England v. Belden et al

Filing 7

ORDER: Plaintiff's Emergency Motion for Emergency Stay and Evidentiary Declaration in Support of Motion 5 is DENIED. Signed by Judge Charlene Edwards Honeywell on 11/6/2017. (JJH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALTHEA SMITH ENGLAND,
Plaintiff,
v.

Case No: 8:17-cv-2621-T-36JSS

DOUG BELDEN, PAT FRANK, BOB
HENRIQUEZ and LTD FAMILY TRUST
LLC,
Defendants.
___________________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Emergency Stay and
Evidentiary Declaration in Support of Motion (the “Motion”) (Doc. 5). Plaintiff asserts in the
Motion that the Court should grant an immediate stay of the Writ of Possession in the Hillsborough
County Circuit Civil Case No. 17-CA-004018 (the “State Court Action”). She declares and affirms
that the property that is the subject of the Writ of Possession (the “Property”) was “unlawfully sold
or conveyed in an action for quiet title in violation of numerous Florida statutes.” Doc. 5 at 1.
Plaintiff requests a stay of execution from this Court to stop the eviction scheduled on Monday,
November 6, 2017. Id. at 2. Plaintiff filed her Complaint November 2, 2017, and there is no
evidence that any of the named Defendants have been served or otherwise notified of this action.
“Motions of an emergency nature may be considered and determined by the Court at any
time, in its discretion.” M.D. Fla. L. R. 3.01(e). To the extent that this Court has jurisdiction over
the Complaint, it finds that the Motion does not state a true emergency. Plaintiff has had
knowledge that the eviction was set to occur since September 2017, (Doc. 1 at 5), but has provided

no explanation for the delay in filing this Complaint and Motion. Plaintiff’s failure to act does not
justify emergency treatment of this Motion.
The Court instructs Plaintiff that under Local Rule 3.01(e) "[t]he unwarranted designation
of a motion as an emergency motion may result in the imposition of sanctions." Failure to comply
with the Local Rules of the Middle District of Florida may result in sanctions. And the Motion
does not comply with the Local Rules of the Middle District of Florida which require a motion or
other application for an order to include “a concise statement of the precise relief requested, a
statement of the basis for the request, and a memorandum of legal authority in support of the
request.” M.D. Fla. L.R. 3.01(a).
To the extent Plaintiff seeks a temporary restraining order or preliminary injunction against
LTD Family Trust LLC to prevent it from taking possession of the Property in the State Court
Action, Plaintiff has not demonstrated entitlement to relief. “The issuance of a temporary
restraining order or preliminary injunctive relief is an extraordinary remedy to be granted only
under exceptional circumstances.” Cheng Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1186 (N.D.
Ala. 2011) (citing Samson v. Murray, 415 U.S. 61 (1974)). Pursuant to the Federal Rules of Civil
Procedure, a temporary restraining order may be granted without written or oral notice to the
adverse party only if “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.” Fed. R. Civ. P. 65(b)(1)(A).
Similarly, the Local Rules of the Middle District of Florida provide that a motion for a
temporary restraining order must demonstrate that the movant’s anticipated injury “is so imminent
that notice and a hearing on the application for preliminary injunction is impractical if not
impossible.” M.D. Fla. L. R. 4.05(b)(2). Further, the motion should describe precisely the conduct

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sought to be enjoined. Id. at 4.05(b)(3). Finally, the brief or memorandum submitted in support
of the motion must address the following: (1) the likelihood that the moving party will ultimately
prevail on the merits; (2) the irreparable nature of the threatened injury and the reason that notice
cannot be given; (3) the potential harm that might be caused to the opposing parties or others if the
order is issued; and (4) the public interest, if any. Id. at 4.05(b)(4).
Here, Plaintiff falls far short of establishing that she is entitled to a temporary restraining
order or a preliminary injunction.

First, she has not demonstrated that she will suffer an

“immediate and irreparable injury” that is “so imminent that notice and a hearing . . . is impractical
if not impossible.” Id. at 4.05(b)(2). Second, she has failed to offer any reason why notice and a
hearing would be “impractical if not impossible.” Id. See also Fed. R. Civ. P. 65(b)(1)(B). Finally,
Plaintiff has failed to address the likelihood that she will prevail on the merits of this case; the
potential harm that might be caused to the opposing party or others if the order were issued; or the
public interest, if any. See M. D. Fla. Local Rule 4.05(b)(4). In sum, Plaintiff has failed to comply
with the procedural requirements for issuance of a temporary restraining order and preliminary
injunction.
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Emergency Motion for Emergency Stay and Evidentiary Declaration in
Support of Motion is DENIED.

DONE AND ORDERED in Tampa, Florida on November 6, 2017.

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COPIES FURNISHED TO:
Counsel of Record and Unrepresented Parties, if any.

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