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Melida Hernandez v. Bayville Realty Corp.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


October 25, 2011

MELIDA HERNANDEZ, PLAINTIFF,
v.
BAYVILLE REALTY CORP., SUBAR ENTERPRISES, INC., ANDREADIS REALTY CORPORATION, JOHN DOES #1-5 DEFENDANTS.

The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

On September 19, 2011, pro se plaintiff Melida Hernandez filed a complaint seeking both declaratory and injunctive relief and damages. On October 24, 2011, plaintiff filed the instant application for an "Emergency Order to Show Cause" for a temporary restraining order and preliminary injunction seeking to stay her eviction from commercial property pending a hearing in this court to determine whether her constitutional rights were violated. Plaintiff has paid the filing fee to initiate this action.

"A party seeking a preliminary injunction must show '(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.'" Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011) (quoting Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)); Fed. R. Civ. P. 65(b)(1)(A). Here, plaintiff fails to meet this standard because, according to her affidavit and complaint, the State Supreme Court ordered a foreclosure sale, which already took place, and she has been served with a court-issued warrant of eviction. (ECF No. 1, Complaint at 3*fn1 ; ECF No. 5, Plaintiff's Affidavit in Support for Emergency Order to Show Cause dated October 24, 2011 ("Pl.'s Aff.") ¶ 4, Ex. D.) The federal courts lack jurisdiction to stay or enjoin a state court judgment of foreclosure and order of eviction. Jing Chun Wu v. LeVine, 314 Fed. Appx. 376, 377 (2d Cir. 2009) (affirming denial of plaintiff's claims for injunctive relief to stay the state court's foreclosure order on her property because the district court was without subject matter jurisdiction on the basis of the Rooker-Feldman*fn2 doctrine); see also Jing Chun Wu v. LeVine, No. 05-cv-1234 (NG), 2005 U.S. Dist. LEXIS 21051, at *6 (E.D.N.Y. June 3, 2005) ("Courts in this Circuit have consistently held that any attack on a judgment of foreclosure is clearly barred by the Rooker-Feldman doctrine.").*fn3

Accordingly, the motion for a preliminary injunction and a temporary restraining order is denied because the court lacks jurisdiction. The Clerk of the Court is respectfully ordered to serve a copy of this order on plaintiff and note service on the docket.

SO ORDERED.

KIYO A. MATSUMOTO United States District Judge


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