Stoller v. Bank of New York Mellon Trust Co et al

Filing 28

ORDER denying 26 Motion for TRO; for Preliminary Injunction. Signed by Judge G Murray Snow on 1/13/12.(DMT)

Download PDF
1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 Christopher Stoller, ) ) Plaintiff, ) ) ) vs. ) ) ) Bank of New York Mellon Trust Co., et) al., ) ) Defendants. ) ) No. CV 11-2454-PHX-GMS (JFM) ORDER 18 Plaintiff Christopher Stoller, who is incarcerated in the Dixon Correctional Center in 19 Dixon, Illinois, commenced this action in the Central District of Illinois.1 That Court 20 transferred the action to this District based on venue. (Doc. 1, 2.) In an Order filed on 21 January 3, 2012, the Court denied Plaintiff’s motion to proceed in forma pauperis with leave 22 to pay the filing fee or submit an Application to Proceed In Forma Pauperis (Non-Habeas) 23 24 1 25 26 27 28 Plaintiff is a “prisoner” within the meaning of the Prison Litigation Reform Act (PLRA) because he was a prisoner at the time he commenced this action. That is, Plaintiff was a “person incarcerated or detained in any facility” who had been convicted and sentenced for violations of criminal law. 28 U.S.C. § 1915(h); 42 U.S.C. § 1997e(h). As a consequence, this case is subject to requirements under the PLRA and this action is subject to screening by the Court. 28 U.S.C. § 1915A. 1 on this District’s approved form for use by prisoners within 30 days. (Doc. 16.) The Court 2 also denied Plaintiff’s motion for a temporary restraining order and ordered him to show 3 cause within 30 days why this action should not be dismissed based on his lack of capacity 4 to commence this action at the time he filed it. (Id.) Plaintiff filed a notice of interlocutory 5 appeal. (Doc. 19.) 6 On January 12, 2012, Plaintiff filed a motion for a temporary restraining order to stop 7 foreclosure of an Arizona property on January 13, 2012. (Doc. 26.) Attached to Plaintiff’s 8 motion is a copy of an “Arizona Regional MLS-IMAPP Maricopa County Tax Report” for 9 the property at issue. (See also doc. 1, ex. 5) (quit claim deed). This document reflects that 10 the current owner of the property is the “Christopher Stoller Pension & Profit Sharing Plan, 11 Ltd.” (CSPPSP), pursuant to a quit claim deed from the original buyer of the property, Phillip 12 B. Stone, to CSPPSP of September 22, 2008. (Doc. 1, ex. 5.) 13 To obtain injunctive relief, the moving party must show “that he is likely to succeed 14 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, 15 that the balance of equities tips in his favor, and that an injunction is in the public interest.” 16 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Am. Trucking Assoc., Inc. 17 v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). In addition, the “serious 18 questions” version of the sliding scale test for preliminary injunctions remains viable after 19 the Supreme Court’s decision in Winter. Alliance for the Wild Rockies v. Cottrell, 632 F. 20 3d 1127, 1134-35 (9th Cir. 2011). Under that test, a preliminary injunction is appropriate 21 when a plaintiff demonstrates that “serious questions going to the merits were raised and the 22 balance of hardships tips sharply in [plaintiff’s] favor.” Id. (citing Lands Council v. McNair, 23 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). That approach requires that the elements of 24 the preliminary injunction test be balanced, so that a stronger showing of one element may 25 offset a weaker showing of another. “For example, a stronger showing of irreparable harm 26 to plaintiff might offset a lesser showing of likelihood of success on the merits.” Alliance 27 for the Wild Rockies, 632 F.3d at 1135. A plaintiff must also satisfy the other Winter factors, 28 -2- 1 including the likelihood of irreparable harm. Id. The moving party has the burden of proof 2 on each element of the test. Environmental Council of Sacramento v. Slater, 184 F. Supp. 3 2d 1016, 1027 (E.D. Cal. 2000). 4 “No preliminary injunction shall be issued without notice to the adverse party.” 5 Fed.R.Civ. P. 65(a)(1). Further, a temporary restraining order without notice may be granted 6 only if the applicant certifies to the court in writing the efforts, if any, that he made to give 7 notice and the reasons that notice should not be required. Fed.R.Civ.P. 65(b). 8 As an initial matter, Plaintiff appears to concede that he lacked the legal capacity to 9 commence this action and continues to lack such capacity. (Doc. 26 at 2, n.1.) Even if 10 Plaintiff had the legal capacity to commence this case, the information provided by Plaintiff 11 reflects that CSPPSP, not Plaintiff, is the current owner of the property at issue.2 An entity, 12 such as CSPPSP, may only be represented by an attorney licensed to appear in federal court. 13 28 U.S.C. § 1654; Simon v. Hartford Live, Inc., 546 F.3d 661, 664 (9th Cir. 2008). Plaintiff 14 neither claims nor does it otherwise appear that he is an attorney licensed to appear in federal 15 court. See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 347-48 (8th Cir. 1994) (non- 16 lawyer purported trustees could not represent trust in United States court) (citing C.E. Pope 17 Equity Trust, 818 F.2d at 697-98); United States v. High Country Broadcasting Co., Inc., 3 18 F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (“Corporations and other unincorporated 19 associations must appear in court through an attorney”); Mutual Assignment & 20 Indemnification Co. v. Lind-Waldock & Co., LLC, 364 F.3d 858, 860 (7th Cir. 2004) 21 (limited liability partnership could only be represented by an attorney in federal court); Move 22 Org. v. United States Dep’t of Justice, 555 F. Supp. 684, 692-93 (E.D. Pa. 1983) 23 (unincorporated organization must appear in federal court through attorney). 24 The record before the Court does not reflect that Plaintiff is an owner of the property 25 or that Plaintiff is a licensed attorney who may represent the CSPPSP. Accordingly, 26 Plaintiff’s motion for injunctive relief will be denied. 27 2 28 CSPPSP is not a party to this action. -3- 1 2 3 IT IS ORDERED that Plaintiff’s motion for a temporary restraining order is denied. (Doc. 26.) DATED this 13th day of January, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?