Baham v. Graham

• Court: District Court, D. Nevada
• Decided: May 31, 2023
• Docket: 2:23-cv-00822
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 DENNIS BAHAM, Case No. 2:23-cv-00822-ART-BNW 5 Plaintiff, ORDER 6 v.

7 ELENA LEE GRAHAM, et al.,

8 Defendants.

9 Before the Court is an ex parte motion for temporary restraining order 10 (ECF No. 2) filed by pro se plaintiff Dennis Baham. Defendants have not yet 11 appeared in this case. For the reasons set forth in this order, the Court declines 12 to issue an ex parte temporary restraining order and orders Defendants to 13 respond within seven (7) days of Defendants’ appearance in this case. 14 I. BACKGROUND 15 According to Mr. Baham’s complaint (ECF No. 1 (“Complaint”)) and ex parte 16 motion for temporary restraining order (ECF No. 2), Mr. Baham was subject to 17 an eviction proceeding in the Clark County Justice Court. (Complaint at 8.) At a 18 hearing held on April 19, 2023, Judge Elana Lee Graham rejected Mr. Baham’s 19 argument that the Justice Court lacked jurisdiction to issue a writ of restitution 20 evicting Mr. Baham. (Id.) Mr. Baham attached a copy of a writ of restitution signed 21 by Judge Graham on May 2, 2023 which stated that eviction will take place on 22 May 25, 2023, as well as an order dated April 20, 2023 stating that the Bank of 23 New York Mellon has met its burden to show its right to possession of the subject 24 property. (ECF No. 2 Exh. I.) 25 Mr. Baham initiated a challenge to his eviction in the Clark County District 26 Court. Mr. Baham attached a copy of a minute order in which Judge Jacob A. 27 Reynolds denied Mr. Baham’s ex parte motion for temporary restraining order 28 1 and preliminary injunction because Mr. Baham has already been evicted. (ECF 2 No. 2 Exh. H.) Mr. Baham claims that it is not true that he has already been 3 evicted. (ECF No. 2 at 3-4.) 4 Mr. Baham alleges violations of Nevada law and the Fair Debt Collection 5 Practices Act (“FDCPA”). Mr. Baham brings six claims: (1) wrongful foreclosure; 6 (2) libel; (3) forgery; (4) FDCPA violations; (5) slander of title; and (6) intentional 7 infliction of emotional distress. (Complaint at 9-10.) Mr. Baham claims that 8 foreclosure was improper under Nevada law and the FDCPA because a 9 promissory note was not included with the notice of default, the notice of default 10 lacked signatures, Shellpoint Mortgage Servicing lacked authority to authorize a 11 foreclosure against Mr. Baham, and the mortgage lien was extinguished by NRS 12 106.240 because the balance had been fully due for more than 10 years. (ECF 13 No. 2 at 7-8.) Construing Mr. Baham’s complaint liberally, the Court will construe 14 Mr. Baham’s claims about the Justice Court’s lack of jurisdiction as a claim 15 under 42 U.S.C. § 1983 for violation of the Due Process Clause of the Fourteenth 16 Amendment. 17 II. DISCUSSION 18 Temporary restraining orders are governed by the same standard 19 applicable to preliminary injunctions. Quiroga v. Chen, 735 F. Supp. 2d 1226, 20 1228 (D. Nev. 2010). A temporary restraining order is “an extraordinary remedy 21 that may only be awarded upon a clear showing that the plaintiff is entitled to 22 such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff 23 must show: (1) likelihood of success on the merits; (2) likelihood of irreparable 24 harm in the absence of preliminary relief; (3) the balance of equities tips in the 25 plaintiff’s favor; and (4) an injunction is in the public interest. Id. at 20. 26 A. DUE PROCESS 27 Mr. Baham argues that he was deprived of his constitutional right to due 28 process when the Justice Court issued the writ of restitution evicting him without 1 jurisdiction. However, Mr. Baham cites only Texas law for the proposition that 2 “justice courts do not have authority over suits ‘for trial of title to land.’” 3 (Complaint at 12.) Mr. Baham explains that under Texas law, justice courts have 4 original jurisdiction over possession and district courts have original jurisdiction 5 over title. (Id.) These citations are not compelling in Nevada. Rather, it appears 6 that the Justice Court has jurisdiction over eviction actions. NRS 4.370. Mr. 7 Baham has not shown likelihood of success on this claim. 8 B. ROOKER-FELDMAN DOCTRINE 9 The Rooker-Feldman Doctrine bars federal courts from hearing de facto 10 appeals from state court judgments. The state appellate system, not a federal 11 district court, is the proper forum to review state court judgments. The Rooker- 12 Feldman Doctrine bars a federal case as a de facto appeal of a state court 13 judgment when: (1) the state court case has been fully rendered before the 14 plaintiff filed the second federal case, and (2) the second federal case is a pure 15 challenge to the legal conclusions of the first case. See Noel v. Hall, 341 F.3d 16 1148, 1163 (9th Cir. 2003). A second federal case alleging that the state 17 proceedings themselves violated constitutional rights, e.g. due process, is not 18 barred by the Rooker-Feldman Doctrine, since that is not a de facto appeal of the 19 underlying first case but rather concerns a separate wrong. 20 Aside from his Due Process claim, Mr. Baham’s wrongful foreclosure claim 21 and FDCPA claim challenge the results of his eviction proceeding in Clark County 22 Justice Court and the denial of his ex parte temporary restraining order in Clark 23 County District Court. Mr. Baham does not show why these claims are not de 24 facto appeals of state court judgments barred by the Rooker-Feldman Doctrine. 25 Therefore, Mr. Baham had not shown likelihood of success on these claims. 26 C. REMAINING CLAIMS 27 Mr. Baham alleges that the defendants defamed him by filing documents 28 in the underlying actions which contain false information. Mr. Baham does not 1 || identify the statements specifically or explain how these statements would not be 2 || protected by the litigation privilege. See Shapiro v. Welt, 133 Nev. 35, 40, 389 3 || P.3d 262, 268-69 (2017). Nor does Mr. Baham explain what documents were 4 || allegedly forged or how the defendants’ conduct amounts to intentional infliction 5 || of emotional distress. Mr. Baham has not shown likelihood of success on the 6 || merits of these claims. 7 || II. CONCLUSION 8 The Court declines to issue a temporary restraining order on an ex parte 9 || basis. The Court orders the defendants to respond to Mr. Baham’s motion within 10 || seven (7) days of the date of their service in this case. Mr. Baham may then reply 11 || within seven (7) days of the defendants’ response and the Court will consider 12 || whether to issue a temporary restraining order. 13 14 15 DATED THIS 31st day of May 2023. 16 17 en Apes Wasted

19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28