Barber Preliminary Injunction Appeal

C.A. No. 16-16688 _____________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________________ CARA BARBER, et al.

Plaintiff-Appellant vs.

OHANA MILITARY COMMUNITIES, et al., Defendants – Appellees.

On Appeal from the United States District Court for the District of Hawaii

Hon. Helen S. Gillmor Case No. 14-00217 HG-KSC

APPELLANT’S OPENING BRIEF

ON PRELIMINARY INJUNCTION APPEAL

KYLE SMITH LYNCH HOPPER SMITH, LLP 970 N. Kalaheo, Suite A301 Kailua, HI 96734 T: (808) 791-9555 F: (808) 791-9556 [email protected]

TERRY REVERE REVERE & ASSOCIATES 970 N. Kalaheo, Suite A301 Kailua, HI 96734 T: (808) 791-9550 F: (808) 791-955 [email protected]

Attorneys for Plaintiff-Appellant

CARA BARBER

Case: 16-16688, 10/20/2016, ID: 10168465, DktEntry: 9-1, Page 1 of 52(1 of 64)

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TABLE OF CONTENTS I. INTRODUCTION ........................................................................................ 1 II. JURISDICTION ........................................................................................... 6 III. ISSUES PRESENTED FOR REVIEW ........................................................ 7 IV. ADDENDUM ............................................................................................... 8 V. STATEMENT OF THE CASE .................................................................... 8

A. The Underlying MCBH Litigation ...................................................... 8

B. The Settlement and Dismissal ............................................................. 9

C. Forest City’s Motion for Preliminary Injunction and the Court’s Evidentiary Hearing and Order ................................ 10

VI. SUMMARY OF ARGUMENT .................................................................. 15 VII. STANDARD OF REVIEW ........................................................................ 16 VIII. ARGUMENT .............................................................................................. 18

A. The District Court Erred By Granting A Preliminary Injunction When It Lacked Jurisdiction to Enforce the Parties’ Settlement after August 25, 2016 ............................................................................................. 18

1. Jurisdiction Must Exist Before an Injunction Can Issue .............. 18

2. Breach of a Settlement Is a Substantive Claim for Breach of Contract Under Hawaii Law That Must Be Resolved by a Jury Before Specific Performance is Appropriate ................................ 21

B. The District Court’s “Specific Performance” and “Inherent Jurisdiction” Arguments Contradict Civil Procedure and Supreme Court Precedent ................................................................................. 26

1. The District Court’s Comparison of Forest City’s Motion for Preliminary Injunction to “An Action” for Specific Performance Does Not Create or Confer Jurisdiction ...................................... 26


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2. The District Court’s Assertion of “Inherent Jurisdiction” over the Settlement is Also Not Proper ...................................................... 28

C. The District Court’s Refusal to Allow a Jury, Counterclaims, Affirmative Defenses, and Discovery Denies Procedural Due Process to Barber ............................................................................................ 31

D. The District Court’s Wrongfully Concludes: a) Irreparable Harm Can Be Presumed Without Evidence of Any Connection Between Mediation Demands by Military Families and Challenged Speech By Barber; and b) Forest City Will Likely Succeed on the Merits When No Action Has Been Asserted ........................................................... 36

1. The District Court’s Finding of Irreparable Harm is in Error Because Forest City Presented No Evidence that Any Mediation Demand Received by Forest City Was Because of Any Post by Barber ........................................................................................... 38

2. The District Court’s Finding of Likely Success on the Merits Is Error because No Claim or Action Exists Against Barber ........... 43

IV. CONCLUSION .......................................................................................... 44


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TABLE OF AUTHORITIES CASES Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (1989) .................................. 33 Amantiad v. Odum, 90 Hawaii 152, 167 (1999) ................................................ 5, 22 Arata v. Nu Skin Intern., Inc. 96 F.3d 1265 (9th Cir. 1996) .................................. 16 Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943 (9th Cir. 2008) ...... 17 Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360, 82 S.Ct. 780, 784, 7 L.Ed.2d 798 (1962) .................................................................... 23 Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) ............................................................................. 32, 35 Beamer v. Nishiki, 66 Haw. 572, 580, 670 P.2d 1264, 1271 (1983) ...................... 25 Biltmore Bank of Arizona v. First Nat. Mortg. Sources, L.L.C., No. CV-07-936-PHX-LOA, 2008 WL 564833, at *6 (D. Ariz. Feb. 26, 2008) .............................. 25 Bouman v. RBC Mortg.Co., 2007 WL 1432024 (Dist. Ct. Oregon 2007) ............. 31 Brown v. San Diego State Univ. Found., 2015 WL 454857, * (S.D.Cal. 2015) .... 34 Calli v. Near, 829 F.2d 888, 890 (9th Cir. 1987) .................................................... 27 Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984) ........ 25 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................. 18 Cole v. Spaeth, 2007 WL 196573, *1 (E. Dist. Cal. 2007) .............................. 19, 20 Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962) .................................... 34. 35 Dollar Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165, 170 (9th Cir. 1989) ............................................................... 35 Dow Chemical Co. v. Calderon, 422 F.3d 827, 830 (9th Cir. 2005) ..................... 17 ET Trading, Ltd v. ClearPlex Direct, LLC, No. 15-CV-00426-LHK, 2015 WL 913911, at *3 (N.D. Cal. Mar. 2, 2015) ................................................................. 42 FDIC v. Air Fla. Sys., Inc. 822 F.2d 833, 840 (9th Cir.1987) ............................... 25 Gallagher v. Chavalas, 48 Cal.App.2d 52, 58, 119 P.2d 408 (1941) .................... 25 Harada v. Burns, 50 Haw. 528, 445 P.2d 376 (1968) ............................................ 35 Hagestad v. Tragesser, 49 F.3d 1430, 1432–33 (9th Cir.1995) ............................. 16


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Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 461 (5th Cir. 1995) ........ 23 Jeski v. American Express Co., 147 Ariz. 19, 22, 708 P.2d 110, 113 (Ariz.Ct.App.1985) ................................................................................................ 25 Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir.2006) ....................... 18 Kaiman Realty v. Carmichael, 2 Haw. App. 499, 504 (1981) ............................... 20 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) ..................................................... 4, 5, 18, 27, 29, 30, 33 Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536 (9th Cir. 2011) ................... 24 Manneh v. Inverness Med. Innovations, Inc., No. 08–cv–653, 2011 WL 662765, at *1 (S.D.Cal. Feb. 11, 2011) ................................................................................... 34 Maidman v. Jewish Publications, Inc., 54 Cal.2d 643, 355 P.2d 265, 269, 7 Cal.Rptr. 617, 621 (1960) ............................................................................ 25 Marsh v. Vegianelli, No. 1:09CV01243-GSAPC, 2010 WL 653759 (E.D. Cal. Feb. 17, 2010) ....................................................................... 18, 20 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ................................................. 37 McDermott v. Ampersand Pub., LLC., 593 F.3d 950, 957 (9th Cir. 2010) ........... 38 Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007) .......................................... 17 Moran v. Guerreiro, 97 Hawai`i 354, 371, 37 P.3d 603, 620 (Ct. App. 2001) ..... 23 O’Conner v. Colvin, 70 F.3rd 530, 532 (9th Cir. 1995) .......................................... 19, Overstreet v. United Broth. Of Carpenters and Joiners of America, Local Union No. 1506, 409 F.3d 1199, 1208 n. 13 (9th Cir. 2005) ............................................ 38 Pauma Band of Luiseno Mission Indiance of Pauma and Uima Reservation v. California, 813 F.3d 1155, 1167 (9th Cir. 2015) .......................................... 23 Ross v. Bernhard, 396 U.S. 531 (1970) ................................................................. 35 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) ... 17 Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002) ........................................... 17 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) .............. 17 Sierra Forest Legacy v. Rey, 691 F.Supp.2d 1204, 1207 (E.D. Cal. 2010) ........... 37 Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105 (1934) ................. 31 State Farm Fire & Cas. Co. v. Pac. Rent–All, Inc., 90 Hawai‘i 315 (1999) ......... 22


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Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) .... 17 United States v. Hinkson, 585 F.3d 1247 (9th Cir.2009) ....................................... 17 Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir. 1963) ............... 3, 19 TNT Marketing, Inc. v. Agresti, 796 F.2d 276 (1986) ...................................... 29, 30 Windward Partners v. Lopes, 3 Haw.App. 30, 32, 640 P.2d 872 (1982) .............. 24 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ... 19, 37, 38, 42 Wong v. Cayetano, 111 Hawai‘i 462, 481, 143 P.3d 1, 20 (2006) ........................ 22 Zepeda v. United States Immigration Service, 753 F.2d 719 (9th Cir.1985) ......... 19 STATUTES/RULES Federal Rules of Civil Procedure § 2 ........................................................................ 4 Federal Rules of Civil Procedure § 3 ........................................................................ 4 Federal Rules of Civil Procedure § 65 ...................................................................... 4 28 U.S.C. § 1292(a)(1) ............................................................................................. 6 Fed. R. App. Proc. R. 41(a)(1)(A) ........................................................................... 6 OTHER AUTHORITIES Restatement (Second) of Contracts §357 ................................................................ 23 81A C.J.S. Specific Performance §4 (2015) ............................................................... Hawaii Civil Jury Instruction §15.8 ........................................................................ 24 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.21, at 38–192 (2d ed. 1979) .................................................................. 33 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §§ 2305, 2306, & 2338 (1971). ............................................................................................. 34 Charles A. Wright & Arthur R. Miller, 11A Federal Practice and Procedure, Grounds for Granting or Denying a Preliminary Injunction – Irreparable Harm, §§ 2498.1 (3d ed., April 2016 update) ......................................................................... 41


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I. INTRODUCTION

This appeal challenges the jurisdiction and justifications of a preliminary

injunction (“Order”) issued by the district court of Hawaii on August 26, 2016,

related to the alleged breach of confidentiality of a settlement agreement by Plaintiff-

Appellant Cara Barber (“Barber”). ER 4-44. This dispute arises in the context of a

class action lawsuit filed by Barber and three other military families in April 2014

against Defendants Ohana Military Communities, LLC, and Forest City Residential

Management, Inc., (collectively, “Forest City”) for claims related to Forest City’s

failure to disclose wide-spread chemical contamination in residential neighborhoods

to military families renting homes on Marine Corps Base Hawaii (“MCBH”).

