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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENT A. FRIEDE,

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No. 2:17-cv-00499-KJM-GGH PS

Plaintiff,
ORDER

v.
DEEPAR PRASAK, et al.,
Defendants.

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Pro se plaintiff is a disabled veteran facing potential eviction. On March 8, 2017,

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he filed this action in federal court, with reference to the Americans with Disabilities Act (ADA)

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as the basis for federal jurisdiction. ECF No. 1. Two days later, the complaint was dismissed

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while providing 30 days to amend, because the original complaint pled no plausible ADA claim.

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Order March 10, 2017, ECF No. 3. On March 13, 2017, plaintiff moved for a temporary

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restraining order (TRO) asking the court to block his eviction and overturn a state court decision.

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ECF No. 4. As discussed below, the court DENIES plaintiff’s motion, without prejudice.

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The standard for issuing a TRO is similar to that of a preliminary injunction and

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requires that the party seeking the TRO show either “(1) a combination of likelihood of success

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on the merits and the possibility of irreparable harm, or (2) that serious questions going to the

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merits are raised and the balance of hardships tips sharply in favor of the moving party.”
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Immigrant Assistance Project of the L.A. County of Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th

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Cir. 2002). Federal Rule of Civil Procedure 65(b) provides that a court may issue a TRO without

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notice to the adverse party in limited circumstances where “specific facts in an affidavit or a

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verified complaint clearly show that immediate and irreparable injury, loss, or damage will result

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to the movant....” Fed. R. Civ. P. 65(b)(1)(A). The movant must also certify in writing any

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efforts made to give notice and the reasons why it should not be required. Fed. R. Civ. P.

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65(b)(1)(B).

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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

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requirement. Determining whether to issue a TRO depends on analyzing the underlying claims

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plaintiff’s complaint raises. Immigrant Assistance Project, 306 F.3d at 873. Plaintiff has not yet

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filed an amended complaint. ECF No. 3. Thus, there is no complaint against which to assess the

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appropriateness of a TRO. Even if there were a complaint before the court, plaintiff has not

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certified in writing any efforts to put defendant on notice of his ex parte TRO motion, nor has he

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offered any reason why the court should not require notice. See generally ECF No. 4. Very few

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circumstances justify issuing a TRO without notice to the adversary, particularly where such

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notice is possible. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006).

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Accordingly, the court DENIES the motion, without prejudice to refiling with
correction of the deficiencies noted above.

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This order resolves ECF No. 4.

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IT IS SO ORDERED.

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DATED: March 14, 2017.

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UNITED STATES DISTRICT JUDGE

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