United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
Plaintiff moves this Court to enter a temporary restraining
order and preliminary injunction enjoining the Defendant from
confirming either of two arbitration decisions awarded in the
Defendant's favor. Because the Plaintiff has failed to
show any irreparable harm, the Court denies the
Plaintiff's Motion for Temporary Restraining Order (ECF
No. 7) and Motion for Preliminary Injunction (ECF No. 8). The
Court does not reach the merits of any other contentions made
by the parties at this time.
FACTS AND PROCEDURAL HISTORY
Plaintiff and the Defendant were limited partners of Arbor
Co., a Nevada LLP (Compl. 3:1-3:7, ECF No. 1.) All three
entities entered into a settlement agreement in February 12,
2009. (Id. 3:15-3:20.) Under the agreement, Arbor
Co., was to pay the Plaintiff $34, 975, 842.22 with interest
and pay the Defendant $21, 139, 769.25 with interest. (Mot.
for TRO Ex. 2, ECF No. 7.) Additionally, the parties agreed
to resolve all disputes related to their agreement through
the arbitration of William Sherman, Esq. ("the
Arbitrator"). (Compl. 3:15- 3:20.)
April 11, 2014, the Arbitrator found that the Plaintiff had
been overpaid due to a mistake in the interest rate at which
his debt accrued, so the Arbitrator issued an award against
the Plaintiff and in the Defendant's favor (April 11,
2014 Arbitration Award). (Id. 4:9-4:13.) Under die
April 11, 2014 Arbitration Award, the Plaintiff was to pay
the Defendant "(i) the $1, 269, 827.78 principal amount
of such overpayment plus (ii) the accrued interest at 5.25%
per annum on such amount from May 5, 2011 ... the per diem
rate of interest on the $1, 269, 827.78 principal payment due
from [the Plaintiff] to [the Defendant] is $182.65."
(Id. Ex. 1 at 3.)
October 11, 2012, prior to the April 11, 2014 Arbitration
Award, the Plaintiff sued Arbor Co. in Nevada state court
("the Nevada state case"), and in the course of
this litigation, sought to vacate the April 11, 2014
Arbitration Award. (Id. 4:17-4:21.) During the
pendency of this litigation, the Defendant sought to
interplead in the Nevada state case in 2018. (Mem. in
Opp'n to TRO 4:15-5:2, ECF No. 19.) Before the court
addressed the Defendant's interpleader, the Plaintiff and
Arbor Co. filed a stipulated dismissal of the case.
(Id.) The Nevada court dismissed the case on July
13, 2018. (Id.) However, the Defendant filed a
successful motion to reconsider the dismissal, and the Nevada
court reopened the case on August 1, 2018. Id. The
Plaintiff challenged the reopening of the case seeking a writ
of mandamus with the Nevada Supreme Court, which was denied
on February 7, 2019. (Id.)
the pendency of the state court case, the Defendant sought to
confirm the April 11, 2014 Arbitration Award in the United
States District Court for the Western District of Texas
("the Texas federal case"). Guzy v. Guzy,
No. 1:17-CV-228-RP, 2017 WL 3032432 (WD. Tex. July 17, 2017).
The district court dismissed the application to confirm the
April 11, 2014 Arbitration Award with prejudice on the basis
that the application was untimely as there is a one- year
statute of limitation to confirm an arbitration award under
the Federal Arbitration Act. Id., ; see 9 U.S.C.
§ 9. Subsequently, the Defendant sought to confirm the
Arbitration Award in Texas state court in May 2018. (Compl.
6:14-6:20.) After the Plaintiff filed an answer and the
Nevada state case was remanded to finally reach the merits on
whether to confirm the April 11, 2014 Arbitration Award, the
Defendant nonsuited the Texas state case. (Id.; Mem.
in Opp'n to TRO 5:26-6:2.)
the Defendant sought arbitration to cover her expenses due to
the Plaintiffs purported refusal to comply with the April 11,
2014 Arbitration Award. (Mem. n Opp'n to TRO 6:4-6:24.)
The Plaintiff denied that the Arbitrator retained
jurisdiction over the matter. (Id.) However, on May
1, 2019, the Arbitrator held that he retained jurisdiction
over the matter, that the Plaintiff was in defiance of the
April 11, 2014 Arbitration Award, and that Plaintiffs further
assertions were meritless (May 1, 2019 Arbitration Award).
