Franklin v. Arbor Station (MAG+)

Filing 5

MEMORANDUM OPINION AND ORDER denying 2 MOTION for Temporary Restraining Order. Signed by Hon. Chief Judge Mark E. Fuller on 4/18/2011. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NUE CHEER FRANKLIN,
PLAINTIFF,
v.
ARBOR STATION,
DEFENDANT.

)
)
)
)
)
)
)
)
)

CASE NO. 2:11-cv-294-MEF
(WO- DO NOT PUBLISH)

MEMORANDUM OPINION AND ORDER
On April 18, 2011, Plaintiff initiated this lawsuit by filing a Complaint (Doc. # 1), an
Application to Proceed in District Court without Prepaying Fees or Costs (Doc. # 3), and a
Motion for Temporary Restraining Order (Doc. # 2). Proceeding pro se, Plaintiff brings suit
against Arbor Station, an apartment complex located in Montgomery, Alabama. Plaintiff
alleges that Arbor Station filed an unlawful detainer complaint1 against her in the District
Court for Montgomery County. She further alleges that Arbor Station prevailed in that
complaint.

Plaintiff paid a supersedeas bond and appealed to the Circuit Court of

Montgomery County, Alabama. While her appeal was still pending, Arbor Station is alleged
to have received and caused issuance on Plaintiff of a Writ of Possession. Because the
Alabama Rules of Civil Procedure provide that an appellant may obtain a stay during appeal
when she has given a supersedeas bond, Plaintiff contends that Arbor Station’s actions
violated her right to due process of law under the Fifth Amendment to the United States

1

This is a type of legal action used in Alabama to evict tenants.

Constitution. Plaintiff seeks a temporary restraining order prohibiting Arbor Station from
acting on the Writ of Possession.
This Court now addresses only Plaintiffs’ request for a temporary restraining order.
Federal Rule of Civil Procedure 65 sets forth the applicable restrictions on this Court’s ability
to grant a temporary restraining order. For example, it is clear from the text of Rule 65(b)
that a temporary restraining order may not be granted without notice to the adverse parties
or their attorneys unless
(1) it clearly appears from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before the adverse
party or that a party’s attorney can be heard in opposition, and
(2) the applicant’s attorney certifies to the court in writing the
efforts, if any, which have been made to give the notice and the
reasons supporting the claim that notice should not be required.
Fed. R. Civ. P. 65(b) (emphasis added). The Court finds that Plaintiff has failed to satisfy
the requirements of Federal Rule of Civil Procedure 65(b)(2). Nowhere in Plaintiff’s
submissions to this Court does Plaintiff certify in writing the efforts, if any, which have been
made to give written or oral notice of this lawsuit or of this application for a temporary
restraining order to Arbor Station or its attorneys. Moreover, Plaintiff does not explicitly
claim that such notice should not be required; nor does she provide any reasons why such
notice should not be required. Accordingly, the Plaintiff’s Motion for Temporary Restraining
Order (Doc. # 2) is due to be and hereby is DENIED.
DONE this the 18th day of April, 2011.
/s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE

2