In February 2016, Forest City settled this litigation before trial with Barber

and the other named plaintiffs on an individual, non-class, basis. The action was

thereafter dismissed pursuant to a negotiated stipulation (“Dismissal”). ER 50-52.

Although the original stipulation proposed open-ended jurisdiction upon the district

court to enforce the settlement, the district court wrote the parties on February 22,

2016, to state that the “Court will not indefinitely retain jurisdiction over the

action to enforce the Settlement Agreement and Release. If the Parties decide that

retention of jurisdiction is appropriate, the Court requires a precise date upon

which retained jurisdiction over this matter would expire.” ER 45-49


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The parties therefore inserted “a precise date upon which retained jurisdiction

would expire.” The precise date selected was August 25, 2016, and the language of

the negotiated Dismissal was changed to only confer jurisdiction “for six months

(i.e., until August 25, 2016) to resolve any disputes or actions related to the

Settlement Agreement and Release between the parties dated January 5, 2016.”). ER

51 (emphasis added).

On June 15, 2015, Forest City filed a Motion for Preliminary Injunction and

Order to Show Cause alleging that Barber had breached the settlement agreement

by violating confidentiality and engaging in defamation by writing about MCBH

contamination on Facebook and her blog to military families.1 Forest City’s motion

alleges that Barber’s online speech resulted in “irreparable harm” because it caused

other military families to demand mediation with Forest City for their own claims

related to chemical contamination at MCBH despite that hundreds of military

families were already aware of the class action and had contacted Plaintiffs’ counsel.

Thus, after opposing plaintiffs’ efforts to address chemical contamination at MCBH

on a class-wide basis, Forest City settled with the named plaintiffs and then blamed

Barber when similarly-situated military families predictably asked to mediate.

1 Defendants Ohana Military Communities, LLC, and Forest City Residential Management, Inc.’s Redacted Motion for Preliminary Injunction and Order to Show Cause Re Violations of the Parties’ Settlement Agreement, [ECF 291].


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After filing its motion for preliminary injunction, Forest City missed the six-

month window under the Dismissal to bring an action for breach of the settlement

before August 25, 2016, as required under substantive Hawaii law, nor did it seek to

vacate the settlement and reopen the underlying litigation. Thus, as no “action” was

timely brought within six months, the district court’s jurisdiction to enforce the

settlement expired on “the precise date” of August 25, 2016.

When Barber challenged jurisdiction in opposition to Forest City’s motion for

preliminary injunction, however, the district court scheduled an evidentiary hearing

and rejected Barber’s jurisdictional challenge claiming that it possessed jurisdiction

because Forest City’s motion had been filed. Thereafter, in evidentiary hearings the

district court repeatedly stated that it intended to consider a permanent injunction

and damages against Barber without benefit of a jury. By assuming jurisdiction and

rejecting Barber’s right to a jury, Barber was denied procedural Due Process

protections such as the right to file counterclaims, allege affirmative defenses, and

conduct discovery to defend against Forest City’s breach of contract and defamation

allegations.

The purpose of a preliminary injunction is to preserve the status quo until the

merits of an action may be ultimately decided at trial…not prejudice a party’s right


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to due process and a jury by making ultimate findings of fact on underlying claims.2

Contrary to the district court’s comments, a motion for preliminary injunction does

not initiate an “action” under Federal Rules of Civil Procedure 2 or 3,3 nor does a

motion confer federal jurisdiction. As the Supreme Court explains, “[e]nforcement

of the settlement agreement…whether through award of damages or decree of

specific performance, is more than just a continuation or renewal of the dismissed

suit, and hence requires its own basis for jurisdiction. Kokkonen v. Guardian Life

Ins. Co. of America, 511 U.S. 375, 381-82 (1994).

Here, the district court based its assertion of jurisdiction upon: a) the inherent

power of the court to enforce settlements; and b) the agreement of the parties. Under

2 See, e.g., Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963) (“It is so well settled as not to require citation of authority that the usual function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits. The hearing is not to be transformed into a trial of the merits of the action upon affidavits, and it is not usually proper to grant the moving party the full relief to which he might be entitled if successful at the conclusion of a trial. This is particularly true where the relief afforded, rather than preserving the status quo, completely changes it. Yet this is what Judge Clarke's order does, and it is based upon findings that purport to determine that Tanner breached the contracts, that its breaches could not be cured, and that Tanner has no substantial defense to the action. These are matters to be determined at trial, not upon the motion for preliminary injunction.”) (emphasis added); see also FED. R. CIV. P. 65(a)(2)(“Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial.”) 3 FED. R. CIV. P. 2 (“There is [only] one form of action – the civil action.”); FED. R. CIV. P. 3 (“A civil action is commenced by filing a complaint with the Court.”).


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Kokkonen, however, the district court lacks “inherent authority” to enforce

settlements.4 And under the Dismissal, a “precise date” was selected upon which

federal jurisdiction expired. Both bases therefore fail as a matter of law.

Importantly, under Hawaii law, breach of settlement is a substantive claim for

breach of contract that belongs to the jury.5 Thus, even assuming arguendo that

Forest City’s motion for preliminary injunction created federal jurisdiction over

Forest City’s unfiled action and untimely claims, Barber is entitled to procedural

Due Process to assert counterclaims, allege affirmative defenses, obtain discovery,

and have such questions of fact resolved by a jury. Additionally, the district court’s

Order should be reversed because: i) irreparable harm cannot be presumed when no

evidence exists that a single mediation demand was caused by any comment by

Barber; and ii) the likelihood of success on the merits cannot be determined no action

or claim exists against Barber in any forum.

4 Kokkonen, 511 U.S. at 281 (“We think that the power asked for here is quite remote from what courts require in order to perform their functions.”). 5 Amantiad v. Odum, 90 Hawaii 152, 167 (1999); see also Kokkonen, 511 U.S. at 381 (“The short of the matter is this: The suit involves a claim for breach of a contract, part of the consideration for which was dismissal of an earlier federal suit. No federal statute makes that connection (if it constitutionally could) the basis for federal-court jurisdiction over the contract dispute. The facts to be determined with regard to such alleged breaches of contract are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business.”).


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Accordingly, Barber appeals the district court’s: 1) assertion of federal

jurisdiction over Forest City’s motion for preliminary injunction; 2) denial of

procedural Due Process to Barber to assert counterclaims, allege affirmative

defenses, and have a jury resolve disputed questions of fact; 3) finding that the

possibility of irreparable harm justifies an injunction; and 4) conclusion that success

on the merits is likely when Forest City has brought no claim or action against Barber

in any forum.

II. JURISDICTION

This is an appeal from the district court’s August 26, 2016, preliminary

injunction prohibiting Barber from engaging in online Facebook communications

that allegedly breach the parties’ settlement. ER 4-44. This Court has subject-matter

jurisdiction to review the Order, an immediately appealable interlocutory order,

under 28 U.S.C. §1292(a)(1). Barber’s appeal is timely under Fed. R. App. Proc. R.

4(a)(1)(A) as notice of appeal was filed by Barber on September 22, 2016, which is

within 30 days of entry of the Court’s preliminary injunction order on August 26,

2016. ER 1-3. Barber contends that the district court lacks federal jurisdiction over

Forest City’s motion for preliminary injunction as the underlying action was

dismissed after the settlement and district court jurisdiction under the negotiated

Dismissal to “resolve any disputes or actions” expired on August 25, 2016.


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III. ISSUES PRESENTED FOR REVIEW

1. Whether the district court reversibly erred when it asserted federal jurisdiction

over and granted Forest City’s motion for preliminary injunction even though

jurisdiction to enforce the Settlement Agreement expired on August 25, 2016,

pursuant to the parties’ negotiated Dismissal?

2. Whether the district court reversibly erred by denying a jury to Barber to

resolve substantive questions of fact related to Forest City’s claims for breach

of contract and defamation that necessarily underpin Forest City’s request for

injunctive relief including Barber’s counterclaims, affirmative defenses, and

legal damages?

3. Whether the district court reversibly erred by granting a preliminary

injunction based upon the presumption of possible harm rather than “clear

evidence” of the probability of irreparable harm as required by Supreme Court

precedent given the absolute dearth of any evidence that any mediation

demand by any person was the result of any comment by Barber?

4. Whether the district court reversibly erred in finding a likelihood of success

on the merits of an underlying action when no action and no claims exist

against Barber in any forum?


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IV. ADDENDUM

Attached hereto is the separate addendum containing legal authorities required

by Circuit Rule 28-2.7.

V. STATEMENT OF THE CASE

A. The Underlying MCBH Litigation

In April 2014, Plaintiffs Cara Barber, Melissa Streeter, Melissa Jones, and

Katie Eckroth filed a class action complaint in the First Circuit Court of Hawaii

related to Forest City’s failure to disclose widespread pesticide contamination at

Marine Corps Base Hawaii (MCBH) to military families (the “MCBH Litigation”)

[ECF 1]. After filing in Hawaii state Court, Forest City removed the MCBH

Litigation to federal court under the Class Action Fairness Act [ECF1].

