Martin v. Family Lending Services, Inc. et al
Filing
6
ORDER denying 4 Ex Parte Motion for Temporary Restraining Order without notice and the Motion for an Order to Show Cause for a Preliminary Injunction hearing. Signed by Judge James A Teilborg on 10/15/09.(MAP)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Diana Martin, Plaintiff, vs. Family Lending Services, Inc.; et al., Defendants.
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No. CV 09-2133-PHX-ROS ORDER
An ex parte application for a temporary restraining order and preliminary injunction was filed in this case on October 13, 2009 seeking to stop a Trustee's sale of a home set for October 20, 2009. By random draw, this case was assigned to the Judge Silver. The undersigned has been advised by the Clerk of the Court that Judge Silver is unavailable to hear the request for emergency relief before October 20, 2009. Therefore, the undersigned was drawn to hear the emergency request. Today, the Court's staff twice attempted to contact Plaintiff to advise her of a time for a hearing on her application. Staff called 480-343-7981, the only number listed on the pleadings. The gentlemen who answered the phone at that number advised that no one by Plaintiff's name was available at that number. No email address was provided on the documents. Therefore, as of today, the day the undersigned was drawn to hear the emergency matter, the Court has no ability to contact Plaintiff to hold a hearing before
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October 20, 2009. As a result, the Court will proceed to rule on the motion without a hearing. As indicated above, Plaintiff seeks a temporary restraining order and an order to show cause re: preliminary injunction. Federal Rule of Civil Procedure 65 does not allow a preliminary injunction without notice. Fed.R.Civ.Pro. 65(a)(1). Thus, Plaintiff's request for a preliminary injunction hearing without notice will be denied. As for the motion for a temporary restraining order, if irreparable harm will be suffered before notice can be provided, a temporary restraining order may issue without notice. Fed.R.Civ.Pro. 65(b)(1)(A). In this case, Plaintiff received notice on July 21, 2009 that there would be a Trustee sale of the property on October 20, 2009. Doc. #4 at 16. For reasons unknown to the Court, Plaintiff waited until October 13, 2009 (seven days before the sale) to file her complaint. Plaintiff then argued that there was insufficient time to give notice before she would be irreparably harmed. By her delay, Plaintiff created her emergency. The Court does not find such action to be cause to issue a temporary restraining order without notice. See e.g. Comcast of Illinois X, LLC v. Till, 293 F.Supp.2d 936, 938-40 (E.D. Wisc. 2003); Best Deals on TV, Inc. v. Naveed, 2007 WL 902564, *4 (N.D. Cal. 2007) (Plaintiff cannot show the need for a temporary restraining order without notice when Plaintiff waited months after learning of the situation to file the request). Moreover, even if the Court were to reach the merits of Plaintiff's request, to obtain a temporary restraining order or a preliminary injunction, Plaintiff must show: "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." Am. Trucking Ass'ns, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, __ U.S. __, __, 129 S.Ct. 365, 374 (2008)). In this case, Plaintiff has failed to show a likelihood of succession on the merits. See Deissner v. Mortgage Electronic Registration Systems, 618 F.Supp.2d 1184 (D. Ariz. 2009); Mansour v. Cal-Western Reconveyance Corp., 618 F.Supp.2d 1178 (D. Ariz. 2009) (both considering the same arguments raised by Plaintiff
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in her motion and finding the arguments to be without merit). Thus, for this additional alternative reason, the motion for a temporary restraining order without notice will be denied. Based on the foregoing, IT IS ORDERED that the motion for temporary restraining order without notice and the motion for an order to show cause for a preliminary injunction hearing (Doc. #4) are denied.1 DATED this 15th day of October, 2009.
This order is without prejudice to Plaintiff moving for a preliminary injunction with notice if she can show the four requirements listed above. See Am. Trucking Ass'ns, 559 F.3d at 1052. -3-
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