Grant et al v. Chase Bank

Filing 9

ORDER DENYING 3 MOTION for Temporary Restraining Order without prejudice. Motion Hearing set for 11/12/2010 01:30 PM in Courtroom 4, 5th Floor, San Jose. Signed by Judge Koh on 11/1/2010. (lhklc1, COURT STAFF) (Filed on 11/1/2010) (Additional attachment(s) added on 11/1/2010: # 1 Certificate of Service) (sp, COURT STAFF).

Grant et al v. Chase Bank

Doc. 9

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EDWARD & ROBIN GRANT, v. CHASE BANK, Defendant. Plaintiffs, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) Case No.: 10-CV-04788-LHK ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

On October 22, 2010, Plaintiffs Edward and Robin Grant, proceeding pro se, filed a Petition for Temporary Injunction and ex parte Motion for Temporary Restraining Order to enjoin Defendant Chase Bank from foreclosing on and selling Plaintiffs' property at 1372 Annapolis Way, San Jose, California 95118. The case was reassigned to this Court on October 29, 2010. Because Plaintiffs failed to comply with the notice requirements in Federal Rule of Civil Procedure 65(b) and Civil Local Rule 65-1(b), the Court DENIES the Motion for Temporary Restraining order without prejudice. Federal Rule of Civil Procedure 65(b)(1) states that the court may issue a temporary restraining order without notice only if: "A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Also related to notice, the Court's Local Rule 65-1(b) states that, unless relieved by the Court for good cause shown, "on 1
Case No.: 10-CV-04788-LHK ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

or before the day of an ex parte motion for a temporary restraining order, counsel applying for the temporary restraining order must deliver notice of such motion to opposing counsel or party." Plaintiffs allege that the Court should grant a TRO without notice to Defendant because the foreclosure sale scheduled for November 19, 2010, will cause Plaintiffs immediate and irreparable harm before Defendant can be heard. Mem. in Supp. of Req. for TRO 3, ECF No. 4. When Plaintiffs originally filed their motion for a TRO, the scheduled sale was nearly a month away; currently, the sale is nearly three weeks away. Plaintiffs have not alleged "specific facts" that "clearly show" that irreparable injury will occur if the Court permits Defendant to be heard in opposition before the scheduled sale. Thus, the Court finds that issuance of a TRO without notice to Defendant is not appropriate under Federal Rule 65(b)(1) and Civil Local Rule 65-1(b). Accordingly, the Court DENIES Plaintiffs' motion for a temporary injunction without prejudice. If Plaintiffs wish to proceed with their motion for temporary restraining order, Plaintiffs must provide notice to Defendant, including service of Plaintiffs' petition, moving papers, and a copy of this Order, and file proof of such notice on or before Wednesday, November 3, 2010. If Plaintiffs proceed with their motion for temporary restraining order, Defendant shall file any response on or before Monday, November 8, 2010. Plaintiff shall file any reply on or before Wednesday, November 10, 2010. Hearing is set for Friday, November 12, 2010 at 1:30 p.m. in Courtroom 4, 5th Floor of the San Jose Courthouse. IT IS SO ORDERED.

Dated: November 1, 2010

_________________________________ LUCY H. KOH United States District Judge

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Case No.: 10-CV-04788-LHK ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER