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