IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 27, 2011
TRACY D. LAWSON, PLAINTIFF,
CITICORP TRUST BANK, FSB, A MEMBER OF CITIGROUP; CR TITLE SERVICES, INC.; PRIMERA FINANCIAL SERVICES HOME MORTGAGES, INC.; TIMOTHY GEITHNER, SECRETARY OF THE TREASURY, UNITED STATES; ERIC HOLDER, U.S. ATTORNEY GENERAL, AS ALIEN PROPERTY CUSTODIAN, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court is plaintiff's "Verified Emergency Motion For Temporary Restraining Order and Preliminary Injunction 2nd Application" ("TRO Application").*fn1 For the reasons stated below, the undersigned recommends that plaintiff's TRO Application be denied without prejudice to the refiling of a procedurally proper application for a temporary restraining order and/or preliminary injunction. In light of the objection and response period required by 28 U.S.C. § 636(b)(1) and Local Rules 304(b) and 304(d), and the potential irreparable injury that plaintiff might suffer as early as July 11, 2011, plaintiff shall be permitted to immediately file a procedurally proper application for a temporary restraining order and/or preliminary injunction prior to the resolution of these findings and recommendations by the district judge assigned to this case.
Plaintiff filed this action on May 2, 2011, seeking to, in part, set aside the foreclosure of her home located at 7400 Franklin Boulevard, in Sacramento, California. (See generally Compl., Dkt. No. 1.) Along with her complaint, plaintiff filed an application for a temporary restraining order and preliminary injunction, seeking to maintain the status quo and prevent the trustee's sale of her home. (See Verified Emergency Motion For Temporary Restraining Order and Preliminary Injunction, Dkt. No. 2.) Plaintiff's first application for emergency relief did not indicate the date of the purported trustee's sale.
On May 2, 2011, United States District Judge Kimberly J. Mueller ordered plaintiff: (1) "to notify the court within three (3) days of the date on which the foreclosure is scheduled"; and (2) within twenty-four hours of being served with th[e] order, to provide notice to defendants . . . of the motion for a temporary restraining order and preliminary injunction." (Order, May 2, 2011, at 1, Dkt. No. 6.) Plaintiff failed to comply with Judge Mueller's May 2, 2011 order, and, accordingly, Judge Mueller subsequently denied plaintiff's application for emergency relief. (See Order, May 12, 2011, Dkt. No. 7.)
On June 16, 2011, defendants Citicorp Trust Bank ("Citicorp"), and C.R. Title Services, Inc. ("C.R. Title") filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss, Dkt. No. 9.) A hearing on Citicorp's and C.R. Title's motion to dismiss is set for July 28, 2011.
On June 24, 2011, plaintiff filed the TRO Application that is pending before the court. (Dkt. No. 10.) Plaintiff's TRO Application indicates that she has received written notice that a "sale date is set for 7/11/11." (TRO Application at 3.) Attached to plaintiff's TRO Application is a Notice of Trustee's Sale, which indicates that a trustee's sale of the subject property is scheduled to take place on July 11, 2011, at 1:30 p.m. (Lawson Decl., Ex. A, Dkt. No. 10, Doc. No. 10-1.) Plaintiff's declaration essentially represents that the filing of her application constitutes notice to all defendants of her ex parte TRO Application. (Lawson Decl. at 2.) Plaintiff's Temporary Restraining Order ("TRO") Checklist ("TRO Checklist") indicates that plaintiff has not discussed alternatives to a TRO hearing with defendants or asked defendants to stipulate to a TRO. (TRO Checklist at 1, Dkt. No. 10, Doc. No. 10-2.)
II. LEGAL STANDARDS "A plaintiff seeking a preliminary injunction must establish that he [or she] is likely to succeed on the merits, that he [or she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his [or her] favor, and that an injunction is in the public interest." Winter v. Natural Resources Def. Council, Inc., 129 S. Ct. 365, 374 (2008); accord Earth Island Institute v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). The standard that governs the issuance of a preliminary injunction is "substantially identical" to the standard that governs the issuance of a temporary restraining order. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); see also Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995) ("The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction."); accord Cal. Independent Sys. Operator Corp v. Reliant Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001).
Additionally, this court's Local Rules imposes several procedural requirements on applications for emergency relief. Those requirements are contained in Local Rule 231 and the rules referred to therein.
The undersigned recommends that plaintiff's TRO Application be denied on procedural grounds. Plaintiff's application is procedurally deficient for a number of reasons and, moreover, is confusing in terms of the relief sought.
As an initial matter, plaintiff's TRO Application is ambiguous in regards to the party or parties against whom plaintiff seeks emergency relief. Although the text of her TRO Application seeks emergency relief against defendants Citicorp and C.R. Title, her TRO Checklist lists the sole opposing party as "Bank of America et al." (Compare TRO Application at 3, with TRO Checklist at 1.) However, Bank of America is not a named defendant in this action, and it is entirely unclear why plaintiff appears to be seeking relief against Bank of America.
In terms of procedural deficiencies, plaintiff failed to file multiple required documents with the court.*fn2 Local Rule 231(c) provides:
(c) Documents to Be Filed. No hearing on a temporary restraining order will normally be set unless the following documents are provided to the Court and, unless impossible under the circumstances, to the affected parties or their counsel:
(1) a complaint;
(2) a motion for temporary restraining order;
(3) a brief on all relevant legal issues presented by the motion;
(4) an affidavit in support of the existence of an irreparable injury;
(5) an affidavit detailing the notice or efforts to effect notice to the affected parties or counsel or showing good cause why notice should not be given, see L.R. 142;
(6) a proposed temporary restraining order with a provision for a bond, see
(7) a proposed order with blanks for fixing the time and date for hearing a motion for preliminary injunction, the date for the filing of responsive papers, the amount of the bond, if any, and the date and hour of issuance, see L.R. 137; and
(8) in all instances in which a temporary restraining order is requested ex parte, the proposed order shall further notify the affected party of the right to apply to the Court for modification or dissolution on two (2) days' notice or such shorter notice as the Court may allow. See Fed. R. Civ. P. 65(b).
First, plaintiff's TRO Application does not include "a brief on all relevant legal issues presented by the motion." E. Dist. Local Rule 231(c)(3). Plaintiff acknowledges through her TRO Checklist that she did not file such a legal brief. (TRO Checklist at 2.) Plaintiff's brief of the legal issues pertaining to the relief sought would be particularly helpful in this case, because plaintiff's complaint asserts numerous wrongs against various defendants. It is unclear which claims for relief plaintiff believes justify emergency injunction relief. A legal brief would potentially assist in the narrowing of issues for the court.*fn3
Second, plaintiff has not filed a "proposed temporary restraining order with a provision for a bond" as required by Local Rule 231(c)(6), or the proposed order required by Local Rule 231(c)(7). Again, plaintiff's TRO Checklist confirms that plaintiff did not file these documents with the court. (TRO Checklist at 2.)
For these reasons, the undersigned recommends that plaintiff's TRO Application be denied. However, plaintiff may file a procedurally sufficient application for a temporary restraining order and/or preliminary injunction.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff's
"Verified Emergency Motion For Temporary Restraining Order and Preliminary Injunction 2nd Application" (Dkt. No. 10) be denied without prejudice to the refiling of a procedurally proper application for a temporary restraining order and/or preliminary injunction. Again, plaintiff may immediately file a procedurally proper application for a temporary restraining order and/or preliminary injunction, notwithstanding the objection and response periods noted below.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO RECOMMENDED.