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ORDER - 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

STAR NORTHWEST, INC., d/b/a KENMORE

LANES and 11th FRAME CASINO, 

Plaintiff,

v.

CITY OF KENMORE and KENMORE CITY

COUNCIL, 

Defendants.

No. C05-2133MJP

ORDER GRANTING PLAINTIFF’S

MOTION FOR A TEMPORARY

RESTRAINING ORDER AND

ORDER TO SHOW CAUSE

I. INTRODUCTION

This matter comes before the court on the ex parte motion of Plaintiff Star Northwest

for a temporary restraining order (Dkt. # 2). As outlined below in the court’s findings of fact

and conclusions of law, the court GRANTS Plaintiff’s motion to preserve the status quo and

orders the parties to appear on Wesnesday, January 25, 2006, at 9:00 a.m. for a hearing on

Defendants’ Response to this Court’s Order to Show Cause why a Preliminary Injunction

should not issue in this matter.

II. FINDINGS OF FACT

1. Plaintiff is a Washington corporation operating the Kenmore Lanes card room,

bowling alley, and restaurant facility in Kenmore, WA.

 2. The City of Kenmore (“the City”) and the Kenmore City Council (“the Council”) are

Defendants in this matter. The City is a Washington municipal corporation and the

Case 2:05-cv-02133-MJP Document 11 Filed 12/29/2005 Page 1 of 5

Star Northwest, Inc. v. City of Kenmore et al Doc. 11

Dockets.Justia.com
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ORDER - 2 

Council is the City’s legislative body. Plaintiff alerted Defendants that it was filing a

motion for a temporary restraining order in this case, though no evidence has yet been

received by the Court that Defendants have been served with the Complaint or the

Motion and other pertinent documents in this case.

3. On December 19, 2005, the Council passed Kenmore Municipal Ordinance 05-0237

(“the Ordinance”) banning social card rooms in the city of Kenmore. The

Ordinance’s effective date is December 29, 2005. Plaintiff alleges that enforcement

of this Ordinance will result in an immediate closure of the Kenmore Lanes facility. 

4. Plaintiff claims that enforcement of this Ordinance would constitute an unlawful

taking under the Fifth Amendment and a violation of the Fourteenth Amendment’s

substantive due process protections. Additionally, Plaintiff alleges that enforcement

of the Ordinance would be contrary to Washington law.

5. Plaintiff alleges that it will suffer irreparable harm in the form of loss of community

goodwill if it is forced to close. Plaintiff also states that it will be compelled to lay off

most of its 220 person workforce, many of whom are longtime employees of Kenmore

Lanes and who have irreplaceable institutional knowledge. 

6. Plaintiff alleges that the Defendants in this matter will suffer little harm if the status

quo is preserved. Conversely, Plaintiff states that they will suffer irreparable harm, as

well as significant economic losses if the ordinance is enforced to compel its closure.

III. CONCLUSIONS OF LAW

1. The court has jurisdiction over this matter pursuant to 42 U.S.C. § 1983. Plaintiff is 

claiming injuries under the Fifth and Fourteenth Amendments of the U.S. 

Constitution, as well as violations of Washington state law.

2. In order to obtain a temporary restraining order, Plaintiffs must meet the standards for

issuing a preliminary injunction. Stuhlbarg Int’l Sales, 240 F.3d at 839 n.7 (noting

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ORDER - 3 

that preliminary injunction and temporary restraining order standards are

“substantially identical”).

3. In order to obtain a preliminary injunction, Plaintiffs must meet either the Ninth

Circuit’s “traditional” or “alternative” test. The traditional test requires the court to

find that:

(1) the moving party will suffer irreparable injury if the relief is

denied; (2) the moving party will probably prevail on the merits;

(3) the balance of potential harm favors the moving party; and (4)

the public interest favors granting relief.

Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987).

4. The alternative test requires the court to find that: “(1) a combination of probable

success and the possibility of irreparable injury or (2) that serious questions are

raised and the balance of hardships tips sharply in its favor.” Id. (citations

omitted).

5. The two prongs of the alternative test are not separate inquiries, but rather

“extremes of a single continuum.” Clear Channel Outdoor, Inc. v. City of Los

Angeles, 340 F.3d 810, 813 (9th Cir. 2003). A strong showing of hardship means

that a plaintiff need not show as strong a likelihood of success, and vice versa. 

See id. 

6. The court’s ultimate decision on a motion for preliminary injunction is within its 

discretion. Cassim, 824 F.2d at 796.

7. Under Fed. R. Civ. P. 65(b), an ex parte temporary restraining order can issue only

if:

(1) it clearly appears from specific facts shown by affidavit or by

the verified complaint that immediate and irreparable injury, loss,

or damage will result to the applicant before the adverse party or

that party’s attorney can be heard in opposition, and

(2) the applicant’s attorney certifies to the court in writing the

efforts, if any, which have been made to give the notice and the

reasons supporting the claim that notice should not be required.

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ORDER - 4 

8. The court finds that the record reveals that Plaintiffs have alerted Defendants

telephonically that they intend to seek injunctive relief in this matter, and that

those efforts are sufficient to satisfy Fed. R. Civ. P. 65(b)(2).

9. The court finds that Plaintiff has made out a prima facie case that it will be able to

succeed on the merits of at least its 42 U.S.C. §1983 claim that Defendants

deprived it of its substantive due process rights under the Fourteenth Amendment

to the U.S. Constitution.

9. The court finds that it is likely that Plaintiff will suffer immediate and irreparable

harm in the form of loss of community goodwill if the Ordinance is enforced and

Plaintiff is forced to close. 

10. The court finds that Defendants will suffer little or no hardship from preserving

the status quo ante pending the resolution of Plaintiffs’ preliminary injunction

motion. For this reason, the Court finds that the balance of hardships weigh in

favor of granting a temporary restraining order against enforcement of the

Ordinance in this matter.

IV. TEMPORARY RESTRAINING ORDER AND SHOW CAUSE ORDER

Defendants and their representatives and employees are enjoined from enforcing

Kenmore Municipal Ordinance 05-0237 pending the preliminary injunction hearing in

this matter.

Defendants are ordered to respond to this Court’s Order to Show Cause why a

Preliminary Injunction should not issue in this matter in writing by the end of the day on

Tuesday, January 17, 2006. Plaintiff may file a written reply no later than the end of the

day on January 23, 2006. Neither Defendant’s response, nor Plaintiff’s reply shall

exceed twelve (12) pages in length. The preliminary injunction hearing will be held in

this matter at 9:00 a.m., January 25, 2006 before Honorable Marsha J. Pechman. Each

side shall have thirty (30) minutes to make its presentation, including rebuttal.

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ORDER - 5 

This temporary restraining order shall continue in effect until the court issues an

order on Plaintiffs’ motion for a preliminary injunction. 

Plaintiff shall file an undertaking or bond with the court in the sum of $5,000. The

above order shall not take effect shall not take effect until Plaintiff files the requisite

undertaking or bond with the Court.

Dated this 29th day of December, 2005 at 4:00 p.m. 

/s/James L. Robart___________________

James L. Robart

United States District Judge

Case 2:05-cv-02133-MJP Document 11 Filed 12/29/2005 Page 5 of 5