Fahr v. City of San Diego, California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES FAHR, et al., Case No. 21-cv-1676-BAS-BGS 12 Plaintiffs, ORDER: 13 v. (1) DENYING PLAINTIFFS’ EX 14 CITY OF SAN DIEGO, et al., PARTE MOTION FOR 15 Defendants. TEMPORARY RESTRAINING ORDER (ECF No. 2); AND 16 17 (2) DENYING PLAINTIFFS’ EX 18 PARTE MOTION TO SHORTEN TIME (ECF No. 5) 19 20 21 Before the Court is Plaintiffs’ ex parte Motion for a Temporary Restraining Order 22 or, Alternatively, Preliminary Injunction (“Motion for a TRO”) and ex parte application 23 for an order shortening the time for this Court to hear that Motion (“Motion to Shorten”), 24 both of which Plaintiffs filed on September 24, 2021. (Mot. for TRO, ECF No. 2; Mot. to 25 Shorten, ECF No. 5.) The Court finds those Motions suitable for determination on the 26 papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 27 For the reasons stated below, the Court DENIES both Motions, without prejudice to their 28 renewal. (ECF Nos. 2, 5.) 1 I. BACKGROUND 2 On September 23, 2021, Plaintiffs commenced this action against Defendants 3 seeking to invalidate Ordinance Number O-2022-7 (Compl., Ex. A (“Ordinance”)), which 4 Plaintiffs allege “prohibits, inter alia, the possession, purchase, sale, receipt, and 5 transportation of non-serialized, unfinished firearm parts, as well as non-serialized 6 firearms[]” covered by the Ordinance, in violation of the Second Amendment and Fifth 7 Amendment Takings Clause (id. ¶ 54; see id. ¶¶ 129–65). The San Diego City Council 8 passed the Ordinance on September 14, 2021 and the Mayor of San Diego signed it on 9 September 21, 2021. (Compl. ¶¶ 55.) As Plaintiffs acknowledge, the Ordinance currently 10 is not being enforced. (See, e.g., id. ¶ 59.) Rather, the Ordinance’s effective date is October 11 23, 2021—30 days from the date on which it was signed into law. (Ordinance 9.) 12 Without first serving Defendants with the Complaint, Plaintiffs filed ex parte their 13 Motion for a TRO on September 24, 2021, claiming that they would suffer immediate and 14 irreparable harm if the Ordinance becomes effective. (ECF No. 2.)1 Specifically, Plaintiffs 15 James Fahr, Desiree Bergman, and Colin Rudolph, residents of San Diego, own non- 16 serialized firearm components that they acquired before enactment of the Ordinance, with 17 which they intend to construct “California-compliant” firearms. (Mot. TRO, Ex. 1 (“Fahr 18 Decl.”) ¶¶ 6–10; id., Ex. 2 (“Bergman Decl. ¶¶ 6–11”); id., Ex. 5 (“Rudolph Decl.”) ¶¶ 6– 19 11.) Individual Plaintiffs complain that the Ordinance prohibits them from doing so. They 20 aver that now they “must dispossess [themselves]” of these non-serialized firearm 21 components by the effective date of the Ordinance “or face criminal prosecution under 22 [San Diego Municipal Code Section] 53.18(c)(1).” (Fahr Decl. ¶¶ 11–13; Bergman Decl. 23 ¶¶ 12–13; Rudolph Decl. ¶¶ 12–13.)2 Organizational Plaintiffs and Firearms Policy 24 Coalition, Inc. and San Diego County Gun Owners PAC—both of whom allege standing 25 26 1 Plaintiffs filed ex parte their Motion to Shorten later that same day. (See ECF No. 5.) 27 2 Individual Plaintiffs further allege that the Ordinance prohibits them from “purchas[ing], acquir[ing], possess[ing], and transport[ing]” non-serialized firearm components “in the future,” as they 28 1 in a “representational capacity”—claim to have members residing in the City of San Diego 2 and/or San Diego County who are similarly situated to Individual Plaintiffs. (Mot. TRO, 3 Ex. 3 (“Combs Decl.”) ¶ 16; Mot. TRO, Ex. 4 (“Schwartz Decl.”) ¶ 16.) 4 II. ANALYSIS 5 Under Rule 65 of the Federal Rules of Civil Procedure, the court may issue a 6 temporary restraining order without notice to the non-moving parties only if: 7 (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant 8 before the adverse party can be heard in opposition; and 9 (B) the movant’s attorney certifies in writing any efforts made to give notice 10 and the reasons why it should not be required. 