Cahill v. Bank of America, NA

Filing 8

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 7/5/11 DENYING 7 Motion for TRO. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIANE CAHILL,

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Plaintiff,

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No. 2:11-cv-01688-MCE-JFM

v.

MEMORANDUM AND ORDER

BANK OF AMERICAN, NA, et al.,

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Defendants.

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----oo0oo----

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Presently before the Court is Plaintiff’s third Motion for

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Temporary Restraining Order (“Motion”) (ECF No. 7).

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following reasons, Plaintiff’s Motion is DENIED.

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For the

On June 23, 2011, the Court rejected Plaintiff's initial

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motion for temporary restraining order (ECF No. 2) on grounds it

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failed to provide adequate notice in accordance with the

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provisions of Local Rule 231. The Court likewise rejected

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Plaintiff's second motion (ECF No. 5), filed on June 29, 2011,

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for a failure to comply with Rule 231.

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a third Motion (ECF No. 7) that still fails to comply with Rule

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231.
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Plaintiff has since filed

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In her latest filing, Plaintiff again included a copy of her

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notice indicating that her second Motion was served on various

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Defendants by certified mail on June 27, 2011.

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Plaintiff provided an affidavit indicating that she attempted to

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telephone various Defendants at a variety of primarily toll-free

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numbers and that she faxed copies of her motion papers to those

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Defendants as well.

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and fax was the best means to notify the parties as phone calls

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resulted in representatives of the defendants not knowing what to

In addition,

According to Plaintiff, “Certified Letters

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do with the information.”

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again insufficient under Rule 231 to detail why the above

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attempts represented the best way to provide notice to Defendants

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at the addresses most likely to provide such notice.

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fails to articulate why simply sending certified letters or faxes

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to unknown individuals within the Defendant entities is more apt

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to provide notice to Defendants than, for example, personal

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service on Defendants’ California agents for service of process.

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Given that Plaintiff has had almost two weeks in which to notify

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Defendants of her intent to file this Motion, and despite

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scheduling of the Trustee’s Sale for tomorrow, July 6, no exigent

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circumstances justify granting Plaintiff’s requested relief now

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without notice.

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Plaintiff’s conclusory assertion is

Plaintiff

Regardless, notwithstanding Plaintiff’s above failures,

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Plaintiff’s Motion is substantively inadequate as well.

Issuance

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of a temporary restraining order, as a form of preliminary

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injunctive relief, is an extraordinary remedy, and a Plaintiff

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has the burden of proving the propriety of such a remedy by clear

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and convincing evidence.

See Mazurek v. Armstrong, 520 U.S. 968,
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972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423,

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441 (1974).

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issuance of a temporary restraining order.

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U.S. at 439 (stating that the purpose of a temporary restraining

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order is “preserving the status quo and preventing irreparable

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harm just so long as is necessary to hold a hearing [on the

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preliminary injunction application], and no longer”).

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general, the showing required for a temporary restraining order

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is the same as that required for a preliminary inunction.

Certain prerequisites must be satisfied prior to
See Granny Goose, 415

In

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Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240

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F.3d 832, 839 n.7 (9th Cir. 2001).

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seeking a preliminary injunction must establish that he is likely

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to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the

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public interest.”

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U.S. 7, 129 S. Ct. 365, 374 (2008).

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called sliding scale approach, as long as the Plaintiffs

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demonstrate the requisite likelihood of irreparable harm and show

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that an injunction is in the public interest, a preliminary

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injunction can still issue so long as serious questions going to

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the merits are raised and the balance of hardships tips sharply

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in Plaintiffs’ favor.

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F.3d 1127, 1134-35 (9th Cir. 2011) (finding that sliding scale

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test for issuance of preliminary injunctive relief remains viable

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after Winter).

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showing that she is either likely to succeed on the merits of her

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claims or that she has raised serious questions going to those

To prevail, “[a] plaintiff

Winter v. Nat’l Res. Def. Council, Inc., 555
Alternatively, under the so-

Alliance for Wild Rockies v. Cottrell, 632

Plaintiff has failed to make the requisite

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merits.

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Motion for Temporary Restraining Order (ECF No. 7) is DENIED.

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Accordingly, for the reasons just stated, Plaintiff’s

IT IS SO ORDERED.
Dated: July 5, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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