Benson v. Jantz et al

Filing 8

ORDER that Plaintiff's Amended Ex Parte Application for Temporary Restraining Order (Doc. 6 ) is DENIED. Signed by Judge G Murray Snow on 8/14/2012.(KMG)

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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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Vicky S. Benson,

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NO. CV-12-1693-PHX-FJM

Plaintiff,

ORDER

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v.

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Daren W. Jantz; Vanderbilt Mortgage and Finance,
Inc., et al.

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Defendants.
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Pending before the Court is Plaintiff’s Amended Ex Parte Application for

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Temporary Restraining Order (Doc. 6). For the reasons discussed below, Plaintiff’s

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motion will be denied.

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The instant action is Plaintiff Vicky S. Benson’s third attempt to obtain federal

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relief from state-court eviction proceedings. On July 16, 2012, Plaintiff removed an

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eviction action brought against her in Hassayampa Justice Court to this Court. See Jantz

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v. Seitz, et. al, 2:12-cv-01532-SRB, Doc. 1, Ex. 1. On July 23, 2012, the Court remanded

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the action back to the justice court, holding that it had no subject matter jurisdiction over
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the state law eviction action. See id., Doc. 4. On July 25, 2012, Plaintiff again removed

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the eviction action to this Court and at the same time moved for a temporary restraining

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order. The Court again remanded the action back to the justice court for lack of subject

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matter jurisdiction and denied the TRO request as moot.

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Plaintiff now tries a new tack. On August 9, 2012, she filed the Complaint in this

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action against various “owners of plaintiff’s real property” and against Defendant Joseph

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Arpaio, the Sheriff of Maricopa County. (Doc. 1). In her Complaint, Plaintiff brings

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claims against the owners of her property for negligence, fraudulent misrepresentation,

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wrongful foreclosure, breach of contract, unjust enrichment, quiet title, slander of title,

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and RICO violations. (Id.). In addition, Plaintiff brings claims against Sheriff Arpaio for

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civil rights violations under 18 U.S.C. § 242 arising from his alleged continuation of

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eviction proceedings “while KNOWING of a valid removal [to federal court] to be in

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place and existing.” (Doc. 1, ¶ 126).

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Also on August 9, Plaintiff moved for an ex parte TRO. Plaintiff argued in the

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TRO that Defendants refuse to relinquish jurisdiction over her eviction proceedings to the

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federal court and that they must be forced to relinquish such jurisdiction or else she “will

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be wrongfully removed from her single family home.” (Doc. 3 at 3). Because Plaintiff

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had not notified Defendants of her TRO request, and because she had failed to explain

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why notice should not be provided as required by Rule 65(b), the Court denied her

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motion for an ex parte TRO “without prejudice to her filing it again in compliance with

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the rule.” (Doc. 5 at 2).

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Now Plaintiff has filed an amended TRO application. Although the amended

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application itself is virtually unchanged from her initial application, she has attached a

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notarized “Declaration” in which she details various damages that Defendants have

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allegedly caused her. (Doc. 6 at 6–10). This declaration does not, however, explain why

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Defendants cannot be provided with notice of her TRO application. This alone renders

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her request for an ex parte TRO invalid. FED. R. CIV. P. 65(b)(1)(B) (stating that the

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court may issue a TRO without giving the defendants notice “only if” the movant

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“certifies in writing any efforts made to give notice and the reasons why it should not be

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required”).

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Moreover, to prevail on her TRO application, Plaintiff must establish four

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elements, including that she “is likely to succeed on the merits, that [s]he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in h[er] favor, and that an injunction is in the public interest.” Winter v. Nat’l Res.

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Def. Council, 555 U.S. 7, 22 (2008). Although these elements are evaluated using a

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sliding scale approach, where likelihood of success is concerned a plaintiff must at least

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raise “serious questions going to the merits.” Alliance for the Wild Rockies v. Cottrell,

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632 F.3d 1127, 1134–35 (9th Cir. 2011). Plaintiff has failed to raise serious questions

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going to the merits. Plaintiff states in her TRO application that that she seeks the TRO

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because the state court and state authorities have engaged in “[w]illful, intentional refusal

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to relinquish jurisdiction” over her eviction proceedings to federal court. (Doc. 6 at 2). As

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discussed above, however, the eviction action was remanded back to state court and state

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authorities have no discretion to decline a remand order.
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IT IS THEREFORE ORDERED that Plaintiff’s Amended Ex Parte Application
for Temporary Restraining Order (Doc. 6) is DENIED.
Dated this 14th day of August, 2012.

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