2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 FLINT CPS INKS NORTH AMERICA, Case No. 3:20-cv-00208-MMD-CLB LLC, 7 ORDER Plaintiff, 8 v. 9 TREND OFFSET PRINTING SERVICES, INC. and DOES 1 through 10, inclusive, 10 Defendants. 11 12 Plaintiff Flint CPS Inks North America, LLC as successor in interest to Flint Group 13 North America Corporation (“Flint Group”) has filed a motion for writ of possession 14 pursuant to NRS § 31.840, et seq. and Fed. R. Civ. P. 64 and seeks emergency relief 15 (“Motion”) (ECF No. 3.) As to the latter, Flint Group specifically requests that the Court 16 issues an ex parte temporary restraining order (“TRO”) restraining Defendant Trend Offset 17 Printing Services, Inc. (“Trend Offset”) from using, dissipating, transferring, or otherwise 18 disposing of printing ink and related materials (“Consigned Goods”) which Flint Group 19 alleges it owns.1 (Id. at 2, 10–11.) The Court finds that Flint Group fails to meet the heavy 20 burden of showing that it is entitled to the extreme relief of an ex parte TRO and will 21 therefore deny its request for such. 22 Federal Rule of Civil Procedure 65 governs ex parte TROs, and requires that a 23 motion for a TRO without notice include “specific facts in an affidavit or a verified complaint 24 [that] clearly show that immediate and irreparable injury, loss, or damage will result to the 25 movant before the adverse party can be heard in opposition,” as well as written certification 26 from the movant's attorney stating “any efforts made to give notice and the reasons why it 27 /// 28 1Perhaps by error, the emergency relief is requested pursuant to both

(b) and NRS § 31.859. (ECF No. 3 at 2, 10–11.) 2 standard applicable to preliminary injunctions. See Stuhlbarg Int’l Sales Co. v. John D. 3 Brush & Co.,

, 839 n.7 (9th Cir. 2001). A TRO may be issued if a plaintiff 4 establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in 5 the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) 6 that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc.,

(2008). The Ninth Circuit has also held that “‘serious questions going to the merits’ 8 and a hardship balance that tips sharply toward the plaintiff can support issuance of an 9 injunction, assuming the other two elements of the Winter test are also met.” Alliance for 10 the Wild Rockies v. Cottrell,

(9th Cir. 2011). 11 Flint Group has not satisfied the requirements for a TRO. Here, Flint Group 12 contends that a TRO is necessary based on the language in NRS § 31.859. (ECF No. 3 13 at 10.) That section is titled: “Temporary restraining order in lieu of immediate issue of writ 14 of possession.” See NRS § 31.859. It specifically states that a “court may issue such 15 temporary restraining orders directed to the defendant prohibiting such acts with respect 16 to the property as may appear necessary for the preservation of rights of the parties and 17 the status of the property.” Id. Nothing in this section suggests that Flint Group is excused 18 from demonstrating that a TRO is necessary per a showing of the Winters factors, which 19 Flint Group completely fails to argue here. 20 To be sure, applying the Winter factors, it is not clear what irreparable harm, if any, 21 would occur absent a TRO. In fact, it appears that compensatory relief would ultimately 22 be adequate in this action—as highly suggested by the admitted filing of a similar, and 23 apparently principal, action in in the United States District Court for the Central District of 24 California requesting such relief (see, e.g., ECF No. 3 at 4 n.1; ECF No. 1 at 4 n.2). See 25 Flint CPS Inks N. Am., LLC v. Trend Offset Printing Servs., Inc., Case No. 8:20-cv-00651 26 (C.D. Cal., filed April 2, 2020). Of course, the adequacy of compensatory relief weighs 27 heavily against a finding of irreparable harm. See Sampson v. Murray,

, 90 28 (1974). There is also no actual evidence that Trend Offset has specifically threatened to 1 || use, dissipate, transfer, or otherwise dispose of the Consigned Goods as the basis for the 2 || TRO suggests. The letter from Trend Offset’s counsel, which Flint Group appears to find 3 || threatening, merely purports to bar Flint Group from entering Trend Offset property to 4 || retrieve the Consigned Goods in the interim and under the threat of potential civil and/or 5 || criminal penalty. (See ECF No. 1-8.) 6 Based on the Motion, it is also unclear whether Flint Group will be able to satisfy 7 || the other Winter factors: it has not demonstrated a likelihood of success on its relevant 8 || claim and delivery allegations (ECF No. 1 at 8—-9),? or that the equities and the public 9 || interest would favor a TRO. See Winter,

. Because Flint Group has not 10 || established the Winter factors, it has not shown it is entitled to a TRO, let alone without 11 || notice to Trend Offset. 12 It is therefore ordered that Flint Group’s motion for a temporary restraining order 13 || (ECF No. 3) is denied. The Court defers a ruling on the writ of possession until that issue 14 || is fully briefed. 15 DATED THIS 7" day of April 2020. 16 17 A 18 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 19 20 Particularly concerning for the Court is whether Flint Group would be able to establish NRS § 31.850(1)’s requisite showings in light of the disjunctive language in the 21 || contract that Flint Group relies on to argue that it owns the Consigned Goods. Specifically, the contract provides: 22 Ownership. Flint Group shall continue to be the owner of the Consigned 23 Goods and hold legal title to same until such time as the earlier of when Purchaser uses the Consigned Goods or pays Flint Group in full for them. 24 Purchaser shall not pledge or grant any security interest in or to the Consigned Goods unless and until they have been purchased by Purchaser. 25 (ECF No. 1-3 at 3 §1.3(b) (emphasis added).) This language suggests that Trend Offset 26 || may very well own the Consigned Goods, so long as it uses it, and then all that is left is for Flint Group to be compensated for such use. But NRS § 31.850(1) specifically requires 27 || that Flint Group must show that it is the owner of the property claimed or that it is lawfully entitled to the possession of it. However, the Court is not fully convinced that this showing 28 || is likely met in light of the contractual language and the uncertainty of what remains of the Consigned Goods.