Walker v. Equity Group et al

Filing 64

ORDER denying 53 motion for TRO Signed on 12/1/15 by District Judge Stephen R. Bough. Copy of this Order mailed to Walter P. Walker, 2545 Drury Ave., Kansas City, MO 64127 (Amos, Gloria)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
WALTER P. WALKER,
Plaintiff,
vs.
EQUITY GROUP, SEAN ENDECOTT
and TERRY MOYER,
Defendants.

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Case No.: 4:15-cv-00498-SRB

ORDER
Before this Court is Plaintiff’s Motion to Reinstate Former Motion for an Injunction and
Temporary Restraining Order (Doc. #53). For the reasons discussed below, the Motion is
denied.
Plaintiff seeks a restraining order against Defendants for the reasons set forth in
Plaintiff’s previous requests. In Plaintiff’s first motion, filed on July 8, 2015, Plaintiff sought a
restraining order and injunction against Defendants for two reasons: (1) “‘Illegal – restraint to
full access of the Plaintiff[’]s apartment dwellings’ in which lease contract exposes access to
both two car garages”; and (2) “[A] stop to the defendants ‘abuse, negligence, and/or
explortation [sic], harassment, threats, and ignorance.” (Doc. #8). Plaintiff filed a second motion
on July 22, 2015, seeking a restraining order and injunction against Defendants based on claims
that Plaintiff’s apartment contains dangerous and unsafe conditions such as “unsafe wiring,
ventilation hazards … carbon monoxide, black mole [sic], plumbling [sic], and insect
infestation.” (Doc. #13).
“The burden of establishing the propriety of a preliminary injunction is on the movant.”
Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994) (citing Modern Computer

Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989) (en banc)). To
succeed in a request for a restraining order, the movant must satisfy the procedural requirements
of Federal Rule of Civil Procedure 65 and substantive prerequisites set forth by the Eighth
Circuit. The Eighth Circuit requires the movant to show and the Court to consider the following
factors: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this
harm and the injury that granting the injunction will inflict on other parties litigant; (3) the
probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). “[A] failure to show irreparable harm is
an independently sufficient ground upon which to deny a preliminary injunction.” Novus
Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013). A plaintiff seeking preliminary
relief is required to “demonstrate that irreparable injury is likely in the absence of an injunction.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Los Angeles v. Lyons, 461
U.S. 95, 103 (1983)). “A district court has broad discretion when ruling on a request for
preliminary injunction, and it will be reversed only for clearly erroneous factual determinations,
an error of law, or an abuse of its discretion.” Dawson, 725 F.3d at 893.
In this case, Plaintiff seeks an injunction against Defendants for issues relating to the
condition of the apartment owned by Defendant Equity Group. However, Defendants assert,
“Plaintiff turned over possession of the property located at 2025 E. 85th Street, Apartment C,
Kansas City, Missouri 64132, on or about August 26, 2015.” (Doc. #57, ¶5). Plaintiff has failed
to rebut Defendants’ argument and failed to meet his burden of proof. See Baker, 28 F.3d at
1472.
Because Plaintiff no longer resides in the apartment building referenced in the motion, a
threat of irreparable harm cannot be established. Plaintiff’s failure to prove “irreparable harm is

an independently sufficient ground upon which to deny a preliminary injunction.” Novus, 725
F.3d at 893. Plaintiff’s Motion, even when liberally viewed due to the plaintiff being pro se, does
not satisfy the procedural requirements of Federal Rule of Civil Procedure 65 or substantive
prerequisites set forth by the Eighth Circuit.
Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Reinstate Former Motion for an Injunction and
Temporary Restraining Order (Doc. #53) is DENIED.
IT IS SO ORDERED.

/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: December 1, 2015