Griisser et al v. Shapiro, Van Ess & Sherman LLP et al

Filing 6

ORDER - IT IS THEREFORE ORDERED that Plaintiffs' motion for leave to proceed informa pauperis (Doc. 2) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' motion for a temporary restraining order (Doc. 1) is DENIED. IT IS FURTHER ORDERED tha t pursuant to 28 U.S.C. § 1915(e)(2) Plaintiffs' Complaint (Doc. 1) is DISMISSED. Should Plaintiffs desire to file a motion for leave to file an amended complaint, they shall do so no later than 30 days from the date of this Order. The prop osed amended complaint shall be attached to the motion for leave to amend and comply with Federal Rules of Civil Procedure 15 and Local Rules of Civil Procedure 15.1. The Court will not permit the filing of any proposed amended complaint that does no t comply with the requirements of this Order. If Plaintiffs do not file a motion requesting leave to file an amended complaint by August 8, 2012, the Clerk of the Court is directed to terminate this action. IT IS FURTHER ORDERED that Plaintiffs' motion requesting that the U.S. Marshalls Service serve Plaintiffs' temporary restraining order (Doc. 3) is denied as moot. Signed by Judge G Murray Snow on 7/9/12.(LAD)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Shapiro, Van Ess & Shermann, LLP;)
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Green Tree Servicing LLC,
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Defendants.
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Fred Griisser; Julie Ann Griisser,

No. 12-CV-1459-PHX-GMS
ORDER

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Pending before the Court are three motions filed by Plaintiffs: 1) a motion for a

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temporary restraining order (Doc. 1); 2) a motion for leave to proceed in forma pauperis

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(Doc. 2); and 3) a motion requesting that the U.S. Marshall’s Service serve Plaintiffs

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temporary restraining order (Doc. 3). For the reasons discussed below, Plaintiffs’ motion for

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leave to proceed in forma pauperis is granted, Plaintiffs’ motion for TRO is denied, and their

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Complaint is dismissed without prejudice. Plaintiffs’ motion requesting service is denied as

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moot.

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BACKGROUND

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Plaintiffs Fred Griisser and Julie Ann Griisser filed their Complaint in this action on

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July 7, 2012. (Doc. 1). They have not served the Complaint or otherwise provided notice to

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Defendants of their suit. (See Docs. 1, 3). In their Complaint, Plaintiffs “ask the court for

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relief with the issuance of a Temporary Restraining Order” to stop Defendants Shapiro, Van

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Ess & Sherman, LLP and Green Tree Servicing, LLC from foreclosing on Plaintiffs’ real

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property (the “Property”). This Complaint consists of fourteen short sentences which make

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the following conclusory allegations.

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In November 2011, Plaintiffs were allegedly given “Bankruptcy protection” on their

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Property. (Doc. 1 at 2). This protection provided that Plaintiffs could “‘sign over’ the

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property without foreclosure.” (Id.). Defendants, however, are alleged to have ignored this

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“Bankruptcy protection” and the Property is scheduled for a foreclosure auction on July 9,

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2012. Plaintiffs contend that Defendants have tried to “collect the full amount of the

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discharged mortgage thru deception, duress, strong-arming and other practices not allowed

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by law.” (Doc. 1 at 2). Plaintiffs further contend that Defendants “have not carried out their

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statutory requirements under the Federal Home Affordable Modification Program.” (Id.).

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DISCUSSION

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Federal Rule of Civil Procedure 65(b) provides:
The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:

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(A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant’s attorney certifies in writing any efforts made
to give notice and the reasons why it should not be required.

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Plaintiffs have failed to file an affidavit or otherwise set forth facts in their complaint
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which clearly show that immediate and irreparable injury will result to Plaintiffs before
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Defendants can be heard in opposition. See Fed. R. Civ. P. 65(b)(1)(A). Defendants have not,
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for instance, produced the alleged Bankruptcy “order” permitting them to avoid foreclosure
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by signing over the Property to Defendants. (See Doc. 1 at 2). Plaintiffs have also failed to
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produce evidence that they would suffer harm via foreclosure that they would not already
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suffer by “signing over” their property to Defendants. The Court will therefore deny
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Plaintiffs’ motion for a temporary restraining order.
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Moreover, in their Complaint, Plaintiffs have failed to state any claims for which they
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can be granted relief. Congress has provided with respect to in forma pauperis cases that a

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district court “shall dismiss the case at any time if the court determines” that the “allegation

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of poverty is untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state

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a claim on which relief may be granted,” or “seeks monetary relief against a defendant who

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is immune from such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how

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prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma

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pauperis proceedings not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127

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(9th Cir. 2000). “It is also clear that section 1915(e) not only permits but requires a district

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court to dismiss an in forma pauperis complaint that fails to state a claim” or that is frivolous

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or malicious. Id.

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Plaintiffs contend that Defendants have engaged in “deception, duress, strong-arming

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and other practices not allowed by law,” but Plaintiffs have not identified any legal authority

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on the basis of which it is challenging such “practices.” (Doc. 1 at 2). Although Plaintiffs

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contend that Defendants “have not carried out their statutory requirements under the Federal

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Home Affordable Modification Program,” Plaintiffs have not identified any specific statutory

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provisions connected with the FHAMP which have been violated by Defendants. (Id.). Nor

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have Plaintiffs alleged particular facts which might make such a violation plausible. See

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (“A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”). The Court will therefore dismiss Plaintiffs’

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Complaint but do so without prejudice should Plaintiffs wish to amend.

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IT IS THEREFORE ORDERED that Plaintiffs’ motion for leave to proceed in
forma pauperis (Doc. 2) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for a temporary restraining
order (Doc. 1) is DENIED.

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IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(e)(2) Plaintiffs’

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Complaint (Doc. 1) is DISMISSED. Should Plaintiffs desire to file a motion for leave to file

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an amended complaint, they shall do so no later than 30 days from the date of this Order. The
proposed amended complaint shall be attached to the motion for leave to amend and comply

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with Federal Rules of Civil Procedure 15 and Local Rules of Civil Procedure 15.1. The Court

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will not permit the filing of any proposed amended complaint that does not comply with the

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requirements of this Order. If Plaintiffs do not file a motion requesting leave to file an

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amended complaint by August 8, 2012, the Clerk of the Court is directed to terminate this

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action.

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IT IS FURTHER ORDERED that Plaintiffs’ motion requesting that the U.S.

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Marshall’s Service serve Plaintiffs’ temporary restraining order (Doc. 3) is denied as moot.

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Dated this 9th day of July, 2012

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