Magaoay et al v. Bank of America, N.A. et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 11/8/11 ORDERING that to the extent plaintiffs intended their complaint to serve in part as a request for a temporary restraining order and preliminary injunction, that request is DENIED without prejudice to refiling. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN MAGAOAY,
LISA MAGAOAY
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Plaintiffs,
No. 2:11-cv-02875-KJM-KJN-PS
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v.
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BANK OF AMERICA, N.A.,
et al.
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Defendants.
ORDER
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On October 31, 2011, defendants Bank of America, N.A., Mortgage Electronic
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Registration System, and Recontrust Company, N.A. (collectively, the “defendants”) filed a
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Notice of Removal (Dkt. No. 1), which attached the complaint plaintiffs John and Lisa Magaoay
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(the “plaintiffs”) filed against the defendants in state court. (Complaint (“Compl.”), Exh. A to
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Dkt. No. 1.) Plaintiffs are proceeding without counsel.1 The caption of plaintiffs’ complaint
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references a “Temporary Restraining Order and Preliminary Injunction,” among other things, and
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the complaint alleges facts regarding the foreclosure of real property. (Id.) The complaint’s
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prayer for relief also seeks “a temporary restraining order and preliminary injunction restraining
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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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the foreclosure of the real estate.” (Id. at 5.)
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While plaintiffs’ pleading requests a temporary restraining order and preliminary
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injunction, the court cannot properly analyze either request based upon the documents currently
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on file in this action. Eastern District Local Rule 231 requires a party seeking a temporary
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restraining order or preliminary injunction to file various specific documents, none of which have
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yet been filed. E.D. Local Rule 231.2 Moreover, the undersigned’s review of the complaint
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reveals only one date—a trustee’s sale set for June 29, 2011—and that date has already passed.
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(Exh. B. to Compl. (Notice of Trustee’s Sale set to occur on June 29, 2011).) The complaint’s
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reference to one date that has passed does not support the existence of a pending irreparable
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injury.
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Although plaintiffs are proceeding without counsel in this action, they are
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nonetheless required to follow the court’s local rules, the court’s orders, and the Federal Rules of
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Civil Procedure. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to
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follow a district court’s local rules is a proper ground for dismissal.”); King v. Atiyeh, 814 F.2d
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565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern
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other litigants.”).
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The Eastern District Local Rules are available on the court’s website,
www.caed.uscourts.gov, and also through the office of the Clerk of the Court.
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Accordingly, IT IS HEREBY ORDERED that:
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To the extent plaintiffs intended their complaint to serve in part as a request for a
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temporary restraining order and preliminary injunction, that request is denied without prejudice
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to refiling. Should plaintiffs wish to request a temporary restraining order and preliminary
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injunction in this action, plaintiffs must follow the requirements stated in Eastern District Local
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Rule 231. Requests for temporary restraining orders or preliminary injunctions that fail to
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comply with these specific procedural requirements may be summarily denied.
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IT IS SO ORDERED.
DATED: November 8, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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