Russell v. OneWest Bank FSB et al

Filing 71

ORDER denying 67 plaintiff's motion for order restraining sale. Signed by Judge Frederick J Martone on 4/27/2012.(KAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas E. Russell,
Plaintiff,

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vs.

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OneWest Bank, FSB, et al.,
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Defendants.
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No. CV 11-01463-PHX-FJM
ORDER

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We have before us plaintiff's motion for order restraining sale of residential real

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property (doc. 67) and defendants' response (doc. 70). A trustee's sale of plaintiff's home is

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scheduled for May 2, 2012. Plaintiff seeks a preliminary injunction under Rule 65(a), Fed.

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R. Civ. P., preventing the sale.

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On October 20, 2011, we denied plaintiff's motion to remand and granted Shapiro,

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Van Ess & Sherman's motion to dismiss (doc. 30). In the same order, we granted the motion

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to dismiss of defendants OneWest Bank, FSB, Deutsche Bank National Trust Company as

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Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR31, and Merrill Lynch Mortgage

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Lending, Inc. ("OneWest defendants"). We later denied plaintiff's motion for reconsideration

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(doc. 34) and entered final judgment in favor of the One West defendants (doc. 35). Pursuant

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to stipulation, the remaining party was dismissed on April 16, 2012 (doc. 66). Plaintiff filed

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a notice of appeal with the United States Court of Appeals for the Ninth Circuit on November

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18, 2011 (doc. 36).

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"Once a notice of appeal is filed, the district court is divested of jurisdiction over the

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matters being appealed." Natural Res. Def. Council v. Sw. Marine Inc., 242 F.3d 1163, 1166

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(9th Cir. 2001). But we "retain[] jurisdiction during the pendency of an appeal to act to

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preserve the status quo." Id. This rule applies where it is necessary to "supervise[] a

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continuing course of conduct and where as new facts develop additional supervisory action

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by the court is required." Hoffman v. Beer Drivers & Salesmen's Local Union No. 888, 536

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F.2d 1268, 1276 (9th Cir. 1976). This exception has been codified in Rule 62(c), Fed. R.

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Civ. P., which allows us, while an appeal is pending from a final judgment that grants,

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dissolves, or denies an injunction, to "suspend, modify, restore, or grant an injunction on

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terms for bond or other terms that secure the opposing party's rights." This Rule "grants the

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district court no broader power than it has always inherently possessed to preserve the status

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quo during the pendency of an appeal." Natural Res. Def. Council, 242 F.3d at 1166. "It

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does not restore jurisdiction to the district court to adjudicate anew the merits of the case

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after either party has invoked its right of appeal and jurisdiction has passed to an appellate

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court." McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d

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731, 734 (9th Cir. 1982).

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Assessing plaintiff's motion under Rule 62(c), we conclude that an injunction is not

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appropriate here. Plaintiff's first amended complaint sought relief in the form of damages

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and a judgment that he owns the property in fee simple and defendants have no adverse

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interest in it. Seeking to quiet title is not equivalent to seeking injunctive relief. Our final

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judgment did not grant, dissolve, or deny an injunction. Moreover, an injunction is not

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necessary here to preserve the status quo. There is no continuing course of conduct which

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needs to be monitored. There are no new facts created by the parties as the days pass. Cf.

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Hoffman, 536 F.2d at 1276.

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Jurisdiction over the judgment has passed to the appellate court, and no exceptions to

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this rule apply. No specific statutory authority allows us to retain jurisdiction over this case,

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and granting a preliminary injunction will not assist the court of appeals in the exercise of

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its jurisdiction. Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982).
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Moreover, we note that to obtain an injunction under Rule 65(a), plaintiff must meet

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the factors in Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S. Ct. 365 (2008). He

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"must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and

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that an injunction is in the public interest." Id. at 20, 129 S. Ct. at 374. We previously

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concluded that plaintiff failed to state any valid claims in his complaint. He submits no new

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information in support of his motion. He did not succeed on the merits and could not now

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establish that success is likely.

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Accordingly, IT IS ORDERED DENYING plaintiff's motion for order restraining
sale (doc. 67).
DATED this 27th day of April, 2012.

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