Godinez et al v. Puebla et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 22-cv-02606-NYW-SP
CHRISTIAN GODINEZ, and
ABIGAIL GODINEZ,
Plaintiffs,
v.
JESUS PUEBLA,
JOSE MAURICIO COREAS d/b/a CAMINANTES TRUCKING,
CARLOS COREAS,
LUCKY 22, INC.,
JOHN DOES 1–5, and
JOHN DOE COMPANIES 1–5,
Defendants.
MINUTE ORDER
Entered by Judge Nina Y. Wang
Pending before the Court is Plaintiffs’ ex parte Motion for Emergency Temporary
Restraining Order and Preliminary Injunction (“Motion”) [Doc. 44, filed June 27, 2023]. 	The
Court has reviewed the Motion and the applicable law, and concludes that oral argument would
not materially assist in the resolution of this matter. For the reasons discussed below, the Court
respectfully DENIES the Motion.
Background. On November 16, 2022, Plaintiffs Christian Godinez and Abigail Godinez
(together, “Plaintiffs”) filed the First Amended Complaint and Jury Demand (“First Amended
Complaint”), [Doc. 11], in this wrongful death action. According to the First Amended Complaint,
Plaintiffs’ parents passed away on June 13, 2022, following a collision in Weld County, Colorado,
with a commercial motor vehicle owned by Defendant Carlos Coreas (“Mr. Coreas”), who in turn
owns Defendant Lucky 22, Inc. (“Lucky 22”); driven by Defendant Jesus Puebla (“Mr. Puebla”),
who was employed by Lucky; and operated under the authority of Defendant Jose Mauricio
Coreas, doing business as Caminantes Trucking (“Coreas/Caminantes”). [Id. at ¶¶ 3–4, 23, 32].1
The First Amended Complaint alleges that all Defendants were at fault for the accident, which
claimed five lives in total. [Id. at ¶¶ 37–39]. Plaintiffs bring eleven claims for relief, including
three claims against Coreas/Caminantes: Claim 3, for negligence; Claim 7, for outrageous conduct;
1 The Court uses the convention [Doc. __] to refer to the docket entry and page number assigned
by the District’s Electronic Case Filing (“ECF”) system, unless otherwise indicated.
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and Claim 9, for civil conspiracy. [Id. at 14–21, 23–24, 26–28]. Throughout the First Amended
Complaint, Plaintiffs exclusively seek damages. [Id. at 32–33].
All Defendants have been served or waived service, and all Defendants have appeared—
except Coreas/Caminantes. On November 7, 2022, Plaintiffs moved the Clerk of Court to enter
default against Coreas/Caminantes. [Doc. 7]. The Clerk did so the next day. [Doc. 8]. Plaintiffs
have not moved for a default judgment. See Fed. R. Civ. P. 55(b). Plaintiffs now represent that
they will move for a default judgment against Coreas/Caminantes “[a]t the close of the Plaintiffs’
case against the remaining Defendants.” [Doc. 44 at 4].
On June 27, 2023, Plaintiffs filed their ex parte Motion. 	In it, they state that the
Coreas/Caminantes fleet has shrunk from ninety-two registered vehicles, when this action was
filed, to forty-six vehicles, in early 2023. [Id. at 3]. Moreover, according to Coreas/Caminantes
management, Coreas/Caminantes will “be dissolving and effectively ending the business as of
June 30th, 2023.” [Id. at 5]. Plaintiffs thus fear that any “reduction” in the Coreas/Caminantes
“assets directly correlates to a reduction in the Plaintiffs’ recovery for damages”—if and when
they obtain a judgment. 	[Id. at 4]. 	In the instant Motion, Plaintiffs request immediate relief
enjoining Coreas/Caminantes from “from selling or transferring any . . . assets until a judgment
has been entered and executed in this action.” 	[Id. at 8]; see also [id. at 1–2]. 	According to
Plaintiffs, a “representative” for Coreas/Caminantes has indicated “no . . . position” on this motion,
whereas the other Defendants will not oppose the relief sought. [Id. at 2].
Legal Standard. 	Federal Rule of Civil Procedure 65 authorizes the court to enter
preliminary injunctions and issue temporary restraining orders. Fed. R. Civ. P. 65(a), (b). “The
requirements for issuing a [temporary restraining order] mirror the requirements for issuing a
preliminary injunction.” Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 1114 (D. Colo. 2013). A party
seeking preliminary injunctive relief must satisfy four factors: (1) a likelihood of success on the
merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the injunction is in
the public interest. Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir. 2015). A party seeking
an injunction must demonstrate that “all four of the equitable factors weigh in its favor,” Sierra
Club, Inc. v. Bostick, 539 F. App’x 885, 888 (10th Cir. 2013), and a “plaintiff’s failure to prove
any one of the four preliminary injunction factors renders its request for injunctive relief
unwarranted.” Vill. of Logan v. U.S. Dep’t of Interior, 577 F. App’x 760, 766 (10th Cir. 2014).
