Glass et al v. FMM Enterprises, Inc. et al, No. 3:2017cv00563 - Document 68 (S.D. Cal. 2018)
Court Description: ORDER granting 66 Plaintiff's Motion for Temporary Restraining Order. Signed by Judge John A. Houston on 1/18/2018. (jpp)
Download PDF
<![CDATA[
Glass et al v. FMM Enterprises, Inc. et al Doc. 68 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 TYRELL GLASS; DUSTIN SCHNATZ; and JORDAN TERRADO, individually and on behalf of all others similarly situated,, Case No.: 3:17-cv-0563-JAH-KSC ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiffs, 14 15 v. 16 FMM ENTERPRISES, INC; EC LENDING, LLC; GTPD ENTERPRISES, INC; CYNTHIA WASH; RYAN MCAWEEENEY; NEIL BILLOCK, and DOES 1-10 jointly and severally, 17 18 19 Defendants. 20 21 22 Before the Court is Plaintiffs’ Ex Parte Motion for a Temporary Restraining Order 23 [“TRO”] regarding improper communications with the punitive class. [Doc. No. 66]. Tyrell 24 Glass, Dustin Schnatz, and Jordan Terrado (“Plaintiffs”) seek an order restraining and 25 enjoining FMM Enterprises, Inc., Cynthia Walsh, Ryan McAweeney, and Neil Billock 26 (“Defendants”), and their counsel, from engaging in unsolicited communications with 27 potential class members regarding this action. See Doc. No. 66. 28 \\ 1 3:17-cv-0563-JAH-KSC Dockets.Justia.com 1 BACKGROUND 2 Plaintiffs brought a class action against Defendants alleging labor law violations, 3 including the Fair Labor Standards Act (“FLSA”). See Doc. No. 61. Plaintiffs’ filed a 4 Motion to Prohibit Ex Parte Communications with Potential Members of the Class [Doc. 5 No. 63], which is scheduled to be heard by this Court on February 12, 2018. Plaintiffs then 6 filed this Motion for TRO on January 16, 2018. [Doc. No. 66]. In Plaintiffs’ Motion for 7 TRO, they allege Defendants’ counsel has been contacting and meeting with potential class 8 members to obtain releases using misrepresentations or outright fraud. See Id. 9 10 DISCUSSION 1. Legal Standard 11 The purpose of a temporary restraining order (“TRO”) is to preserve the status quo 12 before a preliminary injunction hearing may be held; its provisional remedial nature is 13 designed merely to prevent irreparable loss of rights prior to judgment. See Granny Goose 14 Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting 15 that a TRO is restricted to its “underlying purpose of preserving the status quo and 16 preventing irreparable harm just so long as is necessary to hold a hearing, and no longer”). 17 As such, an applicant for a TRO is required to demonstrate “immediate and irreparable 18 injury, loss or damage.” Fed. R. Civ. P. 65(b); see also Caribbean Marine Serv. Co., Inc. 19 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). 20 The standard for issuing a TRO is similar to the standard for issuing a preliminary 21 injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 22 1323 (N.D. Cal. 1995). The Ninth Circuit recognizes two tests for demonstrating 23 preliminary injunctive relief: the traditional test or an alternative sliding scale test. Cassim 24 v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Under the traditional test, a party must show: 25 “1) a strong likelihood of success on the merits, 2) the possibility of irreparable injury to 26 plaintiff if preliminary relief is not granted, 3) a balance of hardships favoring the plaintiff, 27 and 4) advancement of the public interest (in certain cases).” Save Our Sonoran, Inc. v. 28 Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005). Where a party demonstrates that a public 2 3:17-cv-0563-JAH-KSC 1 interest is involved, a “district court must also examine whether the public interest favors 2 the plaintiff.” Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). 3 Alternatively, a party seeking injunctive relief under Fed.R.Civ.P. 65 must show 4 either (1) a combination of likelihood of success on the merits and the possibility of 5 irreparable harm, or (2) that serious questions going to the merits are raised and the balance 6 of hardships tips sharply in favor of the moving party. Immigrant Assistance Project of the 7 L.A. County of Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002); Sun 8 Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999); Roe v. 9 Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998). “‘These two formulations represent two 10 points on a sliding scale in which the required degree of irreparable harm increases as the 11 probability of success decreases.’” Roe, 134 F.3d at 1402 (quoting United States v. Nutri- 12 cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992); accord Sun Microsystems, 188 F.3d at 13 1119). “Thus, ‘the greater the relative hardship to the moving party, the less probability of 14 success must be shown.” Sun Microsystems, 188 F.3d at 1119 (quoting Nat’l Ctr. for 15 Immigrants Rights v. INS, 743 F.2d 1365, 1369 (9th Cir. 1984)). 