IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PETER GAKUBA, 3:15-cv-00496-BR

Plaintiff, ORDER

v.

HOLLYWOOD VIDEO, INC., aka

Movie Gallery, dba Hollywood 

Video/Movie Gallery Customer 

Service; ERIC HOLDER, in his 

official capacity as United 

States Attorney General; LISA 

MADIGAN, in her official capacity 

as Illinois Attorney General,

Defendants.

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#29) for Reconsideration of this Court’s Order (#28) issued

April 17, 2015, dismissing this action without prejudice and

Plaintiff’s Ex Parte Motion (#33) for Temporary Restraining

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Order.

I. Motion (#29) for Reconsideration

On April 17, 2015, by Order (#28) the Court dismissed this

action without prejudice pursuant to 18 U.S.C. § 1915(e) on the

ground that Plaintiff had filed an identical action in the

Eastern District of California. In that Order the Court granted

Plaintiff leave to amend his First Amended Complaint to raise

claims over which this Court has jurisdiction but that could not

be raised in the pending action in the Eastern District of

California.

Since the Court issued its Order, Plaintiff dismissed his

action in the Eastern District of California and filed a Second

Amended Complaint (#30) in this action. Defendant, therefore,

has effectively complied with the Court’s Order (#28). 

Accordingly, Plaintiff’s Motion for Reconsideration is moot. 

II. Motion (#33) for Temporary Restraining Order

On April 21, 2015, Plaintiff filed a third Ex Parte Motion

(#33) for Temporary Restraining Order requesting this Court to

enjoin the use of certain personally identifiable information

belonging to Plaintiff (including Plaintiff’s name, date of

birth, driver’s license number, telephone number, address, and

email address) and information allegedly derived therefrom

(including Plaintiff’s fingerprints and DNA profile) in an

Illinois state criminal proceeding scheduled to go to trial on

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April 27, 2015.

"An injunction is a matter of equitable discretion" and is

"an extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief." Winter

v. Natural Res. Def. Council, 555 U.S. 7, 22, 32 (2008).

In the first instance, however, a court must have

jurisdiction to grant injunctive relief. See Taylor v. Westly,

488 F.3d 1197, 1202 (9th Cir. 2007). See also Global Verge, Inc.

v. Rodgers, No. 2:10-cv-01360-RLH-RJJ, 2011 WL 70611, at *8 (D.

Nev. Jan. 7, 2011)("The Court cannot issue a temporary

restraining order or a preliminary injunction against parties

over which it does not have personal jurisdiction."). "Whenever

it appears by suggestion of the parties or otherwise that the

court lacks jurisdiction of the subject matter, the court shall

dismiss the action." Fed. R. Civ. P. 12(h)(3). A court may

dismiss sua sponte matters over which it does not have

jurisdiction. Zavala v. Mukasey, No. 07-73381, 2007 WL 4515209,

at *1 (9th Cir. Dec. 21, 2007).

A party seeking a temporary restraining order or preliminary

injunction must demonstrate (1) it is likely to succeed on the

merits, (2) it is likely to suffer irreparable harm in the

absence of preliminary relief, (3) the balance of equities tips

in its favor, and (4) an injunction is in the public interest. 

Winter, 555 U.S. at 20. "The elements of [this] test are

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balanced, so that a stronger showing of one element may offset a

weaker showing of another. For example, a stronger showing of

irreparable harm to plaintiff might offset a lesser showing of

likelihood of success on the merits." Alliance For The Wild

Rockies v. Cottrell, No. 09-35756, 2011 WL 208360, at *4 (9th

Cir. Jan. 25, 2011)(citing Winter, 129 S. Ct. at 392). 

Accordingly, the Ninth Circuit has held "'serious questions going

to the merits' and a balance of hardships that tips sharply

towards the plaintiff can support issuance of a preliminary

injunction, so long as the plaintiff also shows that there is a

likelihood of irreparable injury and that the injunction is in

the public interest." Id., at *7.

Plaintiff contends this Court must enjoin the use of his

personally identifiable information in his ongoing Illinois

criminal proceeding because law-enforcement officers in that case

obtained the information from Hollywood Video in violation of

Plaintiff’s rights under the First Amendment to the United States

Constitution and the Video Privacy Protection Act (VPPA), 18

U.S.C. § 2710.

This Court, however, is not empowered to issue an order

enjoining an ongoing state criminal proceeding under these

circumstances. See RedyLink Healthcare, Inc. v. State

Compensation Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)(stating

the “long-standing principle that federal courts sitting in

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equity cannot, absent exceptional circumstances, enjoin pending

state criminal proceedings”). “[A]bstention is appropriate when

(1) there is ‘an ongoing state judicial proceeding,’ (2) those

‘proceedings implicate important state interests,’ and (3) there

is ‘an adequate opportunity in the state proceedings to raise

constitutional challenges.’” Id. (quoting Middlesex Cnty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). In

addition, the “requested relief must seek to enjoin - or have the

practical effect of enjoining - ongoing state proceedings.” Id.

The Illinois state criminal proceeding against Plaintiff

that is scheduled to go to trial on April 27, 2015, is an ongoing

judicial proceeding that implicates important state interests. 

The requested relief (in effect, an order enjoining the

introduction of any evidence concerning Plaintiff’s identity,

address, telephone number, email address, date of birth,

fingerprints, or DNA) would have the practical effect of

enjoining the Illinois criminal proceeding. Plaintiff had an

opportunity in the Illinois criminal proceeding to challenge the

evidence allegedly obtained in violation of Plaintiff’s rights

under the First Amendment and VPPA. In fact, Plaintiff actually

brought these constitutional (and statutory) challenges in the

state criminal proceeding when he filed two motions to suppress

that the state court granted in part on the grounds that lawenforcement officials obtained the evidence in violation of the

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VPPA. If Plaintiff is ultimately dissatisfied with the Illinois

court’s adjudication of his motions to suppress, Plaintiff may

exercise his right of appeal in the event he is convicted.

In summary, Plaintiff asks this Court to issue a temporary

restraining order that would change the scope of the Illinois

court’s ruling on Plaintiff’s motions to suppress. This Court,

however, is not empowered to do so.

Accordingly, on this record the Court denies Plaintiff’s Ex

Parte Motion for Temporary Restraining Order.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#29)

for Reconsideration as moot. The Court also DENIES Plaintiff’s

Ex Parte Motion (#33) for Temporary Restraining Order. Plaintiff

may not file any further motions for a temporary restraining

order or other preliminary relief on this basis.

IT IS SO ORDERED.

DATED this 23rd day of April, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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