Wootten v. BAC Home Loans Servicing, LP

Filing 8

ORDER re 2 DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING PRELIMINARY INJUNCTION HEARING FOR DECEMBER 9, 2010 AT 1:30 PM. (Attachments: # 1 certificate of mailing). Signed by Judge Koh on 11/10/2010. (lhklc3, COURT STAFF) (Filed on 11/10/2010)

Wootten v. BAC Home Loans Servicing, LP

Doc. 8

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 JENNIFER WOOTTEN, v. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) Case No.: 10-CV-04946-LHK ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER; SETTING PRELIMINARY INJUNCTION HEARING AND BRIEFING SCHEDULE (re: docket #2)

BAC HOME LOANS SERVICING, LP, Defendant.

On November 1, 2010, Plaintiff filed an "Original Petition" [dkt. #1] and "Motion for Preliminary Injunction" [dkt. #2] in connection with the foreclosure or foreclosure sale (Plaintiff does not specify which) of property at 700 Tea Tree Court, San Jose, California 95128. Because Plaintiff has not made a clear showing of immediate and irreparable injury, the Court DENIES Plaintiff's request for a temporary injunction without prejudice. The Court, however, GRANTS Plaintiff's request for a preliminary injunction hearing. The Court is mindful of the leeway due to pro se litigants. Brazil v. United States Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Plaintiff's request for relief is difficult to decipher because Plaintiff refers to, but does not distinguish between, a temporary restraining order and a preliminary injunction. In any event, the Court interprets Plaintiff's motion as seeking the issuance of a temporary restraining order without providing Defendant an opportunity to be heard. See Mot. for Prelim. Injunction at 24 ("plaintiff will suffer immediate and irreparable injury, loss, or damage 1
Case No.: 10-CV-04946-LHK ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER; SETTING PRELIMINARY INJUNCTION HEARING
Dockets.Justia.com

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if the order is not granted before defendant can be heard."). 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, Civil Local Rule 65-1(b) states that, unless relieved by the Court for good cause shown, "on 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." Here, Plaintiff has not alleged "specific facts" that "clearly show" that irreparable injury will occur before Defendant has an opportunity to be heard in opposition. See Fed. R. Civ. P. 65(b)(1)(A). Rather, Plaintiff only makes a vague statement that "defendant has made it clear that sale and eviction from the property are imminent." See Mot. for Prelim. Inj. at 24. Plaintiff does not specify a date on which the property will be sold by, for example, citing to a notice of trustee's sale. Without more information, the Court is unable to determine whether Plaintiff has adequately established that she is likely to suffer irreparable harm in the absence of preliminary relief, let alone establish likelihood of success on the merits. See Winter v. NRDC, Inc., 129 S. Ct. 365, 374 (2008); see also Klein v. City of San Clemente, 584 F. 3d 1196, 1201 (9th Cir. 2009) (the party seeking preliminary relief bears the burden of establishing entitlement to relief). In addition, Plaintiff did not comply with Civil Local Rule 65-1(b), which requires delivery of notice of an ex parte motion on or before the day the ex parte motion is filed. Plaintiff did not provide notice to Defendant of her motion on November 1, 2010 (e.g., the day she filed the motion for an ex parte order), although Plaintiff submits, in a filing on November 5, 2010, that notice of this action was delivered to Defendant's authorized agent on November 3, 2010. See Decl. of Service re summons and complaint as to defendant BAC Home Loan Servicing, LP [dkt. #6]. Accordingly, the Court DENIES Plaintiff's request for a temporary restraining order without prejudice. The Court GRANTS Plaintiff's request for a preliminary injunction hearing. 2
Case No.: 10-CV-04946-LHK ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER; SETTING PRELIMINARY INJUNCTION HEARING

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The hearing is set for Thursday, December 9, 2010 at 1:30 p.m. in Courtroom 4, Fifth Floor, 280 S. 1st Street, San Jose, California. Defendant's opposition to Plaintiff's motion for preliminary injunction is due by Tuesday, November 30, 2010. Plaintiff's reply is due Friday, December 3, 2010. Any motion to enlarge or shorten time, as to either the hearing or the briefing schedule, must comply with Civil Local Rule 6-3 ("Motion to Change Time"), which, among other things, sets out a 5-page limit, requires the reasons for the requested change to be set forth with particularity, and requires delivery of the motion to the other party on the same day the motion is filed. Plaintiff is ORDERED to serve a copy of this Order upon Defendant as soon as practicable, but no later than Thursday, November 18, 2010. Upon serving Defendant with this Order, Plaintiff shall file proof of service with this Court. Failure to timely serve Defendant with a copy of this Order will result in a continuance of the preliminary injunction hearing to a later date. IT IS SO ORDERED.

Dated: November 10, 2010

_________________________________ LUCY H. KOH United States District Judge

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Case No.: 10-CV-04946-LHK ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER; SETTING PRELIMINARY INJUNCTION HEARING