Duck v. Scott et al

Filing 3

ORDER denying 1 Petitioner William I. Duck's Motion for Preliminary Injunction. Since Duck seeks for this Court to interfere with or review state court proceedings, this case is DISMISSED without prejudice. The Clerk of Court is DIRECTED to close the file. Signed by Judge Sheri Polster Chappell on 2/12/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM I. DUCK,
Plaintiff,
v.

Case No: 2:15-cv-67-FtM-38CM

MIKE SCOTT, Sheriff of Lee County,
Florida, and U.S. BANK TRUST, N.A.,
as Trustee for LSF8 Master
Participation Trust by Caliber Home
Loan,
Defendants.
/
ORDER1
This matter is before the Court on pro se Plaintiff William I. Duck's Motion for
Preliminary Injunction filed on February 4, 2015.

(Doc. #1).

Although labeled a

preliminary injunction, Duck actually moves for a temporary restraining order to stay
enforcement of an alias writ of possession issued by a Florida state court. (Id. at 1-3).
As Duck is proceeding pro se, the Court will liberally construe his motion.

See

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) ("Pro se pleadings
are held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.").

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While not entirely clear, it appears JP Morgan Chase Bank National Association
brought a foreclosure action against Duck in Florida state court. (Id. at 1). In April 2014,
the state court allegedly denied a motion to cancel the foreclosure sale of Duck's personal
property. (Id. at 2, 4). Sometime thereafter, Duck's property was presumably sold in a
foreclosure sale.

According to Duck, the state court then issued an alias writ of

possession, advising him that he was to be evicted on February 5, 2015. (Id. at 2).
In an effort to avoid eviction, Duck filed the instant Motion in the Court's overnight
mailbox on February 4, 2015. Duck maintains that he "will suffer irreparable prejudice
and loss of control of [his] personal property and has no other remedy in the ordinary
course of the law and no harm or prejudice will results to [Defendants] if the Court grants
the requested preliminary injunction." (Doc. #1 at 2).
To obtain a temporary restraining order, a party must demonstrate (1) a substantial
likelihood of success on the merits; (2) irreparable injury will be suffered if the relief is not
granted; (3) the threatened injury outweighs the harm the relief would inflict on the nonmovant; and (4) the entry of the relief would serve the public interest. See Schiavo ex.
rel Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). Additionally, a court
may only issue a temporary restraining order without notice to the adverse party or its
attorney 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.
Fed. R. Civ. P. 65(b); see also M.D. Fla. Local Rule 4.05(a).

Ex parte temporary

restraining orders should be "entered only in emergency cases to maintain the status quo

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until the requisite notice may be given and an opportunity is afforded to opposing parties
to respond to the application for a preliminary injunction." M.D. Fla. Local Rule 4.05(a).
For the following reasons, the Court finds that Duck is not entitled to a temporary
restraining order.
Duck's requested relief is moot. He was to be evicted on February 5, 2015, and
the Court did not receive his instant motion until after that time. Moreover, because Duck
neglected to include any contact information with his motion, the Court is unable to reach
him in order to ascertain the status of his eviction.
But, even if this relief were not moot, Duck has failed to carry his burden as to the
elements above. Most significantly, there is no showing that he was likely to succeed on
the merits in the underlying suit. Duck’s motion is comprised almost exclusively of
conclusory statements, which is plainly insufficient. Moreover, Duck failed to identify the
underlying state court case, making any independent review impossible.
The problems do not stop there. Duck also failed to certify that efforts were taken
to give notice to Defendants (or that notice should not be provided), and that the absence
of such notice may directly interfere and impact the underlying state court proceedings
regarding Duck's foreclosed property. The Court will not issue a temporary restraining
order without the required certification.
Furthermore, insofar as Duck asks this Court to review the Florida state court's
alias writ of possession and/or foreclosure judgment, this Court lacks the authority to do
so under the Rooker-Feldman doctrine. See McKinnon v. Wells Fargo Bank, N.A., No.
6:10-cv-325, 2010 WL 731801, at *1 (M.D. Fla. Mar. 1, 2010) (abstaining from exercising
jurisdiction under the Rocker-Feldman doctrine where the plaintiff moved for a temporary

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restraining on the basis that his real property was improperly foreclosed upon). "The
Rooker-Feldman doctrine makes clear that federal district courts cannot review state
court final judgments because that task is reserved for state appellate courts or, as a last
resort, the United States Supreme Court." Casale v. Tillman, 558 F.3d 1258, 1260 (11th
Cir. 2009). Even the most generous reading of Duck's Motion provides no basis for this
Court to interfere with the state court's decision.
And finally, even setting aside the forgoing, there are glaring procedural
deficiencies fatal to this case. Duck did not file a complaint or any other initial pleading
along with his motion. Similarly, he neither paid the filing fee nor submitted an Affidavit
of Indigency or other application to proceed in forma papueris. See 28 U.S.C. § 1915;
M.D. Fla. Local Rules 4.07 & 1.03.
Accordingly, it is now
ORDERED:
(1) Petitioner William I. Duck's Motion for Preliminary Injunction (Doc. #1) is
DENIED.
(2) Since Duck seeks for this Court to interfere with or review state court
proceedings, this case is DISMISSED without prejudice.
(3) The Clerk of Court is DIRECTED to close the file.
DONE and ORDERED in Fort Myers, Florida this 12th day of February, 2015.

Copies: All Parties of Record

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