United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
before the court is plaintiff Insurance Company of the
West's (“ICW”) motion for preliminary
injunction. (ECF No. 2). Defendants RPS Holdings, Inc.;
Randolph Schams; Christine Schams; and Eldorado Estates Las
Vegas, LLC (“Eldorado Estates”) (collectively
“defendants”) did not file a response and the
time to do so has passed.
April 27, 2007, ICW issued a surety bond in the amount of
$358, 138.40 with Clark Count, Nevada as the obligee and
Eldorado Estates as the principal. (ECF No. 2-2). ICW issued
the bond for the off-site improvements of the Eldorado
Estates Phase I (“Phase I construction”) project
in Clark County, Nevada. Id.
partial consideration for the bond, defendants entered into a
general indemnity agreement (“GIA”). (ECF No.
2-1). The GIA provides that the defendants will indemnify ICW
for damages that arise from the surety bond or
defendants' failure to perform in accordance with the
GIA. Id. The GIA also provides that, if ICW believes
it will incur a loss or expense on the bond, it can demand
defendants to deliver cash or collateral. Id
Eldorado Estates failed to complete the Phase 1 construction
by October 5, 2011, when its construction permit expired.
(ECF No. 2-4). The Clark County Department of Public Works
subsequently asserted a bond claim against ICW for Eldorado
Estates' failure to perform. (ECF Nos. 2-4, 2-5). To
date, Clark County has not released its claim. (ECF No. 2).
January 30, 2019, ICW initiated this action, asserting a
single cause of action for breach of contract. (ECF No. 1).
In its complaint, ICW demanded for defendants to post
collateral pursuant to the GIA. Id. Nothing in
record indicates that defendants posted collateral or
obtained a release of bond from Clark County.
ICW moves for a preliminary injunction, requesting that the
court order specific performance of the GIA. (ECF No. 2).
Specifically, ICW request the court to require defendants to
(1) post collateral in the amount of $358, 138.40 and (2)
provide documentation pertaining to the completion of the
Phase I construction and the bond release timeline.
Rule of Civil Procedure 65 provides that the court may issue
a preliminary injunction on notice to the adverse party.
Fed.R.Civ.P. 65(a)(1). A preliminary injunction seeks to
preserve the status quo and prevent irreparable harm from
occurring before a judgment is issued. Textile Unlimited
Inc. v. BMH & Co., 240 F.3d 781, 786 (9th Cir.
Supreme Court has stated that courts must consider the
following elements in determining whether to issue a
preliminary injunction: (1) 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). The test is
conjunctive, meaning the party seeking the injunction must
satisfy each element.
post-Winter, the Ninth Circuit has maintained its
serious question and sliding scale tests. See Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(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.
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
seeking a preliminary injunction have a burden to satisfy
each of the four elements above. See Winter, 555
U.S. at 20. The court will address each element in turn to