United States District Court, N.D. California, San Jose Division
ORDER DENYING, WITHOUT PREJUDICE, APPLICATION FOR TEMPORARY RESTRAINING ORDER [Re: ECF 1]
BETH LABSON FREEMAN, District Judge.
Plaintiffs Anita and Donato Taa ("Plaintiffs"), proceeding pro se, seek a temporary restraining order ("TRO") against numerous defendants in connection with a mortgage on their real property. Pl.'s Mot., ECF 1. Plaintiffs filed their application for TRO on March 20, 2015 and averred that they did not serve defendants because "[n]o Certificate of Service' is required due to our Crime Victims' Rights Claimant' status." Certificate of Service, ECF 1-1. The Court accordingly treats this application as ex parte and, for the reasons stated herein, DENIES it without prejudice.
The gravamen of Plaintiffs' lawsuit is not entirely clear because their TRO application is not accompanied by a complaint. Recognizing that pro se filings are to be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court discerns from Plaintiffs' TRO application and accompanying documents that they own a property in Milpitas secured by a promissory note on a loan originally obtained from AmPro Mortgage Corporation. See Pl.'s Mot. Exh. A. Plaintiffs appear to contend that both the loan and the note are illegal, either because they were fraudulently entered or subsequently fraudulently assigned, or both. See Pl.'s Mot. at 2; see also id. Exh. F (Plaintiffs' letter to California Attorney General Kamala D. Harris requesting criminal prosecution of the defendants for violations of "multiple criminal and civil statutes, " including forgery, perjury, mail fraud, notary fraud, and criminal conversion).
Plaintiffs now seek a TRO against the defendants "in order to prevent further financial, mental and psychological devastation." Pl.'s Mot. at 1. Plaintiffs also request that "this Court stipulate that Movant receive all Crime Victims' Rights, ' as required under [18 U.S.C. § 3771].'" Id. While it is not clear what exact conduct by the defendants Plaintiffs seek to enjoin, their application states that they are seeking relief in the form of:
1. REVERSE the illegally implemented eviction and reverse the illegal foreclosure action against Movant; and
2. Immediately implement ALL CRIME VICTIMS RIGHTS' MOVANT is entitled to under 18 USC 3771 CRIME VICTIMS' RIGHTS ACT; CALIFORNIA PENAL CODE 679 & 1102.6 Crime Victim and Witness Rights Act and the California Constitution, Article I, Section 28 (b)-Rights of Victims of Crime, in order to make Movant Whole.
3. Based upon the presented evidence and existing Federal/State laws "BAR" the named Defendants from securing any type of relief, compensation, etc., in regards to Movant as per Per [sic] 18 USC 3771, (d) (1), which states in part: "A person accused of the crime may not obtain any form of relief under this chapter."
Id. (emphasis in original).
II. LEGAL STANDARD
The substantive standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). An injunction is a matter of equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008).
A plaintiff seeking preliminary injunctive relief must establish " 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." Id. at 20. Alternatively, an injunction can issue where "the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor, " provided that the plaintiff can also demonstrate the other Winter factors. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation and internal quotation marks omitted). Under either standard, the plaintiff bears the burden of making a clear showing on these elements and on entitlement to this extraordinary remedy. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010).
An ex parte TRO Application must first satisfy Federal Rule of Civil Procedure 65(b)(1), which demands "specific facts in an affidavit or a verified complaint" that "clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, " and a certification describing the "efforts made to give notice [to the adverse party] and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1)(A)-(B). As previously described, Plaintiffs' averred that they are not required to give notice to defendants because of their "Crime Victims' Rights Claimant' status." Certificate of Service, ECF 1-1. It is not clear what efforts, if any, Plaintiffs made to contact the defendants. More fundamentally, even if the Court were to accept Plaintiff's averment as sufficient justification for the failure to notify the named defendants, Plaintiffs have still failed to satisfy the first prong of Rule 65(b)(1) because they have provided no affidavit or verified complaint setting forth specific facts showing a likelihood of immediate and irreparable injury. In fact, Plaintiffs' requested relief that this Court "REVERSE the illegally implemented eviction and reverse the illegal foreclosure against ...