United States District Court, D. South Dakota, Western Division
RAYMOND D. ELLIOTT, a/k/a Raymond Elliott, Plaintiff,
FREDDIE MAC; FANNIE MAE; GMAC; RESIDENTIAL FUNDING COMPANY; RESIDENTIAL CREDIT SOLUTIONS; HOMECOMINGS FINANCIAL LLC; and MORTGAGE ELEC. REG. SYS., Defendants.
JEFFREY L. VIKEN CHIEF JUDGE.
December 3, 2018, plaintiff Raymond Elliott, appearing pro
se, filed a complaint pursuant to the Truth in Lending Act,
15 U.S.C. § 1601 et seq., against the defendants.
(Docket 1). Mr. Elliott also filed a motion for preliminary
injunction, together with a supporting affidavit and brief.
(Dockets 2-4). Mr. Elliott did not pay the filing fee until
July 25, 2019. Payment of the filing fee is a prerequisite to
the commencement of a civil lawsuit.
August 1, 2019, Mr. Elliott filed a motion for an emergency
stay of the sale of a residence and a motion for a court date
for a hearing. (Dockets 8 & 9). Mr. Elliott submitted the
appropriate documents so that summonses could be issued by
the Clerk of Court. (Docket 10).
August 19, 2019, defendant Federal National Mortgage
Association, “Fannie Mae, ” filed a motion to
dismiss plaintiff’s complaint pursuant to Fed.R.Civ.P.
12(b)(6), together with supporting exhibits. (Docket 11 and
11-1 through 11-10). Pursuant to D.S.D. Civ. LR 7.1(B)
plaintiff’s response to defendant’s motion to
dismiss was not due until September 12, 2019.
August 26, 2019, Mr. Elliott filed a request for an emergency
injunction, together with attached exhibits and an affidavit.
(Dockets 14, 14-1 & 15). In the request, Mr. Elliott
moves to add the name of another individual as a defendant.
(Docket 14 at p. 1). Considering Mr. Elliott’s pro se
status, the court will treat plaintiff’s request as a
motion for a preliminary injunction pursuant to Fed.R.Civ.P.
65(a). A preliminary injunction may only be issued after
notice to the adverse party. Fed.R.Civ.P. 65(a)(1).
August 27, 2019, Defendant Fannie Mae filed a memorandum in
opposition to plaintiff’s motion for injunctive relief.
(Docket 16). The defendant asserts Mr. Elliott cannot meet
the factors for injunctive relief required by utilizing
Dataphase. Id. at pp. 7-9.
August 30, 2019, Mr. Elliott filed a reply memorandum in
opposition to defendant’s brief and in support of his
request for injunctive relief. (Docket 18). In his reply, Mr.
Elliott relies solely on his rescission claim asserted in
Elliott v. Ocwen Loan Servicing, LLC, 15-5038
(D.S.D. 2015). Id. at p. 2. Mr. Elliott does not
address the Dataphase factors, either separately or jointly.
court recognizes plaintiff’s pro se status. However,
“[e]ven pro se litigants must comply with court rules
and directives.” Soliman v. Johanns, 412 F.3d
920, 922 (8th Cir. 2005). Despite plaintiff’s failure
to present argument and evidence on each of the Dataphase
factors, the court must complete the analysis to determine
whether issuing a preliminary injunction is appropriate. The
Dataphase factors are:
(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury
that granting the injunction will inflict on other parties
(3) the probability that movant will succeed on the merits;
(4) the public interest.
Dataphase, 640 F.2d at 114. The most significant
factor is the probability of success on the merits.
Laclede Gas Co. v. St. Charles County, Mo., 713 F.3d
413, 419 (8th Cir. 2013) (internal quotations and citations
omitted). However, “a finding of a likelihood of
success on the merits only justifies preliminary relief if
there is a risk of irreparable harm and the balance of the
factors support an injunction.” CDI Energy Services
v. West River Pumps, ...