United States District Court, D. Nevada
TEMPORARY RESTRAINING ORDER
before the court is plaintiffs Ayde Azuccera Perez Gutierrez,
Brenda Karla Gabrela Reyes Medrano, Adriana Torres, Erika
Socorro Valle Peralta, Salvador Vladimir Jimenez Flores, and
Viridiana Ramirez Rodriguez' (collectively
“plaintiffs”) motion for temporary restraining
order. (ECF No. 4).
before the court is plaintiffs' motion for preliminary
injunction. (ECF No. 5).
action arises from defendants Mariscos El Puerto, Inc., La
Catrina, LLC, La Catrina Entertainment, LLC, Manuela
Hernandez, Julian Hernandez, Hector Moreno, and Danny
Hernandez' (collectively “defendants”)
purported violations of Nevada labor law and various sections
of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201
et seq. (“FLSA”). (ECF No. 1).
are engaged in the operation of two restaurants-the “La
Catrina Bar & Grill” and “Mariscos El
Puerto”-for which plaintiffs are all current or former
employees. (ECF No. 4). Plaintiffs allege that defendants
failed to pay them minimum wage, withheld overtime wages, and
retaliated against them for filing the instant action.
November 5, 2019, plaintiffs filed a complaint alleging seven
causes of action: (1) violation of FLSA minimum wage and
overtime provisions pursuant to 29 U.S.C. § 201 et
seq.; (2) retaliation in violation of 29 U.S.C. §
215; (3) failure to pay all wages due and owing upon
termination pursuant to NRS 608.020-608.050; (4) failure to
pay minimum wages in violation of Article 15, Section 16 of
the Nevada Constitution; (5) failure to pay wages for all
hours worked in violation of NRS 608.140 and 608.016; (6)
failure to pay overtime wages in violation of NRS 608.140 and
608.018; and (7) civil conspiracy. (ECF No. 1). Plaintiffs
bring this suit pursuant to 29 U.S.C. § 216(b), which
provides in relevant part that “[a]n action to recover
the liability prescribed in [sections 206, 207, or 215(a)(3)
of the FLSA] may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees
plaintiffs request that the court issue a temporary
restraining order enjoining defendants from retaliating
against plaintiffs and other similarly situated employees.
(ECF No. 4). Plaintiffs request that the court either order
defendants to read aloud, or order defendant to permit a
representative of plaintiffs to read aloud, a prepared
statement to all employees employed by defendants informing
them of their rights under the FLSA. Id. In
addition, plaintiffs request that defendants be required to
post a copy of the aforementioned statement at each
restaurant and provide a written copy of the statement to all
employees with their next paycheck. Id. Plaintiffs
also request all costs and expenses incurred in maintaining
this action. Id.
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).
court must consider the following elements in determining
whether to issue a temporary restraining order and
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); 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).
party seeking the injunction must satisfy each element;
however, “the elements of the preliminary injunction
test are balanced, so that a stronger showing of one element
may offset a weaker showing of another.” Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011). “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, plaintiff must show it is
“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)).