United States District Court, W.D. Washington, Seattle
ANTHONY ABUZEIDE, Special Administrator for the Estate of Jack Berry Dane, Plaintiff,
OPENROAD AUTO GROUP, INC., a Washington corporation d/b/a BELLEVUE LAMBORGHINI ROLLS-ROYCE BENTLEY, Defendant.
ORDER GRANTING SECOND MOTION FOR TEMPORARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Second
Motion for Temporary Restraining Order (“TRO”).
Dkt #8. On April 14, 2017, Plaintiff Anthony Abuzeide,
Special Administrator for the Estate of Jack Berry Dane
(“The Estate”) filed this action and its First
TRO Motion. That same day, the Court denied the Motion,
determining that it lacked a certificate of service and
otherwise failed to argue for issuance without notice. Dkt.
#6. The Estate swiftly filed a declaration of attorney
Michael E. McAleenan containing the missing evidence of
service on Defendant Openroad Auto Group, Inc.
(“Openroad”). Dkt. #7. Later that same day, The
Estate filed the instant Second TRO Motion and all of the
original supporting declarations, including the previously
missing declaration of attorney Michael E. McAleenan. Dkts.
#8-11. This newly filed declaration of Mr. McAleenan provides
evidence of service of the first TRO, but not evidence of
service of the Second TRO Motion. See Dkt. #11.
Confusingly, the instant Second TRO Motion is identical to
the First TRO Motion, with an identical caption. See
Dkts. #2 and #8.
April 18, 2017, The Estate filed an unsigned
“Declaration of Service” purporting to show that
Defendant Openroad was served with the Second TRO Motion, as
well as the Court's April 14, 2017, Order denying the
original TRO Motion. Dkt. #12. This document indicates that
Openroad was served with these documents on April 17, 2017,
at 2:34 PM. Id. Openroad has failed to respond to
this Motion or contact the Court in any fashion.
Court will first address whether the Estate has adequately
satisfied TRO procedure. “Motions for temporary
restraining orders without notice to and an opportunity to be
heard by the adverse party are disfavored and will rarely be
granted.” LCR 65(b)(1). “The Court may issue a
temporary restraining order without written or oral notice to
the adverse party or its attorney only if specific facts in
an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in
opposition; and the movant's attorney certifies in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b)(1).
Unless these requirements are satisfied, “the moving
party must serve all motion papers on the opposing party
before or contemporaneously with the filing of the motion
and include a certificate of service with the
motion.” LCR 65(b)(1) (emphasis added).
“Unless the Court orders otherwise, the adverse party
must (1) file a notice indicating whether it plans to oppose
the motion within twenty-four hours after service of the
motion, and (2) file its response, if any, within forty-eight
hours after the motion is served.” LCR 65(b)(5).
Estate's actions place the Court in a difficult position.
On the one hand, it appears the Estate has again failed to
satisfy the above procedural requirements. The Estate has not
provided a certificate of service showing service of the
second TRO Motion before or contemporaneously with
the filing of the second TRO Motion. Instead, the record
shows Openroad was not served with a copy of the Second TRO
until three days after the Second TRO was filed. To make
matters worse, the April 18, 2017, “Declaration of
Service” is unsigned. See Dkt. #12. Even if
this Declaration were signed, the Court believes Openroad
could be confused by receiving service of an Order of this
Court denying the Estate's First TRO and a copy of the
Second TRO captioned identically to the First TRO.
other hand, taking into consideration everything the Estate
has filed on the docket, it seems clear that Openroad has
been adequately notified of this action, that at least one
TRO has been filed, and that the Court anticipated the
immediate filing of a second TRO. Despite all of this,
Openroad has failed to make an appearance or otherwise
communicate with the Court. The Court is troubled by
Openroad's silence given the nature of the Estate's
Estate has essentially provided notice of this TRO to
Openroad and justice requires consideration of the requested
TRO relief now, even though Openroad has not made an
appearance. However, the Court will not grant the
Estate's request for expedited discovery at this time
given Openroad's current absence.
gears to the substance of the TRO request, the Court briefly
sets forth the facts as presented by the Estate. Plaintiff
alleges that Taylor Henley, a 21 year old acquaintance of the
64 year old Decedent, stole Decedent's title to “a
rare and collectible 2015 Porsche 918 Spyder worth in excess
of $1, 500, 000.00.” Dkt. #8 at 2; See also
Dkt. #9-1 at 5-11 (police report). This Porshe was apparently
of a limited production with “only 918 vehicles
sold.” Id. The Porshe was purchased by
Decedent in 2014 and bears the Vehicle Identification
(“VIN”) Number WPOCA2A13FS800236. Dkt. #9-1 at 2.
