Opinion
ORDER
KIMBERLY J. MUELLER, District Judge.
This matter is before the court on plaintiff's second ex-parte motion for a temporary restraining order ("TRO"). (ECF 11.) For the reasons below, the motion is DENIED without prejudice.
I. BACKGROUND
Plaintiffs challenge on various grounds defendant's requirement that all California members of the Tennessee Walking Horse Breeders' and Exhibitors' Association ("TWHBEA" or defendant) appear in person in Lewisburg, Tennessee in order to cast their vote in the recall election of TWHBEA's California Director Christy Lantis. Plaintiffs seek, among other things, an injunction to stop the February 3, 2014 special meeting at which the recall vote of Landis will take place and an injunction requiring defendant to permit mail-in ballots for the recall vote. The gravamen of plaintiffs' claims is that defendant should accommodate two of the named plaintiffs, who are disabled under the Americans with Disabilities Act ("ADA"), by permitting the use of mail-in ballots. Additionally, defendant's requirement that all of its California members attend in person the February 3 special meeting violates Tennessee's Nonprofit Corporations Code and contravenes defendant's own bylaws.
Plaintiffs filed their complaint on January 13, 2014, bringing seven claims: (1) violation of the ADA; (2) violation of the Unruh Act; (3) breach of governing documents and Tennessee corporations code; (4) breach of contract; (5) violation of Business and Professions Code § 17200 ("Unfair Competition Law" or "UCL"); (6) declaratory relief; and (7) preliminary and permanent injunction. (ECF 1 ("Compl.").) The court denied without prejudice plaintiffs' first motion for a TRO, filed January 21, 2014 (ECF 5), because plaintiffs did not make the requisite showing to obtain a TRO (ECF 6). Specifically, plaintiffs did not address the public interest and balance of equities prongs as outlined in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs filed the instant TRO, which addresses each of Winter 's prongs, on January 28, 2014. (ECF 11.) Defendant filed a motion to dismiss and opposition that same day, arguing that this court lacks subject matter jurisdiction and that plaintiffs' ADA claim is not cognizable. (ECF 12.)
II. ANALYSIS
>A. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377-78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3). District courts have subject matter jurisdiction in two situations: 1) federal question jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States"; and 2) diversity jurisdiction where "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs" and there is complete diversity between the parties. 28 U.S.C. §§ 1331, 1332(a). Plaintiffs' plead that this court has jurisdiction on both federal question and diversity grounds. (Compl. ¶ 9.) Defendant argues federal question jurisdiction does not exist because plaintiffs' sole federal claim under the ADA is not cognizable.
The court need not reach defendant's federal question jurisdiction argument because the court has diversity jurisdiction over this case. Complete diversity among the parties exists because plaintiffs are citizens of California and defendant is a citizen of Tennessee. ( See Compl. ¶¶ 2-6.) Plaintiffs also allege that the amount in controversy exceeds $75,000. ( Id. ¶ 9 ("[T]he controversy exceeds the sum or value of $75,000.")); see Crum v. Circus Circus Enterprises, 231 F.3d 1129, 1131 (9th Cir. 2000) ("Generally, the amount in controversy is determined from the face of the pleadings."). The sum claimed by plaintiffs controls so long as the claim is made in good faith. Crum, 231 F.3d at 1131 (citation omitted). "To justify dismissal, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.'" Budget Rent-A-Car, Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
In their prayer for relief, plaintiffs request actual damages, injunctive and declaratory relief, statutory minimum damages under the Unruh Act, attorneys' fees, general and special damages, and interest and prejudgment interest. None of these requests is on its face meritless. While no specific amount of damages or other specific information is provided, the court cannot conclude to a legal certainty based upon the face of the complaint that the amount in controversy in this case is less than $75,000. Accordingly, this court has jurisdiction under 28 U.S.C. § 1332(a).
B. Motion for TRO and Success on the Merits
A plaintiff seeking a TRO must establish she is "likely to succeed on the merits, ... likely to suffer irreparable harm in the absence of preliminary relief, ... the balance of equities tips in his favor, and... an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (the analysis for temporary restraining orders and preliminary injunctions is "substantially identical"). Plaintiffs move for a TRO on the basis of four of their seven claims: (1) violation of Tennessee Law and defendant's bylaws; (2) violation of the ADA; (3) violation of the Unruh Act; and (4) violation of the UCL. (ECF 11-1 at 9-17.) Because plaintiffs have not shown they are likely to succeed on the merits of these four claims, the court does not consider the remaining three Winter prongs. See Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (a court need not reach the other prongs if the moving party cannot as a threshold matter demonstrate a "fair chance of success on the merits") (internal quotations and citation omitted).
