Rubacky v. Morgan Stanley Dean Witter Credit Corp. ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1173
TRICIA L. RUBACKY,
Plaintiff, Appellant,
v.
MORGAN STANLEY DEAN WITTER CREDIT CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Tricia L. Rubacky on brief pro se.
David M. Rosen and Harmon Law Offices, P.C., on brief for
appellee.
July 23, 2004
Per Curiam. This is an interlocutory appeal from the
district court's denial of pro se plaintiff's motion to enjoin
defendant lender's foreclosure sale of plaintiff's home. Because
the sale has now occurred, plaintiff's request to enjoin the sale
has become moot, and she has failed to demonstrate the requisite
threat of immediate harm or the likelihood of success on the merits
to warrant any other preliminary injunctive relief.
As we recently reiterated, where "[t]he posture of the
case has changed in significant ways since the plaintiff initially
made her motion for a preliminary injunction," the justiciability
of an interlocutory appeal from the denial of that motion "is
called into question." Matos v. Clinton Sch. Dist., 367 F.3d 68,
72 (1st Cir. 2004) (citing CMM Cable Rep., Inc. v. Ocean Coast
Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995)). And, where, as
here, the event that plaintiff sought to enjoin--the January 2004
foreclosure sale--has already occurred, "this court lacks the power
to turn back the clock and, accordingly, . . . the appeal is moot."
Matos, 367 F.3d at 72.
Although plaintiff's motion also sought to enjoin any
future foreclosure sale, there is no evidence that any future sale
has been or will be scheduled before the trial, which is scheduled
to occur this fall. In the absence of a real threat of immediate
and irreparable harm, the district court appropriately declined to
issue a preliminary injunction. Id. at 74 (affirming denial of
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preliminary injunction where claim for relief "lacks immediacy . .
. [and] record reflects no reason why that relief, if due, cannot
await a full-dress trial"). Also, to the extent that plaintiff's
present motion for preliminary injunctive relief was based on the
same grounds as her earlier one, there is little likelihood that
plaintiff will succeed on those grounds for the reasons stated by
the magistrate judge in his Report and Recommendation that the
earlier motion be denied.
The district court also properly denied plaintiff's
request for injunctive relief against defendant's counsel,
prohibiting them "from conducting any foreclosure auctions within
the court's borders" until various actions are taken. As
recognized by the magistrate judge, defendant's counsel "are not
parties to this suit and the allegations [against them] provide no
basis for an injunction against the defendant."
The district court did not directly address plaintiff's
further request "[t]hat the court order Defendant to remove 'prays'
from all its documents in a religiously neutral way." We assume
that defendant uses the word "prayer" in the legal sense of a
"request addressed to the court and appearing at the end of a
pleading; esp., a request for specific relief or damages," Black's
Law Dictionary (8th ed. 2004), rather than in any religious sense.
Accordingly, the district court properly denied that request for
relief as well. For the above reasons, plaintiff's appeal from the
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district court's denial of her request to enjoin the sale that has
already occurred is dismissed as moot, and the district court's
denial of plaintiff's other requests for preliminary injunctive
relief is affirmed.
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