Frederick v. Federal National Mortgage Association et al

Filing 43

ORDER Denying 37 Plaintiff's Motion for Issuance of an Emergency Restraining Order and 38 Plaintiff's Motion for Permanent Injunction. IT IS FURTHER ORDERED that 40 Plaintiff's Motion for Enlargement of Time is DENIED. Signed by Judge Gloria M. Navarro on 11/16/12. (Copies have been distributed pursuant to the NEF - EDS)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Robert Frederick, 4 5 6 7 8 ) ) Plaintiff, ) vs. ) ) Federal National Mortgage Association, et al., ) ) Defendants. ) ) Case No.: 2:11-cv-00522-GMN-CWH ORDER 9 Before the Court is pro se Plaintiff Robert Frederick’s “Motion for Issuance of an 10 11 Emergency Temporary Restraining Order to Stay the Repossion [sic] of Real Property; and 12 Imposition of Permanent Injunctive Relief Barring the Repossion [sic] of the Real Property by 13 Defendants.” (ECF Nos. 37, 38.) Defendants Federal National Mortgage Association (“Fannie 14 Mae”) and Aurora Loan Services, LLC, (“Aurora”) (collectively, “Moving Defendants”) have 15 filed an Opposition (ECF No. 39). Also before the Court is Plaintiff’s “Motion for 16 Enlargement of Time” (ECF No. 40) requesting an extension of time to reply to Moving 17 Defendants’ Opposition. 18 I. BACKGROUND 19 On April 18, 2012, the Court granted Moving Defendants’ Motion to Dismiss and gave 20 Plaintiff leave to file an amended complaint by May 14, 2012. (Order, ECF No. 18.) Plaintiff 21 later filed a motion requesting enlargement of time to file first amended complaint (ECF No. 22 21), and the Court granted the motion, giving Plaintiff leave to file his amended complaint by 23 August 3, 2012. (ECF No. 22.) Plaintiff filed an Amended Complaint (ECF No. 23) on August 24 3, 2012, to which Defendants MERSCORP, Inc., and Mortgage Electronic Registration 25 Systems, Inc. filed an Answer (ECF No. 25) on August 20, 2012. On September 26, 2012, Page 1 of 4 1 Plaintiff filed a Motion for Entry of Clerk’s Default (ECF No. 26) as to Moving Defendants and 2 Defendants Cal-Western Reconveyance Corp., and Centex Mortgage Services, which was 3 subsequently entered by the Clerk (ECF No. 28). After Plaintiff filed a Motion for Default 4 Judgment (ECF No. 29), Moving Defendant then filed a Motion to Set Aside Clerk’s Entry of 5 Default (ECF No. 31), to which Plaintiff’s opposition is due December 3, 2012 (ECF No. 36). 6 II. 7 LEGAL STANDARD Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary 8 restraining orders, and requires that a motion for temporary restraining order include “specific 9 facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable 10 injury, loss, or damage will result to the movant before the adverse party can be heard in 11 opposition,” as well as written certification from the movant’s attorney stating “any efforts 12 made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b). 13 Temporary restraining orders are governed by the same standard applicable to 14 preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 15 F.Supp. 2d 1111, 1126 (E.D. Cal. 2001). Furthermore, a temporary restraining order “should 16 be restricted to serving [its] underlying purpose of preserving the status quo and preventing 17 irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose 18 Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974). 19 A preliminary injunction may be issued if a plaintiff establishes: (1) likelihood of 20 success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) 21 that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. 22 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an 23 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is 24 entitled to such relief.” Id. at 22. The Ninth Circuit has held that “‘serious questions going to 25 the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of Page 2 of 4 1 an injunction, assuming the other two elements of the Winter test are also met.” Alliance for the 2 Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 3 III. 4 DISCUSSION Here, Plaintiff’s request for temporary restraining order, filed on October 29, 2012, fails 5 to include “specific facts in an affidavit or a verified complaint [that] clearly show that 6 immediate and irreparable injury, loss, or damage will result to the movant before the adverse 7 party can be heard in opposition.” Plaintiff submits copies of documents purportedly from 8 North Las Vegas Justice Court and states that an eviction order is included, but the only 9 documents attached appear to be a Notice to Appear and an Order to Show Cause scheduling a 10 hearing on October 15, 2012. In subsequent filings, Plaintiff represents that he and his family 11 were evicted on November 7, 2012. (See Mot. for Enlargement of Time, ECF Nos. 40, 41.) 12 These facts require the Court to deny Plaintiff’s request for a temporary restraining order, both 13 for failure to satisfy his burden to establish a likelihood of irreparable harm in the absence of 14 preliminary relief, and for apparent mootness. 15 Furthermore, Plaintiff has failed to satisfy his burden to establish a likelihood of success 16 on the merits, or serious questions going to the merits. Therefore, the Court cannot grant 17 Plaintiff’s request for injunctive relief. Additionally, Plaintiff’s request for injunctive relief 18 also appears to be rendered moot based on his representations to the Court as to his family’s 19 eviction. 20 Plaintiff’s “Motion for Enlargement of Time” (ECF No. 40) requesting additional time 21 to reply to Defendants’ Opposition is unnecessary and moot, since the Court must deny 22 Plaintiff’s requests for injunction even before considering or relying upon Defendants’ 23 Opposition. Accordingly, this motion for enlargement of time will be denied, as well. 24 25 Plaintiff is permitted to re-file a Motion for Preliminary Injunction if he can show that such a request is not rendered moot by his eviction, and if he is able to satisfy the requirements Page 3 of 4 1 of Federal Rule of Civil Procedure 65 and Winter v. Natural Res. Def. Council, Inc., 555 U.S. 2 7, 20 (2008) ((1) likelihood of success on the merits; (2) likelihood of irreparable harm in the 3 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an 4 injunction is in the public interest) or Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 5 1132 (9th Cir. 2011) (“‘serious questions going to the merits’ and a hardship balance that tips 6 sharply toward the plaintiff can support issuance of an injunction, assuming the other two 7 elements of the Winter test are also met”). 8 IV. 9 CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s “Motion for Issuance of an Emergency 10 Temporary Restraining Order to Stay the Repossion [sic] of Real Property; and Imposition of 11 Permanent Injunctive Relief Barring the Repossion [sic] of the Real Property by Defendants” 12 (ECF Nos. 37, 38) is DENIED. 13 14 15 IT IS FURTHER ORDERED that Plaintiff’s “Motion for Enlargement of Time” (ECF No. 40) is DENIED. DATED this 16th day of November, 2012. 16 17 18 19 ___________________________________ Gloria M. Navarro United States District Judge 20 21 22 23 24 25 Page 4 of 4

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