1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JINGLI HUANG, Case No. 22-cv-03363-BLF

8 Plaintiff,

ORDER DENYING MOTION FOR

9 v. TEMPORARY RESTRAINING ORDER

10 SMALL BUSINESS ADMINISTRATION, [Re: ECF No. 12] et al., 11 Defendants. 12 13 Since April 1, 2020, Plaintiff Jingli Huang has been seeking an Economic Injury Disaster 14 Loan (“EIDL”) under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). 15 ECF No. 12 (“TRO”) at 5. Huang claims that two weeks after he filed the EIDL application, the 16 Small Business Administration (“SBA”) denied the application based on his allegedly 17 unsatisfactory credit history. Id. at 6. Huang says that starting on September 27, 2021, after SBA 18 changed the criteria for issuing EIDLs, he submitted reconsideration requests and repeatedly 19 called and emailed the SBA and Internal Revenue Service to try to get his application approved. 20 Id. at 6–8. His efforts were to no avail, and SBA denied his final appeal on May 3, 2022. Id. at 8. 21 Huang has now filed a motion for a temporary restraining order. See TRO. His motion 22 seeks an emergency order from this Court (1) preventing the SBA from enforcing certain policies 23 he claims were the basis for the denial of his EIDL application; and (2) ordering the SBA to 24 reinstate and process his application. Id. at 2. For the reasons explained below, the Court 25 DENIES the motion for a temporary restraining order. 26 The standard for issuing a temporary restraining order is identical to the standard for 27 issuing a preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 1 1320, 1323 (N.D. Cal. 1995). An injunction is a matter of equitable discretion and is “an 2 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 3 to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). A 4 plaintiff seeking emergency injunctive relief must establish “[1] that he is likely to succeed on the 5 merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that 6 the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 7 Winter, 555 U.S. at 20. “[I]f a plaintiff can only show that there are serious questions going to the 8 merits—a lesser showing than likelihood of success on the merits—then a preliminary injunction 9 may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the other two 10 Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 11 2014) (internal quotation marks and citations omitted). 12 Huang is not entitled to a temporary restraining order for multiple reasons. First, he has 13 not met the additional procedural requirements for issuance of a temporary restraining order 14 without notice to the adverse party. Under Federal Rule of Civil Procedure 65(b), a court may 15 grant a temporary restraining order without notice to the adverse party only if “(1) specific facts in 16 an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or 17 damage will result to the movant before the adverse party can be heard in opposition; and (2) the 18 movant’s attorney certifies in writing any efforts made to give notice and the reasons why it 19 should not be required.” See Gandrup v. GMAC Mortg., 2011 WL 703753, at *1–2 (N.D. Cal. 20 Feb. 18, 2011) (quoting Fed. R. Civ. P. 65(b)(1)). There is no indication on the docket that Huang 21 notified Defendants about his motion, and Huang has neither submitted an affidavit describing 22 immediate and irreparable injury nor stated any efforts he himself made to notify Defendants 23 about his motion. 24 Second, Huang has failed to show a likelihood of success on the merits. Winter, 555 U.S. 25 at 22. Just a few days ago, the Court screened Huang’s original complaint under 28 U.S.C. § 1915 26 and found that he failed to state a claim upon which relief could be granted. See ECF No. 11. The 27 Court dismissed all the claims in Huang’s original complaint—two without leave to amend and 1 there is no operative pleading in this case, and Huang cannot rely solely on the arguments in his 2 briefing. He must instead file an amended complaint and submit with a motion supporting 3 evidence that establishes his likelihood of success on the merits. See U.S.A. Express Cab, LLC v. 4 City of San Jose, 2007 WL 4612926, at *6 (N.D. Cal. Dec. 31, 2007) (“Arguments in briefing and 5 allegations in unverified complaints cannot serve as the basis for injunctive relief.”). For the 6 reasons described in the screening order and because there is no operative complaint on file with 7 the Court, Huang has not shown a likelihood of succeeding on the merits of his claims. 8 Finally, Huang has failed to show that he will suffer irreparable harm in the absence of 9 injunctive relief. Winter, 555 U.S. at 22. Huang has not submitted an affidavit describing any dire 10 consequences resulting from the denial of his EIDL application, and he again cannot rely on bare 11 assertions in in his motion papers. See U.S.A. Express Cab, 2007 WL 4612926, at *6. Moreover, 12 it appears that Huang has delayed in seeking emergency relief. “[A] plaintiff’s delay in seeking 13 relief weighs against granting a TRO.” Perez v. City of Petaluma, 2021 WL 3934327, at *1 (N.D. 14 Cal. Aug. 13, 2021) (denying motion for temporary restraining order where plaintiff waited “a full 15 month” after the issuance of the challenged city resolution to seek a TRO). Delays of one month 16 or more are common grounds for denying motions for temporary restraining orders, and some 17 courts deny emergency relief based on delays of as little as ten days. See Oracle Am., Inc. v. 18 Myriad Grp. AG, 2011 WL 13154031, at *1 (N.D. Cal. Dec. 1, 2021) (three-and-a-half month 19 delay); Devashayam v. DMB Capital Grp., 2017 WL 6547897, at *4 (S.D. Cal. Dec. 20, 2017) 20 (one-month delay); Lee v. Haj, 2016 WL 8738428, at *2 (E.D. Cal. Feb. 22, 2016) (one-month 21 delay); Altman v. County of Santa Clara, No. 4:20-cv-02180-JST, ECF No. 22 at 2 (ten-day 22 delay). Here, Huang’s loan process has been going on for two years, and the SBA denied his final 23 appeal on May 3, 2022—nearly two months ago. This delay further counsels against a finding of 24 irreparable harm. 25 For those reasons, IT IS HEREBY ORDERED that Huang’s motion for a temporary 26 restraining order is DENIED WITHOUT PREJUDICE to filing a noticed motion for a preliminary 27 injunction. Prior to filing a motion for a preliminary injunction, Huang must first file an amended 1 Marshal will then serve Defendants with the amended complaint. An amended complaint would 2 || be subject to further screening under 28 U.S.C. § 1915 prior to the Court considering any motions. 3 || Huang’s deadline to file an amended complaint remains July 28, 2022. The Clerk SHALL serve 4 || Huang with this Order. 5 6 || Dated: July 1, 2022 ty) NM

BETH LABSON FREEMAN

8 United States District Judge 9 10 11 12

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