Tevis et al v. California Department of Veterans Affairs

Filing 4

ORDER denying Plaintiffs' 2 Motion for Application for Temporary Restraining Order, signed by District Judge Troy L. Nunley on 5/6/15. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY TEVIS and NANCY TEVIS,

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No. 2:15-cv-972-TLN-GGH-S

Plaintiffs,
ORDER DENYING PLAINTIFF’S
APPLICATION FOR TRO

v.
CAL VET, aka and dba CALIFORNIA
DEPARTMENT OF VETERANS
AFFAIRS
Defendant.

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This matter is before the Court on Plaintiffs Larry Tevis and Nancy Tevis’s (“Plaintiffs”)

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Application for Temporary Restraining Order (ECF No. 2). The Court has carefully considered

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Plaintiffs’ motion. For the reasons set forth below, Plaintiffs’ application is hereby DENIED.

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Plaintiffs’ complaint stems from the bankruptcy court’s disposition of Plaintiffs’ Chapter

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13 bankruptcy. According to the Complaint, Defendant Cal Vet (“Defendant”) “violated the

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Settlement and the Plaintiffs’ Bankruptcy Chapter 13 Plan.” (ECF No. 1 at ¶ 30.) In response,

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Plaintiff filed an Adversary against Defendant and was granted a restraining order to stop

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Defendant from taking possession of Plaintiffs’ residence. (ECF No. 1 at ¶ 31.) On or about

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April 2015, the bankruptcy court ordered the Adversary be dismissed and ordered that Defendant

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could “take action to take possession of Plaintiffs’ residence.” (ECF No. 1 at ¶ 32.) Plaintiffs

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filed the instant action on May 5, 2015, alleging ten causes of actions against Defendant and
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subsequently filed a motion for temporary restraining order. (ECF No. 2.)
A temporary restraining order is an extraordinary and temporary “fix” that the court may

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issue without notice to the adverse party if, in an affidavit or verified complaint, the movant

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“clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant

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before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of

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a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed. R.

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Civ. P. 65. It is the practice of this district to construe a motion for temporary restraining order as

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a motion for preliminary injunction. Local Rule 231(a); see also Aiello v. One West Bank, No.

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2:10–cv–0227–GEB–EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) (“Temporary

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restraining orders are governed by the same standard applicable to preliminary injunctions.”)

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(internal quotation and citations omitted).

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Therefore, the party requesting injunctive relief must show that “he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Although pro se pleadings are liberally

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construed, see Haines v. Kerner, 404 U.S. 519, 520–21 (1972), they are not immune from the

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Federal Rules of Civil Procedure. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995). The

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propriety of a request for injunctive relief hinges on a significant threat of irreparable injury that

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must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th

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Cir. 1988).

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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–36 (9th Cir. 2011) (concluding that the “serious

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questions” version of the sliding scale test for preliminary injunctions remains viable after

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Winter).

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Here, Plaintiffs’ motion fails to meet the requisite standard. First, the motion itself does
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not show that Plaintiffs are likely to succeed on the merits of their case. In fact, Plaintiffs fail to

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offer any legal support for their motion and instead says that this Court must grant relief to

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prevent Plaintiffs from becoming homeless. (ECF No. 2 at 2.) Although the Court is empathetic

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to Plaintiffs’ situation, the Court cannot grant relief without a legal basis for doing so. Plaintiffs’

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assertion that they will lose their residence is not enough to grant relief. Second, in essence

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Plaintiffs are asking this Court to issue an order staying the bankruptcy court’s order. This Court

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cannot do so. Should Plaintiffs wish to challenge the bankruptcy court’s ruling, they must follow

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the appropriate procedure and appeal the bankruptcy court’s ruling.

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For the above reasons, Plaintiffs’ Application for Temporary Restraining Order (ECF No.
2) is hereby DENIED.
IT IS SO ORDERED.
Dated: May 6, 2015

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Troy L. Nunley
United States District Judge

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