Burks v. Caso

Filing 3

ORDER signed by District Judge Morrison C. England, Jr on 5/2/17 ORDERING Plaintiff's request for temporary restraining order is DENIED. Plaintiff is ORDERED to SHOW CAUSE in writing on or before 5/8/2017 as to why this case should not b e DISMISSED for lack of jurisdiction. Any response from Defendant shall be filed on or before 5/15/2017. If the Court desires a hearing on this matter, such hearing will take place on 5/18/2017, at 2:00 PM in Courtroom 7. Plaintiff shall provide notice of this order, briefing schedule, and date and time for hearing to Defendant by 5/3/2017. (Becknal, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIOMA BURKS, 12 No. 2:17-cv-00894-MCE-DB Plaintiff, 13 v. 14 VINCE CASO, 15 ORDER Defendant. 16 17 On April 27, 2017, Plaintiff Dioma Burks filed a Complaint in this Court alleging 18 fourteen causes of action against Defendant Vince Caso related to conditions of and 19 rental payments for the home Plaintiff rents, and also related to the imminent eviction of 20 Plaintiff from that rental property. ECF No. 1. It appears Plaintiff’s primary allegations 21 are that Defendant increased rent and utilities without providing notice, charged extra 22 rent, accepted “side payments,” provided improper notices to pay or quit, retaliated 23 against Plaintiff, forged the rental agreement, and failed to correct what were 24 uninhabitable living conditions. ECF No. 1. Plaintiff’s Complaint additionally seeks a 25 preliminary injunction and/or temporary restraining order, presumably preventing 26 Defendant from evicting Plaintiff from the home. ECF No. 1. The Court addresses what 27 it construes as Plaintiff’s request for temporary restraining order in more detail below 28 and, for the reasons set forth hereafter, that request is DENIED. 1 1 As a preliminary matter, Eastern District Local Rule 231 governs Temporary 2 Restraining Orders. Rule 231(a) provides that “except in the most extraordinary of 3 circumstances, no temporary restraining order shall be granted in the absence of actual 4 notice to the affected party and/or counsel, by telephone or other means, or a sufficient 5 showing of efforts made to provide notice.” E.D. Cal. Local R. 231(a) (citing Fed. R. Civ. 6 P. 65(b)). Rule 231(c) additionally requires the filing of, among other things, “an affidavit 7 detailing the notice or efforts to effect notice to the affected parties or counsel or showing 8 good cause why notice should not be given.” Id. 231(c)(5). 9 Furthermore, subsection (b) of Rule 231 states that “[i]n considering a motion for 10 a temporary restraining order, the Court will consider whether the applicant could have 11 sought relief by motion for preliminary injunction at an earlier date without the necessity 12 for seeking last minute relief by motion for temporary restraining order. Should the Court 13 find that the application unduly delayed in seeking injunctive relief, the Court may 14 conclude that the delay constitutes laches or contradicts the applicant’s allegations of 15 irreparable injury and may deny the motion solely on either ground.” Id. 231(b). 16 Finally, subsection (c) lists the documents to be filed by a party seeking a 17 temporary restraining order. Id. 231(c). Under that rule, “[n]o hearing on a temporary 18 restraining order will normally be set unless” certain documents are provided to the Court 19 and to the affected parties or their counsel. Id. Those documents are: (1) a complaint; 20 (2) a motion for a temporary restraining order; (3) a brief on all relevant legal issues 21 presented by the motion; (4) an affidavit in support of the existence of an irreparable 22 injury; (5) an affidavit detailing the notice or efforts to effect notice to the affected parties 23 or counsel or showing good cause why notice should not be given; (6) a proposed 24 temporary restraining order with a provision for a bond; (7) a proposed order with blanks 25 for fixing the time and date for hearing a motion for preliminary injunction, the date for 26 the filing of responsive papers, the amount of the bond, if any, and the date and hour of 27 issuance; and (8) where the temporary restraining order is requested ex parte, the 28 proposed order shall further notify the affected party of the right to apply to the Court for 2 1 modification or dissolution on two (2) days’ notice or such shorter notice as the Court 2 may allow. Id. 3 In the present case, Plaintiff has failed to meet the requirements of Rule 231. 