After substantial expert and fact discovery, plaintiffs filed their Renewed

Motion for Class Certification of Non-UDAP Claims [ECF 211] on August 14,

2015.6 On November 13, 2015, Magistrate Judge Kevin Chang heard plaintiffs’

motion for certification, and on November 20, 2015, Judge Chang issued a Finding

and Recommendation (“F&R”) to deny certification for plaintiffs’ non-UDAP

claims [ECF 253]. Although the F&R found that plaintiffs satisfied all of the

requirements of Rule 23(a) and agreed that certification of plaintiffs’ claims as a

6 “UDAP” refers to Unfair and Deceptive Trade Practices under Hawaii Revised Statute §480-2.


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class action would be the superior method of resolving this litigation under FRCP

Rule 23(b)(3), the F&R nevertheless recommended denial of certification under the

predominance prong of Rule 23(b)(3) because of: a) the “potential need” for

individualized proof due to alleged variations between different MCBH

neighborhoods; and b) Plaintiffs’ “damage calculations will be highly

individualized.” Id. On December 4, 2015, Plaintiffs filed an objection to the F&R

pointing out that Judge Chang’s individualized analysis, particularly with respect to

damages, contradicted relevant Ninth Circuit precedent that “individualized

damages” were insufficient reason to deny certification [ECF 258]. While this

objection to the F&R was pending, the parties negotiated a settlement with the

assistance of Judge Chang that was finalized in February 2016.

B. The Settlement and Dismissal

After the settlement was finalized, the MCBH Litigation was dismissed

pursuant to the negotiated Dismissal. ER 50-52. Although the original stipulation

proposed open-ended jurisdiction for the district court to enforce the settlement, the

district court wrote on February 22, 2016, that the “Court will not indefinitely

retain jurisdiction over the action to enforce the Settlement Agreement and

Release. If the Parties decide that retention of jurisdiction is appropriate, the Court

requires a precise date upon which retained jurisdiction over this matter would


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expire.”7 The parties therefore inserted the “precise date upon which retained

jurisdiction would expire” of August 25, 2016. ER 50-52. Thus, under the specific

terms of the negotiated Dismissal, the district court’s jurisdiction expired on August

25, 2016 to resolve any disputes or actions related to the Settlement Agreement.

Id. (emphasis added).

C. Forest City’s Motion for Preliminary Injunction and the District Court’s Evidentiary Hearing and Order On June 15, 2015, Forest City filed a motion for preliminary injunction and

Order to Show Cause alleging that Barber had breached the parties’ settlement

agreement by violating confidentiality and engaging in defamation by writing about

MCBH contamination on Facebook and her blog.8 In response to Forest City’s

motion, Barber asserted that Forest City’s motion should be brought in state court

because the district court’s jurisdiction would expire on August 25, 2016:

As this Court is aware, the federal court is one of limited jurisdiction. Here, under the terms of the Order of Dismissal, the parties agreed this Court should retain jurisdiction for six months (i.e., until August 25, 2016) to resolve disputes or actions related to the Agreement. [ECF 271-1] [Forest City’s] motion, however, seeks to enjoin Mrs. Barber’s speech in advance of bringing claims against Mrs. Barber for breach of the Agreement and/or for disparagement. Such a lawsuit will require a new

7 ER 45-49, February 22, 2016, Correspondence from Kelly Lovett, Judicial Asst. to U.S. District Judge Helene Gillmor to Randall Whattoff, Esq., and Kyle Smith, Esq., (emphasis added) 8 Defendants Ohana Military Communities, LLC, and Forest City Residential Management, Inc.’s Motion for Preliminary Injunction and Order to Show Cause Re: Violations of the Parties’ Settlement Agreement [ECF 287].


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complaint, extensive discovery to resolve the disputed fact related to claims for negligence and defamation, and cannot be accomplished within the one month that remains under this Court’s jurisdiction. Further, this Court’s original exercise of jurisdiction was predicated under the Class Action Fairness Act, which is no longer at issue and will not extend jurisdiction over [Forest City’s] threatened claims. [ECF 1] Accordingly, Plaintiffs respectfully suggest that this mandatory injunction for an order against Mrs. Barber in advance of litigation would more appropriately be brought in state court where such an action must be maintained.9

Although the district court may have arguably possessed jurisdiction had “an action”

been filed before August 25, 2016, that question is irrelevant as Forest City failed to

file any action before the district court’s jurisdiction expired. During its initial

hearing on July 25, 2016, however, the district court rejected Barber’s jurisdictional

challenge claiming that Forest City’s motion created jurisdiction and allowed the

Court to “reopen” the underlying action:

THE COURT: Thank you. Let's handle some of the preliminary matters. One thing that I want to be clear about, and maybe there's no confusion, but I did get a sense that there might be some confusion. The six months of retained jurisdiction means that, during that period of time, issues with respect to the settlement could be brought to the Court's attention and the case would be reopened. There is no limit on the amount of time the Court would keep the case open. The six months was only a window in which either party could point out something they were concerned about. So there isn't any limit in terms of dealing with questions about this. The case is now back before the Court.10

9 Barber’s Opposition to Forest City’s Motion for Preliminary Injunction at 14 [ECF 299]. 10 ER 54 at 13:7-18, July 25, 2016, Initial Hearing Transcript (emphasis added); see also ER 66 at 5:8-21, August 3, 2016, Day 1 Evidentiary Hearing Transcript (“Now, there are just a few things I want to settle right up front. The plaintiffs have raised questions about the jurisdiction of the court, and I thought I had put those to rest, but, apparently, in the opposition it's there. And the court, when it has jurisdiction to


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At the same, however, the district court made clear it did not really intend to re-open

the underlying action because the motion for preliminary injunction was a separate

inquiry.11

Thereafter, evidentiary hearings were held wherein the district court reiterated

that it possessed total control over the disposition of Forest City’s motion and that

Barber had no right to a jury for any counterclaim or defense she intended to assert.

Instead, the Court indicated its intent to make final findings of fact and rulings at the

conclusion of its preliminary injunction hearing on both injunctive relief and

damages without allowing Barber any opportunity to assert affirmative defenses,

allege counterclaims, conduct discovery, or have questions of fact resolved by a jury:

reopen, has jurisdiction with respect to the settlement, and in this case we made it for six months. Once jurisdiction is reopened there is no limit on the jurisdiction, and that is something that is very basic and I really don't think it's necessary to spend more time on it. There is no point at which, if the motion is made and there is a claim that the settlement is somehow not being completed in the manner that it was supposed to be and the court reopens it, we are back to jurisdiction of the court, and it ends when the issue is decided, not at some preconceived date.”). 11 ER 62 at 26:9-21 (“THE COURT: You know, speaking about all of this is getting us off track because the question is statements have been made that the defendants believe are in violation of the two portions of the settlement agreement. And so we are going to have a hearing on that. We are going to have an evidentiary hearing, and your arguing for the case that you agreed to settle is not really going to be dispositive with respect to the very narrow issue that we have, whether or not she has said something that is either a violation of the portion of the agreement with respect to the terms of the settlement agreement or whether she said something that is disparaging or the long laundry list of defamation, liable, slander, reckless or intentionally untrue.”)(emphasis added).


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Day Two of Preliminary Injunction Hearing:

MR. SMITH: And just so we're clear, Your Honor, I don't have an objection to -- I'm not exactly sure if this ever ends up later to be trial exhibits, and so for the purpose of this motion, I don't object to the authenticity of Exhibit O. But I would preserve my objections to relevance, I guess, at the time of trial if this – THE COURT: Okay. I'm not sure -- you know, this is -- we're not going to take the same – MR. SMITH: Yes. THE COURT: -- evidence again. This is a preliminary injunction. The other is a permanent injunction. And we will use the exhibits and the testimony from here in making the final decision with respect to the permanent injunction and sanctions. And so there really isn't a distinction between the later, full hearing because there would really be no point in doing it twice. MR. SMITH: Your Honor, your point's taken for the purpose of the injunctive hearing, but with respect to the extent these issues go before a jury- THE COURT: They're not going before a jury. They're not going before a jury. MR. SMITH: Breach of the settlement agreement? I definitely – THE COURT: That would be -- that would be the judge's decision. MR. SMITH: Uhm, Your Honor, I understand the court's position. As you know, we still believe that that is appropriately before the jury for the question of defamation and questions of fact and we've not waived Ms. Barber's right to a jury. I think my objection is already on the record. THE COURT: Okay. Let's just leave it at that for now. We can deal with it later.12

Day Three of Preliminary Injunction Hearing:

MR. SMITH: The objection is that they didn't ask Ms. Barber about any of them, and so they were not offered into evidence at all in the evidentiary

12 ER 74-75 at 42:16-43:23, Day 2 Transcript (emphasis added).


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hearing, and I object to admitting in evidence that she wasn't questioned on, particularly for the purpose of if this later goes in front of a jury – THE COURT: You, Mr. Smith, I don't understand your talking about a jury. I have explained to you that this is a proceeding with respect to the Court having jurisdiction with respect to whether or not there was a violation of the settlement agreement. There's no jury involved here, there's no jury. This is what the Court does when there is a question about the settlement. So unless you -- if you want to give me a legal memorandum that changes my understanding, I am interested in that, but skeptical. MR. SMITH: Yes, Your Honor.13

Day Five of Preliminary Injunction Hearing:

MR. SMITH: I do, Your Honor. And I'm going to say this, and I am not saying it at all to make you upset, so please just for the record, please know I've made it, we preserve our objection, I do intend to brief the issue with respect to this whole question of fact, question of law, the equity, and also the role of the jury in this underlying [action] – but by engaging in this discussion, I'm not waiving that objection. I understand the Court's role with respect to the preliminary injunction and also if there were a permanent injunction proceeding. But it's our clear position that there is an intervening findings of fact that have to be made by the jury. THE COURT: I don't know where you are getting that, but you're certainly able to brief that and put it before me.14

13 ER 80 at 6:5-21, Day 3 Transcript; see also ER 82 at 58:5-21. 14 ER 86-87 at 58:21-59:9, Day 5 Transcript (emphasis added).


15

Order Granting, In Part, Defendants’ Motion for Preliminary Injunction: Finally, in its Order, the district court again reiterated that it possessed

unlimited jurisdiction and that Barber had no right to a jury:

Here, Defendants have not filed a complaint for breach of contract. The proceedings before the Court seek to enforce the terms of the Parties’ Settlement Agreement, which is analogous to an action for specific performance of a contract. The parties are not entitled to a jury trial in proceedings to enforce a settlement agreement, even when there are factual disputes relating to the settlement agreement.15

VI. SUMMARY OF ARGUMENT

Barber asks that the district court’s preliminary injunction order be reversed

and remanded to state court so that the substantive claims underpinning Forest City’s

motion can be resolved with procedural due process. While the district court

characterized its Order simply as “enforcement” of a settlement, Forest City’s

allegations go beyond “enforcement” issues like payment of settlement funds on

time. Instead, Forest City alleges Barber has breached the settlement by violating

confidentiality and defaming Forest City, which requires resolution of substantive

claims and questions of fact that belong to a jury. For precisely such reasons, the

parties negotiated and agreed to “a precise date upon which retained jurisdiction over

this matter would expire” to avoid uncertain and unending federal jurisdiction over

substantive claims in the future as contemplated under Kokkonen.

15 ER 16, Order.


16

This result: a) avoids an unjustified assertion of federal jurisdiction; b) causes

Forest City no harm as it will preserve all claims and remedies; and c) protects

Barber’s procedural due process right to bring counterclaims, assert affirmative

defenses, conduct discovery, and most importantly have disputed questions of fact

resolved by a jury. Therefore, Barber respectfully requests this Court to reverse the

district court’s Order with directions to dismiss Forest City’s motion for lack of

jurisdiction because:

1. The district court erred by assuming federal jurisdiction over a state court action in contradiction of Supreme Court precedent and the parties’ stipulated Dismissal;

2. The district court erred by denying procedural Due Process by usurping the Jury and preventing Barber from asserting counterclaims, alleging affirmative defenses, and conducting discovery to support her counterclaims and defenses; and

3. The district court wrongfully concluded: a) that irreparable harm “may” be presumed without evidence of any link between mediation demands and speech by Barber; and b) Forest City will likely Succeed on the Merits of an Action that Has Never Been Brought.

VII. STANDARD OF REVIEW

Whether a district court has jurisdiction to enforce a settlement agreement is

a question of law subject to de novo review.16 Likewise, a district court’s

16 Hagestad v. Tragesser, 49 F.3d 1430, 1432–33 (9th Cir.1995); see also Arata v. Nu Skin Intern., Inc. 96 F.3d 1265, 1268 (9th Cir. 1996).


17

determination regarding personal jurisdiction is reviewed de novo;17 as well as a

district court’s decision whether subject matter jurisdiction exists.18 While a district

court’s grant or denial of a preliminary injunction is reviewed as part of a two-part

test for abuse of discretion,19 a district court's interpretation of underlying legal

principles is subject to de novo review and a district court abuses its discretion when

it makes an error of law.20 Further, “if the district court’s application of fact to law

requires reference to ‘the values that animate legal principles,’” review is also de

novo, “as if it were a legal finding.”21

Here, Barber’s challenge to the district court’s: a) presumption of jurisdiction;

and b) denial of procedural Due Process rights to a jury to consider counterclaims,

affirmative defenses, and resolve disputed questions of fact are reviewed de novo.

Barber’s challenge that the district courts’ finding: a) of likely success on the merits;

and b) irreparable harm are reviewed under a two-part abuse of discretion standard.

17 See Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007); Dow Chemical Co. v. Calderon, 422 F.3d 827, 830 (9th Cir. 2005); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). 18 See Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 946 (9th Cir. 2008); Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002). 19 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). 20 Id. citing Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (internal citations omitted); see also (en banc) (articulating our two-part test for abuse of discretion). 21 United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (citation omitted).


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VIII. ARGUMENT

A. The District Court Erred By Granting An Advisory Injunction After Its Jurisdiction Expired on August 25, 2016.

1. Jurisdiction Must Exist Before an Injunction Can Issue.

As a threshold inquiry, a district court must possess jurisdiction over the

parties and subject matter of an action before it may grant a preliminary injunction.

Federal courts are courts of limited jurisdiction and “[i]t must be presumed that a

cause lies outside this limited jurisdiction, Turner v. Bank of North America, 4 U.S.

(4 Dall.) 8, 11, 1 L.Ed. 718 (1799), and the burden of establishing the contrary rests

upon the party asserting jurisdiction.”22 “[T]hose who seek to invoke the jurisdiction

of the federal courts must satisfy the threshold requirement imposed by Article III

of the Constitution by alleging an actual case or controversy.”23 “Abstract injury is

not enough.”24

Here, the district court’s assumption of jurisdiction is particularly troubling

because a preliminary injunction is an extraordinary remedy never awarded as of

22 Kokkonen, 511 U.S. at 377. 23 Marsh v. Vegianelli, No. 1:09CV01243-GSAPC, 2010 WL 653759, at *1 (E.D. Cal. Feb. 17, 2010), quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (citations omitted); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir.2006). 24 Id. at *1, quoting Lyons, 461 U.S. at 101, 103 S.Ct. at 1665.


19

right.25 The purpose of a preliminary injunction is to preserve the status quo so that

a trial of the merits may occur, not to prejudge substantive rulings that prejudice a

trial. 26 Thus, an exercise of federal jurisdiction over a preliminary injunction should

be particularly scrutinized.

A motion for preliminary injunction also does not confer federal jurisdiction.

“Enforcement of the settlement agreement … whether through award of damages or

decree of specific performance, is more than just a continuation or renewal of the

dismissed suit, and hence requires its own basis for jurisdiction. Kokkonen, 511 U.S.

at 381-82. This is because “[a] motion to enforce a settlement agreement…is a

separate contract dispute requiring its own independent basis of jurisdiction.”27

Stated differently, an injunction is a remedy, not a claim. Though a “federal court

may issue an injunction if it has personal jurisdiction over the parties and subject

matter jurisdiction over the claim; it may not attempt to determine the rights of

persons not before the court.”28 Thus, federal trial courts recognize that a “[p]laintiff

25 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 9 (2008). 26 Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963). 27 O’Conner v. Colvin, 70 F.3rd 530, 532 (9th Cir. 1995) (emphasis added) (district court order vacated compelling compliance with settlement agreement and imposing sanctions, attorney’s fees, and costs, and remands with directions to dismiss for lack of jurisdiction). 28 Cole v. Spaeth, 2007 WL 196573, *1 (E. Dist. Cal. 2007) (quoting Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir.1985).


20

is not entitled to preliminary injunctive relief until such time as the court finds

that his complaint contains cognizable claims for relief against the named

defendants and the named defendants have been served with the summons and

complaint.”29 Until jurisdiction exists, a motion for preliminary injunction is

necessarily premature.30

This makes good sense because the first factor of a preliminary injunction is

success on the merits. Obviously, if a party has brought no action, it is impossible to

determine the likelihood of success on the merits for claims that have not been

alleged. Success on the merits can also not be determined where the district court

denies a party the opportunity to assert counterclaims and affirmative defenses. For

example, whether a breach is material is but one affirmative defense that impacts

Forest City’s likely success on the merits. While not binding, the Intermediate Court

of Appeals of Hawaii recognizes that granting specific performance against a party

without consideration of their right to a jury or counterclaims is error under Hawaii

law.31 For the same reasons, however, the district court’s assumption of jurisdiction

and rejection of the jury and procedural due process are improper.

29 Id. at *1 (emphasis added); see also Marsh v. Vegianelli, No. 1:09CV01243-GSAPC, 2010 WL 653759, at *1 (Court denies preliminary injunction because no complaint has been filed.) 30 Id. 31 Kaiman Realty v. Carmichael, 2 Haw. App. 499, 504 (1981) (“The Sellers did not waive their right to a jury trial on the issues raised in its counterclaim. The non-jury


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2. Breach of a Settlement Is a Substantive Claim for Breach of Contract Under Hawaii Law That Must Be Resolved by a Jury Before Specific Performance is Appropriate.

The core contention of Forest City’s preliminary injunction is that Barber has

breached the parties’ settlement. Specifically, Forest City contends that Barber has

breached both Paragraph 7 (Non-Disparagement),32 and Paragraph 4

(Confidentiality) of the Agreement.33 For this breach, Forest City seeks preliminary

and permanent injunctive relief and legal damages from Barber, which the district

court has stated it may award and has allowed questioning about during the

evidentiary hearing.34 Under Hawaii law, a settlement agreement is a form of

trial concerned the Buyer's request for specific performance, not the Sellers' counterclaim, and the lower court erred when it decided the issues raised in the counterclaim.”). 32 Motion for Preliminary Injunction [ECF 291] at 2 (“[Barber’s] statements - and numerous other false statements made by Ms. Barber - violate the terms of the Settlement Agreement, which prohibit Ms. Barber from making “any defamatory, libelous, slanderous, or recklessly or intentionally untrue communications, remarks, or comments.”) (emphasis added). 33 Motion [ECF 291] at 2-3 (“Ms. Barber has violated this provision by using her blog and social media accounts to create the impression that all MCBH residents are ‘eligible’ for significant settlement amounts that they can collect by simply contacting her former attorneys and filing a claim.”)(emphasis added); see also id. at 33-36, wherein Forest City further alleges that Barber breached Paragraphs 4, 6, 7, and 11. 34 ER 67, August 3, 2016 Transcript, at 94:4-10 (“MR. WHATOFF: And did you understand that, if you were wrong about that allegation, you'd be subjecting Forest City and Ohana to substantial damages? MR. SMITH: Objection. Calls for speculation. THE COURT: I'll allow it. MR. SMITH: And a legal conclusion. THE COURT: Answer the question.”) (emphasis added).


22

contract.35 As in Kokkonen, Hawaii courts hold that after dismissal a party must

bring an independent action for specific performance of a settlement agreement or

move to vacate the dismissal and reopen the original proceedings:

When an action is dismissed with prejudice as part of a settlement agreement

which is subsequently breached, the trial court thereafter has no jurisdiction to

enforce the settlement agreement unless a party to the agreement takes one of two

courses of action. First, an independent action may be brought for specific

performance of the settlement agreement. Second, a motion to vacate the dismissal

order and reopen the original proceedings may be filed. Unless the vacatur is first

granted, however, no jurisdiction would exist in the court to enter any remedial

orders in the case.36

Here, neither option was exercised by Forest City. Forest City brought no

independent action nor did it move to vacate the dismissal and reopen the underlying

action. Comparing Forest City’s motion to an action for specific performance thus

provides no justification for federal jurisdiction. As this Court has recognized,

35 Wong v. Cayetano, 111 Hawai‘i 462, 481, 143 P.3d 1, 20 (2006) (“[S]ettlement agreements (1) ‘are simply a species of contract,’ and, thus, (2) are governed by principles of contract law.”), citing State Farm Fire & Cas. Co. v. Pac. Rent–All, Inc., 90 Hawai‘i 315, 323–24, 978 P.2d 753, 761–62 (1999) (construing a settlement agreement under contract principles). 36 Amantiad v. Odum, 90 Hawaii 152, 167, (1999).


23

“specific performance is a remedy associated with breach of contract.37 Thus, “a

cause for specific performance ordinarily cannot lie until there has been a breach of

the contract.”38 Again, under Hawaii law, whether a settlement agreement has been

breached is a question of fact for the jury:

If, on the other hand, the trial court determines that a mutual, valid, and enforceable settlement agreement does exist between the parties, then any dispute as to whether the settlement agreement was breached is a question of fact, and where the right to a jury trial has been asserted, the question of fact must be decided by a jury. See Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 460 (5th Cir.1995).39

As the Fifth Circuit, cited by Moran, supra, explains in Ham Marine, Inc.: Once a contract has been found, and its essential terms have been identified and determined to be enforceable, the issue of breach is properly addressed. This is another question of fact. Chapman & Cole v. Itel Container Int'l B.V., 865 F.2d 676, 680 (5th Cir.), cert. denied, 493 U.S. 872, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989). As with other findings of fact, the jury is in the best position to evaluate the evidence and to assess the credibility of witnesses.40

37 Pauma Band of Luiseno Mission Indiance of Pauma and Uima Reservation v. California, 813 F.3d 1155, 1167 (9th Cir. 2015), citing Restatement (Second) of Contracts §357. 38 Id. citing 81A C.J.S. Specific Performance §4 (2015). 39 Moran v. Guerreiro, 97 Hawai`i 354, 371, 37 P.3d 603, 620 (Ct. App. 2001) (emphasis added). 40 Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 461 (5th Cir. 1995)(emphasis added); see also Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360, 82 S.Ct. 780, 784, 7 L.Ed.2d 798 (1962)(breach of contract is question of fact for jury that will not be disturbed by appellate court).


24

Hawaii Civil Jury Instruction Nos. 15.1-15.27 similarly confirms that a jury

decides whether a contract has been breached.41 “It is [also] basic contract law that

one party cannot insist upon the performance of a contract or a provision thereof

where he, himself, is guilty of a material or substantial breach of that contract

or provision.’ 17 Am.Jur.2d Contracts s 425 (1964). Thus, when such questions of

fact exist, a trial on the merits is appropriate.”42 Here, Barber intends to assert

counterclaims and affirmative defenses for, at minimum, breach of contract by

Forest City and non-materiality of the breaches alleged by Forest City. A trial on the

merits is therefore appropriate to resolve whether the settlement agreement has been

breached by either party before specific performance may be awarded.

Other state courts agree that whether a party has breached a contract and

whether the breach is material are questions for the jury. For example, in Nevada:

A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement.” Bernard v. Rockhill Dev. Co., 103 Nev. 132, 734 P.2d 1238, 1240 (1987). Whether a party has breached a contract and whether the breach is material are questions of fact. Hoffman v. Eighth Judicial Dist. Court, 90 Nev. 267, 523 P.2d 848, 850 (1974). 43

Similarly, under Arizona law: 41 Hawaii Civil Jury Instruction 15.8 (“To prevail on the claim for breach of contract, plaintiff(s) must prove all of the following elements…”). 42 Windward Partners v. Lopes, 3 Haw. App. 30, 32, 640 P.2d 872, 874 (1982) (emphasis added). 43 Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536 (9th Cir. 2011) (emphasis added).


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Whether a party has breached a contract, whether a custom is so well established as to justify an expectation that it will be observed with respect to a particular transaction and whether that breach is material are questions of fact for the trier of fact. Jeski v. American Express Co., 147 Ariz. 19, 22, 708 P.2d 110, 113 (Ariz.Ct.App.1985); Angle, 626 P.2d at 131; FDIC v. Air Fla. Sys., Inc. 822 F.2d 833, 840 (9th Cir.1987).44

Thus, Hawaii, Nevada, Arizona, and California state courts all agree that breach of

contract is decided by a jury. This result is particularly justified when Forest City

alleges that Barber breached the settlement by engaging in defamation because, as

Hawaii and other courts recognize, whether a statement is defamatory is a question

of fact for the jury.45 Accordingly, because Forest City’s motion rests upon a

substantive claim for breach of contract under Hawaii law, the district court’s stated

intent to grant injunctive relief and damages without a jury must be refused.

44 Biltmore Bank of Arizona v. First Nat. Mortg. Sources, L.L.C., No. CV-07-936-PHX-LOA, 2008 WL 564833, at *6 (D. Ariz. Feb. 26, 2008) (emphasis added). 45 Beamer v. Nishiki, 66 Haw. 572, 580, 670 P.2d 1264, 1271 (1983); see also Church of Scientology of California v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (“The existence of a defamatory meaning is generally a question of fact for the jury. See Maidman v. Jewish Publications, Inc., 54 Cal.2d 643, 355 P.2d 265, 269, 7 Cal.Rptr. 617, 621 (1960); Gallagher v. Chavalas, 48 Cal.App.2d 52, 58, 119 P.2d 408 (1941).”).


26

B. The District Court’s “Specific Performance” and “Inherent Jurisdiction” Arguments Contradict Civil Procedure and Supreme Court Precedent. In its Order, the district court contends to possess unlimited jurisdiction over

all questions of fact to the exclusion of the jury because: a) Forest City has “not filed

a complaint for breach of contract;” and b) this proceeding “is analogous to an

action for specific performance of a contract.” RE 16, The district court has also

claimed to possess “inherent jurisdiction” over Forest City’s motion. These

justifications are all flawed.

1. The District Court’s Comparison of Forest City’s Motion for Preliminary Injunction to “An Action” for Specific Performance Does Not Create or Confer Jurisdiction.

First, stating that a motion for preliminary injunction is “analogous to an

action for specific performance” is simply incorrect. Under Federal Rule of Civil

Procedure 2 states, there is only “one form of action – the civil action.”46 And as

Rule 3 explains, an action is commenced by filing a complaint.47 Thus, a motion for

preliminary injunction is not “an action,” nor does it start one. As Kokkonen

recognizes, “[e]nforcement of the settlement agreement, however, whether through

award of damages or decree of specific performance, is more than just a continuation

46 FED. R. CIV. P. 2. 47 FED. R. CIV. P. 3.


27

or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”48

Thus, even if Forest City’s motion were a motion for specific performance, and not

merely “analogous” to one, this justification still fails because such a motion still

requires “its own basis for jurisdiction.” Forest City’s motion for preliminary

injunction is not an action and does not start an action as assumed by the district

court. The district court’s comment that “[Forest City has] not filed a complaint for

breach of contract,” thus only highlights the fact federal jurisdiction does not exist.

ER 16.

No case cited by the Order contradicts this conclusion. While the Order relies

upon Calli v. Near, a 1987 case, for the proposition that the “Court retains

jurisdiction to enforce the settlement agreement entered into by the parties,”49

Kokkonen clarified in 1994 that the limited jurisdiction of the federal court does not

extend to enforcement of a settlement agreement unless specifically agreed to by

the parties.50 Otherwise, enforcement is for the state courts.51

48 Kokkonen, 511 U.S. at 378. 49 Order at 11, citing Calli v. Near, 829 F.2d 888, 890 (9th Cir. 1987). 50 Kokkonen, 511 U.S. at 381-82 (“[W]e think the court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree. Absent such action, however, enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction.”) (emphasis added). 51 Id.


28

Similarly, the district court’s claim that the parties “expressly provided for

[the district court’s] continuing jurisdiction” within their stipulated dismissal ignores

that August 25, 2016, was selected as the precise date for jurisdiction to expire. The

Dismissal does not contemplate any grant of jurisdiction to bring an action after six

months for breach of contract, nor does it provide authority to re-open or extend

litigation beyond six months. Again, August 25, 2016, was selected as “a precise

date upon which retained jurisdiction would expire.” ER 51 Thus, both the parties

and the district court specifically agreed that jurisdiction expired on August 25,

2016. If Forest City still wishes to pursue an action against Barber, which the

injunctive relief it seeks requires, such action must be brought in state court as

contemplated under Kokkenen because the district court has no jurisdiction over

Forest City’s unfiled actions and claims. Again, filing a motion for preliminary

injunction does not initiate such action nor confer federal jurisdiction. Likewise,

“analogizing” a preliminary injunction motion to an action for specific performance

also does not initiate an action nor confer federal jurisdiction.

