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Perez Gutierrez v. Mariscos El Puerto, Inc.

United States District Court, D. Nevada

November 15, 2019

AYDE AZUCCERA PEREZ GUTIERREZ, et al., Plaintiffs,
v.
MARISCOS EL PUERTO, INC., et al., Defendants.

          TEMPORARY RESTRAINING ORDER

         Presently 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).

         Also before the court is plaintiffs' motion for preliminary injunction. (ECF No. 5).

         I. Background

         This 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).

         Defendants 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. Id.

         On 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 similarly situated.”

         Now, 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.

         II. Legal Standard

         Under 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).

         “The 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) 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; 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).

         Finally, 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)).

         III. ...


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