Brooks-Hamilton v. City of Oakland et al

Filing 7

ORDER by Judge Maxine M. Chesney, for Judge Thelton E. Henderson, denying 4 Motion for Preliminary Injunction, construed as ex parte application for temporary restraining order. (tehlc3, COURT STAFF) (Filed on 10/19/2006)

Brooks-Hamilton v. City of Oakland et al

Doc. 7

Case 3:06-cv-06534-MHP

Document 7

Filed 10/19/2006

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1 2 3 4 5 6 7 8 9 10 v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RALBERT BROOKS-HAMILTON, Plaintiff, NO. C06-6534 TEH ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

CITY OF OAKLAND, et al., Defendants.

United States District Court

11
For the Northern District of California

Plaintiff Ralbert Brooks-Hamilton filed this action today, October 19, 2006,

12 simultaneously with a "Notice of Motion and Motion for Preliminary and Permanent 13 Injunction." Although Plaintiff's "Notice" contains no hearing date or time, Plaintiff orally 14 requested at the time of filing that the Court place this matter for hearing on its calendar for 15 tomorrow, October 20, 2006. The Court therefore construes Plaintiff's motion and oral 16 request as an ex parte application for a temporary restraining order pursuant to Federal Rule 17 of Civil Procedure 65(b). Having carefully considered the papers submitted in support of 18 Plaintiff's application, the Court now rules as follows: 19 A temporary restraining order may issue without notice to the adverse party only if

20 "(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that 21 immediate and irreparable injury, loss, or damage will result to the applicant before the 22 adverse party or that party's attorney can be heard in opposition, and (2) the applicant's 23 attorney certifies to the court in writing the efforts, if any, which have been made to give the 24 notice and the reasons supporting the claim that notice should not be required." Fed. R. Civ. 25 P. 65(b). Plaintiff has failed to satisfy either requirement. The complaint is not verified, and, 26 with respect to the imminence of irreparable harm, Plaintiff's declaration states only that 27 Defendant City of Oakland attempted to sell his home "[o]n or about August 24, 2006." 28 Brooks-Hamilton Decl. ¶ 7. Plaintiff fails to explain why immediate and irreparable injury

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Case 3:06-cv-06534-MHP

Document 7

Filed 10/19/2006

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1 will now result ­ two months after this attempted sale ­ before Defendants may be heard in 2 opposition to Plaintiff's request for injunctive relief.1 In addition, Plaintiff's counsel has 3 failed to file any declaration, let alone one that explains his efforts to notify Defendants or 4 provide reasons for not requiring such notice. Plaintiff also failed to provide the Court with a 5 proposed temporary restraining order, as required by Civil Local Rule 65-1(a). Accordingly, 6 having construed Plaintiff's motion for preliminary injunction and oral request for hearing as 7 an ex parte application for a temporary restraining order, the Court now DENIES such 8 application without prejudice. 9 If Plaintiff's motion seeks only a preliminary injunction and not a temporary

10 restraining order, then Plaintiff may notice his motion in accordance with Civil Local Rule

United States District Court

11 7-2(a) or request an order shortening time pursuant to Civil Local Rule 6-1(b). To the extent
For the Northern District of California

12 that Plaintiff's motion seeks a preliminary injunction without giving notice to Defendants, 13 such motion is DENIED; Federal Rule of Civil Procedure 65(a)(1) explicitly provides that, 14 "No preliminary injunction shall be issued without notice to the adverse party." 15 16 IT IS SO ORDERED. 17 18 Dated: 10/19/06 19 20 21 22 23 24 25 26 Moreover, Plaintiff alleges in his complaint that the City filed a foreclosure action 27 "[o]n or about February 2001." Compl. ¶ 5. Plaintiff offers no explanation of why a foreclosure is so imminent, over five years later, that a temporary restraining order is 28 required. 2
1

/s/ Maxine M. Chesney, for THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT