Kerr v. Bank of America, N.A. et al

Filing 46

ORDER denying # 44 Motion for Restraining Order. Signed by Judge Miranda M. Du on 2/23/2016. (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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***

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DENNIS KERR; TERRY KERR,

Case No. 3:15-cv-00306-MMD-WGC

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Plaintiffs,
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ORDER

v.
BANK OF AMERICA, N.A., et al.,
Defendants.

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Plaintiffs have filed a Motion for Restraining Order (“Motion”) (dkt. no. 44), which

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generally alleges that Defendants are engaging in misconduct and racketeering.

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Plaintiffs claim that a restraining order is necessary to ensure that Defendants abide by

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the “Golden Rule.” (Id. at 6.) Because Plaintiffs appear to request the restraining order

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on an expedited basis, the Court construes the Motion as a motion for a temporary

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restraining order (“TRO”).

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Federal Rule of Civil Procedure 65 governs preliminary injunctions and TROs,

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and requires that a motion for a TRO include “specific facts in an affidavit or a verified

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complaint [that] clearly show that immediate and irreparable injury, loss, or damage will

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result to the movant before the adverse party can be heard in opposition,” as well as

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written certification from the movant's attorney stating “any efforts made to give notice

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and the reasons why it should not be required.” Fed. R. Civ. P. 65(b). TROs are

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governed by the same standard applicable to preliminary injunctions. Cal. Indep. Sys.

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Operator Corp. v. Reliant Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal.

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2001). A TRO may be issued if a plaintiff establishes: (1) likelihood of success on the

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merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the

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balance of equities tips in his favor; and (4) that an injunction is in the public interest.

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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has also

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held that “‘serious questions going to the merits’ and a hardship balance that tips sharply

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toward the plaintiff can support issuance of an injunction, assuming the other two

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elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632

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F.3d 1127, 1132 (9th Cir. 2011).

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Plaintiffs have not satisfied the requirements for a TRO. First, because Plaintiffs

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fail to identify the behavior that they seek to enjoin, it is not clear what irreparable harm,

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if any, would occur absent preliminary injunctive relief. To be fair, Plaintiffs point out that

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three allegedly improper trustee’s sales are set to occur in February. (See dkt. no. 44-1

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at 2.) But Plaintiffs do not clarify whether those trustee’s sales have already occurred.

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Even assuming that the sales have not yet occurred, Plaintiffs have not satisfied the

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remaining Winter factors: they have not demonstrated a likelihood of success on their

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misconduct and racketeering allegations, or that the equities and the public interest

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would favor a TRO. See Winter, 555 U.S. at 20. Without identifying some claim on which

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they are likely to succeed, or for which they can raise serious questions, Plaintiffs cannot

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show that they are entitled to a TRO.

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It is therefore ordered that Plaintiffs’ Motion for a Restraining Order (dkt. no. 44) is
denied.
DATED this 23rd day of February 2016

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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