Occupy Fresno et al v. County of Fresno et al
Filing
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ORDER signed by Chief Judge Anthony W. Ishii on 11/23/2011 regarding TRO. Motion for Preliminary Injunction set for 12/12/2011 at 01:30 PM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii. (Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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OCCUPY FRESNO, et al.,
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Plaintiff,
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v.
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COUNTY OF FRESNO, et al.,
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Defendants.
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____________________________________)
1: 11- CV-1894 AWI DLB
ORDER ON RENEWED
MOTION FOR TEMPORARY
RESTRAINING ORDER
(Doc. 29)
ORDER ON MOTION FOR
TEMPORARY RESTRAINING
ORDER DURING PENDENCY
OF MOTION FOR
PRELIMINARY INJUNCTION
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ORDER VACATING
DECEMBER 2, 2011 HEARING
(Doc. 33)
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This is a civil rights action brought by Plaintiffs pursuant to 42 U.S.C. § 1983 challenging
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a number of Defendants’ ordinances relating to public use permits for activities in Courthouse
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Park. Specifically, Plaintiffs have been told that all attendees to their protest rally must vacate
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the park prior to 12 a.m. (midnight) every night without exception and that they can only use the
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park between the hours of 6 a.m. and 12 a.m. Plaintiffs have also been forbidden to hold
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protester signs. Plaintiffs contend that Defendants have interfered with their Right to Peaceably
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Assemble, the Right of Speech, Right to Petition the Government for a Redress of Grievances;
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and, the Right to Due Process. Now pending are two motions filed by Plaintiffs seeking a
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temporary restraining order.
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On November 13, Plaintiffs filed an ex parte motion for a temporary restraining order
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against Defendants. On November 15, 2011, the Court denied that motion without prejudice, and
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set a briefing schedule for a motion for preliminary injunction. See Court’s Docket Doc. No. 26.
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On November 17, 2011, Plaintiffs filed a “Renewed Motion for Temporary Restraining Order,
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Declaratory Relief, and Preliminary Injunction” (the “Renewed Motion”). See id. Doc. No. 29.
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The Renewed Motion is currently pending and Defendants’ opposition is due by 4:00 p.m. on
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Friday, December 2, 2011.
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On November 21, 2011, Plaintiffs filed a First Amended Complaint (“FAC”). See id.
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Doc. No. 31. Under the customary liberal pleading standard mandated by Federal Rule of Civil
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Procedure 15(a), Plaintiffs may amend their pleading once as a matter of course within 21 days
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after service. Plaintiffs served their original complaint on November 15, 2011. See Doc. Nos.
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15, 16. They filed the FAC on November 21, 2011, within the 21-day time period required by
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Rule 15(a). Generally, a FAC moots the original complaint. See Forsyth v. Humana, Inc., 114
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F.3d 1467, 1474 (9th Cir. 1997) (“This rule is premised on the notion that the ‘amended
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complaint supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting
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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Local Rule 15-220 provides that an amended
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complaint must be “complete in itself, without reference to the prior or superseded pleading.”
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“All causes of action alleged in an original complaint which are not alleged in an amended
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complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiffs’ Renewed
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Motion is directed at the original complaint, which is now rendered inoperative by the FAC. The
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Renewed Motion shall therefore be denied as moot.
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Also pending is Plaintiffs’ Motion for Temporary Restraining Order During Pendency of
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the Motion for Preliminary Injunction, which was filed on November 22, 2011. See Doc. No. 33.
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This application appears to have narrowed the relief requested by Plaintiffs. Defendants were
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given notice of this motion. “When the opposing party actually receives notice of the application
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for a restraining order, the procedure that is followed does not differ functionally from that on an
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application for preliminary injunction and the proceeding is not subject to any special
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requirements.” C. Wright and A. Miller, Federal Practice and Procedure, § 2951 (2d ed.). Even
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if a motion is denominated as motion for a temporary restraining order, “Rule 65(b) may not
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apply and, if there is an adversary hearing or the order is entered for an indeterminate length of
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time, the ‘temporary restraining order’ may be treated as a preliminary injunction.” Id.; Fed. R.
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Civ. P. 65. As the court found in its order dated November 15, 2011, the court will deny the
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motion for a temporary restraining order to allow for further briefing. The court will, however,
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treat the Motion for Temporary Restraining Order During Pendency of the Motion for
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Preliminary Injunction (Doc. No. 33) as the operative motion for preliminary injunction, and will
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proceed with the preliminary injunction briefing schedule set forth in the November 15, 2011
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order.
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Accordingly, the court ORDERS that:
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1.
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Plaintiffs’ Renewed Motion for Temporary Restraining Order, Declaratory Relief,
and Preliminary Injunction (Doc. No. 29) is DENIED AS MOOT.
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Plaintiffs’ Motion for Temporary Restraining Order During Pendency of the
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Motion for Preliminary Injunction (Doc. No. 33) is DENIED without prejudice
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and SHALL be deemed the operative motion for preliminary injunction. The
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December 2, 2011 hearing date is VACATED.
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3.
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Defendants may file any opposition to Plaintiffs’ motion by 4:00 p.m. on
December 2, 2011;
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Plaintiffs may file any reply by 1:00 p.m. on December 6, 2011;
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The court will hear Plaintiffs’ motion for preliminary injunction on December 12,
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2011, at 1:30 p.m.
IT IS SO ORDERED.
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Dated:
0m8i78
November 23, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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