Balboa v. Bell Atlantic Mobile Systems, Inc. et al

Filing 32

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned recommends that Plaintiff's "Motion for Temporary Injunction with Asset Freeze, Appointment of Temporary Receiver" (Docket No. 6) be DENIED. Signed by Magistrate Judge Jeffery S. Frensley on 11/30/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CAREY JAMES BALBOA,
Plaintiff,
v.
BELL ATLANTIC MOBILE
SYSTEMS, INC., et al.,
Defendants.

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Case No. 3:16-cv-00757
Judge Sharp/Frensley

REPORT AND RECOMMENDATION
This matter is before the Court upon the pro se Plaintiff’s “Motion for Temporary
Injunction with Asset Freeze, Appointment of Temporary Receiver.” Docket No. 6. Defendant
Pinnacle Credit Services, LLC (“Pinnacle”) has filed a Response in Opposition. Docket No. 13.
In his Motion, Plaintiff asks the Court to issue a temporary injunction against Defendant
Pinnacle. Docket No. 6, p. 1. Specifically, Plaintiff “requests the court freeze Pinnacle Credit
Services, LLC’s accounts and assets globally and restrict defendant from withdrawing or moving
assets to avoid payment upon the court’s decision.” Id. at 2. Plaintiff asks that he not be
required to post a bond for the issuance of this injunction, because “for the last 2 years the
defendants actions prevented plaintiff from owing [sic] any real world assets.” Id.
Plaintiff also requests that the Court appoint a temporary receiver in order to:
. . . obviate the threat of destruction of business records, the
liquidation of assets, and other non-compliance with any
temporary injunction issued, whose costs and expenses are to be
borne by the Defendant. Plaintiff also moves that any temporary
receiver appointed have the ability to locate any and all assets the
Defendants and their “doing business as; i.e. DBA’s” aliases used
in the course of the business.

Id.
As a basis for his Motion, Plaintiff states:
As grounds for the Plaintiff’s motion for a temporary injunction,
given the defendants long documented history of fraudulent
business practices and no less than 462 publicly documented BBB
consumer complains [sic] in the last 3 years.
Id. at 1.
Defendant Pinnacle responds that Plaintiff has not met the burden necessary to the
issuance of a preliminary injunction, which involves consideration of four factors identified by
the Court of Appeals for the Sixth Circuit. Docket No. 13, p. 1, citing In re DeLorean Motor
Co., 755 F.2d 1223, 1227-28 (6th Cir. 1985) and Certified Restoration DryCleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007). Pinnacle contends that Plaintiff
ignores these four factors, and also “cites no authority by which he seeks the appointment of a
receiver, nor a basis for obtaining such relief prejudgment with a disputed claim.” Id. at 1-2.
The Sixth Circuit has established the factors that must be considered by the District Court
in determining whether to grant preliminary injunctive relief. See, e.g., Mason County Medical
Ass’n v. Knebel, 563 F.2d 256 (6th Cir. 1977). Those factors are:
1) Whether the plaintiffs have shown a strong or substantial
likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause
substantial harm to others;
4) Whether the public interest would be served by issuing a
preliminary injunction.
Id. at 261.

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In the case at bar, Plaintiff has offered only limited information that might be seen as
relating to these factors, including allegations that Defendants have engaged in a documented
history of fraudulent business practices and have prevented him from owning assets. Docket No.
6, p. 1-2. More importantly, Plaintiff is requesting a form of relief that is not available to him at
this point, because he asks that Pinnacle’s assets be frozen solely for the purpose of securing
satisfaction of a possible judgment that he might obtain in the future. As this Court recently
stated, “That kind of equitable relief has been unavailable to a prejudgment creditor for more
than 200 years of American jurisprudence.” Eberhard v. Physicians Choice Lab. Servs., LLC,
No. 3:15-0156, 2016 U.S. Dist. LEXIS 150490, at *7 (M.D. Tenn. Oct. 31, 2016) (Holmes, J.),
citing Adler v. Fenton, 65 U.S. 407 (1861) and Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 427 U.S. 308, 323 (1999) (a party’s unencumbered assets cannot be “frozen by
general-creditor claimants before their claims have been vindicated by judgment”).
Plaintiff does not assert that he has any lien or other equitable interest that would entitle
him to Pinnacle’s assets, but rather seeks an injunction “to protect an anticipated, but as of yet
uncertain, judgment.” Eberhard, 2016 U.S. Dist. LEXIS 150490, at *9. Therefore, Plaintiff’s
request to freeze Pinnacle’s assets should be denied.
Regarding Plaintiff’s request that the Court appoint a temporary receiver, Plaintiff has not
made any showing that such relief is necessary or appropriate at this time. Although Plaintiff
refers to “the threat of destruction of business records, the liquidation of assets, and other noncompliance with any temporary injunction issued, whose costs and expenses are to be borne by
the Defendant,” any such threat of non-compliance with a temporary injunction (of which
Plaintiff has not offered any evidence) is inapplicable, as the undersigned does not recommend
that the Court issue a temporary injunction.

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For the foregoing reasons, the undersigned recommends that Plaintiff’s “Motion for
Temporary Injunction with Asset Freeze, Appointment of Temporary Receiver” (Docket No. 6)
be DENIED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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JEFFERY S. FRENSLEY
United States Magistrate Judge

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