McDowell et al v. State of California et al

Filing 4

ORDER by Judge Charles R. Breyer denying 2 Temporary Restraining Order. (crblc1, COURT STAFF) (Filed on 5/31/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-02569 CRB

FRANK AND DEBORAH MCDOWELL,

ORDER DENYING APPLICATION
FOR TEMPORARY RESTRAINING
ORDER

Plaintiff,
v.
THE STATE OF CALIFORNIA,

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Defendant.

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Pro se plaintiffs Frank and Deborah McDowell have filed an application for a

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Temporary Restraining Order in this case. See generally App. (dckt. no. 2). This application

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is DENIED because it does not meet the requirements for relief. See generally Winter v.

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Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L. Ed. 2d 249 (2008);

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Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 3665149, *8 (9th Cir. Sept.

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22, 2010).

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In this Circuit “‘serious questions going to the merits’ and a hardship balance that tips

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sharply toward the plaintiff can support issuance of an injunction, assuming the other two

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elements of the Winter test are also met.” Alliance for the Wild Rockies, 622 F.3d at 1052.

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Here, the Court recognizes that the balance of the hardship tips in favor of Plaintiffs, who

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purport to face foreclosure, but they have not raised serious questions going to the merits, as

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their application consists of less than a page and a half of conclusory statements (“THE

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DEFENDANT [sic] ARE INCURRING SWEEPING PENALTIES FOR IMPROPER

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HOME FORECLOSURE PRACTICES”) but includes no facts or arguments suggesting an

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entitlement to relief. See dkt. 2 at 1 (emphasis in original).

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Additionally, the Court notes that Plaintiffs have asserted that this case was removed
from state court – the docket describes docket number 1 as a “Notice of Removal” and, on

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the Civil Cover Sheet,“Removed from State Court” is checked off. See dkt. 1. The Notice of

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Removal also attaches various rulings from the California state courts. This Court is not an

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appeals court for decisions of the state court. Nor can Plaintiffs remove their own action

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from state court. See 28 U.S.C. §§ 1441, 1446. Had the case been improperly removed, the

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United States District Court
For the Northern District of California

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Court would lack jurisdiction. However, as Plaintiffs are pro se in this case, the Court will

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construe the document entitled “Notice of Removal” as a Complaint in this matter, over

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which Plaintiffs assert that this Court has jurisdiction on the basis of the federal question

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raised (a RICO claim). A case management conference will be scheduled shortly.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: May 31, 2011

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