1. Tennessee Law
Plaintiffs are not likely to succeed on their claim that defendant's refusal to mail written ballots violates Tennessee law. Plaintiffs argue that defendant has violated Tennessee Code section 48-57-108(a), entitled "Actions by written ballot, " which reads: "Except as provided in subsection (e) and unless prohibited or limited by the charter or bylaws, any action which may be taken at any annual or special meeting of members may be taken without a meeting if the corporation delivers a written ballot to every member entitled to vote on the matter." (ECF 11-1 at 10.) Plaintiffs interpret this language to mean that defendant cannot require its members to appear in person to vote. ( Id. ) This interpretation contravenes the plain language of subsection 48-57-108(a), however, which authorizes action by written ballot but does not require such action when an organization's members demand it. While plaintiffs have a stronger argument that defendant's bylaws do not require attendance, see, e.g., Article II, Sections 2-4, Corporation Bylaws of TWHBEA, Ex. A, Compl., ECF 1 (stating that, for regular annual meetings, "[m]embers shall not be required to be present to vote but may vote by mail ballot"), plaintiffs do not in their motion link this potential violation of their bylaws to any cognizable claim upon which a federal court could grant relief.
2. ADA and Unruh Act
Plaintiffs also are unlikely to succeed on their ADA and Unruh Act claims. An individual alleging discrimination under the ADA must show that: "(1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiff's disability." Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004) (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001)). Plaintiffs here do not demonstrate defendant discriminated against the two disabled plaintiffs "based upon" their disability because there is no allegation or evidence in the record that plaintiffs ever requested an accommodation for their disability. See id. at 1083 (finding ADA violation where plaintiff requested movie theater accommodate his disability by ensuring his attendant sat next to him); PGA Tour, Inc., 532 U.S. at 669 (finding ADA violation where plaintiff made a request, supported by "detailed medical records, for permission to use a golf cart").
Plaintiffs assert plaintiffs Tarnawski and Barton qualify as "disabled" under the ADA. (ECF 11-1 at 11.) This assertion is uncontested. Plaintiffs do not, however, direct the court to any proof that plaintiffs requested that defendant accommodate them by permitting them to vote by mail-in ballot. Although the court has no obligation to "comb the record, " Forsberg v. P. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988), the court has examined each of these plaintiffs' declarations (ECFs 11-4, 11-5) as well as the declarations of their counsel and plaintiff Cole (ECFs 11-6, 11-2). No declaration suggests defendant was ever requested to accommodate Tarnawski and Barton. ( See, e.g., Decl. of Fran Cole ¶ 21, ECF 11-2 ("Despite [counsel's] repeated requests to have TWHBEA provide written ballots so California members could vote by mail for the recall election of Christy Lantis rather than being forced to travel to Tennessee to vote in person, TWHBEA refused this reasonable request.").) Nor does the California members' letter to defendant demanding written ballots say anything about accommodating disabled members. (Ex. 13, ECF 14.) Instead, plaintiffs appear to have demanded mail-in ballots for all California members without ever referencing the need to make reasonable accommodations for certain of these members.
Even if the court were to consider Ms. Cole's supplemental declaration filed on January 29, 2014, over defendant's objection, the court would not reach a different conclusion.
Plaintiffs assert no separate basis for their Unruh Act claim, violations of which are typically premised on violations of the ADA. See CAL. CIVIL CODE § 51(f) ("A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-3361) shall also constitute a violation of this section."). As described above, on the record before the court, plaintiffs are not likely to prevail on the merits of their claim that defendant violated the ADA. Accordingly, plaintiffs have not shown they are likely to prevail on the merits of their Unruh Act claim either.
3. UCL
Finally, plaintiffs are not likely to succeed on their UCL claim. Plaintiffs base their UCL claim on the "unlawful" and "unfairness" UCL prongs. The former has no merit because, as described above, plaintiffs have not shown defendant has violated some other law. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1168 (9th Cir. 2012) (quoting Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 180 (1999) (By proscribing "any unlawful" business practice, section 17200 "borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.'")). Nor do plaintiffs show exactly how defendant's conduct violated the "unfair" prong. Lyons v. Bank of Am., NA, No. 11-01232 CW, 2011 WL 3607608, at *10 (N.D. Cal. Aug. 15, 2011) ("After Cel-Tech, California appellate courts have applied three different approaches for determining unfairness in consumer cases."). Plaintiffs argue that an "unfair practice" can be predicated on a violation of a company's own internal policies. (ECF 11-1 (citing Smith v. Chase Mortg. Credit Grp., 653 F.Supp.2d 1035, 1043 (E.D. Cal. 2009).) Smith, however, is readily distinguishable; the claim in that case, as with all UCL "unfairness" claims of which this court is aware, concerned consumer transactions. 653 F.Supp.2d at 1043. Even if this court found a clear violation of defendant's own bylaws, plaintiffs' single-line argument invoking Smith does not support an unprecedented extension of the UCL's "unfairness" prong to corporate governance disputes.
IV. CONCLUSION
For the foregoing reasons, plaintiffs' motion for a temporary restraining order is DENIED without prejudice.
IT IS SO ORDERED.