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
kyle@lynchhoppersmith.com
TERRY REVERE
REVERE & ASSOCIATES
Kailua, HI 96734
T: (808) 791-9550
F: (808) 791-955
terry@revereandassociates.com
Attorneys for Plaintiff-Appellant
CARA BARBER
Case: 16-16688, 10/20/2016, ID: 10168465, DktEntry: 9-1, Page 1 of 52
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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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v
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
(9 of 64)

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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.”).
(11 of 64)

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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.
(12 of 64)

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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.
(14 of 64)

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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
(15 of 64)

10
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].
(16 of 64)

11
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
(17 of 64)

12
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).
(18 of 64)

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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).
(19 of 64)

14
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).
(20 of 64)

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.
(21 of 64)

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).
(22 of 64)

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).
(23 of 64)

18
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.
(24 of 64)

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).
(25 of 64)

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
(26 of 64)

21
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).
(27 of 64)

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).
(28 of 64)

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).
(29 of 64)

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).
(30 of 64)

25
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).”).
(31 of 64)

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.
(32 of 64)

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.
(33 of 64)

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
(34 of 64)

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).
(35 of 64)

30
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).
(36 of 64)

31
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).
(37 of 64)

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).
(38 of 64)

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.”).
(39 of 64)

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).
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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
(41 of 64)

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.)
(42 of 64)

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
(43 of 64)

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
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.
(44 of 64)

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
(45 of 64)

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.
(46 of 64)

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.
(47 of 64)

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
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
(48 of 64)

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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44
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
(50 of 64)

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(51 of 64)

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/s/ Kyle Smith
Cara Barber, et al. v. Ohana Military Communities, et al.
C.A. No. 16-16688
March 20, 2016
(52 of 64)

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
Kailua, HI 96734
T: (808) 791-9555
F: (808) 791-9556
kyle@lynchhoppersmith.com
TERRY REVERE
REVERE & ASSOCIATES
Kailua, HI 96734
T: (808) 791-9550
F: (808) 791-955
terry@revereandassociates.com
Attorneys for Appellant
CARA BARBER
(53 of 64)

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
(54 of 64)

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:
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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
(56 of 64)

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
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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
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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.
(59 of 64)

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