16 The Ninth Circuit makes clear that a showing of immediate irreparable harm is 17 essential for prevailing on a TRO. See Caribbean Marine, 844 F.2d at 674. “Speculative 18 injury does not constitute irreparable injury sufficient to warrant granting a preliminary 19 injunction.” Id. Moreover, “a plaintiff seeking an injunction against a local or state 20 government must present facts showing a threat of immediate, irreparable harm before a 21 federal court will intervene.” Midgett v. Tri-County Met. Transp. Dist., 254 F.3d 846, 851 22 (9th Cir. 2001). Thus, a plaintiff must show the presence of an “immediate threatened 23 injury as a prerequisite to preliminary injunctive relief.” Id., citing Los Angeles Memorial 24 Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). 25 ANALYSIS 26 Plaintiffs’ contend that they will suffer irreparable harm if the Court denies their 27 request for a TRO. See Doc. No. 66. Plaintiffs argue Defendants’ patently false and 28 misleading representations hinder potential class member’s ability to make an informed 3 3:17-cv-0563-JAH-KSC 1 choice, thus harming the integrity of the class action lawsuit. Id. Additionally, Plaintiffs’ 2 contend Defendants’ actions irreparably harm Plaintiffs’ ability to conduct a thorough 3 investigation when Defendants direct their employees and other potential class members 4 to provide false information regarding their pay, hours and other working conditions. Id. 5 In support of their contention, Plaintiff cite to the declaration of Omari Bobo. [Doc. No. 6 63–3]. In his declaration, Mr. Bobo stated he met with a man named Ken Griffin. Id. Mr. 7 Griffin asked Mr. Bobo to sign a declaration in exchange for a settlement check. Id. Mr. 8 Bobo read the declaration he was asked to sign, and informed Mr. Griffin that the 9 declaration was false. Id. According to Mr. Bobo, he was told by Mr. Griffin that he would 10 not receive his check unless he signed the declaration. Id. Finally, Plaintiffs’ argue 11 irreparable harm will continue unless stopped by Court order, as Defendants’ counsel 12 refuses to cease communications with potential class members. See Doc. No. 66–2, ¶ 5. 13 Pre-certification communication between defendants and potential plaintiffs is 14 generally permitted. Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp. 2d 1082, 1084 (C.D. 15 Cal. 2002) (citing Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int'l, Inc., 16 455 F.2d 770, 773 (2nd Cir.1972)). It is critical, however, that potential plaintiffs “receive 17 accurate and impartial information regarding the status, purposes and effects of the class 18 action.” Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1202 (11th Cir. 1985). The 19 Court finds there is a high probability of irreparable harm, if as alleged here, potential 20 plaintiffs are being urged by Defendants to sign declarations which they know to be false. 21 Since Plaintiffs have demonstrated the possibility of immediate and irreparable injury, it 22 need not demonstrate a strong likelihood of success on the merits to prevail here. See Sun 23 Microsystems, 188 F.3d at 1119. However, based on this Court’s review of the pleadings 24 presented, Plaintiffs have shown some likelihood of success on the merits of their claim. 25 Also, this Court has considered the hardships placed on Defendants’ by granting this TRO, 26 27 28 4 3:17-cv-0563-JAH-KSC 1 and finds any hardship marginal in contrast to the irreparable harm that could befall 2 potential class members.1 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s Motion for Temporary Restraining Order is GRANTED. 5 2. FMM Enterprises, Inc.; GTPD Enterprises, Inc.; Cynthia Walsh; 6 Ryan McAweeney; and Neil Billock, and their counsel, are 7 prevented from engaging in any unsolicited communications 8 regarding this action with any potential class members, unless pre- 9 approved by the Court. 10 3. This temporary restraining order is entered on January 18, 2018 11 and will expire on January 31, 2018 at 5:00 p.m., unless otherwise 12 ordered by this Court. 13 4. This Order shall be binding upon the parties to this action, their 14 agents, employees, and assigns, and all other persons or entities who 15 receive actual notice of this Order by personal service or otherwise. 16 5. A hearing on Plaintiffs’ Motion for Preliminary Injunction [Doc. 17 No. 63] is set for January 31, 2018 at 3:30 p.m., before this 18 Court. 19 6. The previous hearing date of February 12, 2018 is VACATED. 20 7. Defendants shall file a response to Plaintiffs’ Motion for Preliminary 21 Injunction [Doc. No. 63] no later than January 23, 2018, and 22 Plaintiffs’ may file a reply no later than January 26, 2018. 23 24 IT IS SO ORDERED. \\ 25 26 The Court has received and acknowledges Defendants’ Notice of Intent to Oppose Plaintiffs’ TRO. [Doc. No. 67]. This Court is of the mind, however, that any delay could pose a serious risk of irreparable harm to Plaintiffs. The Court has rescheduled the Motion for Preliminary Injunction to an earlier date to allow Defendants’ an opportunity to be heard on the matter. 1 27 28 5 3:17-cv-0563-JAH-KSC 1 2 3 4 DATED: January 18, 2018 _________________________________ JOHN A. HOUSTON United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 3:17-cv-0563-JAH-KSC
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