4 First, although Plaintiff indicates that she provided notice of the temporary restraining 5 order to Defendant, she has not filed the required affidavit establishing as much. 6 Additionally, though Plaintiff also indicates in her papers that she will suffer irreparable 7 harm absent the requested relief, she has not filed this required affidavit either. Lastly, it 8 appears to the Court that Plaintiff has delayed in bringing this action, cutting against any 9 imminency argument. The most recent three-day notice to pay or quit was served on 10 Plaintiff in February 2017, and the unlawful detainer that appears to have sparked 11 Plaintiff’s present suit was filed in Sacramento County Superior Court on March 10, 12 2017. The Court is therefore not convinced that Plaintiff is justified in now—more than a 13 month and a half later—seeking emergency relief. Plaintiff’s argument that she was 14 unaware that the unlawful detainer was proceeding forward is not convincing. For these 15 reasons alone, Plaintiff’s request may be denied. 16 As for the merits of Plaintiff’s motion, the purpose of a temporary restraining order 17 is to preserve the status quo pending the complete briefing and thorough consideration 18 contemplated by full proceedings pursuant to a preliminary injunction. See Granny 19 Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining 20 orders “should be restricted to serving their underlying purpose of preserving the status 21 quo and preventing irreparable harm just so long as is necessary to hold a hearing, and 22 no longer”); see also Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 23 (9th Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. 24 April 19, 2010). 25 Issuance of a temporary restraining order, as a form of preliminary injunctive 26 relief, is an extraordinary remedy, and Plaintiff has the burden of proving the propriety of 27 such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, the 28 showing required for a temporary restraining order and a preliminary injunction are the 3 1 same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 2 (9th Cir. 2001). 3 The party requesting preliminary injunctive relief must show that “he is likely to 4 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 5 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 6 the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 7 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). 8 The propriety of a temporary restraining order hinges on a significant threat of 9 irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. 10 11 Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). Alternatively, under the so-called sliding scale approach, as long as the Plaintiff 12 demonstrates the requisite likelihood of irreparable harm and shows that an injunction is 13 in the public interest, a preliminary injunction can still issue so long as serious questions 14 going to the merits are raised and the balance of hardships tips sharply in Plaintiff’s 15 favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) 16 (concluding that the “serious questions” version of the sliding scale test for preliminary 17 injunctions remains viable after Winter). 18 As indicated above, the Court is not convinced that Plaintiff has met this standard. 19 Specifically, nothing in Plaintiff’s Complaint indicates that the threat of Plaintiff losing her 20 home is imminent such that the extreme remedy of a temporary restraining order is 21 justified. Moreover, it appears to the Court that Plaintiff has delayed in bringing this 22 action in the first place, which, again cuts against any imminence finding. For these 23 additional reasons, Plaintiff’s request may be denied. 24 Lastly, the Court finds Plaintiff has not established a likelihood of success on the 25 merits of her claims, nor has she raised serious questions going to their merits. To the 26 contrary, the Court is unclear as to what claims Plaintiff pursues or the bases for those 27 claims. As best as this Court can tell, it appears Plaintiff alleges what may amount to 28 affirmative defenses to Defendant’s pending unlawful detainer action, rather than a 4 1 potentially successful separate federal suit. For this additional reason, Plaintiff’s request 2 is denied. 3 Given the denial of Plaintiff’s temporary restraining order request, the Court going 4 forward will construe Plaintiff’s motion at ECF No. 1 as a motion for preliminary 5 injunction. Due to the pendency of the unlawful detainer in state court, however, Plaintiff 6 is ordered to show cause in writing on or before May 8, 2017 as to why this case should 7 not be dismissed for lack of jurisdiction. Any response from Defendant shall be filed on 8 or before May 15, 2017. If the Court desires a hearing on this matter, such hearing will 9 take place on May 18, 2017, at 2:00 PM in Courtroom 7. Plaintiff shall provide notice of 10 this order, briefing schedule, and date and time for hearing to Defendant by May 3, 11 2017. 12 13 IT IS SO ORDERED. Dated: May 2, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?