2. The District Court’s Assertion of Inherent Enforcement Power Over the Settlement Was Not Proper.

The district court’s assertion of inherent enforcement power also contradicts

Supreme Court precedent that a district court lacks inherent authority over a


29

settlement after dismissal absent an express reservation by the parties.52 As

Kokkonen explains:

The short of the matter is this: The suit involves a claim for breach of a contract, part of the consideration for which was dismissal of an earlier federal suit. No federal statute makes that connection (if it constitutionally could) the basis for federal-court jurisdiction over the contract dispute. The facts to be determined with regard to such alleged breaches of contract are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business. If the parties wish to provide for the court's enforcement of a dismissal-producing settlement agreement, they can seek to do so.53

TNT Marketing, Inc. v. Agresti, cited by the district court’s Order for authority

to enforce a settlement agreement, does not change this conclusion.54 TNT

Marketing, like Callie v. Near, is a Ninth Circuit case that predates Kokkonen. While

TNT Marketing rests on the Court’s “inherent power to enforce a settlement,” this

basis was rejected in Kokkonen, which recognized that “[e]nforcement of the

settlement agreement, whether by award of damages or decree of specific

performance, is more than just a continuation or renewal of the dismissed suit, and

hence requires its own basis for jurisdiction.”55 A court’s “inherent power” does

52 ER 15-16. 53 Kokkonen, 511 U.S. at 381 (emphasis added). 54 ER 15, citing TNT Marketing, Inc. v. Agresti, 796 F.2d 276 (1986). 55 Kokkonen, 511 U.S. at 378 (emphasis added).


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not justify an exercise of jurisdiction over an action to enforce a settlement

agreement.56

Here, like Kokkonen, Forest City’s requested relief is predicated upon an

underlying breach of contract. While the parties agreed to federal jurisdiction for six

months to enforce the agreement, they specifically selected August 25, 2016, as the

precise date jurisdiction would expire. Simply as a practical matter, enforcement and

breach of a settlement present different goals with far different timelines. Here,

because the parties’ dispute was not resolved within the six-month period and the

Dismissal does not grant additional time to file a new action after August 25, 2016,

Forest City’s claims for breach and request for equitable relief should be brought to

the state court where due process can be afforded.

TNT Marketing is further distinguishable because it does not concern

substantive Hawaii law; does not address whether breach of contract is a jury

question; does not support waiver of the right to a jury for legal claims and defenses;

and includes no discussion regarding when a court should resolve questions of law

in a case involving mixed question of law and equity. Unlike here, TNT Marketing’s

56 Id. at 380 (“[B]oth courts in the present case appear to have relied upon, judging from their references to “inherent power.” We think, however, that the power asked for here is quite remote from what courts require in order to perform their functions.”) (internal citation omitted).


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judgment also incorporated the terms of the settlement.57 Finally, whether damages

were properly awarded in TNT Marketing was remanded and the record is silent

whether a jury was used for the remanded proceedings or not. TNT Marketing

therefore differs on every point from this case and does not support the district

court’s assertion of federal jurisdiction and denial of a jury to Barber.

C. The District Court’s Refusal to Allow a Jury, Counterclaims, Affirmative Defenses, and Discovery Denies Procedural Due Process.

The Due Process Clause of the Fifth Amendment provides that no person shall

“be deprived of life, liberty, or property, without due process of law.” U.S. Const.

amend. V. “A threshold requirement to a substantive or procedural due process claim

is the plaintiff's showing of a liberty or property interest protected by the

Constitution.” Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013). As the

Supreme Court has long held, due process is violated “if a practice or rule offends

some principle of justice so rooted in the traditions and conscience of our people as

to be ranked as fundamental.”58 Here, the right to a jury trial is protected under the

Seventh Amendment and is clearly protected by due process. “Maintenance of the

jury as a fact-finding body is of such importance and occupies so firm a place in our

57 See, e.g. Bouman v. RBC Mortg.Co., 2007 WL 1432024 (Dist. Ct. Oregon 2007)( The fact that the Ninth Circuit allowed a district court to enforce a stipulated judgment which included the terms of the settlement between the parties is not relevant to a case where no judgment was entered”). 58 Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105 (1934).


32

history and jurisprudence that any seeming curtailment of the right to a jury trial

should be scrutinized with the utmost care.” Beacon Theatres, Inc. v. Westover

(1959) 359 U.S. 500, 501 [79 S.Ct. 948, 952, 3 L.Ed.2d 988] (1959), quoting Dimick

v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603. As the Beacon Court

cautions, the right to a jury should not be lost simply because a claim presents

equitable issues:

If there should be cases where the availability of declaratory judgment or joinder in one suit of legal and equitable causes would not in all respects protect the plaintiff seeking equitable relief from irreparable harm while affording a jury trial in the legal cause, the trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial. As this Court said in Scott v. Neely, 140 U.S. 106, 109—110, 11 S.Ct. 712, 714, 35 L.Ed. 358: “In the Federal courts this (jury) right cannot be dispensed with, except by the assent of the parties entitled to it; nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency. This long-standing principle of equity dictates that only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.”59

Despite the long-recognized importance of the jury, however, the district court

here repeatedly rejected Barber’s right to a jury to resolve disputed questions of fact

59 Beacon Theatres, Inc. v. Westover (1959) 359 U.S. 500, 501 (1959).


33

and legal remedies like breach of contract, damages, counterclaims, and affirmative

defenses.

While the district court’s Order contends that Adams v. Johns-Manville

justifies denial of a jury to Barber,60 its reliance is misplaced. First, like Callie and

TNT Marketing above, Adams predates Kokkonen. There is therefore no analysis in

Adams whether the trial court’s presumption of federal jurisdiction is proper in the

first place. Second, Adams concerns enforcement of a settlement to resolve pending

litigation, not an alleged breach of a settlement agreement requiring findings of fact

after dismissal in a closed case. Id. Adams therefore wholly differs from the case at

hand. Third, unlike Adams, Forest City seeks damages in addition to an injunction

for Barber’s alleged breach of the settlement.

This district court’s comparison of Forest City’s motion to an action for

specific performance is therefore not accurate. While Adams states a motion to

enforce a settlement agreement is akin to specific performance of a contract and may

not require a jury, no legal defenses or counterclaims were present in Adams that

might give rise to a jury trial as the Adams court recognizes.61 Trial courts therefore

60 ER 16, citing Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (1989). 61 Adams, 876 F.2d at 709, quoting 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.21, at 38–192 (2d ed. 1979) (“[I]n an action for specific performance uncomplicated by other requests for relief or by counterclaims, there is no right to a jury trial.”).


34

distinguish Adams when affirmative defenses or claims are present that create

questions for the jury. For example, Brown v. San Diego State Univ. Found., 2015

WL 454857 (S.D.Cal. 2015), the district court recognized that any assertion of legal

counterclaims or affirmative defenses impacts the analysis under Adams.62

Here, because Forest City has not brought an action against Barber, Barber

has not yet had no opportunity to assert her affirmative defenses, counterclaims, or

conduct discovery. Aga in, breach of contract is a question for the jury. As the

Supreme Court of the United States in Dairy Queen, Inc. v. Wood recognized:

We conclude therefore that the district judge erred in refusing to grant petitioner's demand for a trial by jury on the factual issues related to the question of whether there has been a breach of contract. Since these issues are common with those upon which respondents' claim to equitable relief is based, the legal claims involved in the action must be determined prior to any final court determination of respondents' equitable claims.63

62 Brown v. San Diego State Univ. Found., 2015 WL 454857, * (S.D.Cal. 2015)(“To determine whether there is a right to a jury trial, the Court determines whether an affirmative defense is legal or equitable.”); see also Illinois Union Ins. Comp. v. Navigators Specialty Ins. Co., 2016 WL 1534786, *4-5 (citing Brown v. San Diego State Univ. Found., 2015 WL 454857 (S.D.Cal. 2015) with approval); Manneh v. Inverness Med. Innovations, Inc., No. 08–cv–653, 2011 WL 662765, at *1 (S.D.Cal. Feb. 11, 2011) (“The right to a jury trial attaches to all of Plaintiff's legal claims and the defenses.”). 63 Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962) (emphasis added); see also Charles A. 30 Wright & Arthur R. Miller, Federal Practice and Procedure §§ 2305, 2306, & 2338 (1971).


35

Importantly, this result “applies whether the trial judge chooses to characterize

the legal issues presented as ‘incidental’ to equitable issues or not.”64 “[W]here

equitable and legal claims are joined in the same action, there is a right to jury trial

on the legal claims which must not be infringed either by trying the legal issues as

incidental to the equitable ones or by a court trial of a common issue existing between

the claims.”65 Thus, “[w]hen legal and equitable claims are joined in the same action,

the trial judge has only limited discretion in determining the sequence of trial and

‘that discretion...must, wherever possible, be exercised to preserve jury trial.”66

“[O]nly under the most imperative circumstances...can the right to a jury trial

of legal issues be lost through prior determination of equitable claims.”67 As a

result, “where there are issues common to both the equitable and legal claims, 'the

legal claims involved in the action must be determined prior to any final court

determination of [the] equitable claims.”'68 The district court’s stated intent to

64 Dairy Queen, Inc., 369 U.S. at 473. 65 Dollar Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165, 170 (9th Cir. 1989), quoting Ross v. Bernhard, 396 U.S. 531, 537–38, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970) (emphasis added). 66 Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). 67 Beacon Theatres, 359 U.S. at 510–11, 79 S.Ct. 948 (emphasis added). 68 Dollar Systems, 890 F.2d at 170 (quoting Dairy Queen, 369 U.S. at 479, 82 S.Ct. 894) (emphasis added); see also Harada v. Burns, 50 Haw. 528, 445 P.2d 376 (1968) (Where legal and equitable claims are present in the same case, courts have long


36

deny a jury and grant injunctive relief and damages without consideration of

Barber’s counterclaims therefore contradicts controlling precedent of this Court and

the Supreme Court. Accordingly, because none of the cases relied on by district court

support an unlimited exercise of jurisdiction and denial of a jury, Barber respectfully

requests this Court to reverse the Order and remand this matter so that an action can

be brought in the appropriate state court forum that will afford Barber the rights and

protections of Due Process and the Seventh Amendment without any prejudice to

Forest City.

