United States District Court, D. Nevada
before the court is the matter of Lombardo v. Property
and Casualty Insurance Company of Hartford et al, case
purchased a homeowner's insurance policy in late 2012
from defendant Property and Casualty Insurance Company of
Hartford (“Hartford”) on her residence at 1725
Bannie Ave., Las Vegas, NV 89102 (“the
residence”). (ECF No. 1-1 at 42). Around October 28,
2013, a windstorm caused trees to fall onto plaintiff's
residence. Id. Sometime thereafter, plaintiff's
house became not fit to live in, and Hartford, through its
agent ALE Solutions (“ALE”), coordinated
temporary housing for plaintiff. Id. at 43.
December 17, 2014, plaintiff leased the premises located at
3100 Plaza De Rosa, Las Vegas, Nevada (“the
premises”) from Brown Blankfield Group
(“landlord”). Id. Plaintiff claims that
the premises were selected in part due to plaintiff's
unique situation (plaintiff is 84 years old, legally blind,
and provides full-time care for her 63-year old daughter with
special needs). Hartford paid rent on the premises up until
June 30, 2017. Id. at 44. The payments were made
under the “Loss of Use” provision of
plaintiff's contract with Hartford, which has a $79, 400
cap. Id. at 66 (providing a copy of the continuation
page of the homeowner's policy that details limits on
liability); id. at 90 (providing a copy of the
insurance contract and the “Loss of Use”
to ceasing rent payments, Hartford, through ALE, informed the
landlord of its intent to cease payments. Id. The
landlord initiated eviction proceedings against plaintiff,
and a hearing was held on July 27, 2017. Id. The
parties have not advised the court on the status of eviction
August 2, 2017, plaintiff filed a complaint in state court
against Hartford, ALE, and unnamed defendants. Id.
at 27. Plaintiff asserts six causes of action: (1) breach of
contract against Hartford and ALE; (2) breach of implied
covenant of good faith and fair dealing against Hartford and
ALE; (3) breach of fiduciary duty against Hartford and ALE;
(4) intentional infliction of emotional distress against
Hartford and ALE; (5) insurance bad faith against Hartford;
and (6) a request for injunctive relief against Hartford and
ALE. Id. at 17-26.
August 24, 2017, Hartford filed a petition for removal. (ECF
No. 1). In its notice, Hartford does not discuss any motions
pending in state court at the time of removal. Id.
However, Exhibit 1, the state court file, includes plaintiff
Patricia Lombardo's motion for preliminary injunction.
(ECF No. 1-1 at 31-55). The motion was docketed in state
court on August 3, 2017. (ECF No. 1-1 at 31). On August 9,
2017, Hartford received service of process of the complaint
and preliminary injunction. (ECF No. 1-1 at 2). Neither
defendant has responded to the motion.
injunction is a matter of equitable discretion . . . an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.
Winter v. N.R.D.C., 555 U.S. 7, 20, 129 S.Ct. 365,
374 (2008). Courts must consider the following elements in
determining whether to issue a temporary restraining order
and preliminary injunction: (1) a likelihood of success on
the merits; (2) likelihood of irreparable injury if
preliminary relief is not granted; (3) balance of hardships;
and (4) advancement of the public interest. Id. at
20. The test is conjunctive, meaning the party seeking the
injunction must satisfy each element.
a preliminary injunction may issue, the plaintiff must show
that it will suffer an irreparable injury and otherwise lacks
an adequate remedy at law to prevent such injury.
“Irreparable harm is traditionally defined as harm for
which there is no adequate legal remedy.” Arizona
Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir.
requests a temporary restraining order and preliminary
injunction that would compel Hartford to pay her rent for
substitute housing under the “Loss of Use”
provision of her insurance contract. (ECF No. 1-1 at 47-49).
Plaintiff asserts that, because Hartford has not fulfilled
its contractual requirement to repair her house, Hartford
must continue to pay her rent for temporary housing
notwithstanding the policy's $79, 400 cap on loss of use
payments. Plaintiff requests that the court compel defendant
to make rent payments immediately. Although not directly
stated in the motion, the strong inference is that plaintiff
cannot otherwise make rent payments during the pendency of
her case. As plaintiff is 84 years old, legally blind, and
cares for her 63-year old special-needs daughter, plaintiff
asserts that she would be irreparably harmed if this court
does not enter a preliminary injunction.
sitting in equity generally do not issue preliminary
injunctions to compel payments under a contract during the
pendency of a case. The Supreme Court considered the issue in
Great-West Life & Annuity Insurance Co. v.
Knudson, 534 U.S. 204 (2002), stating:
“[A]n injunction to compel the payment of money past
due under a contract, or specific performance of a past due
monetary obligation, was not typically available in equity.
Those rare cases in which a court of equity would decree
specific performance of a contract to transfer funds were
suits that, unlike the present case, sought to prevent future