United States District Court, D. New Mexico
Jennifer A. Noya Jeremy K. Harrison Modrall Sperling Roehl
Harris & Sisk, P.A. Albuquerque, New Mexico Attorneys for
Fletcher Taylorsville, Utah Plaintiff Pro Se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiffs'
Application for Temporary Restraining Order, filed March 7,
2017 (Doc. 15)(“TRO App.”). The Court held a
hearing on March 10, 2017. The primary issue is whether,
pursuant to rule 65(b)(1) of the Federal Rules of Civil
Procedure, the Court should grant Plaintiffs Dine Development
Corporation and Nova Corporation a temporary restraining
order (“TRO”) enjoining pro se Defendant Erin
Fletcher, the Plaintiffs' former employee, from
proceeding with arbitration against the Plaintiffs before the
American Arbitration Association (“AAA”) until
the Court holds a hearing and rules on the Plaintiffs'
Application for Preliminary Injunction, filed January 17,
2017 (Doc. 3)(“PI App.”). For the reasons stated
on the record at the hearing, the Court grants the TRO
Application and enjoins Fletcher from proceeding with
arbitration against Dine Corp. and Nova Corp. before the AAA
until the Court holds a preliminary injunction
(“PI”) hearing on March 20, 2017, and rules on
the Plaintiffs' PI Application.
Corp. and Nova Corp. are corporations organized under the
laws of the Navajo Nation with their principal places of
business in Pennsylvania. See Complaint for
Declaratory and Injunctive Relief ¶¶ 4-5, at 2,
filed January 9, 2017 (Doc. 1)(“Complaint”). Nova
Corp. employed Fletcher, a citizen of New Mexico, as Vice
President of Human Resources from 2014 to 2015, when she
became a Dine Corp. employee “due to corporate
restructuring.” Complaint ¶¶ 36-37, at 5.
Fletcher continued to work for Dine Corp. until June 9, 2016,
see Complaint ¶ 38, at 5, when her employment
was terminated because of corporate restructuring that
“resulted in the elimination of Fletcher's
position, ” PI App. at 4. Following her termination, on
November 30, 2016, Fletcher initiated arbitration against the
Plaintiffs before the AAA, asserting several causes of action
arising from her employment with the Plaintiffs as well as
from the termination of her employment. See
Complaint ¶ 39, at 5.
Plaintiffs initiated this action on January 9, 2017, seeking
declaratory and injunctive relief. See Complaint
¶¶ 49-61, 6-8. Specifically, the Plaintiffs request
(i) “a declaration that any claims arising from or
related to Fletcher's employment are barred by DDC and
NOVA's sovereign immunity”; (ii) “an
injunction prohibiting Fletcher from proceeding with the
arbitration that she filed on or about November 30, 2016 with
the American Arbitration Association”; and (iii)
“an injunction prohibiting Fletcher from asserting any
claims in any forum arising form or related to her employment
with DDC or NOVA.” Complaint at 8. On January 17, 2017,
the Plaintiffs applied for a preliminary injunction
“barring Fletcher from proceeding with her claims
before the AAA pending resolution of DDC and NOVA's
Complaint[.]” PI App. at 1. The Plaintiffs asserted
that, should Fletcher proceed with her claims before the AAA,
“DDC and NOVA will suffer irreparable harm defending
themselves in a forum that lacks jurisdiction over
Fletcher's claims.” PI App. at 1.
March 7, 2017, the Plaintiffs moved for a TRO. See
TRO App. at 1. The Plaintiffs admit that, at the time they
filed the PI Application, they “were not in danger of
imminent harm as the American Arbitration Association (AAA)
had instituted an automatic 60 day stay as a result of the
filing of this lawsuit.” TRO App. at 1. That stay will
now be lifted, they assert, “absent an order from the
Court enjoining Defendant Erin Fletcher from proceeding with
her claim.” TRO App. at 1. The Plaintiffs thus request
that the Court “enter a temporary restraining order
barring Defendant Erin Fletcher from proceeding with her
claim before the AAA.” TRO App. at 1.
reasons stated on the record at the hearing, and for the
reasons articulated below, the Court grants the TRO
REQUIREMENTS FOR PRELIMINARY RELIEF.
requirements for the issuance of a TRO are essentially the
same as those for the issuance of a preliminary injunction.
