Novick v. CitiMortgage, Inc.

Filing 5

ORDER denying without prejudice 1 Motion for Temporary Restraining Order filed in State Court, Signed by Judge James C. Mahan on 12/5/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL NOVICK,

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Plaintiff(s),

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Case No. 2:17-CV-2977 JCM (NJK)
ORDER

v.
CITIMORTGAGE, INC.,

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Defendant(s).

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Presently before the court is the matter of Novick v. CitiMortgage, Inc., case number 2:17-cv02977-JCM-NJK.
I.

Background

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On August 1, 2017, plaintiff Michael Novick filed a motion for temporary restraining order

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in state court. (ECF No. 1-1 at 2). The motion requested the court to halt defendant’s proposed

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sale of the property, which was scheduled for August 2, 2017 (the next day). Id. The state court

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granted plaintiff’s motion, and set a hearing for August 23, 2017. See id. at 109.

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On August 22, 2017 at 5:32pm, defendant CitiMortgage, Inc. removed this action to federal

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court from the Eighth Judicial District Court of Clark County. (Case no. 2:17-cv-02236-JCM-

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CWH, ECF No. 1). On September 12, 2017, this court remanded the action, as plaintiff was yet

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to file a complaint. (Case no. 2:17-cv-02236-JCM-CWH, ECF No. 12). On remand, plaintiff filed

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a complaint, (ECF No. 1-1 at 8–15), and defendant proceeded to remove the case to federal court,

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(ECF No. 1).

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II.

Discussion

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“An injunction is a matter of equitable discretion . . . an extraordinary remedy that may

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only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v.

James C. Mahan
U.S. District Judge

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N.R.D.C., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008). Courts must consider the following elements

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in determining whether to issue a temporary restraining order and preliminary injunction: (1) a

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likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is not

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granted; (3) balance of hardships; and (4) advancement of the public interest. Id. at 20. The test

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is conjunctive, meaning the party seeking the injunction must satisfy each element.

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A court may issue a temporary restraining order when the moving party provides specific

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facts showing that immediate and irreparable injury, loss, or damage will result before the adverse

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party’s opposition to a motion for preliminary injunction can be heard. Fed. R. Civ. P. 65(b). “The

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purpose of a temporary restraining order is to preserve the status quo before a preliminary

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injunction hearing may be held; its provisional remedial nature is designed merely to prevent

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irreparable loss of rights prior to judgment.” Estes v. Gaston, no. 2:12-cv-1853-JCM-VCF, 2012

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WL 5839490, at *2 (D. Nev. Nov. 16, 2012) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc.,

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739 F.2d 1415, 1422 (9th Cir. 1984)). “Thus, in seeking a temporary restraining order, the movant

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must demonstrate that the denial of relief will expose him to some significant risk of irreparable

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injury.” Id. (quoting Associated Gen. Contractors of Cal. v. Coalition of Econ. Equity, 950 F.2d

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1401, 1410 (9th Cir. 1991)).

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Here, plaintiff has not demonstrated that injunctive relief is warranted on these facts. All

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of plaintiff’s filed motions for injunctive relief reference defendant’s proposed sale of the property

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that was supposed to occur on August 2, 2017. See (ECF No. 1-1 at 2, 78) (plaintiff’s motion and

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amended motions filed in state court). None of plaintiff’s documents filed in state court reference

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immediate and irreparable harm that will occur in the future if the court does not grant plaintiff’s

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motion. Further, plaintiff’s motions do not demonstrate why injunctive relief should be granted

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before the opposing party may be heard on the issue.

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...

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...

James C. Mahan
U.S. District Judge

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The court will deny plaintiff’s motion for temporary restraining order without prejudice.

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Accordingly,

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IT IS SO ORDERED.

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DATED December 5, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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