1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMERICAN ASPHALT SOUTH, INC., a Case No.: 21cv176 DMS (NLS) California corporation, 12

ORDER DENYING PLAINTIFF’S EX

Plaintiff, 13 PARTE APPLICATION FOR v. TEMPORARY RESTRAINING 14

ORDER AND ORDER TO SHOW

CITY OF SAN DIEGO, a Municipal 15 CAUSE RE PRELIMINARY corporation

INJUNCTION

16 Defendant. 17 18 19 This case comes before the Court on Plaintiff’s ex parte application for a temporary 20 restraining order (“TRO”) and order to show cause re: preliminary injunction. In 21 accordance with this Court’s January 30, 2021 Order, Plaintiff served Defendant with a 22 copy of its application, and Defendant has now filed its response. 23 The purpose of a temporary restraining order is to preserve the status quo before a 24 preliminary injunction hearing may be held; its provisional remedial nature is designed 25 merely to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods, 26 Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting 27 a temporary restraining order is restricted to its “underlying purpose of preserving the status 28 quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no 1 longer”). Injunctive relief is “an extraordinary remedy that may only be awarded upon a 2 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. 3 Council, Inc., 555 U.S. 7, 22 (2008). The standard for issuing a temporary restraining order 4 is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space 5 Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A party 6 seeking injunctive relief under Federal Rule of Civil Procedure 65 must show “‘that he is 7 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 8 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 9 the public interest.’” Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th 10 Cir. 2009) (quoting Winter, 555 U.S. at 20). 11 Here, Plaintiff has not shown it is likely to succeed on the merits of its claims. The 12 only substantive claim Plaintiff alleges is one for procedural due process.1 But as 13 Defendant points out, Plaintiff was provided with notice of the charges against it, and will 14 be provided an opportunity to rebut those charges at a hearing before the Office of 15 Administrative Hearings (“OAH”). (See Decl. of Cassandra Mougin in Supp. of Opp’n to 16 Ex Parte Application, Ex. A) (June 16, 2020 letter from Kris Michell, Chief Operating 17 Officer of City of San Diego to Mr. Allan A. Henderson, President and CEO of American 18 Asphalt South, Inc., informing Mr. Henderson of suspension and intent to seek debarment, 19 and providing grounds therefor, including emails between city employee and 20 representative of American Asphalt, and detailing city employee’s admission to receipt of 21 gifts from Plaintiff, including tickets to football game in San Francisco, including hotel and 22 airfare); Decl. of Ian Johnson in Supp. of Opp’n to Ex Parte Application (“Johnson Decl.”), 23 Ex. D (City’s request to set hearing before OAH). To the extent Plaintiff complains about 24 the delay in setting the hearing, any delay cannot be attributed solely to Defendant. Rather, 25 the OAH assigns hearing dates “subject to availability[.]” (Johnson Decl., Ex. D.) 26 27 28 1 Furthermore, Plaintiff itself has delayed the scheduling of the hearing by filing Public 2 ||Records Act requests and a petition for writ of mandate in San Diego Superior Court, and 3 ||claiming that the City records must be produced before it can proceed with the hearing. 4 || (Johnson Decl., Ex. B.) 5 Plaintiff has also failed to show it will suffer irreparable injury if a temporary 6 restraining order does not issue. Although Plaintiff will continue to be suspended from 7 bidding on contracts with Defendant, Plaintiff is still able to seek out other business 8 ||opportunities with other entities, public and private. Therefore, this factor also weighs 9 || against the issuance of a temporary restraining order. 10 Finally, the other two factors, the balance of hardships and the public interest, do not 11 || weigh in favor of the issuance of a temporary restraining order. Although Plaintiff may 12 || suffer financial hardship if a TRO does not issue, Plaintiff may guard against that hardship 13 seeking out business with other entities. The City, on the other hand, may face a 14 || different type of hardship if Plaintiff is allowed to participate in the bidding process 15 || pending its debarment proceedings, namely unfairness in its bidding process. Ensuring 16 ||fairness in that process also serves the public interest, which, again, weighs against 17 ||issuance of a TRO. 18 For these reasons, Plaintiff's ex parte application for a temporary restraining order 19 || and order to show cause re: preliminary injunction is denied. 20 IT IS SO ORDERED. 21 Dated: February 5, 2021 > 2 a Yn: 33 Hon. Dana M. Sabraw, Chief Judge United States District Court 24 25 26 27 28