Pacific Marine Maintenance Co. v. Automotive Industries Pension Plan Doc.

6
Case 3:07-cv-04584-MMC Document 6 Filed 09/06/2007 Page 1 of 2

1
2
3
4
5
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10 PACIFIC MARINE MAINTENANCE CO., No. C-07-4584 MMC
For the Northern District of California

11 Plaintiff, ORDER DENYING PLAINTIFF’S

United States District Court

v. APPLICATION FOR TEMPORARY

12
RESTRAINING ORDER AND FOR
AUTOMOTIVE INDUSTRIES PENSION ORDER TO SHOW CAUSE RE:
13 PLAN, ISSUANCE OF PRELIMINARY
14 Defendant INJUNCTION
/
15
16
Before the Court is plaintiff’s “Application for Temporary Restraining Order and
17
Order to Show Cause Re Issuance of Preliminary Injunction,” filed September 5, 2007.
18
Having reviewed the papers submitted in support of the application, the Court hereby
19
DENIES the application for the following reasons:
20
1. Plaintiff has not submitted proof that plaintiff has provided defendant with notice
21
of the instant application, nor has plaintiff set forth any reason why defendant should not be
22
entitled to notice. See Fed. R. Civ. P. 55(b).
23
2. Even assuming plaintiff has established a likelihood of success on the merits of
24
its claim or, alternatively, has raised serious questions going to the merits of its claim,1 see
25
26 1
The complaint, which focuses on the relief sought, is vague as to the precise nature
27 of plaintiff’s substantive claim. Although plaintiff refers to a “violation of ERISA § 4301,”
such section merely provides for a cause of action where one is “adversely affected by the
28 act or omission of any party under [ERISA].” See 29 U.S.C. § 1451(a)(1). For purposes of
the instant application, the Court has interpreted the complaint as a claim that defendant
has improperly charged plaintiff with having withdrawn from the subject plan.

Dockets.Justia.com
 Case 3:07-cv-04584-MMC Document 6 Filed 09/06/2007 Page 2 of 2

1 E. & J. Gallo Winery v. Andina Licores S.A., 446 F. 3d 984, 990 (9th Cir. 2006), plaintiff has
2 failed to demonstrate a possibility of irreparable harm or, that the balance of hardships tips
3 sharply in its favor. Rather, plaintiff states in the most general and conclusory fashion that
4 if plaintiff were to make the first challenged quarterly payment, plaintiff might be unable to
5 continue in or expand its business. (See McLeod Decl. ¶ 11.) Moreover, plaintiff has made
6 no showing that it would suffer any harm if it does not make the challenged quarterly
7 payment.2
8 IT IS SO ORDERED.
9
10 Dated: September 5, 2007
MAXINE M. CHESNEY
11 United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
If acceleration of the total amount claimed due is the harm plaintiff seeks to avoid,
27 the Court notes that such possible consequence is unlikely to occur until at least 60 days
have passed from the date plaintiff receives notice from defendant that plaintiff has failed to
28 make a quarterly payment. See 29 U.S.C. § 1399(c)(5).