Volcano Developers LLC et al v. Bonneville Mortgage et al

Filing 35

ORDER Denying 31 Motion for Preliminary Injunction; and Denying 32 Motion for TRO. Signed by Judge Gloria M. Navarro on 8/18/2011. (Copies have been distributed pursuant to the NEF - DXS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VOLCANO DEVELOPERS, LLC, et al., )
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Plaintiffs,
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vs.
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BONNEVILLE MORTGAGE
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COMPANY, et al.,
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Defendants.
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Case No.: 2:11-cv-00504-GMN-PAL
ORDER

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Pending before the Court are Plaintiffs‟ Motion for a Temporary Restraining Order (ECF

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No. 32) and Motion for a Preliminary Injunction (ECF No. 31). For the reasons that follow,

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both of Plaintiffs‟ Motions (ECF Nos. 31 & 32) will be DENIED.

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I.

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Standard for Granting a TRO or Preliminary Injunction
Temporary restraining orders (“TROs”) are governed by the same standards applicable to

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preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181

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F. Supp. 2d 1111, 1126 (E.D. Cal. 2001). A TRO or preliminary injunction may be issued if a

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plaintiff establishes: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer

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irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his

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favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense

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Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, “„serious questions going to the merits‟ and

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a balance of hardships that tips sharply towards the plaintiff can support issuance of a

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preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable

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injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell,

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632 F.3d 1127, 1135 (9th Cir. 2011).
“It frequently is observed that a preliminary injunction is an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by a clear showing, carries the

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burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 973 (1997) (quoting 11 C. Wright,

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A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)).

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II.

Analysis
This is Plaintiffs‟ second request for preliminary injunctive relief. Here, Plaintiffs seek to

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enjoin Defendants from contacting Plaintiffs‟ tenants directly regarding the collection of rents

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for the use of the real property located at 5439 South Decatur Blvd., Las Vegas, Nevada, 89118.

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As was discussed in the Court‟s previous Order (ECF No. 40), Plaintiffs failed to pay

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Defendants the full amount due under their mortgage for the month of May, and Defendants

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subsequently commenced foreclosure proceedings against the subject real property. According

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to Plaintiff Daniel Itzhaki‟s Declaration1, Plaintiffs made full payments for the months of June

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and July (see Mot. 16:16-18, ECF Nos. 31 & 32), but there is no evidence in the record that

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Plaintiffs ever cured their May default or were only required to make a partial payment for the

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month of May.
According to Plaintiffs‟ Motions, “on July 22, 2011, Counsel for [one of the Defendants]

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issued a correspondence demanding receipt of rents from Plaintiffs [sic] tenant.” (See Mot. 6:20-

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23, ECF Nos. 31 & 32.) Plaintiffs do not provide any evidence that Defendants or their counsel

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actually did this, but Mr. Itzhaki declares that “[t]he Tenants at the building are panicking that

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the building will be foreclosed on and they will have to move their businesses” and “Defendants

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should be precluded from contacting my Tenants and creating panic to the point that that [sic]

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Tenants are threatening to leave.” (Mot. 16:19-23, ECF Nos. 31 & 32.)

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Although the instant Motions refer to a number of exhibits that are allegedly attached to the Motions, (see, e.g., Mot. 6:28;
& 7:3, ECF Nos. 31 & 32), the only exhibits attached to the Motions are Mr. Itzhaki‟s Declaration and a Proposed Order.

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Plaintiffs appear to be making two arguments in favor of injunctive relief. First, they

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seem to be arguing that Defendants‟ failure to “execute the Transfer and Assumption to

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[Plaintiff] Elezra” has “creat[ed] a loss of profits to [Plaintiff] Itzhaki” and left Plaintiff Itzhaki

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liable on the loan, thereby causing him to default on the mortgage in May. (See Mot. 4:25-6:13,

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ECF Nos. 31 & 32.) However, Plaintiffs do not support this argument with any evidence. Mr.

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Itzhaki does not contend in his Declaration that there was a causal relationship between the May

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underpayment and Defendants‟ failure to execute the transfer and assumption agreement, nor do

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Plaintiffs provide any other evidence establishing that causal link. Thus, injunctive relief cannot

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be granted on this theory.

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Second, Plaintiffs contend that injunctive relief should be granted because “there has

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been no judicial determination of Default and therefore no assignment of rights thereon. No

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receivership has been appointed to allow Defendants to contact the tenants directly and said

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actions are clearly an abuse of process.” (Mot. 12:14-17, ECF Nos. 31 & 32.) However,

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Plaintiffs fail to cite any rule, statute, or case that supports their argument. Therefore, it also

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fails. It is Plaintiffs‟ burden to show that the law entitles them to the extraordinary remedy of

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injunctive relief; they cannot prevail without providing some legal authority that supports their

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theory of the case.

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Because both of Plaintiffs‟ arguments in support of injunctive relief fail, their Motion for

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a Temporary Restraining Order (ECF No. 32) and Motion for a Preliminary Injunction (ECF

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No. 31) will be denied. However, this denial--and the denial of their previous motions for

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injunctive relief (ECF Nos. 19 & 20)--is without prejudice. Plaintiffs may file substantively

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similar motions if they can adequately support them with evidence and law.
CONCLUSION

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IT IS HEREBY ORDERED that Plaintiffs‟ Motion for a Temporary Restraining Order
(ECF No. 32) is DENIED.

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IT IS FURTHER ORDERED that Plaintiffs‟ Motion for a Preliminary Injunction (ECF
No. 31) is DENIED.
DATED this 18th day of August, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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