United States District Court, W.D. Washington, Seattle
GREAT OCEAN CAPITAL HOLDING, LLC, a Washington State Limited Liability Company and United States designate Regional Center, Plaintiff,
PENG ZHANG and ZHONGYUAN PAN aka “Bonnie Pan”, husband and wife residing in Ontario, Canada, Defendants.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's ex
parte Motion for Temporary Restraining Order
(“TRO”). Dkt. #2. Plaintiff asks the Court to
enter an Order enjoining Defendants from “engaging in
supplemental proceedings that effectively withdraw or further
interfere with funds to be used for job creation and
promotion of commerce.” Id. For the reasons
set forth below, the Court DENIES the motion.
federal court may issue a TRO “with or without written
or oral notice to the adverse party” only if
“specific facts in the affidavit . . . 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 moving party “certifies in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b).
“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.” Local Rules
W.D. Wash. LCR 65(b). The Court finds several reasons to deny
the instant motion.
Plaintiff has not provided an adequate explanation as to its
efforts to give notice to Defendants and why such notice
should not be required. Indeed, Plaintiff fails to address
this Courts Local Rule or the requirements of the Federal
Rules of Civil Procedure at all. See Dkt. #2. In a
Declaration accompanying this motion, Plaintiff's counsel
asserts that Defendants are thought to be proceeding pro
se. Dkt. #5 at ¶ 4. Plaintiff then goes on to state
that copies of this motion were provided to Defendants'
counsel in the subject concurrent state court proceeding, but
counsel does not know whether those same attorneys would
represent Defendants in this action. Id. at ¶
¶ 5 and 7. Plaintiff's counsel states that she has a
mailing address for Defendants in Canada, but because she
only has that address she is unable to effect service.
Id. at ¶ 8. Confusingly, counsel does not
mention the Hague Convention, of which Canada is a member,
its procedures for service of process on Canadian residents,
or any efforts to comply with those procedures. See
Dkts. #2 and #5.
Plaintiff fails to meet the substantive standard for the
issuance of a TRO. The Ninth Circuit has described the
standards for deciding whether to grant a motion for a
To obtain a preliminary injunction, the moving party must
show either (1) a combination of probable success on the
merits and the possibility of irreparable injury, or (2) that
serious questions are raised and the balance of hardships
tips sharply in its favor. These formulations are not
different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the
probability of success on the merits decreases. Under either
formulation, the moving party must demonstrate a significant
threat of irreparable injury, irrespective of the magnitude
of the injury.
Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch.
Dist., 868 F.2d 1085, 1088 (9th Cir. 1989) (citations
omitted). The speculative risk of a possible injury is not
enough; the threatened harm must be imminent. Caribbean
Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674
(9th Cir. 1988); Fed. R. Civ. Proc. 65(b)(1)(A). The
standards for issuing a TRO are similar to those required for
a preliminary injunction. Lockheed Missile &
Space Co., Inc. v. Hughes Aircraft Co., 887
F.Supp. 1320, 1323 (N.D. Ca. 1995).
fails to demonstrate irreparable harm in this case,
particularly because the state court proceedings that it
seeks to enjoin have apparently been proceeding for the last
two years. Dkt. #2 at ¶ 9. Plaintiff provides few facts
describing the procedural posture of the state court
proceedings at this time. Plaintiff notes that the state
court issued a preliminary injunction, which it apparently
disputes, on December 18, 2015, which froze certain assets of
Plaintiff's. Id. at ¶ 11. Plaintiff also
states that in September of 2017, the state court issued an
Order to Show Cause to the “Judgment Debtor” in
those proceedings, but Plaintiff fails to identify the
“Judgment Debtor” or what the Show Cause Order
arises from or directs. See Id. at ¶ 15. On
these facts, there is no way for the Court to determine
imminent harm, much less any harm, to Plaintiff should the
Court fail to issue a TRO.
Plaintiff fails to address the Younger doctrine,
which would typically preclude this Court from interfering
with ongoing state court proceedings. Indeed, absent
extraordinary circumstances, not present here, federal courts
should abstain from enjoining ongoing state court
proceedings. See Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, the
Supreme Court “‘espouse[d] a strong federal
policy against federal court interference with pending state
judicial proceedings.'” H.C. v. Koppel,
203 F.3d 610, 613 (9th Cir. 2000) (quoting Middlesex
County Ethics Comm. v. Garden State Bar
Ass'n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d
116 (1982)). The “principles of equity, comity, and
federalism . . . must restrain a federal court when asked to
enjoin a state court proceeding.” Mitchum v.
Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705
Younger, a federal court must abstain if four
requirements are met:
(1) a state-initiated proceeding is ongoing; (2) the
proceeding implicates important state interests; (3) the
federal plaintiff is not barred from litigating federal
constitutional issues in the state proceeding; and (4) the
federal court action would enjoin the proceeding or have the
practical effect of doing so, i.e., would interfere
with the state proceeding in a way that Younger
San Jose Silicon Valley Chamber of Commerce Political
Action Comm. v. City of San Jose, 546 F.3d 1087, 1091-92
(9th Cir. 2008).
the first criteria is met because, as best the Court can
tell, the Washington State action is still pending. According
to Plaintiff's brief, an Order to Show Cause was issued
on September 12, 2017. Dkt. #2 at ¶ 15. Plaintiff
provides no evidence that the proceedings have concluded, and
indeed seeks to stay them by way of this motion. The second
criteria is also met because of the state's important
interest in actions involving alleged violations of the
Washington State Securities Act. See Dkt. #2 at
¶10. The third criteria is satisfied because Plaintiff
has not presented any argument demonstrating why the
Washington state courts would not provide it with an adequate
opportunity to litigate its federal and state claims.
Finally, the fourth requirement, that the federal court
action would enjoin the state proceeding, is met because the
relief Plaintiff seeks is to enjoin Washington courts from
proceeding with the action currently pending there. This type
of interference has been described as “the most
offensive and intrusive action that a federal court can take
with respect to a state court proceeding.”
Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir.
2004) (en banc).
Younger applies, this Court must abstain from
enjoining the state court case, and should dismiss the action
entirely. “When an injunction is sought and
Younger applies, it makes sense to abstain, that is,
to refrain from exercising jurisdiction, permanently by
dismissing the federal action because the federal court is
only being asked to stop the state proceeding.”
Gilbertson, 381 F.3d at 981. Furthermore,
“[o]nce it is determined that an injunction is not
warranted on Younger grounds, there is ...