Cara Barber; v. OHANA MILITARY COMMUNITIES, LLC and FOREST CITY RESIDENTIAL MANAGEMENT, INC.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARA BARBER; et al.,
Plaintiffs-Appellants,
v.
OHANA MILITARY COMMUNITIES,
LLC and FOREST CITY RESIDENTIAL
MANAGEMENT, INC.,
Defendants-Appellees.
No. 16-16688
D.C. No.
1:14-cv-00217-HG-KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted June 14, 2017
Honolulu, Hawaii
Before: FISHER, PAEZ, and NGUYEN, Circuit Judges.
Cara Barber appeals the district court’s grant of a preliminary injunction
arising from alleged violations of the terms of a settlement agreement with
Defendants. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm the
district court’s exercise of jurisdiction and vacate the preliminary injunction.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. The district court had subject matter jurisdiction to issue the
preliminary injunction. The parties stipulated—and the district court agreed in its
dismissal order—that the court would retain jurisdiction to enforce the terms of the
settlement until August 25, 2016. See Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 381 (1994). We agree with Barber that the district court does not
have the inherent authority to unilaterally modify the dismissal order or otherwise
enlarge its own subject matter jurisdiction. The district court therefore did not
have the authority to “reopen” the case for all purposes. However, we defer to the
district court’s interpretation of its own order that it intended to create a six-month
window for the parties to raise issues pertaining to the settlement agreement. Thus,
while the district court lacked subject matter jurisdiction as to any issues not raised
prior to August 25, 2016, it retained jurisdiction to adjudicate any purported
violations of the settlement agreement brought to its attention prior to that date.
2. The district court abused its discretion in issuing the preliminary
injunction. A party seeking a preliminary injunction must show that it is likely to
succeed on the merits; that it is likely to suffer irreparable harm in the absence of
preliminary relief; that the balance of equities tips in its favor; and that an
injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). We review for abuse of discretion. See Shell Offshore, Inc. v.
Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013).

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Here, Barber does not appear to contest that she breached the confidentiality
provision of the settlement agreement, but, even so, her violations were relatively
mild. The provision prohibited Barber from revealing the “terms of this
Agreement,” which she violated in published statements. Most of her online
postings, however, did not appear to violate the confidentiality provision, and
neither did her descriptions of publicly available information about the lawsuit.1
Economic injury alone cannot support a finding of irreparable harm, but
intangible injuries such as damage to reputation can. See Rent-A-Ctr., Inc. v.
Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
The district court found that Barber’s online activism injured Defendants’
reputation and encouraged future lawsuits, which in turn would further injure their
reputation. The evidence cited by the district court failed, however, to link the
specific violations of the confidentiality provision to any irreparable harm.
Barber’s online activities may have caused harm to Defendants by injuring their
reputations, but her conduct did not violate the confidentiality provision aside from
the statements referred to above. The record does not support the inference that
her statements were sufficiently harmful to Defendants’ reputation so as to cause a
likelihood of irreparable harm. The record also does not support the inference that
1 We do not consider whether Barber violated the non-disparagement provision of
the settlement agreement, as the district court did not reach that issue.

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these statements induced any additional lawsuits.
Because we vacate the preliminary injunction, we need not address any other
arguments raised by Barber. Each party shall bear its own costs.
AFFIRMED IN PART, VACATED, AND REMANDED.

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