Opinion
Case No. CV03-488-S-BLW
November 19, 2003
ORDER
Plaintiffs Complaint was filed on November 6, 2003. This case was transferred to the District Court because Plaintiff has requested a Temporary Restraining Order and, as of the date of this Order, he has not consented to the jurisdiction of a United States magistrate judge. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REQUEST FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION
A. BackgroundIt appears that Plaintiffs real property located in Sweet, Idaho, was to be sold as a result of foreclosure proceedings or trustee's sale. The date of the sale was November 13, 2003. Plaintiff has filed a barrage of legally nonsensical Exhibits regarding his real property.
The Court also notes that Plaintiff has filed four bankruptcy actions in this Court between August 12, 2002, and July 30, 2003, in which he failed to file a plan and all required schedules. See Case Nos. 02-02602, 02-4012, 03-01629, and 03-2770. The final order in Case No. 03-2770 barred him from filing another bankruptcy action for 180 days,
B. Standard of Review
A Rule 65 temporary restraining order or preliminary injunction may be granted if the moving party satisfies one of two tests, designated as the "traditional standard" or the "alternative standard" of law. International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). The traditional standard requires a demonstration of the following elements: (1) that the moving party will suffer irreparable injury if the relief is denied; (2) that the moving party will probably prevail on the merits; (3) that the balance of potential harm favors the moving party; and (4) that the public interest favors granting relief. Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Under the alternative standard, the moving party may meet its burden by demonstrating either; (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in the movant's favor, Benda v. Grand Lodge of Internat'l, Ass'n. of Machinists Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937 (1979).
An irreparable injury is defined as an actual and concrete harm, or the imminent threat of an actual and concrete harm. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A threat of harm is not "imminent," if it is based upon remote possibilities or mere speculation. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988).
Where, as here, a party seeks a mandatory preliminary injunction, the court must deny such relief "unless the facts and law clearly favor the moving party," See Stanley v. University of S. Cal, 13 F.3d 1313, 1320 (9th Cir. 1994) (quotation and citation omitted); Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985) (because a preliminary injunction is an extraordinary remedy, it should not to be granted routinely, but only when the plaintiff, by a clear showing, carries its burden of persuasion on each of the required elements).
A court "is not obligated to hold a hearing [on a motion for a preliminary injunction] when the movant has not presented a colorable factual basis to support the claim on the merits or the contention of irreparable harm," Bradley v. Pittsburgh Board of Education, 910 F.2d 1172, 1176 (3rd Cir. 1990); see DFW Freeport v. Mardian Const Co., 729 F.2d 334, 341 (5th Cir. 1984) ("preliminary injunctions are denied without a hearing, despite a request therefor by the movant, when the written evidence shows the lack of a right to relief so clearly that receiving further evidence would be manifestly pointless"), quoting C. Wright A. Miller, Federal Practice and Procedure: Civil § 2949 at 478-79 (1973).
B. Discussion
Plaintiffs Motion for Temporary Restraining Order and the Exhibits contained in the Court's record are legally nonsensical. There appears to be no legal basis whatsoever upon which the Court could grant relief. Therefore, Plaintiffs Motions shall be denied.
Should Defendants have to appear in this action, Plaintiff may be subject to an award of attorney's fees against him. Plaintiff may file a Notice of Voluntary Dismissal at this point if he does not wish to proceed. If Plaintiff wishes to proceed with this matter, the Court notifies Plaintiff that he must serve each Defendant within 120 days of filing the Complaint or suffer dismissal without prejudice,
II. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs Motions for Temporary Restraining Order (Docket Nos. 2 and 5) are DENIED.
IT IS FURTHER HEREBY ORDERED that Plaintiffs Motions for Order to Show Cause (Docket Nos. 4 and 7) are DENIED.