1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SERAFIN “STEFAN” JOSE PEREZ, Case No. 21-cv-06190-JST

8 Plaintiff, ORDER DENYING EX PARTE

APPLICATION FOR TEMPORARY

9 v. RESTRAINING ORDER; ORDER TO

SHOW CAUSE REGARDING

10 CITY OF PETALUMA, et al., PRELIMINARY INJUNCTION 11 Defendants. Re: ECF No. 5 12 13 Before the Court is Plaintiff Serafin “Stefan” Jose Perez, Jr.’s ex parte application for 14 temporary restraining order (“TRO”) and order to show cause why a preliminary injunction should 15 not issue. ECF No. 5. For the reasons discussed below, the Court denies Plaintiff’s application 16 for a TRO, but orders Defendants to show cause at 2:00 p.m. on August 25, 2021 why they should 17 not be preliminarily enjoined pending litigation of this action. 18 On March 15, 2021, the Petaluma City Council passed a resolution creating an Ad Hoc 19 Community Advisory Committee (“Committee”) “to work with the City Manager and Chief of 20 Police to develop recommendations . . . to address Petaluma community race relations and 21 promote diversity, equity, and inclusion Citywide and regarding police policies.” ECF No. 1 22 (“Compl.”) ¶ 1. Plaintiff was appointed to the Committee, which consists of approximately 22 23 members and was scheduled to meet once a month for six months starting in April 2021. Id. ¶¶ 1, 24 12, 15. On June 15, 2021, Plaintiff met with the City Manager, the City Attorney, and the Ad Hoc 25 Committee Facilitator to discuss tweets Plaintiff made in March 2020 that other Committee 26 members found objectionable. Id. ¶¶ 17-19. Plaintiff was asked to resign from the Committee. 27 Id. ¶ 19. Plaintiff agreed to skip the June Committee meeting but refused to resign. Id. ¶¶ 19-21. 1 Committee. Id. ¶ 2. Plaintiff now seeks to enjoin the City of Petaluma and the Petaluma City 2 Council (“Defendants”) from implementing the July 12 resolution and from proceeding with the 3 Committee meeting scheduled for August 17, 2021. ECF No. 5 at 5. 4 The same legal standard applies to a motion for a temporary restraining order and a motion 5 for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 6 839 n.7 (9th Cir. 2001). A plaintiff seeking either remedy “must establish that he is likely to 7 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 8 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 9 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 10 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). Injunctive relief is “an extraordinary 11 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 12 Winter, 555 U.S. at 22. In addition, a movant seeking the issuance of an ex parte TRO must 13 satisfy Federal Rule of Civil Procedure 65(b), which requires a showing “that immediate and 14 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 15 in opposition” and certification of “any efforts made to give notice and the reasons why it should 16 not be required.” Fed. R. Civ. P. 65(b)(1). 17 Plaintiff filed the instant action on August 11, 2021, ECF No. 1, and this ex parte 18 application for a TRO on August 12, 2021, ECF No. 5, a full month after the July 12 resolution 19 removed Plaintiff from the Committee and only five days (and three court days) before the August 20 17 Committee meeting that Plaintiff seeks to enjoin, id. at 5. A plaintiff’s delay in seeking relief 21 weighs against granting a TRO or preliminary injunction. See Miller ex rel. NLRB v. Cal. Pac. 22 Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993) (“Plaintiff’s long delay before seeking a preliminary 23 injunction implies a lack of urgency and irreparable harm.”) (quotation marks and citation 24 omitted); Devasahayam v. DMB Cap. Grp., No. 3:17-cv-02095-BEN-WVG, 2017 WL 6547897, 25 at *4 (S.D. Cal. Dec. 20, 2017) (holding that one month delay was “reason enough to deny a 26 TRO”); Dahl v. Swift Distrib., Inc., No. CV 10-00551 SJO (RZx), 2010 WL 1458957, at *4 (C.D. 27 Cal. Apr. 1, 2010) (noting that eighteen-day delay in filing TRO application “implies a lack of 1 to seek relief ‘earlier by a motion for [injunction], avoiding the necessity for a last-minute 2 [temporary restraining order]’”). Plaintiff does not address the one-month delay in filing his 3 application for a TRO, nor why he seeks emergency relief days before the August Committee 4 || meeting even though he did not seek such relief before the July Committee meeting. Plaintiff's 5 unexplained delay in seeking relief undermines his claim that he will suffer irreparable harm in the 6 || absence of TRO. Accordingly, the Court will set the matter for a hearing on Plaintiff's request 7 || fora preliminary injunction, but will not issue an ex parte TRO. 8 Defendants are ordered to show cause at 2:00 p.m. on August 25, 2021 why they should 9 || not be preliminarily enjoined pending litigation of this action. Defendants’ opposition shall be 10 filed no later than August 18, 2021 at 5:00 p.m., and Plaintiff's reply shall be filed no later than 11 August 23, 2021 at 5:00 p.m. 12 IT IS SO ORDERED. : 13 Dated: August 13, 2021 . .

M4 JON S. TIGA

15 United States District Judge 16

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