United States District Court, D. Nevada
SHELDON F. GOLDBERG, et al., Plaintiff(s),
JACK BARRECA, et al., Defendant(s).
before the court is an emergency motion for a temporary
restraining order (TRO) and appointment of receiver or
trustee filed by plaintiffs Sheldon F. Goldberg, Barbara A.
Goldberg, and Beneficial Innovations, Inc. (ECF No. 4).
Plaintiffs request this court to enjoin the defendants from
their continued involvement in an alleged fraudulent business
operation involving a margarita product. Id.
Plaintiffs further request this court to appointment a
receiver or trustee- namely, plaintiff Sheldon Goldberg
himself-to take over control of the margarita product
venture. Id. The motion is denied in its entirety.
a civil fraud and breach-of-contract case about margaritas.
(ECF Nos. 1, 4). On August 4, 2017, plaintiffs filed a
complaint against defendants in this court alleging nineteen
causes of action. (ECF No. 1). On August 7, 2017, plaintiffs
filed the instant emergency motion for a TRO and for the
appointment of a receiver or trustee. (ECF No.
On August 8, 2017, this court received defendants' ex
parte response to plaintiffs' motion for a TRO. (ECF
their motion, plaintiffs recite a detailed history of a
business relationship between plaintiffs and defendants. In a
nutshell, plaintiffs allege that they invested over $220, 000
in a joint business venture with defendants for the purpose
of manufacturing and selling a margarita product with plans
of creating a company for this purpose going forward. (ECF
allege that the defendants encouraged the plaintiffs to
continue investing in the venture with assurances that the
plaintiffs were considered partners and would reap a share in
the profits from the sale of the product. However, plaintiffs
allege that when the time to bottle the product drew near,
defendants changed their position and indicated an intent to
treat plaintiffs' investments as a simple loan and not
share the profits. Plaintiffs allege that a distillery in
Florida is ready to bottle the margarita product as soon as
August 7, 2017, and that if this court allows the Florida
distillery to release the bottled product to the defendants
thereafter, the defendants will then sell the product and
“take the money and run-perhaps even skip town
([defendant] Jack has no family in Las Vegas).” (ECF
No. 4 at 2, 15-16). Plaintiffs allege that their investment
is “tied up” in the margarita product and if this
court “does not intervene, all will be lost, ”
and “. . . the only major asset of the Partnership (the
margarita product) would be gone.” Id. at 15.
Further, plaintiffs allege that the defendants intend to
“traffic liquor” in violation of Nevada liquor
law. (ECF No. 4 at 16). Furthermore, plaintiffs allege that
allowing the defendants to receive the margarita product
after bottling would mean that third parties “would
likely get access to the margarita product and related
intellectual property and trade secrets rightfully owned by
the Partnership” of which the plaintiffs purport to be
a part. (ECF No. 4 at 15).
in the present emergency motion, the plaintiffs request that
this court enter a twelve-paragraph order detailing the
required and proscribed conduct of the defendants going
forward in relation to this margarita product venture,
including among other things, that the defendants
“shall not in any manner sell, grant, transfer . . . or
otherwise encumber . . . any product or other property
attributable with any interest to . . . any or all of the
Defendants, any or all of the Plaintiffs, the Partnership
Agreement, and/or a partnership between [the parties]
currently located at Florida Distillers'
facilities”; that “Defendants shall allow product
to be bottled by Caribbean Distillers . . . (‘Florida
Distillers') . . . but any and all [of this product] . .
. must remain and be stored at the Florida Distillers'
facilities pending further order of the Court”; that
defendants deposit into a trust account or with the court any
proceeds from the sale of the margarita product; and that
defendants shall somehow “allow” plaintiffs to
enter the premises and facilities of the Florida Distillers-a
non-party to this action. (ECF No. 4 at 13-14). Further,
plaintiffs request that this court appoint one of the
plaintiffs, Sheldon Goldberg, as either a receiver or trustee
of the business venture. Id. at 24-26.
Federal Rule of Civil Procedure 65, a court may issue a
temporary restraining order when the moving party provides
specific facts showing that immediate and irreparable injury,
loss, or damage will result before the adverse party's
opposition to a motion for preliminary injunction can be
heard. Fed.R.Civ.P. 65. “Injunctive relief is an
extraordinary remedy and it will not be granted absent a
showing of probable success on the merits and the possibility
of irreparable injury should it not be granted.”
Shelton v. Nat'l Collegiate Athletic Assoc., 539
F.2d 1197, 1199 (9th Cir. 1976).
purpose of a temporary restraining order is to preserve the
status quo before a preliminary injunction hearing may be
held; its provisional remedial nature is designed merely to
prevent irreparable loss of rights prior to judgment.”
Estes v. Gaston, No. 2:12-cv-1853-JCM-VCF, 2012 WL
5839490, at *2 (D. Nev. Nov. 16, 2012); see also Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1422 (9th Cir. 1984). This court must consider the following
elements in determining whether to issue a temporary
restraining order and preliminary injunction: (1) a
likelihood of success on the merits; (2) likelihood of
irreparable injury if preliminary relief is not granted; (3)
balance of hardships; and (4) advancement of the public
interest. Winter v. N.R.D.C., 555 U.S. 7, 20 (2008);
Stanley v. Univ. of S. California, 13 F.3d 1313,
1319 (9th Cir. 1994); Fed.R.Civ.P. 65 (governing both
temporary restraining orders and preliminary injunctions).
The party seeking the injunction must satisfy each element.
post-Winter, the Ninth Circuit has maintained its
serious-question and sliding-scale test. See Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.
2011). “Under this approach, the elements of the
preliminary injunction test are balanced, so that a stronger
showing of one element may offset a weaker showing of
another.” Id. at 1131. “Serious
questions going to the merits and a balance of hardships that
tips sharply towards the plaintiff can support issuance of a
preliminary injunction, so long as the plaintiff also shows
that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Id. at
1135 (internal quotations marks omitted).
to obtain injunctive relief, plaintiffs must show themselves
to be “under threat of suffering ‘injury in
fact' that is concrete and particularized; the threat
must be actual and imminent, not conjectural or hypothetical;
it must be fairly traceable to the challenged action of the
defendant; and it must be likely that a favorable judicial
decision will prevent or redress the injury.” Ctr.
for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th
Cir. 2011) (quoting Summers v. Earth Island Inst.,
555 U.S. 488 (2009)).
Plaintiffs have not convinced this court that the injunctive
relief requested would prevent ...