Cook et al v. One West Bank, FSC

Filing 6

ORDER signed by Judge William B. Shubb on 12/29/2009 Denying 2 Plaintiffs' Ex Parte Motion for Temporary Restraining Order. (Kirksey Smith, K)

1 2 3 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
v. ONE WEST BANK FSC,, Defendant. / ----oo0oo---On December 28, 2009, plaintiffs filed a Complaint, accompanied by an Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction. The Clerk brought the motion promptly to the UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---FRANK E. COOK and WILMA M. COOK, Plaintiffs, NO. CIV. S-09-3581 MCE EFB PS ORDER

attention of the undersigned judge, but by that time the courier who had delivered the documents to the court had left the building. While the pleadings set forth the names and street address of plaintiffs, they contain no telephone number or email address at which plaintiffs can be reached. Nevertheless, at the court's

direction, the Clerk undertook an internet Google search in an attempt to find an email address or telephone number for plaintiffs. A phone

number associated with the address on plaintiffs' pleadings was found,

1

1 2 3 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

and the Clerk placed a call to that number.

A recording was reached, The

which did not identify the name of the holder of that number.

Clerk left two separate messages on the date the Complaint was filed, but has yet received no return call. Plaintiffs have therefore left the court with no other way to communicate with them other than the United States mail. The

complaint alleges that defendant threatens to foreclose on plaintiffs' home at 9:30 a.m. on January 5, 2010. The court is effectively unable Because of the

to get in touch with plaintiffs before that time.

intervening holidays, it is unlikely that any written communication mailed by the court would reach plaintiffs in order to notify them of the time and date of a hearing before the threatened date of foreclosure. Accordingly, the court must determine from the pleadings themselves whether plaintiffs have made a sufficient showing to be entitled to a temporary restraining order. Local Rule 56-231 provides

that no hearing on a temporary restraining order will normally be set unless an affidavit detailing the notice or efforts to effect notice to the affected parties or counsel or showing good cause why notice should not be given is provided to the court. Plaintiffs here have

submitted no such affidavit or other representation that any attempt whatsoever was made to give notice to the defendant. The court must therefore assume that plaintiffs are asking the court to issue the temporary restraining order without notice. Under Rule 65(b)(1)(B) of the Federal Rules of Civil Procedure, a temporary restraining order may be issued without notice only if the movant certifies in writing any efforts made to give notice and the reasons why it should not be required. Again, plaintiffs have made no

2

1 2 3 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

such showing, certified or otherwise. Therefore, on the papers presented, the court may not issue a temporary restraining order. Moreover, the standards for issuance of a temporary restraining order are substantially identical to those for issuance of a preliminary injunction. Suthlbarg Int'l Sales Co. v. John D. Brush Before a preliminary

& Co., 240 F.3d 832 n.7 (9th Cir. 2001).

injunction may issue, the movants must demonstrate, among other things, that they are likely to succeed on the merits of their claims. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 375-76 (2008). Plaintiffs' only federal claims are their first cause of

action for violation of due process rights, their second cause of action for violation of equal protection rights, and their fourth cause of action for violation of Public Law 111-22 (The Helping Families Save Their Homes Act of 2009). With regard to their due process and equal protection claims, plaintiffs have not alleged any state action. The fact that

defendant threatens a "non-judicial" sale of plaintiffs' property is insufficient to allege that such action is "under color" of law in order to state a claim for violation of the Fourteenth Amendment. Flagg Bros, Inc. v. Brooks, 436 U.S. 149 (1978) (holding that allegations that defendant threatened to sell plaintiff's furniture pursuant to New York state law unless she brought her account up to date within 10 days were insufficient to establish a violation of the Fourteenth Amendment). With respect to their claim under Public Law See

111-22, plaintiffs have failed to show that the Helping Families Save their Homes Act of 2009 gives rise to a private right of action. See

Gaitan v. Mortgate Electronic Registration Systems, No. 09-1009, 2009

3

1 2 3 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

WL 3244729, at *13 (C.D. Cal. Oct. 5, 2009). The court need express no opinion on the sufficiency of plaintiffs' state law claims of violation of the elder abuse and nonjudicial foreclosure statutes. Without their federal claims,

plaintiffs are not entitled to proceed in federal court on their supplemental state law claims. See 28 U.S.C. § 1367(c)(3).

Therefore, plaintiffs have failed to make the requisite showing that they are likely to succeed in this court on the merits of their claims. FOR THE FOREGOING REASONS, plaintiffs' motion for a temporary restraining order is DENIED. DATED: December 29, 2009

4