UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 5, 2012
QUASHING SUMMONS; AND OCWEN LOAN SERVICING, LLC, ET AL.,
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DISMISSING COMPLAINT; AND ORDER ORDER DENYING REQUEST FOR TEMPORARY PRELIMINARY INJUNCTION RESTRAINING ORDER AND
On December 5, 2012, Plaintiff Joseph Rego, an attorney registered within this District's Case Management/Electronic Case Filing system, electronically filed his complaint in this action. The Clerk in response issued a summons electronically (Docket no. 3).
Rego did not, however, pay the filing fee required under 28 U.S.C. § 1914 nor did he file a motion to proceed in forma pauperis. Accordingly, the complaint is DISMISSED WITHOUT PREJUDICE. See Heizelman v. Doe, 2012 WL 5392189, slip op. at *3 (S.D.Cal., Nov. 5, 2012) (reaffirming dismissal of civil action for failure to pay the required $350 filing fee). Because no fee was paid, the Clerk should not have issued the summons. The summons electronically issued is therefore QUASHED.
In the complaint's prayer for relief, Rego included a request for a temporary restraining order (TRO) and preliminary injunction. As a result, the Clerk docketed the complaint alternatively as a motion for a TRO. (Docket no. 2.)
The request was improper for several reasons. First, although Rego is asking for a ruling, his request was not filed or briefed as a motion, but instead was tucked into the complaint; furthermore, it does not comply with this Court's rules regarding motions. See Civil Local Rule 7.1(f(1). The request for a TRO also does not comply with Fed. R. Civ. P. 65(b)'s requirements, or this chambers' standing order regarding notice to opposing parties. See Standing Order, ¶ 5. Finally, the request for a TRO and preliminary injunction does not adequately address the standards for issuance of a TRO or preliminary injunction. See Stanchart Securities Int'l, Inc. v. Galvadon, 2012 WL 5286952 at *1 (S.D.Cal., Oct. 24, 2012) (discussing standards for issuance of TRO and preliminary injunction).
The request for a TRO or preliminary injunction (Docket no. 2) is therefore DENIED.
IT IS SO ORDERED.
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