D. The District Court Wrongfully Concludes: a) Irreparable Harm Can Be Presumed Without Evidence of Any Connection Between Mediation Demands by Military Families and Challenged Speech By Barber; and b) Forest City Will Likely Succeed on the Merits When No Action Has Been Asserted.

If federal jurisdiction does not exist, this Court need not consider the district

court’s basis for a preliminary injunction. Even assuming arguendo, however, that a

Forest City’s motion for preliminary injunction created federal jurisdiction to grant

the extraordinary remedy of a preliminary injunction, the district court’s decision

should still be revised for abuse of discretion.

held that the trial court is precluded from ruling, in the first instance, on any equitable claims that may determine the outcome of the legal claims.)


37

A “preliminary injunction is an extraordinary remedy never awarded as of

right.”69 This is true even if the injunction seeks only to maintain the status quo. As

the Supreme Court explains, “[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 interest.”70 “Issuing a preliminary

injunction based only on a possibility of irreparable harm is inconsistent with our

characterization of injunctive relief as an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.”71 “If a

plaintiff fails to meet its burden on any of the four requirements for injunctive relief,

its request must be denied.”72

“In each case, courts ‘must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested

relief.’”73 “In exercising their sound discretion, courts of equity should pay particular

69 Winter, 555 U.S. at 24, citing Munaf, 553 U.S. at 689-690, 128 S.Ct., at 2218–2219. 70 Id. at 21. 71 Winter, 555 U.S. at 23, citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis added). 72 Sierra Forest Legacy v. Rey, 691 F.Supp.2d 1204, 1207 (E.D. Cal. 2010), citing Winter, 555 U.S. at 22. 73 Winter, 555 U.S. at 24.


38

regard for the public consequences in employing the extraordinary remedy of

injunction.”74 When an injunction threatens free speech, however, this Court warns

“a higher bar than usual is set for those seeking injunctive relief where ‘there is at

least some risk that constitutionally protected speech will be enjoined.’”75 Where

there is some risk that protected First Amendment speech would be restrained, “only

a particularly strong showing of likely success, and of harm…as well, could suffice

to justify issuing the requested injunction.”76

1. The District Court’s Finding of Irreparable Harm is in Error Because Forest City Presented No Evidence that Any Mediation Demand Received by Forest City Was Because of Any Post by Barber.

The district court’s grant of an injunction fails the second Winter factor

because Forest City produced no evidence of irreparable harm caused by any breach

of confidentiality by Barber. In its Order, the district court instead accepts Forest

City’s claim that “mediation demand letters sent by Plaintiff Barber’s attorneys,

dated May 25, 2016, were received in response to Plaintiff Barber’s internet postings

74 Winter, 555 U.S. at 24. 75 McDermott v. Ampersand Pub., LLC., 593 F.3d 950, 957 (9th Cir. 2010) citing Overstreet v. United Broth. Of Carpenters and Joiners of America, Local Union No. 1506, 409 F.3d 1199, 1208 n. 13 (9th Cir. 2005). 76 McDermott, 593 at 958.


39

made in early May 2016” and that “Defendants assert they have incurred irreparable

harm as a result.”77

The problem with this basis, however is that Forest City introduced no

evidence that a single mediation letter was sent because of any post by Barber. Forest

City called no mediation claimants, nor did Forest City call any witness who could

testify that any demand was in response to any post – much less a post violating

confidentiality – by Barber. In short, Forest City failed to present any witness and

no evidence during the evidentiary hearing to establish irreparable harm, much less

explain how a mediation demand even constitutes irreparable harm to begin with.

Although the Order references mediation demands from Charles and Tanya

Butler, Jonathan and Jennifer Spore, Jeremy and Ciara Graham, Mark and Catherine

Beaudette, and Tony and Morgan Jenkins,78 no evidence exists that any of these

mediation requests were because of any post by Barber. Further, while the Court

claims “Barber testified that she believed that there were 100 new mediation

demands made to Defendants and that at least 20 of them followed her on

Facebook,”79 the transcript clearly contradicts the district court’s reading. Instead,

the transcript confirms that Barber testified she did not know whether mediation

77 ER 33 78 ER 34. 79 ER 34


40

claimants were Facebook followers, had not tried to figure out any connection

between the two, had “no idea” what percentage of mediation claimants might also

follow her Facebook page, and that 22 of 100 was simply an allegation Forest City’s

attorneys had made in their briefing.80 Instead, Barber’s testimony was that her

understanding that mediation demands came from the hundreds of military

families who contacted Plaintiffs’ counsel before the settlement, when the case

was still a putative class action.81

Further, the district court cites no authority that mediation allowed under

Forest City’s leases with military families constitutes irreparable harm. Exercising a

contractual right to mediation simply does not rise to the level of “irreparable harm.”

The district court also fails to explain how Forest City is possible harmed by

participating in mediation by other military families.

“Perhaps the single most important prerequisite for the issuance of a

preliminary injunction is a demonstration that if it is not granted the applicant is

likely to suffer irreparable harm before a decision on the merits can be rendered.

Only when the threatened harm would impair the court's ability to grant an effective

remedy is there really a need for preliminary relief. Therefore, if a trial on the merits

can be conducted before the injury would occur there is no need for interlocutory

80 ER 73 at 19:3-21, Day 2 Transcript. 81 ER 72 at 18:16-23, Day 2 Transcript.


41

relief. In a similar vein, a preliminary injunction usually will be denied if it appears

that the applicant has an adequate alternate remedy in the form of money damages

or other relief.”82

Here, it can hardly be argued that a demand for mediation threatens harm that

will “impair the court's ability to grant an effective remedy” given that mediation is

provided within Forest City’s contracts and military families are allowed to pursue

their available remedies at law. Likewise, while the district court’s quotes other

Facebook commenters who are apparently upset with Forest City, there is again no

evidence nor explanation how these comments are because Barber breached

confidentiality of the settlement, which is the ostensible basis for the injunction.

For the same reason, the district court’s comment that “such statements

demonstrate Defendants’ loss of control of their business reputation and loss of good

will in the marketplace” is flawed because Forest City failed to provide any evidence

at the evidentiary hearing that any negative comment was because of any alleged

breach of confidentiality by Barber rather than loss of goodwill associated with the

public knowledge of chemical contamination at MCBH and other misconduct by

Forest City that has been widely reported.83 Again, Forest City produced no witness

82 Charles A. Wright & Arthur R. Miller, 11A Federal Practice and Procedure, Grounds for Granting or Denying a Preliminary Injunction – Irreparable Harm, §§ 2498.1 (3d ed., April 2016 update). 83 ER 36.


42

nor evidence at the evidentiary hearing to establish irreparable harm. Instead, Forest

City produced only witness, a remediation contractor, who offered no evidence or

testimony to establish any irreparable harm to Forest City of any kind.

Finally, the Court’s conclusion that Defendants “may face financial damages

in the absence of injunctive relief” confirms the district court’s Order is contrary to

law.84 Financial damage is not irreparable harm and a possible threat that “may” lead

to financial damage does not satisfy Winter v. Natural Resources Defense Council,

Inc.’s high standard. As Winter confirms, “[i]ssuing a preliminary injunction based

only on a possibility of irreparable harm is inconsistent with our characterization

of injunctive relief as an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.”85

During the evidentiary hearing, Forest City presented no witness to testify on

its behalf for the purpose of irreparable harm, no evidence of harm, no evidence of

loss of prospective customers; and no evidence of loss of goodwill. In short, Forest

City provided absolutely no evidence or testimony that rose to the level of a “clear

showing” of probably irreparable harm. Irreparable harm cannot be presumed as

other trial courts have recognized,86 and the district court’s assumption that Forest

84 ER 37. 85 Winter, 555 U.S. at 21. 86 ET Trading, Ltd v. ClearPlex Direct, LLC, No. 15-CV-00426-LHK, 2015 WL 913911, at *3 (N.D. Cal. Mar. 2, 2015) (“Plaintiff is correct that the threatened loss


43

City “may face” irreparable harm in the form of financial damages is an abuse of

discretion and error of law that is reviewed de novo. Accordingly, the district court’s

order should be reversed.

2. The District Court’s Finding of Likely Success is Also Error Because No Claim or Action Exists Against Barber.

Finally, for reasons already discussed, the district court’s finding of likely

success on the merits is error because no claim or action has been brought by Barber

in any forum. While the district court obviously believes Barber has breached the

settlement, this is at best an improper advisory opinion of what a jury might decide

if Forest City brings an action in state court. The district court’s opinion of the

relative strengths of Forest City’s unfiled action also gives no consideration of

Barber’s counterclaims or affirmative defenses. Accordingly, because it is

impossible to predict likely success on the merits of an unfiled action with unknown

claims, counterclaims, and defenses, the district court’s Order should be reversed.

of prospective customers or goodwill may constitute irreparable harm. However, the Court concludes that Plaintiff has failed to make a “clear showing” that there is a likelihood of irreparable injury, rather than a mere possibility. Plaintiff cites and relies on Stuhlbarg, but the Ninth Circuit's “possibility” of irreparable harm standard as applied in Stuhlbarg was explicitly overruled by the Supreme Court in Winter. See 555 U.S. at 20; see also App. at 16 (quoting Stuhlbarg, 240 F.3d at 841, and “possibility” of irreparable harm standard). Instead, Plaintiff bears the burden of putting forth sufficient evidence to establish a likelihood of irreparable harm absent a temporary restraining order.”).