See 13 J. Moore, Moore's Federal
Practice ¶ 65.36(1), at 65-83 (3d ed. 2004). The
primary difference between a TRO and a preliminary injunction
is that a TRO may issue without notice to the opposing party
and that a TRO is of limited duration. See
Fed.R.Civ.P. 65(b). In both cases, however, injunctive relief
is an “extraordinary remedy, ” and the movant
must demonstrate a “clear and unequivocal right”
to have a request granted. Leviton Mfg. Co., Inc. v.
Nicor, Inc., 2007 WL 505796 (D.N.M.)(Browning,
J.)(citing Greater Yellowstone Coalition v. Flowers,
321 F.3d 1250, 1256 (10th Cir. 2003)). The Supreme Court and
the United States Court of Appeals for the Tenth Circuit have
explained that “[t]he purpose of a preliminary
injunction is merely to preserve the relative positions of
the parties until a trial on the merits can beheld.”
Univ. of Texas v. Camenisch, 451 U.S. 390, 395
(1981). See Keirnan v. Utah Transit Auth., 339 F.3d
1217, 1220 (10th Cir.2003)(“‘In issuing a
preliminary injunction, a court is primarily attempting to
preserve the power to render a meaningful decision on the
merits.'”)(quoting Tri-State Generation &
Transmission Ass'n v. Shoshone River Power, Inc.,
805 F.2d 351, 355 (10th Cir. 1986)).
establish its right to preliminary relief under rule 65(b), a
moving party must demonstrate that “immediate and
irreparable injury, loss, or damage will result” unless
the order is issued. Fed.R.Civ.P. 65(b). A moving party 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
interest.” Winter v. NRDC, Inc., 555 U.S. 7,
20 (2008)(citing Munaf v. Geren, 553 U.S. 674,
689-690 (2008); Amoco Production Co. v. Gambell, 480
U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo,
456 U.S. 305, 311-312 (1982)). The likelihood-of-success and
irreparable-harm factors are “the most critical”
in the analysis. Nken v. Holder, 556 U.S. at 434. It
is insufficient, moreover, that a moving party demonstrate
that there is only a “possibility” of success or
harm. Dine Citizens Against Ruining Our Environment v.
Jewell, 839 F.3d 1276 (10th Cir.
2016)(“Dine”). In Dine, the
United States Court of Appeals for the Tenth circuit held
that a relaxed test for preliminary relief is
“inconsistent with the Supreme Court's recent
decision in Winter v. Natural Resources Defense
Council, ” which “overruled the [United
States Court of Appeals for the] Ninth Circuit's
application of a modified preliminary injunction test under
which plaintiffs . . . could receive a preliminary injunction
based only on a possibility, rather than a likelihood, of
irreparable harm.” Dine, 839 F.3d at 1282
(citing Winter v. NRDC, Inc., 555 U.S. at 22). The
Tenth Circuit concluded that, although the standard overruled
in Winter v. NRDC dealt with the irreparable-harm
factor, “Winter's rationale seems to apply
with equal force” to the likelihood-of-success factor.
Dine, 839 F.3d at 1282. Accordingly, the Tenth
Circuit held that “any modified test which relaxes one
of the prongs for preliminary relief and thus deviates from
the standard test is impermissible.” Dine, 839
F.3d at 1282.
THE PLAINTIFFS ARE ENTITLED TO A TRO.
detailed below, the Court concludes that the Plaintiffs have
met all four requirements for preliminary relief.
Accordingly, the Court will grant the TRO Application.
The Plaintiffs are Likely to ...