Luste v. U.S. Bank National Association

• Court: District Court, D. Nevada
• Decided: August 20, 2025
• Docket: 2:25-cv-01526
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:25-cv-01526-JAD-NJK Carmine Luste, 4 Plaintiff Order Denying Plaintiff’s Motions for a 5 v. Temporary Restraining Order, Preliminary Injunction, and Non-Jury 6 U.S. Bank National Association, Determination

7 Defendant [ECF Nos. 3, 4, 5]

9 Carmine Luste sues the U.S. Bank National Association for alleged wrongs he suffered 10 when the bank reversed a deposit into his account because a check he deposited was returned 11 unpaid.1 To initiate this action, Luste simultaneously filed his complaint, an in forma pauperis 12 application seeking leave to litigate this case without paying the filing fee, emergency motions 13 for a temporary restraining order and preliminary injunction, and a motion “for non-jury 14 determination and expedited proceedings.”2 I deny his injunctive-relief and non-jury 15 determination motions because he has not shown that he is entitled to that relief. 16 Discussion

17 A. Luste is not entitled to preliminary injunctive relief.

18 Temporary restraining orders and preliminary injunctions are “extraordinary” remedies 19 “never awarded as of right.”3 The Supreme Court clarified in Winter v. Natural Resources 20 21 1 ECF No. 1-1. 22 2 ECF Nos. 3, 4, 5. Luste also filed an “emergency motion to preserve evidence.” ECF No. 6. That motion is pending before the magistrate judge assigned to this case because she is tasked 23 with handling discovery-related matters. So I express no opinion about the merits of that motion. 3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). 1 Defense Council, Inc. that, to obtain an injunction, plaintiffs “must establish that [they are] likely 2 to succeed on the merits, that [they are] likely to suffer irreparable injury in the absence of 3 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the 4 public interest.”4 The Ninth Circuit recognizes an additional standard: if “plaintiff[s] can only 5 show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of

6 success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships 7 tips sharply in the plaintiffs’ favor,’ and the other two Winter factors are satisfied.”5 Under 8 either approach, the starting point is a merits analysis. 9 Luste relies on 12 C.F.R. § 229.54 as the basis of his claim. That regulation implements 10 the congressional scheme set out in 12 U.S.C. § 5006 as part of the Check Clearing for the 21st 11 Century Act (the “Check 21 Act”). As relevant here, the Act establishes that substitute checks— 12 copies of an original check that meet certain requirements under 12 U.S.C. § 5002—may be used 13 as “the legal equivalent of the original check for all purposes.”6 Section 5006 and 12 C.F.R. 14 § 229.54 provide a mechanism for a consumer to “make a claim for expedited recredit from the

15 bank that holds” the consumer’s account if the bank improperly “charged the consumer’s 16 account for a substitute check.”7 Luste claims that he filed a claim with U.S. Bank under 17 § 229.54 but that it violated its obligations under that regulation because it “refused [to] timely 18 recredit [his account] . . . and failed to provide a compliant written denial under § 229.54(e)(2).”8 19 20 4 Id. at 20. 21 5 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 22 6 12 U.S.C. § 5003(b). 23 7 12 U.S.C. § 5006(a)(1); 12 C.F.R. § 229.54(a). 8 ECF No. 1 at 6. 1 Assuming without deciding that § 229.54 confers a private right of action against a bank 2 if it fails to comply with the regulation’s requirements, Luste has not sufficiently shown that he 3 is likely to succeed on the merits of his claim. Luste’s complaint and exhibits suggest that Luste 4 presented a check to U.S. Bank and the bank credited those funds into his account, but when the 5 check was “subsequently returned unpaid,” the bank removed those funds.9 He does not allege

6 or explain how the recredit provisions related to substitute checks apply to this scenario. Rather, 7 Luste’s own description of what happened here suggests that U.S. Bank reversed the provisional 8 credit to his account because the check bounced—not because of any issue with the substitute 9 check itself. This is normal banking procedure: if a check is drawn on insufficient funds, a bank 10 cannot transfer those nonexistent funds to the check’s intended recipient. So, because the facts 11 presented with Luste’s claim do not appear to entitle him to any relief under the Check 21 Act, I 12 conclude that he hasn’t shown a likelihood of success on the merits of his claims. 13 B. Luste’s motion for expedited proceedings is denied.

14 Luste seeks a non-jury determination of his claim and expedited proceedings “given the 15 ongoing irreparable harm caused by [U.S. Bank’s] refusal to comply with the Check 21 Act” and 16 its implementing regulations.10 Luste’s non-jury-determination request is premature and 17 unsupported, and I deny his request for expedited proceedings. Because Luste seeks to proceed 18 in forma pauperis (IFP) in this case, his IFP application must be ruled on and his complaint must 19 be screened by the magistrate judge assigned to this case before his claims can move forward 20 against U.S. Bank. Because this court has hundreds of pending IFP motions to decide and 21 complaints to screen, this process may take several months. Particularly in light of my 22 9 See ECF No. 7 at 2 (“expedited recredit claim packet”), 9 (reproduction of the check marked 23 returned for “[in]sufficient funds”). 10 ECF No. 5 at 1. 1]| conclusion that Luste has not shown a likelihood of success on the merits of his claim, he has also not shown that a departure from this standard process is warranted in his case. 3 C. Luste is advised that exhibits filed in this case must be attached to motions seeking 4 specific relief. 5 Since this case was filed earlier this week, Luste has filed two sets of documents labeled 6]| “exhibits.”!! Luste does not explain what those exhibits are meant to support, nor can the court any references to those exhibits in the motions Luste has filed thus far. As a one-time 8|| courtesy, I construe those exhibits as support for his injunctive-relief motions and consider them 9|| for that purpose. But in the future, Luste must attach any exhibits to the motion they are meant to support in compliance with this court’s local rules. He must also cite to those exhibits in the 11]| motion itself and explain their significance to his claims—the court will not consider further exhibits that are not specifically referenced as support for arguments made in Luste’s briefs. 13 Conclusion 14 IT IS THEREFORE ORDERED that Carmine Luste’s motions for a temporary- 15]| restraining order, preliminary injunction, and expedited proceedings [ECF Nos. 3, 4, 5] are 16] DENIED.

U.S. Distiict Judge Je hie) A. Dorsey 18 August 20, 2025 19 20 21 22 23 ECF Nos. 7, 8.