Scanlon v. Wilmington Savings Fund Society, FSB

Filing 8

ORDER denying Plaintiff's 2 Motion for Temporary Restraining Order signed by Judge Ricardo S Martinez. (PM) cc: plaintiff via first class mail

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1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 Plaintiff, 10 11 Case No. C17-1532RSM JODI LYNN SCANLON, ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER v. 12 13 14 15 WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST, et al., Defendants. 16 17 THIS MATTER comes before the Court on Plaintiff’s Emergency Motion for Temporary 18 Restraining Order (“TRO”). Dkt. #2. Plaintiff Jodi Lynn Scanlon moves the Court for a TRO 19 against Defendants to restrain the sale of her real property located at 17620 115th Ave SW, 20 Vashon, WA 98070. Id. at 2. According to Plaintiff, this property is currently scheduled for a 21 trustee sale on October 20, 2017. Id. No Defendants have yet appeared in this action, and 22 23 Plaintiff states that she tried, but was unable, to speak to Defendants regarding this motion prior 24 to bringing it. Dkt. #2-2. She asserts that she has served the motion and supporting documents 25 on Defendants via U.S. Mail. Id. 26 Although not entirely clear, Plaintiff appears to assert that she is currently involved in 27 state court proceedings involving this property. She asserts that there is an appeal currently 28 ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 1 1 pending from a dismissal of her Complaint for Wrongful Foreclosure. Dkt. #2 at ¶ 5. She further 2 asserts that she previously made a $50,000 payment to bring her amounts due current, but that 3 the payment was never credited to her account. Dkt. #2 at ¶ ¶ 6-7. There also appear to be some 4 allegations that the transfer and/or assignment of the mortgage note was fraudulent. Id. at ¶ 9. 5 Plaintiff alleges that she will suffer irreparable harm if her home is sold while the appeal is 6 7 pending. 8 In order to succeed on a motion for temporary restraining order, the moving party must 9 show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving 10 party in the absence of preliminary relief; (3) that a balance of equities tips in the favor of the 11 moving party; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. 12 13 Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). The Ninth Circuit 14 employs a “sliding scale” approach, according to which these elements are balanced, “so that a 15 stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild 16 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 17 18 The Court finds that Plaintiff has presented insufficient evidence to warrant granting a 19 TRO in this case. First, “[m]otions for temporary restraining orders without notice to and an 20 opportunity to be heard by the adverse party are disfavored and will rarely be granted.” Local 21 Rule 65(b)(1). Although Plaintiff has apparently served the Defendants, there have been no 22 responses. 23 24 Second, even if all Defendants have received notice, the Court finds that Plaintiff has 25 failed to meet her burden of demonstrating a likelihood of success on the merits in this case. 26 Indeed, Plaintiff provides no legal argument in support of her position. While, she cites one 27 Washington State case for the proposition that Defendants no longer have standing to foreclose 28 ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 2 1 2 3 4 on her property, she does not explain that argument with respect to the facts of her case. See Dkt. #5 at ¶ 17. Third, Plaintiff does not explain whether she has sought relief in the pending state court appeal. Generally, this Court will not interfere with pending state court proceedings. 5 Fourth, as federal courts are courts of limited jurisdiction, a plaintiff bears the burden of 6 7 establishing that his case is properly filed in federal court. Kokkonen v. Guardian Life Ins. Co., 8 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994); In re Ford Motor 9 Co./Citibank (South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001). This burden, at the 10 pleading stage, must be met by pleading sufficient allegations to show a proper basis for the 11 federal court to assert subject matter jurisdiction over the action. McNutt v. General Motors 12 13 Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936). In this case, 14 Plaintiff identifies both federal question and diversity jurisdiction as the bases for federal 15 jurisdiction over this action. Dkt. #2-4 at ¶ 2. However, it is not clear that the parties are actually 16 diverse, and she does not identify any federal statute allegedly violated. See Dkt. #5. 17 18 Finally, it is not clear from the extremely limited information presented why the sale of 19 this property will cause Plaintiff harm that cannot be redressed should she be successful in her 20 action before the state court or this Court. 21 22 Given these deficiencies, the Court hereby finds and ORDERS that Plaintiff’s Motion for Temporary Restraining Order (Dkt. #2) is DENIED. 23 24 25 26 27 DATED this 16 day of October, 2017. A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 28 ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 3

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