11 12 Fed. R. Civ. P. 65(b)(1). 13 “[T]he stringent requirements embodied in Rule 65(b) recognize that ‘our entire 14 jurisprudence runs counter to the notion of court action taken before reasonable notice and 15 an opportunity to be heard has been granted both sides of a dispute.’” Adobe Sys., Inc. v. 16 S. Sun Prod., Inc., 187 F.R.D. 636, 638–39 (S.D. Cal. 1999) (citing Granny Goose Foods, 17 Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438–39 (1974)). “A temporary injunction 18 can be an extremely powerful weapon, and when such an order is issued ex parte, the 19 dangers of abuse are great.” Id. at 639 (citing Am. Can Co. v. Mansukhani, 742 F.2d 314, 20 324 (7th Cir. 1984)). 21 This district’s Civil Local Rules further require that in support of any ex parte 22 application, the moving party must submit an affidavit or declaration stating: 23 (1) that within a reasonable time before the motion the [moving] party informed the opposing party or the opposing party’s attorney when and where 24 the motion would be made; or (2) that the party in good faith attempted to 25 inform the opposing party and the opposing party’s attorney but was unable to do so, specifying the efforts made to inform them; or (3) that for reasons 26 specified the party should not be required to inform the opposing party’s 27 attorney.

28 1 Plaintiffs’ ex parte Motion for a TRO is denied because it runs afoul of the notice 2 requirements of both the Federal Rules of Civil Procedure and this district’s Civil Local 3 Rules. A temporary restraining order on an ex parte basis ordinarily is limited to situations 4 where “it is impossible to give notice to the adverse party because the plaintiff does not 5 know the party’s identity or location” or where “proceeding ex parte is the ‘sole method of 6 preserving a state of affairs in which the court can provide effective final relief.’” Adobe 7 Sys., 187 F.R.D. at 639 (citing Matter of Vuitton et Fils S.A., 606 F.2d 1, 4 (2d Cir. 1979)). 8 Ex parte relief is rarely justified. Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 9 1131 (9th Cir. 2006) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck 10 Drivers, 415 U.S. 423, 438–39 (1974)). 11 Plaintiffs do not argue that their Motion for a TRO falls under either of the two 12 limited situations in which ex parte relief is justified. See Adobe Sys., 187 F.R.D. at 639. 13 Plaintiffs do not claim to lack knowledge of Defendants’ identity or location, or that it was 14 otherwise impossible to give Defendants notice. Nor have Plaintiffs persuaded the Court 15 that ex parte injunctive relief is the only effective relief available to preserve Plaintiffs’ 16 rights. Fed. R. Civ. P. 65(b)(1)(B); see also Civ. L.R. 83(g)(2). 17 Because the record lacks the extraordinary showing required to justify ex parte 18 relief, the Court will not consider the merits of the Motion for a TRO or the Motion to 19 Shorten until Plaintiffs submit proof that Defendants have been served in accordance with 20 the Federal Rules of Civil Procedure and this district’s Civil Local Rules. 21 III. CONCLUSION 22 For the foregoing reasons, the Court DENIES Plaintiff’s ex parte Motion for 23 A TRO (ECF No. 2) and, consequently, DENIES Plaintiff’s ex parte Motion to Shorten 24 (ECF No. 5) without prejudice to their renewal with the appropriate showing that proper 25 service has been made upon Defendants, or that issuance of the TRO 26 27 28 1 proper without notice pursuant to the strict requirements of Federal Rule of Civil 2 || Procedure 65(b)(1). See Fed. R. Civ. P. 65(b)(1)(B); Civ. L.R. 83(g)(2). 3 IT IS SO ORDERED. ‘ /\_ 5 || DATED: September 27, 2021 (isha 6 toied wn District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28