Smith v. Wells Fargo Bank, National Association et al (MAG+)

Filing 3

ORDER denying 1 Motion for Temporary Restraining Order, as further set out in order. Signed by Chief Judge William Keith Watkins on 2/16/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALEX SMITH, JR.,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
and SIROTE & PERMUTT, P.C.,
Defendants.

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CASE NO. 2:17-CV-94-WKW
[WO]

ORDER
Before the court is the Complaint and Request for Injunction filed by Plaintiff
Alex Smith, Jr., which is construed as containing a motion for temporary restraining
order and for preliminary injunction. (Doc. # 1.) In the motion, Plaintiff claims that
his “private property is under an immediate order of ejectment . . . from the Deputy
Sheriff of Montgomery County.” (Doc. # 1 at 4.) This order of ejectment stems
from an apparent state-court foreclosure action instituted by Defendants in 2014 on
the basis of a 2010 promissory note signed by Plaintiff’s mother. The Circuit Court
of Montgomery County entered summary judgment against Plaintiff, and the
Alabama Court of Civil Appeals affirmed the judgment despite Plaintiff’s “claim[s]
[of] violations of numerous federal laws.” (Doc. # 1 at 4.) Plaintiff now asks this
court “to stay the immediate/pending order of ejectment” affecting his property.

(Doc. # 1 at 5.) Upon careful consideration, the motion for temporary restraining
order will be denied and the motion for preliminary injunction will be referred to the
Magistrate Judge.
Rule 65(b) of the Federal Rules of Civil Procedure governs requests for
temporary restraining orders.

Of relevance here, Rule 65(b) imposes two

requirements on a movant who seeks the issuance of a temporary restraining order
“without written or oral notice to the adverse party or its attorney.” Fed. R. Civ. P.
65(b). First, “specific facts in an affidavit or a verified complaint clearly [must]
show that immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition.” Id. at 65(b)(1)(A). Second,
the movant must “certif[y] in writing any efforts made to give notice and the reasons
why it should not be required.” Id. at 65(b)(1)(B).
Plaintiff has neither verified his complaint nor shown specific facts in an
affidavit that “clearly show that immediate and irreparable injury, loss, or damage
will result” from the short delay required to give notice to Defendants. His motion
also does not include the required certification. Because Plaintiff has failed to abide
by the procedural requirements of Rule 65(b), his motion for temporary restraining
order will be denied, and a ruling on Plaintiff’s motion for preliminary injunction
will be reserved until such time that Defendants have been given an opportunity to
be heard.
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Accordingly, it is ORDERED that Plaintiff’s motion for temporary restraining
order (Doc. # 1) is DENIED.
An order of referral will be entered separately.
DONE this 16th day of February, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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