United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge
MATTER is before the court on plaintiff's pro se
Notice of Motion and Motion for Temporary Restraining Order
and/or Preliminary Injunction.
pertinent part, plaintiff asks this Court to “issue a
temporary restraining order and enjoin the foreclosure sale
of [XXXX] Rolling Oak Lane, Charlotte, North
Carolina ….” Motion (#4) at 1. Plaintiff goes on
to state that the foreclosure sale is July 17, 2018. For
cause, plaintiff states that he has “been lied to [by
the mortgage lender] and taken advantage of financially and I
intend to prove it.” Id. (error in the
original corrected). Essentially, defendant is asking this
federal Court to enter an Order restraining a state court
from proceeding with a foreclosure sale based on the pendency
of this action.
for issuance of a Temporary Restraining Order
(“TRO”) are governed by Fed.R.Civ.P. 65(b), which
provides as follows:
The court may issue a temporary restraining order without
written or oral notice to the adverse party or its attorney
(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
Id. The Court notes that “the issuance of an
ex parte temporary restraining order is an emergency
procedure and is appropriate only when the applicant is in
need of immediate relief.” Wright and Miller, 11A Fed.
Prac. & Proc. Civ. § 2951 (3d ed.). In addition,
“preliminary injunctions are extraordinary remedies
involving the exercise of very far-reaching power to be
granted only sparingly and in limited circumstances.”
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272
(4th Cir. 2002) (quoting MicroStrategy Inc. v. Motorola,
Inc., 245 F.3d 335, 339 (4th Cir. 2001)). In evaluating
a request for a TRO, the court considers the same factors
applied for a preliminary injunction. Pettis v. Law
Office of Hutchens, Senter, Kellam & Pettit, No.
3:13-CV-00147-FDW, 2014 WL 526105, at *1 (W.D. N.C. Feb. 7,
2014) (citing Hoechst Diafoil Co. v. Nan Ya Plastics
Corp., 174 F.3d 411 (4th Cir. 1999)).
assessing such factors, a plaintiff must demonstrate that:
(1) they are likely to succeed on the merits; (2) they will
likely suffer irreparable harm absent an injunction; (3) the
balance of hardships weighs in their favor; and (4) the
injunction is in the public interest. League of
Women Voters of N. Carolina v. N. Carolina, 769
F.3d 224, 236 (4th Cir. 2014), cert. denied, 135
S.Ct. 1735, 191 L.Ed.2d 702 (2015) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
While a balancing test was previously used, issuance of TRO
now requires that every factor be “satisfied
as articulated” and courts “must separately
consider each Winter factor.” Pashby v.
Delia, 709 F.3d 307, 320 (4th Cir. 2013)
(citing The Real Truth About Obama, Inc. v. FEC, 575
F.3d 342, 347 (4th Cir. 2009)).
court has closely read the Complaint (#1) (see footnote 1),
and the arguments stated in the instant motion. As to the
likelihood of success on the merits, the court finds that
plaintiffs' motion fails to make the required showing. It
appears that, in essence, plaintiffs ask this court to
restrain a North Carolina court from proceeding with a
foreclosure hearing later this month based on the pendency of
this federal civil action.
this Court likely lacks subject matter jurisdiction over this
action in its entirety as plaintiff does not appear to have
properly invoked this Court's jurisdiction and has likely
failed to state a cognizable claim. While much latitude is given
to pro se litigants and their pleadings, this Court simply
cannot rewrite the Complaint as it cannot be the advocate for
either party. While it is possible that plaintiff is
attempting to invoke any one of a number of federal consumer
protection statutes in the Complaint, the essence of the
instant motion is to challenge or stop ongoing proceedings in
state court to foreclose on the note and sell the property.
the court were to assume that foreclosure of the property
amounts to irreparable harm, plaintiff has failed to
demonstrate that he would likely succeed on the merits of his
Complaint at trial, that the balance of harm weighs in his
favor, or that a restraining order would be in the public
interest. Thus, every factor cannot be “satisfied as
articulated.” Pashby, 709 F.3d at 320. TROs
are “extraordinary remedies involving the exercise of
very far-reaching power to be granted only sparingly and in
limited circumstances.” MicroStrategy Inc. v.
Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001).
request for a TRO fails for an additional reason: federal
district courts lack the jurisdiction to directly review the
judgments of state courts as that power is reserved to the
United States Supreme Court. See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
Courts have consistently applied the Rooker-Feldman
doctrine to dismiss claims requesting federal district court
review of a state court's foreclosure proceedings.
See Poydras v. One West Bank, Civ. No. 9-11435, 2009
WL 1427396 (E.D.Mich. May 20, 2009) (collecting cases).
considered these factors and the record before it in the
light most favorable to the pro se plaintiff, the
Court does not find any basis for granting the extraordinary
remedy of a ...