“Preliminary injunctions are extraordinary remedies requiring that the movant’s right to relief be
clear and unequivocal.” Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1223 (10th Cir.
2018).
As Plaintiffs acknowledge, an ex parte injunction entails an additional showing. See [Doc.
44 at 6]. Specifically, “[t]he [C]ourt may issue a temporary restraining order without written or
oral notice to the adverse party or its attorney only if” two requirements are met. Fed. R. Civ. P.
65(b)(1). 	First, “specific facts in an affidavit or a verified complaint [must] clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse party
can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). Second, “the movant’s attorney [must]
certif[y] in writing any efforts made to give notice and the reasons why it should not be required.”
Fed. R. Civ. P. 65(b)(1)(B). 	Additionally, under this District’s Local Rules, “[a] proposed
temporary restraining order shall be submitted with a motion for temporary restraining order.”
D.C.COLO.LCivR 65.1(b).
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Analysis. Despite acknowledging that Rule 65 unambiguously requires them to include an
“affidavit or a verified complaint” that “clearly show[s] that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse party can be heard in opposition,” the
Plaintiffs neglect to do. Fed. R. Civ. P. 65(b)(1)(A); [Doc. 44 at 6]. Rather, Plaintiffs limit their
presentation to argument concerning the four factors discussed above. [Doc. 44 at 6–8]. Plaintiffs
do attach several records related to Coreas/Caminantes’s truck fleet, as well as insurance
correspondence involving Coreas/Caminantes. See generally [Doc. 44-1]. However, Plaintiffs do
not include any affidavit or verified complaint attesting to the asserted immediate and irreparable
injuries in the Motion. See Gebhardt Eur. Autos, LLC v. Porsche Cars of N.A., Inc., No. 10-cv-
02696-MSK, 2010 WL 4642490, at *1 (D. Colo. Nov. 9, 2010) (“With regard to a showing of
immediate and irreparable injury via affidavit or verified pleading, the [c]ourt observes that the
[p]laintiff’s motion is not supported by an affidavit.”). In addition, the First Amended Complaint
predates the Motion and does not touch on the alleged collection-related injuries prompting the
requested ex parte injunctive relief.2 See generally [Doc. 11]. Finally, Plaintiffs did not submit a
proposed order alongside the Motion. See D.C.COLO.LCivR 65.1(b). The Motion is therefore
respectfully DENIED on procedural grounds as noncompliant with Rule 65(b)(1) and this
District’s Local Rules. See May v. U.S. Bank, N.A., No. 13-cv-01621-PAB, 2013 WL 3200473, at
*1 (D. Colo. June 24, 2013).
Additionally, the Court notes that Plaintiffs currently have no enforceable monetary
judgment 	against 	Coreas/Caminantes. 	Thus, 	any 	renewed 	request 	that 	seeks 	to 	enjoin
Coreas/Caminantes “from selling or transferring any . . . assets until a judgment has been entered
and executed in this action” must address how the remedy sought is consistent with cases
concerning the scope of federal courts’ equitable powers. 	See, e.g., Grupo Mexicano de
Desarrollo, S. A. v. All. Bond Fund, Inc., 527 U.S. 308, 333 (1999) (“Because such a remedy was
historically unavailable from a court of equity, we hold that the [d]istrict [c]ourt had no authority
to issue a preliminary injunction preventing petitioners from disposing of their assets pending
adjudication of respondents’ contract claim for money damages.”); see also Niemi v. Lasshofer,
728 F.3d 1252, 1257–58 (10th Cir. 2013) (“[I]n cases seeking money judgments, federal district
courts do not possess the inherent equitable power to issue preliminary injunctions preventing the
transfer of assets in which the plaintiffs claim no pre-existing lien or equitable interest.”); Pillow
Menu, LLC v. Super Effective, LLC, No. 20-cv-03638-STV, 2021 WL 3726205, at *17–20 (D.
Colo. Aug. 19, 2021).
Accordingly, IT IS ORDERED that:
(1) 	The 	Motion 	for 	Emergency 	Temporary 	Restraining 	Order 	and 	Preliminary
Injunction [Doc. 44] is DENIED without prejudice.
DATED: June 28, 2023
2 Notably, even the arguments in the Motion related to Plaintiffs’ injury are speculative. See [Doc.
44 at 7 (“It is more likely than not that [Coreas/Caminantes] is systematically selling off these
assets in an attempt to reduce . . . liability.”)].
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