Friede v. Prasak et al

Filing 5

ORDER signed by District Judge Kimberly J. Mueller on 3/14/2017 DENYING 4 Motion for TRO. (Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENT A. FRIEDE, 12 13 14 15 No. 2:17-cv-00499-KJM-GGH PS Plaintiff, ORDER v. DEEPAR PRASAK, et al., Defendants. 16 17 18 Pro se plaintiff is a disabled veteran facing potential eviction. On March 8, 2017, 19 he filed this action in federal court, with reference to the Americans with Disabilities Act (ADA) 20 as the basis for federal jurisdiction. ECF No. 1. Two days later, the complaint was dismissed 21 while providing 30 days to amend, because the original complaint pled no plausible ADA claim. 22 Order March 10, 2017, ECF No. 3. On March 13, 2017, plaintiff moved for a temporary 23 restraining order (TRO) asking the court to block his eviction and overturn a state court decision. 24 ECF No. 4. As discussed below, the court DENIES plaintiff’s motion, without prejudice. 25 The standard for issuing a TRO is similar to that of a preliminary injunction and 26 requires that the party seeking the TRO show either “(1) a combination of likelihood of success 27 on the merits and the possibility of irreparable harm, or (2) that serious questions going to the 28 merits are raised and the balance of hardships tips sharply in favor of the moving party.” 1 1 Immigrant Assistance Project of the L.A. County of Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th 2 Cir. 2002). Federal Rule of Civil Procedure 65(b) provides that a court may issue a TRO without 3 notice to the adverse party in limited circumstances where “specific facts in an affidavit or a 4 verified complaint clearly show that immediate and irreparable injury, loss, or damage will result 5 to the movant....” Fed. R. Civ. P. 65(b)(1)(A). The movant must also certify in writing any 6 efforts made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 7 65(b)(1)(B). 8 9 Here, plaintiff’s TRO motion cannot succeed because there is no operative complaint before the court and plaintiff’s motion does not comply with Rule 65’s notice 10 requirement. Determining whether to issue a TRO depends on analyzing the underlying claims 11 plaintiff’s complaint raises. Immigrant Assistance Project, 306 F.3d at 873. Plaintiff has not yet 12 filed an amended complaint. ECF No. 3. Thus, there is no complaint against which to assess the 13 appropriateness of a TRO. Even if there were a complaint before the court, plaintiff has not 14 certified in writing any efforts to put defendant on notice of his ex parte TRO motion, nor has he 15 offered any reason why the court should not require notice. See generally ECF No. 4. Very few 16 circumstances justify issuing a TRO without notice to the adversary, particularly where such 17 notice is possible. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). 18 19 Accordingly, the court DENIES the motion, without prejudice to refiling with correction of the deficiencies noted above. 20 This order resolves ECF No. 4. 21 IT IS SO ORDERED. 22 DATED: March 14, 2017. 23 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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