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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 MICHAEL NOVICK, 8 Plaintiff(s), 9 10 Case No. 2:17-CV-2977 JCM (NJK) ORDER v. CITIMORTGAGE, INC., 11 Defendant(s). 12 13 14 15 Presently before the court is the matter of Novick v. CitiMortgage, Inc., case number 2:17-cv02977-JCM-NJK. I. Background 16 On August 1, 2017, plaintiff Michael Novick filed a motion for temporary restraining order 17 in state court. (ECF No. 1-1 at 2). The motion requested the court to halt defendant’s proposed 18 sale of the property, which was scheduled for August 2, 2017 (the next day). Id. The state court 19 granted plaintiff’s motion, and set a hearing for August 23, 2017. See id. at 109. 20 On August 22, 2017 at 5:32pm, defendant CitiMortgage, Inc. removed this action to federal 21 court from the Eighth Judicial District Court of Clark County. (Case no. 2:17-cv-02236-JCM- 22 CWH, ECF No. 1). On September 12, 2017, this court remanded the action, as plaintiff was yet 23 to file a complaint. (Case no. 2:17-cv-02236-JCM-CWH, ECF No. 12). On remand, plaintiff filed 24 a complaint, (ECF No. 1-1 at 8–15), and defendant proceeded to remove the case to federal court, 25 (ECF No. 1). 26 II. Discussion 27 “An injunction is a matter of equitable discretion . . . an extraordinary remedy that may 28 only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v. James C. Mahan U.S. District Judge 1 N.R.D.C., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008). Courts must consider the following elements 2 in determining whether to issue a temporary restraining order and preliminary injunction: (1) a 3 likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is not 4 granted; (3) balance of hardships; and (4) advancement of the public interest. Id. at 20. The test 5 is conjunctive, meaning the party seeking the injunction must satisfy each element. 6 A court may issue a temporary restraining order when the moving party provides specific 7 facts showing that immediate and irreparable injury, loss, or damage will result before the adverse 8 party’s opposition to a motion for preliminary injunction can be heard. Fed. R. Civ. P. 65(b). “The 9 purpose of a temporary restraining order is to preserve the status quo before a preliminary 10 injunction hearing may be held; its provisional remedial nature is designed merely to prevent 11 irreparable loss of rights prior to judgment.” Estes v. Gaston, no. 2:12-cv-1853-JCM-VCF, 2012 12 WL 5839490, at *2 (D. Nev. Nov. 16, 2012) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 13 739 F.2d 1415, 1422 (9th Cir. 1984)). “Thus, in seeking a temporary restraining order, the movant 14 must demonstrate that the denial of relief will expose him to some significant risk of irreparable 15 injury.” Id. (quoting Associated Gen. Contractors of Cal. v. Coalition of Econ. Equity, 950 F.2d 16 1401, 1410 (9th Cir. 1991)). 17 Here, plaintiff has not demonstrated that injunctive relief is warranted on these facts. All 18 of plaintiff’s filed motions for injunctive relief reference defendant’s proposed sale of the property 19 that was supposed to occur on August 2, 2017. See (ECF No. 1-1 at 2, 78) (plaintiff’s motion and 20 amended motions filed in state court). None of plaintiff’s documents filed in state court reference 21 immediate and irreparable harm that will occur in the future if the court does not grant plaintiff’s 22 motion. Further, plaintiff’s motions do not demonstrate why injunctive relief should be granted 23 before the opposing party may be heard on the issue. 24 ... 25 ... 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge -2- 1 The court will deny plaintiff’s motion for temporary restraining order without prejudice. 2 Accordingly, 3 IT IS SO ORDERED. 4 DATED December 5, 2017. 5 6 __________________________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -3-

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