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Kris Kaszuba, et al v. Fidelity National Services

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 24, 2011

KRIS KASZUBA, ET AL.,
PLAINTIFFS,
v.
FIDELITY NATIONAL SERVICES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge

ORDER DENYING PLAINTIFFS' EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING DEFAULT ORDER

This case comes before the Court on Plaintiffs' ex parte application for a temporary restraining order ("TRO") and an order to show cause why a preliminary injunction should not be issued preventing Defendants from foreclosing on or selling Plaintiffs' residence. Plaintiffs included their application as a claim for relief in their Complaint. It does not appear that Defendants have yet been served. For the reasons set forth below, Plaintiffs' application is denied.

The purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974)(noting a temporary restraining order is restricted to its "underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer"). Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 376 (2008). The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A party seeking injunctive relief under Federal Rule of Civil Procedure 65 must show "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." Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)(quoting Winter, 129 S. Ct. at 374).

Here, Plaintiffs have shown a possibility of irreparable harm in the potential loss of their residence. However, Plaintiffs have not demonstrated they are likely to succeed on the merits of any of their claims. Further, Plaintiffs do not address whether the balance of equities tips in their favor or if the injunction is in the public interest. In the absence of a showing of these elements, Plaintiffs are not entitled to a TRO. Accordingly, Plaintiffs' application is denied.

IT IS SO ORDERED.

20110124

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