Naylon et al vs Wittrig, et al

Filing 124

ORDERED that Ps' # 122 Motion for Temporary Restraining Order (#122) is GRANTED. Ds are prohibited from modifying the Promissory Note and Short Form Deed of Trust and Assignment of Rents in the principal sum of $450,000.00 in favor of Ps and executed by D Geothermal Rail on July 29, 2005. FURTHER ORDERED that Ds shall have 7 days to respond to Ps' # 123 Motion for Preliminary Injunction, and Ps shall have 3 days to reply. A hearing on the motion is scheduled for Tuesday, June 19, 2012 at 10:00 a.m. in Reno Courtroom 5 before Judge Larry R. Hicks. Signed by Judge Larry R. Hicks on 6/4/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DOMINIQUE NAYLON, et al.,

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Plaintiffs,

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v.

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JOHN WITTRIG, et al.,

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Defendants.

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3:08-cv-00625-LRH-WGC
TEMPORARY RESTRAINING ORDER

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Before the court is Plaintiffs’ Motion for Temporary Restraining Order (#122)1 to enjoin the

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Individual Defendants and their agents, successors or any other party from further modifying the

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Plaintiffs’ rights in the promissory note or deed of trust in the Geothermal Property.

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The same substantive legal standard applies to both temporary restraining orders and

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preliminary injunctions sought pursuant to Rule 65. See Stuhlbarg Int’l Sales Co. v. John D. Brush

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& Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that the analysis applied to temporary

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restraining orders and preliminary injunctions is “substantially identical”). A preliminary

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injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the

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plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376

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The motion also contains a consolidated motion for a preliminary injunction, which has been
separately docketed (see Doc. #123). This order addresses only the motion for temporary restraining
order.

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(2008). A court may grant such relief only upon a petitioner’s showing of (1) likelihood of success

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on the merits, (2) likelihood of irreparable harm in the absence of preliminary relief, (3) the balance

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of equities weighs in petitioner’s favor, and (4) an injunction is in the public interest. Id. at 374.

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A temporary restraining order is distinguished by its “underlying purpose of preserving the

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status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no

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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No.

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70, 415 U.S. 423, 439 (1974); see also FED . R. CIV . P. 65(b) (limiting temporary restraining orders

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to 14 days unless extended for good cause, and providing for expedited hearings on preliminary

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injunctions). “The court may issue a temporary restraining order without written or oral notice to

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the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint

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clearly show that immediate and irreparable injury, loss, or damage will result to the movant before

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the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any

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efforts made to give notice and the reasons why it should not be required.” FED . R. CIV . P.

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65(b)(1).

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Plaintiffs assert that Defendants are again attempting to modify the Geothermal Note and

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Deed of Trust in their favor by amending the property rights of Plaintiffs without their consent,

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including by reducing payments and extending maturity. According to Plaintiffs’ submissions, a

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request for loan modification was sent to all investors on May 23, 2012, Plaintiff Dominique

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Naylon received the request in the mail on May 29, 2012, and Naylon responded by rejecting the

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terms of the proposed loan modification. The loan modification request also indicates, however,

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that the loan will be modified if and when the proposal is accepted by investors holding at least

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51% of the funds invested, and that the proposal would be effective starting “in June 2012.”

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Having considered Plaintiffs’ pro se motion and related submissions, the court finds that

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Plaintiffs have made a sufficient showing to warrant a temporary restraining order preserving the

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status quo and supporting an expedited hearing. The court shall therefore grant the Motion for

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Temporary Restraining Order. Recognizing the apparent urgency of the situation, however, the

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court shall expedite the briefing and hearing schedule on the accompanying Motion for Preliminary

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Injunction.

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Temporary Restraining Order

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(#122) is GRANTED. Defendants shall be, and hereby are, prohibited from modifying the

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Promissory Note and Short Form Deed of Trust and Assignment of Rents in the principal sum of

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four hundred fifty thousand dollars ($450,000.00) in favor of Plaintiffs and executed by Defendant

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Geothermal Rail on July 29, 2005.

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IT IS FURTHER ORDERED that Defendants shall have seven (7) days to respond to

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Plaintiffs’ Motion for Preliminary Injunction (#123), and Plaintiffs shall have three (3) days to

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reply. A hearing on the motion is scheduled for Tuesday, June 19, 2012 at 10:00 a.m.

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IT IS SO ORDERED.

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DATED this 4th day of June, 2012, at 11:45 am.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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