(Id.) The Arbitrator found that the Plaintiffs
repeated attempts to avoid payment were vexatious.
Accordingly, the Arbitrator: (i) reaffirmed his prior orders;
(ii) set the principal amount and the accrued unpaid interest
on such principal amount due from the Plaintiff to the
Defendant through December 31, 2018 as $1, 472, 545.42 and
$592, 417.12 respectively; (iii) determined that the per diem
dollar amount of interest owed by the Plaintiff to the
Defendant was $211.80; (iv) imposed a sanction of $200, 000;
and, (v) awarded the Defendant an additional $50, 000,
including interest, in sanctions until the Plaintiff pays the
Defendant the full amount due. (Id.)
confirmation of the April 11, 2014 Arbitration Award is now
before the Nevada state court. (Mem. in Opp'n to TRO
5:3-5:10.) Plaintiff has filed the present action seeking an
injunction to enjoin the Defendant from enforcing either
arbitration award and to enjoin all other litigation.
temporary restraining order should be limited to carrying out
its "underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer." Granny Goose Foods
v. Bd. of Teamsters & Auto Truck Drivers, 415 U.S.
423, 439 (1974). It "is an extraordinary remedy never
awarded as of right." Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). Temporary
restraining orders are durationally limited and automatically
expire, as their purpose is to preserve the status quo until
a hearing can be held for a preliminary injunction.
Fed.R.Civ.P. 65(b)(2); Winter, 555 U.S. at 24. Such
orders are non-appealable, Mayweathers v. Gomez, 60
F.3d 833 (9th Cir. 1995); Forest v. F.D.I.C, 976
F.2d 736 n.1 (9th Cir. 1992), and are committed to the sound
discretion of the trial court, Jimenez v. Barber,
252 F.2d 550, 554 (9th Cir. 1958). A temporary restraining
order "may only be awarded upon a clear showing [by] the
plaintiff [that it] is entitled to such relief."
Winter, 555 U.S. at 22.
temporary restraining orders differ in some respects from
preliminary injunctions, the standard for granting a
temporary restraining order and a preliminary injunction is
the same. Stuhlbarg Int'l Sales Co. v. John D. Brush
& Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)
(stating that a separate analysis was not required because
the analysis is "substantially identical" for a
temporary restraining order and a preliminary injunction);
V' Guara Inc. v. Dec, 925 F.Supp.2d 1120, 1123
(D. Nev. 2013). To obtain preliminary injunctive relief, the
Ninth Circuit has established two alternative sets of
Under the traditional test, a plaintiff must show: (1) a
strong likelihood of success on the merits, (2) the
possibility of irreparable injury to plaintiff if preliminary
relief is not granted, (3) a balance of hardships favoring
the plaintiff, and (4) advancement of the public interest (in
certain cases). The alternative test requires that a
plaintiff demonstrate either a combination of probable
success on the merits and the possibility of irreparable
injury or mat serious questions are raised and the balance of
hardships tips sharply in his favor.
Taylor v. Westly,
488 F.3d 1197, 1200 (9th Cir.
2007). The Supreme Court later ruled, however, that a
plaintiff seeking a preliminary injunction must demonstrate
that irreparable harm is "likely," not just
possible. Winter v. NRDC,555 U.S. 7, 19-23 (2008)
(rejecting the alternative "sliding scale" test, at
least as to the irreparable harm requirement). In
Stormans, Inc. v. Selecky, the Ninth Circuit
recognized that the "possibility of irreparable
injury" test was "definitively refuted" in
Winter and that the appropriate standard
"requires a party to demonstrate 'that he is likely
to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in he public interest.'" 586
F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555
U.S. at 20) ...