United States District Court, W.D. Pennsylvania
Barbara Jacobs Rothstein U.S. District Court Judge
Tiffany Oliver, instituted this action on May 30, 2017 by
filing a motion for leave to proceed in forma
pauperis. Dkt. No. 1. The Court granted her motion on
June 2, 2017 and directed the Clerk of the Court to file the
proposed complaint. Dkt. No. 5. Thereafter, on June 9, 2017,
the Court ordered the United States Marshal Service to mail a
copy of the complaint, notice of lawsuit, request for waiver
of service of summons, and waiver form to the named
defendants. Dkt. No. 9. Three days later, on June 12, 2017,
Plaintiff filed the instant Motion for Preliminary Injunctive
Relief. Dkt. No. 12. The Court interprets the motion as an
ex parte motion for a temporary restraining order.
Having reviewed the motion, the record of the case, and the
relevant legal authority, the Court will deny the motion. The
reasoning for the Court's decision follows.
instituted this action against Defendant Gerald Ricci and his
businesses Ricci Estates LLC and Rememory Images LLC
(hereinafter collectively referred to a
“Defendants”). Plaintiff alleges that she and her
partner, John May, entered into a land installment contract
with Defendants under which it was agreed that Plaintiff,
May, and their young son would occupy and ultimately purchase
the single-family residence located at 88 Meadvill Pike,
Franklin, PA 16323. Dkt. No. 6 at ¶¶ 10,
18-19. Plaintiff alleges that she, May, and their
son are disabled as defined by 42 U.S.C. § 3602(h) and
receive Social Security benefits as a result. Id. at
¶¶ 6-8. She also claims that she qualified for
assistance under the Self Determination Housing Project of
Pennsylvania (“SDHP”) to help her modify the
residence, but needed Defendants' approval before the
modifications could commence. ¶¶ 16, 24. Plaintiff
charges that despite the fact that Defendants would not have
to personally pay for the modifications, Defendants refused
to consent to them. ¶ 24.
claims that she received a “Notice to Quit”
letter dated May 12, 2017, stating that Plaintiff had three
days to pay the Defendants the sum of $675.00 or she would
have to surrender the residence to Defendants. ¶ 28. On
May 22, 2017, Defendants filed for eviction in state court.
¶ 31. The eviction hearing has been rescheduled several
times and is currently scheduled for June 22, 2017.
charges that Defendants filed the eviction proceedings as
retaliation because she “sought a legal right to have
housing that was modified for … [the] recognized
disabilities” of Plaintiff and her family members.
¶ 29. She claims that Defendants' actions violate
Title VIII of the Civil Rights Act of 1968, as amended by the
Fair Housing Amendments Act of 1988 (“Fair Housing
Act”), 42 U.S.C. §§ 3601-3631. Plaintiff
seeks both monetary and injunctive relief.
discussed above, Plaintiff has filed a motion for a
preliminary injunction, requesting that this Court issue a
temporary restraining order to prevent Defendants “from
pursuing eviction against Plaintiff” in state court.
Federal Rule of Procedure 65, a request for a preliminary
injunction requires notice to the adverse party, usually in
the form of a hearing. PharmaSeq, Inc. v. Estate of
Griess, 2015 WL 620802, *1 (E.D.P.A. Feb. 11, 2015)
(citing Fed.R.Civ.P. 65(a)). However, a court may issue an
ex parte temporary restraining order until a hearing
may be held in order to preserve the status quo. Id.
(citing Fed.R.Civ.P. 65(b)); see also Granny Goose Foods,
Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70 of Alameda Cnty., 415 U.S. 423, 439 (1974) (“Ex
parte temporary restraining orders are no doubt necessary in
certain circumstances, but under federal law they should be
restricted to serving their underlying purpose of preserving
the status quo and preventing irreparable harm just so long
as is necessary to hold a hearing, and no longer.”)
stated above, this Court directed the United States Marshal
Service to mail a copy of the summons and complaint in this
case to the named Defendants. However, this directive was
issued only four days ago and there is no indication in the
record that Defendants have yet been properly served.
Therefore, this Court will consider Plaintiff's motion as
a motion for an ex parte temporary restraining order
under Rule 65(b). See PharmaSeq, Inc., 2015 WL
620802, *2 (E.D. Pa. Feb. 11, 2015) (citing Tootsie Roll
Industries, Inc. v. Sathers, Inc., 666 F.Supp. 655,
657-58 (D. Del.1987) (applying Rule 65(b) standard where
adverse party was not present and had no opportunity to be
heard, despite movant's assertion that the adverse party
was given notice).
relief is an “extraordinary remedy and should be
granted only in limited circumstances.” Id.
(quoting Kos Pharmaceuticals v. Andrx Corp., 369
F.3d 700, 708 (3d Cir. 2004)). The standard to obtain a
temporary restraining order is the same as for a preliminary
injunction. Id. (citing Bieros v. Nicola,
857 F.Supp. 445, 446 (E.D. Pa. 1994)). The party applying for
a temporary restraining order must demonstrate: (1) a
likelihood of success on the merits; (2) that she will suffer
irreparable harm if the injunction is not granted; (3) that
granting injunctive relief will not result in even greater
harm to the nonmoving party; and (4) that the public interest
favors granting relief. Kos Pharmaceuticals, 369
F.3d at 708.