-CKD (PS) Federal Home Loan Mortgage Corporation v. Liebmann et al, No. 2:2011cv02724 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/27/2011 RECOMMENDING that the 4 Motion for Temporary Restraining Order be denied. Motion referred to Judge Morrison C. Englnd, Jr. Objections to F&R due within 14 days. (Michel, G)
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-CKD (PS) Federal Home Loan Mortgage Corporation v. Liebmann et al Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FEDERAL HOME LOAN MORTGAGE CORPORATION, 12 13 14 Plaintiff, No. CIV S-11-2724 MCE CKD PS vs. MARGARITA LIEBMANN, et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATIONS / 17 This action was removed from state court on October 17, 2011. On October 24, 18 2011, findings and recommendations were filed recommending this action be remanded because 19 the state court action is nothing more than a simple unlawful detainer action and there is no basis 20 for federal subject matter jurisdiction evident in the state court pleadings. One week after filing 21 the petition for removal, plaintiffs filed a copy of the removal petition and added the words “and 22 motion for TRO” to the caption. No substantive argument was submitted in support of the 23 motion. 24 The standards governing the issuance of temporary restraining orders are 25 “substantially identical” to those governing the issuance of preliminary injunctions. Stuhlbarg 26 Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). 1 Dockets.Justia.com 1 Therefore, “[a] plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, 2 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 3 equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass'n, 4 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. 5 Def. Council, Inc., 555 U.S. 7 (2008)). “A preliminary injunction is appropriate when a plaintiff 6 demonstrates . . . that serious questions going to the merits were raised and the balance of 7 hardships tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 622 8 F.3d 1045, 1049-50 (9th Cir. 2010) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th 9 Cir. 2008) (en banc)). A TRO is “an extraordinary remedy that may only be awarded upon a 10 11 clear showing that the plaintiff is entitled to such relief.” Winter, 129 S. Ct. at 376. The Ninth Circuit has reiterated that under either formulation of the principles, if 12 the probability of success on the merits is low, preliminary injunctive relief should be denied: 13 Martin explicitly teaches that “[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits.” 14 15 16 Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting 17 Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984)). 18 Plaintiffs here allege no basis for federal subject matter jurisdiction; therefore, 19 there is no probability of success on the merits. In addition, plaintiffs advance no argument in 20 support of a claim that they will be irreparably harmed in the absence of preliminary relief. For 21 these reasons, preliminary injunctive relief should be denied. 22 23 24 Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs’ motion for temporary restraining order (dkt. no. 4) be denied. These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 26 days after being served with these findings and recommendations, any party may file written 2 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 3 shall be served and filed within seven days after service of the objections. The parties are 4 advised that failure to file objections within the specified time may waive the right to appeal the 5 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Dated: October 27, 2011 7 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 4 fhlmc-liebmann.tro 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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