.
DATED this 23rd day of April, 2015.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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