United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge.
before the Court are the Emergency Motions for Temporary
Restraining Order (“TRO”), Preliminary
Injunction, and Declaratory Relief, (ECF Nos. 12, 13), filed
by pro se Plaintiffs Janet Musso and John J. Musso
(collectively “Plaintiffs”). For the reasons
set forth herein, Plaintiffs' Motions are
case concerns a mortgage and foreclosure dispute regarding
the property located at 4150 Ridgewood Avenue Las Vegas, NV
89120 (“the Property”). (Mot. for TRO 4:27-31,
ECF No. 12). On or about May 18, 2016, Plaintiffs obtained a
$100, 000 mortgage loan from Mandalay Mortgage and U.S. Bank.
(Id.). This loan was secured by the Property.
(Id.). Plaintiffs assert that the loan was
“not properly assigned and/or transferred to
Defendants. . . .” (Compl. ¶ 34, Ex. A to Def.
Pet. Removal, ECF No. 1). Accordingly, Plaintiffs argue that
Defendants lack standing to foreclose on the Property.
(Id. ¶ 57).
December 1, 2016, Plaintiffs filed their Complaint in the
Clark County District Court. Shortly thereafter, Defendant
Mortgage Electronic Registration Systems, Inc., removed the
action to this Court. (Def. Pet. Removal, ECF No. 1). On
March 20, 2017, Plaintiffs filed the instant Motions for
injunctions and temporary restraining orders are governed by
Rule 65 of the Federal Rules of Civil Procedure, which
provides that a “court may issue a preliminary
injunction only on notice to the adverse party.”
contrast, a “court may issue a temporary restraining
order without written or oral notice to the adverse party or
its attorney only if: (A) specific facts in an affidavit or a
verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B)
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). A temporary
restraining order “should be restricted to serving
[its] underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer.” Granny Goose Foods,
Inc. v. Bhd. of Teamsters Local No. 70, 415 U.S. 423,
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). Injunctive relief is “an extraordinary
remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Id. at
22. “[C]ourts must balance the competing claims of
injury and must consider the effect on each party of the
granting or withholding of the requested relief.”
Id. at 24 (internal quotation marks omitted).
Ninth Circuit has held that “serious questions going to
the merits and a hardship balance that tips sharply toward
the plaintiff can support issuance of an injunction, assuming
the other two elements of the Winter test are also
met.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (internal
quotation marks omitted).
deciding a motion for a preliminary injunction, the district
court ‘is not bound to decide doubtful and difficult
questions of law or disputed questions of fact.'”
Int'l Molders' & Allied Workers' Local
Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir.
1986) (quoting Dymo Indus., Inc. v. Tapeprinter,
Inc., 326 F.2d 141, 143 (9th Cir. 1964)).
urgency of obtaining a preliminary injunction necessitates a
prompt determination and makes it difficult to obtain
affidavits from persons who would be competent to testify at
trial.” Flynt Distrib. Co., Inc. v. Harvey,
734 F.2d 1389, 1394 (9th Cir. 1984). “The trial court
may give even inadmissible evidence some weight, when to do
so serves the purpose of preventing irreparable harm before
review of the arguments and facts alleged in the instant
Motions and in the Complaint, the Court finds that Plaintiffs
are not entitled to a TRO or preliminary injunction.
Importantly, Plaintiffs have failed to meet their burden of
establishing a likelihood of success ...