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Oliver v. Ricci

United States District Court, W.D. Pennsylvania

June 13, 2017

OLIVER,
v.
RICCI, et al.

          Barbara Jacobs Rothstein U.S. District Court Judge

         I. INTRODUCTION

         Plaintiff, 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.

         II. BACKGROUND

         Plaintiff 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.[1] 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.

         Plaintiff 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.

         Plaintiff 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.

         III. DISCUSSION

         As 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.

         A. Legal Standard

         Under 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.”) (citation omitted).

         As 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).

         Injunctive 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.

         B. ...


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