Whirl v. Trans Union, LLC

Filing 22

MEMORANDUM AND ORDER, denying 17 MOTION for Temporary Restraining Order filed by Kemo D. Whirl. Signed by Judge J. Phil Gilbert on 1/22/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEMO D. WHIRL,
Plaintiff,
v.

Case No. 3:17-cv-01326-JPG-SCW

TRANS UNION, LLC,
Defendant.
MEMORANDUM AND ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on plaintiff Kemo D. Whirl’s motion for a temporary
restraining order. (Doc. 17.) For the following reasons, the Court DENIES Whirl’s motion.
I.

BACKGROUND
Kemo D. Whirl is a prisoner at Centralia Correctional Center. Trans Union, LLC

(“TransUnion”) is a consumer reporting agency. Whirl brought this action against TransUnion
alleging that the agency violated the Fair Credit Reporting Act by failing to provide Whirl with a
free copy of his annual credit report. See 15 U.S.C § 1681g(a)(1).
Today, the Court is faced with a different issue. Whirl has moved for a temporary
restraining order to stop TransUnion from “threatening and committing libel and slander against
[him].” (Doc. 17.) Whirl has attached an affidavit in support of his motion that explains that he
received a letter from TransUnion’s attorney that contains “numerous not-so-veiled threats to
dismiss his legal action”. (Doc. 17-1, ¶ 4.) Whirl believes that he “should not have to bear the
annoyance, oppression and burden of the Defendant’s threats”, and that he is “afraid as to
whether he should continue on with his litigation or not.” (Id. at ¶¶ 7, 8.) Whirl believes that
TransUnion is taking advantage of him because he is proceeding pro se. (Id. at ¶ 6.) He has
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attached a copy of TransUnion’s “threatening” letter to his affidavit, and a further look at this
letter reveals that TransUnion has instructed Whirl that they will move for Federal Rule of Civil
Procedure 11 sanctions against Whirl if he does not withdraw his complaint. (Doc. 17-1.)
Specifically, TransUnion asserts that Whirl has fraudulently altered and/or manufactured
documents which he attached to his complaint in this case. The letter also explains why
TransUnion believes that Whirl’s case will fail on the merits.
II.

LEGAL STANDARDS
Rule 65 of the Federal Rules of Civil Procedure governs when a court may issue a

temporary restraining order. The Rule specifies that such an order may only issue 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)(2).
When deciding whether to issue a temporary restraining order, the Court applies the same
standard as it does to a motion for a preliminary injunction. Crue v. Aiken, 137 F.Supp.2d 1076,
1083 (C.D.Ill. 2001). Preliminary injunctive relief is designed “to minimize the hardship to the
parties pending the ultimate resolution of the lawsuit.” Platinum Home Mortgage Corp. v.
Platinum Fin. Group Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary
injunction must make a threshold showing that (1) it has some likelihood of success on the
merits; (2) no adequate remedy at law exists; and (3) it will likely suffer irreparable harm if the
injunction is not granted. Ferrell v. United States Dep’t of Housing and Urban Dev., 186 F.3d
805, 811 (7th Cir. 1999). If the moving party is able to establish these three factors, the Court

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must then balance the harms to both parties using a “sliding scale” analysis, also taking into
consideration the effect that granting or denying the injunction will have on the public. “[T]he
greater the moving party’s likelihood of prevailing on the merits, the less strongly it must show
that the balance of harms weighs in its favor.” Ferrell, 186 F.3d at 811. “A preliminary
injunction is an extraordinary remedy that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Chicago Dist. Council of Carpenters Pension Fund
v. K & I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001) (citing Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (per curiam)); accord Winter v. Natural Res. Def. Council, Inc., 129 S. Ct.
365, 376 (2008).
III.

ANALYSIS
In accordance with Rule 65(a), the Court finds that the plaintiff has presented specific

facts in support of his motion to the Court in an affidavit. In accordance with Rule 65(b), the
Court finds that, by virtue of the CM/ECF system, Defendants have been served notice of the
Motion. The Court cannot grant Whirl’s request for a temporary restraining order, however,
because he has not demonstrated that he will likely suffer irreparable harm if the Court does not
grant his request. Although Whirl believes that TransUnion is engaging in “libel and slander”
against him, there is no evidence in favor of that argument. “Libel and slander” claims are
considered under Illinois defamation law. To state a claim for defamation under Illinois law, the
plaintiff must show that “the defendant made a false statement about the plaintiff, the defendant
made an unprivileged publication of that statement to a third party, and that this publication
caused damages.” Solaia Tech., LLC v. Specialty Publ'g Co., 852 N.E.2d 825, 839 (2006)
(internal citations omitted).

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TransUnion is not engaging in defamation against Whirl because TransUnion did not
publish any statements to a third party. Rather, TransUnion sent a private letter to Whirl in the
course of this litigation discussing the case and offering what TransUnion believes to be a
compromise. While the Court sympathizes with Whirl’s lack of training in law and his
uncertainty as to whether he should proceed with his case, that is one of the dangers of
proceeding as a pro se litigant. The Court cannot grant a temporary restraining order against
TransUnion simply because they sent an adversarial letter to a pro se litigant.
CONCLUSION
For the foregoing reasons, the Court DENIES Whirl’s motion for a temporary restraining
order. (Doc. 17.)
IT IS SO ORDERED.
DATED: JANUARY 22, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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