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IX. CONCLUSION

For the reasons stated above, Plaintiff-Appellant Cara Barber respectfully

requests this Court to reverse the district court’s Order with instructions to deny and

dismiss Forest City’s motion for preliminary injunction without prejudice so that

Forest City may bring an action in state court that will afford Barber the rights and

protections of Due Process and the Seventh Amendment. In the alternative, if this

Court determines that the district court possesses jurisdiction despite the Dismissal,

Plaintiff-Appellant requests the district court Order be reversed and the district court

instructed that Barber must be afforded the right to a jury on breach of contract,

counterclaims, affirmative defenses, and legal damages.

STATEMENT OF RELATED CASES

There are no known related cases pending before this Court.

DATED: October 20, 2017

Respectfully submitted, By: /s/ Kyle Smith P. Kyle Smith Lynch Hopper Smith, LLP By: /s/ Terry Revere Terrance M. Revere Revere & Associates, LLP


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Plaintiff-Appellant Cara Barber

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Cara Barber, et al. v. Ohana Military Communities, et al. C.A. No. 16-16688

March 20, 2016


C.A. No. 16-16688 _____________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________________ CARA BARBER, et al.

Plaintiff-Appellant vs.

OHANA MILITARY COMMUNITIES, et al., Defendants – Appellees.

On Appeal from the United States District Court for the District of Hawaii

Hon. Helen S. Gillmor Case No. 14-00217 HG-KSC

APPELLANT’S ADDENDUM TO OPENING BRIEF

KYLE SMITH LYNCH HOPPER SMITH, LLP 970 N. Kalaheo, Suite A301 Kailua, HI 96734 T: (808) 791-9555 F: (808) 791-9556 [email protected]

TERRY REVERE REVERE & ASSOCIATES 970 N. Kalaheo, Suite A301 Kailua, HI 96734 T: (808) 791-9550 F: (808) 791-955 [email protected]

Attorneys for Appellant

CARA BARBER


TABLE OF CONTENTS

I. UNITED STATES CONSTITUTION ......................................................... 1

A. Amendment V ..................................................................................... 1

B. Amendment VII .................................................................................. 1

II. UNITED STATES CODE ............................................................................ 1

A. 28 U.S.C. §1292 (a) (1) ....................................................................... 1

III. FEDERAL RULES OF CIVIL PROCEDURE ............................................ 5

A. Rule 2: One Form of Action ............................................................... 6

B. Rule 3: Commencing an Action ......................................................... 6

C. Rule 65: Injunctions and Restraining Orders ...................................... 6

IV. HAWAII CIVIL JURY INSTRUCTIONS ................................................... 5

A. HCJI 15.8 ............................................................................................. 9


1

I. UNITED STATES CONSTITUTION

A. Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in actual service in time or war or

public danger; nor shall any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public use, without

just compensation.

B. Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,

shall be otherwise re-examined in any Court of the United States, than according

to the rules of the common law.

II. UNITED STATES CODE

A. 28 U.S.C. § 1292(a)(1)

(a) Except as provided in subsections (c) and (d) of this section, the courts of

appeals shall have jurisdiction of appeals from:


2

(1) Interlocutory orders of the district courts of the United States, the United

States District Court for the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands, or of the judges thereof,

granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions, except where a direct review may

be had in the Supreme Court;

(2) Interlocutory orders appointing receivers, or refusing orders to wind up

receiverships or to take steps to accomplish the purposes thereof, such as

directing sales or other disposals of property;

(3) Interlocutory decrees of such district courts or the judges thereof

determining the rights and liabilities of the parties to admiralty cases in which

appeals from final decrees are allowed.

(b) When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opinion that

such order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination

of the litigation, he shall so state in writing in such order. The Court of

Appeals which would have jurisdiction of an appeal of such action may

thereupon, in its discretion, permit an appeal to be taken from such


3

order, if application is made to it within ten days after the entry of the

order: Provided, however, That application for an appeal hereunder

shall not stay proceedings in the district court unless the district judge

or the Court of Appeals or a judge thereof shall so order.

(c) The United States Court of Appeals for the Federal Circuit shall

have exclusive jurisdiction -

(1) of an appeal from an interlocutory order or decree described

in subsection (a) or (b) of this section in any case over which

the court would have jurisdiction of an appeal under section

1295 of this title; and

(2) of an appeal from a judgment in a civil action for patent

infringement which would otherwise be appealable to the

United States Court of Appeals for the Federal Circuit and is

final except for an accounting.

(d)(1) When the chief judge of the Court of International Trade issues

an order under the provisions of section 256(b) of this title, or when

any judge of the Court of International Trade, in issuing any other

interlocutory order, includes in the order a statement that a controlling

question of law is involved with respect to which there is a substantial

ground for difference of opinion and that an immediate appeal from


4

that order may materially advance the ultimate termination of the

litigation, the United States Court of Appeals for the Federal Circuit

may, in its discretion, permit an appeal to be taken from such order, if

application is made to that Court within ten days after the entry of

such order.

(2) When the chief judge of the United States Court of Federal Claims

issues an order under section 798(b) of this title, or when any judge of

the United States Court of Federal Claims, in issuing an interlocutory

order, includes in the order a statement that a controlling question of

law is involved with respect to which there is a substantial ground for

difference of opinion and that an immediate appeal from that order

may materially advance the ultimate termination of the litigation, the

United States Court of Appeals for the Federal Circuit may, in its

discretion, permit an appeal to be taken from such order, if application

is made to that Court within ten days after the entry of such order.

(3) Neither the application for nor the granting of an appeal under this

subsection shall stay proceedings in the Court of International Trade

or in the Court of Federal Claims, as the case may be, unless a stay is

ordered by a judge of the Court of International Trade or of the Court

of Federal Claims or by the United States Court of Appeals for the


5

Federal Circuit or a judge of that court.

(4)(A) The United States Court of Appeals for the Federal Circuit

shall have exclusive jurisdiction of an appeal from an interlocutory

order of a district court of the United States, the District Court of

Guam, the District Court of the Virgin Islands, or the District Court

for the Northern Mariana Islands, granting or denying, in whole or in

part, a motion to transfer an action to the United States Court of

Federal Claims under section 1631 of this title.

(B) When a motion to transfer an action to the Court of Federal

Claims is filed in a district court, no further proceedings shall be taken

in the district court until 60 days after the court has ruled upon the

motion. If an appeal is taken from the district court's grant or denial of

the motion, proceedings shall be further stayed until the appeal has

been decided by the Court of Appeals for the Federal Circuit. The stay

of proceedings in the district court shall not bar the granting of

preliminary or injunctive relief, where appropriate and where

expedition is reasonably necessary. However, during the period in

which proceedings are stayed as provided in this subparagraph, no

transfer to the Court of Federal Claims pursuant to the motion shall be

carried out.


6

(e) The Supreme Court may prescribe rules, in accordance with section 2072

of this title, to provide for an appeal of an interlocutory decision to the courts

of appeals that is not otherwise provided for under subsection (a), (b), (c), or

(d).

III. FEDERAL RULES OF CIVIL PROCEDURE

A. Rule 2. One Form of Action.

There is one form of action – the civil action.

B. Rule 3. Commencing an Action.

A civil action is commenced by filing a complaint with the court.

C. Rule 65. Injunctions and Restraining Order.

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction only on notice to the

adverse party.

(2) Consolidating the Hearing with the Trial on the Merits. Before or after

beginning the hearing on a motion for a preliminary injunction, the court may

advance the trial on the merits and consolidate it with the hearing. Even when

consolidation is not ordered, evidence that is received on the motion and that

would be admissible at trial becomes part of the trial record and need not be

repeated at trial. But the court must preserve any party's right to a jury trial.


7

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order

without written or oral notice to the adverse party or its attorney only if:

(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 before

the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and

the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice

must state the date and hour it was issued; describe the injury and state why it is

irreparable; state why the order was issued without notice; and be promptly filed in

the clerk's office and entered in the record. The order expires at the time after

entry—not to exceed 14 days—that the court sets, unless before that time the court,

for good cause, extends it for a like period or the adverse party consents to a longer

extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without

notice, the motion for a preliminary injunction must be set for hearing at the

earliest possible time, taking precedence over all other matters except hearings on

older matters of the same character. At the hearing, the party who obtained the

order must proceed with the motion; if the party does not, the court must dissolve


8

the order.

(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order

without notice—or on shorter notice set by the court—the adverse party may

appear and move to dissolve or modify the order. The court must then hear and

decide the motion as promptly as justice requires.

(c) Security. The court may issue a preliminary injunction or a temporary

restraining order 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. The United States, its officers, and its

agencies are not required to give security.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other

document—the act or acts restrained or required.

(2) Persons Bound. The order binds only the following who receive actual notice

of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and


9

(C) other persons who are in active concert or participation with anyone described

in Rule 65(d)(2)(A) or (B).

(e) Other Laws Not Modified. These rules do not modify the following:

(1) any federal statute relating to temporary restraining orders or preliminary

injunctions in actions affecting employer and employee;

(2) 28 U.S.C. §2361, which relates to preliminary injunctions in actions of

interpleader or in the nature of interpleader; or

(3) 28 U.S.C. §2284, which relates to actions that must be heard and decided by a

three-judge district court.

(f) Copyright Impoundment. This rule applies to copyright-impoundment

proceedings.

IV. HAWAII CIVIL JURY INSTRUCTIONS

A. HCJI 15.8. Contract – Breach of

To prevail on the claim for breach of contract, plaintiff(s) must prove all of the

following elements:

(1) The existence of the contract; and

(2) Plaintiff’s(s’) performance [unless excused]; and

(3) Defendant’s(s’) failure to perform an obligation under the contract;

and


10

(4) Defendant’s(s’) failure to perform was a legal cause of damage to

plaintiff(s); and

(5) The damage was of the nature and extent reasonably foreseeable

by defendant(s) at the time the contract was entered into.


News & Politics

Barber Preliminary Injunction Appeal