Barrett v. Shapiro & Ingles LLP et al

Filing 13

ORDER denying 12 Motion for Preliminary Injunction; denying 12 Motion for TRO. Signed by Chief Judge Frank D. Whitney on 11/14/2013. (Pro se litigant served by US Mail.)(blf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL NO. 3:13-cv-550-FDW-DSC
CLAUDIA BARRETT,

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Plaintiff,
v.
SHAPIRO & INGLE, L.L.P, HSBC
MORTGAGE SERVICES, INC. &
DECISION ONE MORTGAGE
COMPANY, LLC,

ORDER

Defendants.
THIS MATTER is before the Court upon Plaintiff’s “Motion for Injunction or Temporary
Restraining Order.” (Doc. No. 12). Plaintiff asks that the Court stop eviction proceedings by the
Mecklenburg County Sherriff scheduled for November 15, 2013. Although Plaintiff purports to
bring this motion pursuant to “FRCP 4.1(a),” the Court notes that there is no such Rule of
Federal Procedure and Rule 4 of the Federal Rules of Civil Procedure addresses a summons not
injunctions or temporary restraining orders. Moreover, Plaintiff did not include any current
defendant in this suit in her case caption of her motion. Instead, Plaintiff lists “1H2 Property
North Carolina, LP” and the Mecklenburg County Sheriff. The Court notes that neither entity is
a defendant in the instant lawsuit. In addition, in her certificate of service attached to her
motion, Plaintiff indicates that she mailed a copy of her motion to the Mecklenburg County
Sheriff’s Department and to Rebecca K. Lindahl, Katten Muchin Rosenman, 550 S. Tryon Street,
Suite 2900, Charlotte, NC 28202. (Doc. No. 12 at 4). Neither the Sheriff’s Department nor
Rebecca K. Lindahl are parties or lawyers to this lawsuit.

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Next, Rule 65(b) provides a mechanism whereby the movant may temporarily restrain an
adverse party, without advance notice to that party, but only if
specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss or damage will result before the adverse party can be
heard in opposition . . . [and] the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). In evaluating a request for a temporary restraining order (“TRO”), the
Court considers the same factors applied for a preliminary injunction. Hoechst Diafoil Co. v.
Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999). Those factors are: (1) the likelihood of
irreparable harm to the plaintiff if the injunctive relief is denied, (2) the likelihood of harm to the
defendant is the requested relief is granted, (3) the likelihood that the plaintiff will succeed on
the merits, and (4) the public interest. Direx Israel, Ltd. V. Breakthrough Med. Corp., 952 F.2d
802, 812 (4th Cir. 1991). A temporary restraining order is an extraordinary remedy which
involves the exercise of far-reaching powers which are to be used sparingly by a court. Scotts
Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002).
Plaintiff’s motions fails. Indeed, even if the Court assumes that eviction from the
property amounts to irreparable harm, Plaintiff has failed to demonstrate that she would succeed
on the merits at trial. Indeed, there are currently two motions to dismiss currently before the
Court1 that appear to establish that this Court lacks jurisdiction in this matter pursuant to the
Rooker-Feldman doctrine.2 Thus the Court does not find any reason to use the extraordinary
remedy of a TRO.
1

While the first motion to dismiss is ripe, the Court has given Plaintiff until November 25, 2013 to file a response
to the second motion to dismiss.
2
The Rooker-Feldman doctrine provides that “a party losing in state court is barred from seeking what in substance
would be appellate review of the state judgment in a United States district court, based upon losing party’s claim
that the state judgment itself violates the losers federal rights.” Johnson v. DeGrandy, 512 U.S. 997, 1005-06);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).

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Accordingly, for the reasons stated herein, Plaintiff’s “Motion for Injunction or
Temporary Restraining Order” is DENIED.

IT IS SO ORDERED.

Signed: November 14, 2013

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