United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S APPLICATION TEMPORARY
RESTRAINING ORDER AND MOTION FOR LEAVE TO RECORD A LIS
PENDENS [RE: ECF 2]
LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE
the Court is an ex parte application for a temporary
restraining order (“TRO”) and a motion to record
a lis pendens by Plaintiff Suzanne Duyen Kwong. Mot., ECF 2.
Kwong filed this action on April 17, 2017, and simultaneously
filed the instant motion. See generally Compl., ECF
1. As best the Court can tell, Plaintiff seeks a TRO
restraining Defendants Santa Clara County Sheriff's
Office, Laurie Smith, and R. Vrscaj (collectively,
“Defendants”), from “all wrongful attempts
at carrying out [e]victions” and to stay her eviction
from the property located at 1519 Rangewood Drive, San Jose,
CA. Mot. 2. For the reasons discussed below, Kwong's
application for a TRO and motion to record a lis pendens are
complaint, Kwong alleges that the Sheriff's department
attempted to “get her to vacate [her property] without
a warrant, ” and with a Writ of Execution signed not by
a judge, but “by Wells Fargo Bank stamped by C. Page
the deputy Clerk.” Compl. ¶ 3. Kwong further
alleges that Defendants violated the Fourth and Fourteenth
Amendments to the U.S. Constitution by attempting to access
her property without a warrant. Id. She further
claims that “Defendant[s'] attempts to evict or
eject [her] from her home are in violation of both federal
and state law.” Id. ¶ 4. Specifically,
she contends that she was denied due process because she did
not receive a warrant or a writ of execution until three days
before the Sheriff planned to evict her, and that her rights
under the Homeowner Bill of Rights, Cal. Civ. Code §
2923, were violated, as well. Id. ¶¶ 4-5.
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 may 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 two Winter factors.
All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131-32 (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).
addressing the Winter factors, the Court addresses
whether it has subject matter jurisdiction over this action.
“Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (internal citations
omitted). “A party invoking the federal court's
jurisdiction has the burden of proving the actual existence
of subject matter jurisdiction.” Thompson v.
McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (citation
omitted). This Court has an independent obligation to ensure
that it has subject matter jurisdiction over a matter and may
raise the question, sua sponte, at any time during
the pendency of the action. Snell v. Cleveland,
Inc., 316 F.3d 822, 826 (9th Cir. 2002). If a court
determines that it lacks subject matter jurisdiction, the
court must dismiss the action. Fed.R.Civ.P. 12(h)(3).
main sources of subject matter jurisdiction are federal
question jurisdiction (also known as “arising
under” jurisdiction) and diversity jurisdiction.
Federal subject matter jurisdiction based on the presence of
a federal question is governed by 28 U.S.C. § 1331 and
requires a civil action to arise under the constitution,
laws, or treaties of the United States. Federal subject
matter jurisdiction based upon diversity is governed by 28
U.S.C. § 1332(a)(1) and requires complete diversity of
citizenship and an amount in controversy in excess of $75,
basis for the Court's jurisdiction in this case is not
clear. As presently before the Court, Plaintiff has not met
her burden of demonstrating that the Court has diversity
jurisdiction over this action because the complaint says
nothing about the amount in controversy or the citizenship of
the Defendants. However, broadly construing the Complaint, it
appears that Plaintiff may be attempting to state a federal
claim under 42 U.S.C. § 1983, as well as claims for
unlawful eviction and a violation of the California Homeowner
Bill of Rights. See Compl. ¶¶ 3-5.
Plaintiff is indeed attempting to state a claim under §
1983, the Court would have subject matter jurisdiction over
this action. Because Kwong is proceeding pro se, and courts
are to broadly construe pleadings filed by pro se litigants
and give such plaintiffs “the benefit of the doubt,
” the Court construes the complaint to include a
federal claim. See Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985). Nevertheless, the Court advises
Plaintiff that it has a duty to continuously review subject
matter jurisdiction, and will not hesitate to dismiss this
action if it becomes clear that Plaintiff seeks remedies
under state law alone.
to the Winter factors, the Court concludes that
Kwong has demonstrated neither a likelihood of success nor
serious questions going to the merits of her only potential
she provides insufficient factual details to adequately state
a claim under 42 U.S.C. § 1983 and thus, she has not
demonstrated a likelihood of success. Absent a viable federal
claim, the Court declines to exercise supplemental
jurisdiction over any remaining state law claims. Thus, the
application for a TRO is DENIED.