United States District Court, D. Oregon
CLASSIC BUSINESS GROUP, a New York Limited Liability Company, dba, OMNI MOTOR, Plaintiff,
DAVID LAWRENCE PREIM, an individual, Defendant.
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Classic Business Group, LLC brings this diversity
action against Defendant David Lawrence Preim,
alleging that Defendant has breached the parties'
contract and converted funds belonging to Plaintiff. Compl.
¶¶ 3-43, ECF 1. Plaintiff alleges that the parties
entered into a written agreement in June 2017 in which
Plaintiff would identify vehicles it wished Defendant to
purchase, Defendant would then purchase the vehicle with
money provided by Plaintiff, and then once the vehicle was
titled in Defendant's name, Defendant would sign the
title over to Plaintiff. Id. ¶¶ 5-8.
Defendant was paid a fee for each vehicle with the amount
depending on the type of vehicle purchased and the purchase
structure. Id. ¶ 8. In the event the vehicle
purchase became impossible, Defendant was to return the funds
to Plaintiff. Id. ¶ 9. Defendant agreed that
Plaintiff was to provide all the funds to purchase the
vehicles and that the funds were to be used solely to
purchase and transfer the vehicles. Id. ¶ 10.
further alleges that about the time the parties entered into
this agreement, Defendant agreed to purchase a particular
2017 Range Rover on Plaintiffs behalf from Desert European
Motorcars. Id. ¶ 12. Plaintiff wrote a
cashier's check drawn on its account in the amount of
$105, 570, paid to the order of Desert European Motorcars.
Id. ¶ 31.Such funds were paid as
intended. Id. However, Defendant was unable to
purchase the vehicle on behalf of Plaintiffs. Id.
¶ 14. Defendant obtained a refund of the $105, 570 from
Desert European Motorcars but has failed to return the money
to Plaintiff. Id. ¶¶ 15, 16. Plaintiff
alleges that Defendant has failed to respond to Plaintiffs
"at least five" efforts to communicate with
Defendant by telephone and written demand for the funds.
Id. He has avoided contact with Plaintiff and
refused to return the funds. Id. ¶ 17. Based on
these facts, Plaintiff brings claims for breach of contract,
breach of the covenant of good faith and fair dealing, unjust
enrichment, conversion, and constructive trust. Plaintiff
seeks damages in the amount of $105, 570 on the first three
claims and on the fifth claim. Compl. § III. On the
conversion claim, Plaintiff seeks an order directing
Defendant, or any other person in possession of the funds, to
return them to Plaintiff. Id.
standard for a temporary restraining order (TRO) is
"essentially identical" to the standard for a
preliminary injunction. Chandler v. Williams, No. CV
08-962-ST, 2010 WL 3394675, at *1 (D. Or. Aug. 26, 2010)
(citing Stuhlbarg Int'l Sales Co, v. John D. Brushy
& Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001));
see also Daritech, Inc. v. Ward, No. CV-11-570-BR,
2011 WL 2150137, at * 1 (D. Or. May 26, 2011) (applying
preliminary injunction standard to motion for TRO).
"A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
Am. Trucking Ass'ns Inc. v. City of L. A., 559
F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat.
Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)).
purposes of this Order, I assume Plaintiff is likely to
succeed on the merits on at least one of its claims. The
parties' agreement contemplates that the "Purchaser,
" meaning Defendant here, is obligated to promptly
return all funds related to the purchase and transfer of a
vehicle to Plaintiff should the Purchaser fail to acquire the
Vehicle. Compl., Ex. 1, ECF 1-1. At the very least,
Defendant's continued failure to return the $105, 570
"promptly" upon learning that the Range Rover could
not be purchased appears to violate the parties'
ordinarily, monetary harm does not constitute irreparable
harm. E.g., Idaho v. Coeur d'Alene Tribe, 794
F.3d 1039, 1046 (9th Cir. 2015) ("Purely economic harms
are generally not irreparable, as money lost may be recovered
later, in the ordinary course of litigation") (citing
Sampson v. Murray, 415 U.S. 61, 90, 94 (1974)
("The possibility that adequate compensatory or other
corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim
of irreparable harm.") (internal quotation marks
omitted)); see also Lydo Enters., Inc. v. City of Las
Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) ("Purely
monetary injuries are not normally considered
irreparable.") (internal quotation marks omitted).
alleged economic harm (the failure to receive $105, 570
allegedly owed it), is not irreparable. Moreover, even though
a "district court has authority to issue a preliminary
injunction where the plaintiffs can establish that money
damages will be an inadequate remedy due to impending
insolvency of the defendant or that defendant has engaged in
a pattern of secreting or dissipating assets to avoid
judgment, " In re Estate of Ferdinand Marcos, Human
Rights Litig., 25 F.3d 1467, 1480 (9th Cir. 1994),
Plaintiff has not sufficiently alleged facts supporting such
relief in this case. As the Ninth Circuit noted, its holding
is "restricted to only extraordinary cases in
which equitable relief is not sought." Id.
Plaintiff argues that Defendant's failure to return phone
calls and cutting off of communication establishes
Defendant's bad intent to take the funds and not return
them. But, Plaintiff offers no evidence to support this
inference. There is no evidence of a bankruptcy, the value of
Defendant's assets, or any history of Defendant secreting
assets. Plaintiff offers no explanation of why it could not
recover the damages it asserts are owed with other funds or
property of Defendant. Without such facts, Plaintiff does not
meet its burden of demonstrating that this case falls into
the "extraordinary" category as required in In
re Estate of Ferdinand Marcos.
the balance of hardships, Plaintiff concedes that freezing
the funds will work a hardship on Defendant. But, Plaintiff
asserts that because the funds do not and have never belonged
to Defendant, they should be "held in place" during
the lawsuit. Pl's Mem. at 5. I find this factor favors
Defendant. As Plaintiff notes, Defendant would be burdened by
the requested injunctive relief. Plaintiffs justification for
why the hardships balance in its favor, or are neutral, is a
restatement of its argument that the funds should be frozen
during the litigation. For the reasons explained in the
previous paragraph, while Plaintiffs legal theory may be
viable and Plaintiff may succeed on the merits, Plaintiff
fails to establish that it will suffer irreparable harm
without injunctive relief.
the public interest, "[w]hen the reach of an injunction
is narrow, limited only to the parties, and has no impact on
non-parties, the public interest will be at most a neutral
factor in the preliminary injunction analysis."
Stormans v. Selecky, 586 F.3d 1109, 1138-39 (9th
Cir. 2009) (internal quotation marks omitted). If the impact
reaches beyond the parties, potentially affecting the public,
the public interest is relevant to the analysis. Id.
Here, Plaintiff seeks an order directed not only to Defendant
but also to Banner Bank and any other bank or financial
institution with which Defendant has deposited all or any
part of the $105, 570. Pl's Mot. at 2, ECF 2. But,
"Rule 65(d) does not empower the Court to enjoin a
nonparty[.]" Swanberg v. Tro, No.
3:14-cv-00882-HZ, 2016 WL 406342, at *3 (D. Or. Jan. 31,
2016). Thus, the proposed injunctive relief is broader than
contemplated by the rule. If the requested relief is limited
to restraining Defendant's conduct, it is narrow because
it is limited to the $105, 570 paid by Plaintiff and does not
involve the public. Thus, so limited, the public interest is
other points must be mentioned. First, a TRO may issue only
if the movant "gives security in an amount that the
court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or
restrained." Fed.R.Civ.P. 65(c). While the Court has
discretion as to the amount of security, if any, that should
be required, Johnson v. ...