Opinion
No. C 02-5465 JSW.
September 7, 2004
Now before the Court is defendant Ralphs Grocery Company ("Ralphs") ex parte motion for (1) temporary restraining order ("TRO") and preliminary injunction; (2) an order permitting motion to be filed manually on paper rather than e-filed; and (3) an order permitting motion to be heard without notice to Plaintiff. The Court finds this motion suitable for disposition without oral argument. Civil L.R. 7-6. Having carefully reviewed Ralphs' papers and considered its arguments and the relevant legal authority, and good cause appearing, the Court hereby DENIES Ralphs' ex parte motion. Ralphs has failed to make an adequate showing, supported by admissible evidence, of immediate irreparable harm necessitating the issuance of a TRO and further has failed to demonstrate the need to preserve the status quo pending final resolution. See Fed.R.Civ.P. 65(b).
BACKGROUND
This action arises out of plaintiff Martin Covarrubias' termination from employment as a meat manager at the Pittsburg, California branch of Foods Co. Plaintiff twice signed an agreement to arbitrate all employment-related disputes, once while working at Foods Co. and a second time, after his termination and while represented by counsel. On April 1, 2003, this Court denied defendant's motion for dismissal and summary judgment and granted defendant's motion to compel arbitration and stay the action pending arbitration. The Court found that Plaintiff's agreement to arbitrate was binding and enforceable as it was not unconscionable. The Court further held that the Federal Arbitration Act provides for a stay of the proceedings in federal district court where one party has failed or refused to comply with an arbitration agreement. ( See April 1, 2003 Order at 8, citing EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002), citing 9 U.S.C. §§ 3 and 4.)On April 18, 2003, Plaintiff moved this Court for modification or clarification of its order dated April 1, 2003 or to certify the issue for appeal. On April 28, 2003, this Court denied that motion in its entirety. Although denied its request for certification, Plaintiff filed a notice of appeal before the Ninth Circuit Court of Appeals. Ralphs filed a motion to dismiss for lack of jurisdiction based on the fact that the orders listed in Plaintiff's notice of appeal were not final orders and therefore not appealable. The Ninth Circuit ordered the appeal dismissed.
In the seventeen months since this Court compelled arbitration of the current dispute, Plaintiff has taken no action to initiate arbitration proceedings. Instead, on August 23, 2004, counsel for Plaintiff sent a letter to Ralphs' counsel indicating his intention to file a lawsuit in the Superior Court of the County of San Francisco alleging a single cause of action for violation of California Business and Professions Code Section 17200 et seq. In response, Ralphs' counsel filed the current ex parte motion before this Court to enjoin Plaintiff from filing a state court action.
ANALYSIS
The Court may issue a temporary restraining order without written or oral notice to the adverse party or that party's attorney under Federal Rule of Civil Procedure 65(b) where: "(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Fed.R.Civ.P. 65(b).
The traditional test for granting preliminary injunctive relief requires the applicant to demonstrate: (1) a likelihood of success on the merits; (2) a significant threat of irreparable injury; (3) that the balance of hardships favors the applicant; and (4) whether any public interest favors granting an injunction. Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th Cir. 1985). The Ninth Circuit also uses an alternative test that requires the applicant to demonstrate either a combination of probable success on the merits and the possibility of irreparable injury, or serious questions going to the merits and that the balance of hardships tips sharply in the applicant's favor. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987). The two tests represent a continuum of equitable discretion, whereby "the greater the relative hardship to the moving party, the less probability of success must be shown." Nat'l Center for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1369 (9th Cir. 1984).
Although Ralphs has adequately demonstrated before this Court that Plaintiff knowingly signed an agreement to arbitrate while represented by counsel, and this Court has already ruled that arbitration is the appropriate forum, Ralphs has not demonstrated that it faces a significant threat of irreparable injury should injunctive relief be denied. The threat of facing multiple, substantially similar, lawsuits does not constitute a threat of irreparable injury. Should Plaintiff file a duplicative complaint in state court, that court shall be faced with issues of res judicata. The cost of defense of the state claims would be compensable should Ralphs prevail on a demurrer. Consequently, Ralphs' motion for a temporary restraining order is DENIED. In addition, Ralphs has failed to demonstrate the need to preserve the status quo pending final resolution and therefore, its request for a preliminary injunction is DENIED. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (holding that the purpose of a preliminary injunction as a provisional remedy is to preserve the status quo and to prevent irreparable loss of rights prior to final disposition of the litigation). Lastly, in light of the fact that the Court has denied Ralphs' substantive motion, notice to Plaintiff is appropriate. Therefore, Ralphs' requests for an order permitting the motion to be filed on paper rather than e-filed is DENIED. Although no advance written or oral notice was afforded to Plaintiff, by no later than 4:00 p.m. on the date of this Order, Ralphs shall e-file its motion and supporting papers in order to provide a full record of the proceedings leading to the issuance of this Order.
CONCLUSION
For the reasons stated herein, Ralphs' Ex Parte Motion for (1) temporary restraining order and preliminary injunction; (2) an order permitting motion to be filed manually on paper rather than e-filed; and (3) an order permitting motion to be heard without notice to Plaintiff is DENIED.