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Title: Brian Mclaughlin v. Wells Fargo Bank

November 13, 2012

TITLE: BRIAN MCLAUGHLIN
v.
WELLS FARGO BANK, N.A., ET AL.



The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

Julie Barrera N/A Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PLAINTIFF'S

APPLICATION FOR A TEMPORARY RESTRAINING ORDER

Before the Court is Plaintiff's Ex Parte Application for a Temporary Restraining Order ("TRO") (Dkt. 31). After reviewing the application and opposition, the Court herby DENIES Plaintiff's Application.*fn1

I.Background

On July 9, 2012, Plaintiff Brian McLaughlin (Plaintiff) filed the present complaint in federal court. Defendants Bank of America and Wells Fargo Bank filed a Motion to Dismiss on August 10, 2012, which Plaintiff then failed to oppose. See Order Granting Defendants' Motion To Dismiss Without Prejudice (Dkt. 8). Plaintiff filed a First Amended Complaint (FAC, Dkt.16), and Defendants Bank of America and Wells Fargo filed another Motion To Dismiss (Dkt. 20) on October 8, 2012. Plaintiff filed an Opposition (Dkt. 24) to the last Motion To Dismiss.

On November 6, 2012, Plaintiff filed an Ex Parte Application for a Temporary Restraining Order (Dkt. 30), which Defendants Bank of America and Wells Fargo then opposed (Dkt. 31). It does not appear that Plaintiff contacted the courtroom deputy assigned to this Court, as parties are encouraged to do when they seek an emergency ex parte, because otherwise they risk "a delay of judicial review," see Dkt. 30. Plaintiff argues that at a minimum his case presents serious questions of law worthy of litigation, and that those questions, combined with the irreparable harm from a foreclosure sale, should lead this Court to grant the TRO. Mot. 7. Defendants counter with an argument that they have a clear right to foreclosure, and that Plaintiff is forum shopping in bad faith. Opp. 1. Plaintiff had filed a lawsuit in state court on April 12, 2012, making substantially the same claims as the current lawsuit. See Superior Court Minute Order, Ex. 6 to Defendants' Request for Judicial Notice (Dkt. 33). After a temporary restraining order was granted, the Superior Court then denied the application for an preliminary injunction, finding that plaintiff had not shown a likelihood of success. Id. After this denial, Plaintiff requested, and received, dismissal of his state court lawsuit without prejudice. See State Court Docket 59 & 62, 30-2012-00561729-CU-CO-CJC.

For the reasons stated below, the Court DENIES Plaintiff's Request.

II.Legal Standard

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the court may grant preliminary injunctive relief in order to prevent "immediate and irreparable injury." Fed. R. Civ. P. 65(b)(1)(A). Interim injunctive relief is granted on grounds similar to that governing the issuance of a preliminary injunction. City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir. 1985). The decision to grant or deny a preliminary injunction is within the discretion of the district court. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). ...


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