Ms. Henley allegedly forged Decedent's signature on the
title to transfer the Porshe to herself, then transferred the
Porshe to Silver Arrow Performance Cars, Ltd. in Arizona
while Decedent was in Europe at the end of 2016.
Id.; see also Dkt. #9-1 at 15. On January
3, 2017, Decedent filed a police report alleging that Ms.
Henley stole, among other things, the title documents to the
Porsche and subsequently the Porsche itself. Dkt. #9-1 at
5-11. On February 6, 2017, Decedent died in his San
Francisco, California home. Dkt. #9-1 at 29. The Porshe is
now advertised for sale at Defendant Openroad's Bellevue,
Washington showroom. See Dkt. #11-1 at 9-11. The
Estate has attempted to contact Openroad to request they
refrain from selling the Porshe; Openroad has not responded.
The Estate filed the instant suit for replevin and injunctive
relief. Dkt. #1.
order to succeed on a motion for temporary restraining order,
the moving party must show: (1) a likelihood of success on
the merits; (2) a likelihood of irreparable harm to the
moving party in the absence of preliminary relief; (3) that a
balance of equities tips in the favor of the moving party;
and (4) that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Ninth
Circuit employs a “sliding scale” approach,
according to which these elements 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.
the first factor, the Estate cites to California and
Washington State law supporting the position that Ms. Henley
as a thief could not pass good title so that “even a
good faith purchaser for value, assuming the Defendants
occupy such a position, cannot acquire valid title from
Henley or those taking through her.” Dkt. #8 at 10-12
(citing, inter alia, Suburban Motors,
Inc. v. State Farm Ut. Auto. Ins. Co., 218 Cal.App.3d
1354 (Cal.App. 3d Dist. 1990); RCW 62A.2-403; RCW 10.79.050;
Heinrich v. Titus-Will Sales, Inc., 73 Wn.App. 147,
868 P.2d 169 (1994) (internal quotation marks omitted).
Washington law also supports return of the Porshe to the
Estate as the proper remedy. The Estate next argues it will
suffer irreparable harm in the absence of this TRO because
“a sale pending resolution of this case may place the
Porsche outside the Estate's reach” given that the
Porshe has already crossed state lines several times, and
because the Porsche at issue was part of a limited production
and is “unique and irreplaceable.” Dkt. #8 at 13.
The Estate argues that the balance of equities is in its
favor because the Estate is the victim of theft and because
“Defendant merely risks a momentary delay of
profit.” Id. at 14. The Estate notes that the
Porsche is apparently still appreciating in value. The Estate
argues that a momentary hold on this Porsche will not affect
Openroad's sale of other vehicles. For the last factor,
the Estate argues that “injunctive relief here furthers
the public interest by ensuring and safeguarding the
victim's right to recover his property, ” and by
protecting prospective buyers of this Porsche from purchasing
a stolen vehicle and becoming subject to a lawsuit.
Id. at 15.
Court finds the Estate has sufficiently demonstrated a
likelihood of success on the merits given its arguments and
substantial supporting documentation. This conclusion has
little bearing on the eventual outcome of this case, given
the absence of argument or evidence presented by Defendant
Openroad. The Estate's argument for irreparable harm is
on shakier ground. It is difficult to see how a car can be
“unique” and one of 918 identical copies.
However, the Court finds that the Estate's ability to
obtain relief under applicable replevin law could be lost if
the Porshe in question is sold. Turning to the last two
factors, the Court is convinced that Openroad will suffer
little if any harm by the granting of this requested relief.
together, the stronger showing of factors one, three, and
four outweigh the weak showing as to irreparable harm.
See Alliance, supra. The Court will thus grant the
TRO and set a preliminary injunction hearing.
considered Plaintiff's Motion, the declarations and
exhibits attached thereto, and the remainder of the record,