Maxwell et al v. Deutsche Bank National Trust Company et al

Filing 8

ORDER by Judge William H. Orrick denying 4 Motion for TRO (wholc1, COURT STAFF) (Filed on 8/27/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MORRIS S. MAXWELL, et al.,

Case No. 13-cv-03957-WHO

Plaintiffs,
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v.

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

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United States District Court
Northern District of California

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DEUTSCHE BANK NATIONAL TRUST
COMPANY, et al.,

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Defendants.

Re: Dkt. No. 4

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On August 27, 2013, plaintiffs Shawn R. Maxwell and Morris S. Maxwell moved that the

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Court issue an ex parte temporary restraining order to require defendants Deustche Bank National

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Trust Company (“Deutsche Bank”), One West Bank FSB (“One West Bank”), and Meridian

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Foreclosure Service to stay foreclosure proceedings scheduled on August 28, 2013, for the

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property located at 318 Poinsettia Avenue, San Mateo, California 94403 (the “property”). For the

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following reasons, the motion for an ex parte temporary restraining order is DENIED.

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Under Federal Rule of Civil Procedure 65, a court may issue an ex parte temporary

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restraining order if “specific facts in an affidavit or a verified complaint clearly show that

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immediate and irreparable injury, loss, or damage will result to the movant before the adverse

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party can be heard in opposition; and the movant’s [] certifies in writing any efforts made to give

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notice and the reasons why it should not be required.” FED. R. CIV. P. 65. The analysis for

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granting a temporary restraining order is “substantially identical” to that for granting a preliminary

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injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.

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2001). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Alternatively, if the moving party can

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demonstrate the requisite likelihood of irreparable harm, and show that an injunction is in the

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public interest, a preliminary injunction may issue so long as there are serious questions going to

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the merits and the balance of hardships tips sharply in the moving party’s favor.” Graham v. Am.

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Home Mortg., C 13-03322 RS, 2013 WL 3989676 (N.D. Cal. Aug. 2, 2013) (citing Alliance for

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).
Here, the plaintiffs do not show a likelihood of success on the merits. The plaintiffs have

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raised identical and related claims in both state and bankruptcy courts against Deutsche Bank and

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United States District Court
Northern District of California

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One West Bank, and have not succeeded in their claims despite multiple opportunities to amend.

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See, e.g., Maxwell v. Deutsche Bank Nat’l Trust Co., Case No. CIV521169 (Cal. Super. Ct. April

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16, 2013); Maxwell v. Quality Loan Serv., Case No. CIV482969 (Cal. Super. Ct. April 9, 2009); In

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re Maxwell, No. 13-31423 (Bankr. N.D. Cal. 2013). The plaintiffs’ complaint and motion do not

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demonstrate that the claims they now bring, or the facts that support those claims, are likely to

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prevail. Nor do plaintiffs explain, given their numerous attempts to litigate this matter, how what

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they have alleged is sufficiently different from their prior lawsuits such that the plaintiffs are now

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likely to succeed on the merits or that the balance of equities tips sharply in their favor. See

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Graham, 2013 WL 3989676, at *1.

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Plaintiff Morris Maxwell is also a debtor in the United States Bankruptcy Court for the

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Northern District of California. In a hearing on August 15, 2013, the Bankruptcy Court ordered

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that the automatic stay in that case be terminated, which then allowed Deutsche Bank to foreclose

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on the property. It is worth noting that the plaintiffs waited until the day before the foreclosure

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proceeding to move for a temporary restraining order despite the fact that the Bankruptcy Court’s

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stay was lifted on August 15, 2013.

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The plaintiffs also failed to certify in writing any efforts they made to give notice to the

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defendants of this motion, as required by Rule 65; they also failed to provide reasons to the Court

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why they should not be required to do so.
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For all these reasons, the Court concludes that a temporary restraining order should not
issue and the motion is DENIED.
IT IS SO ORDERED.
Dated: August 27, 2013
______________________________________
WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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