Sutton Investments LLC v. Perlmutter

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SUTTON INVESTMENTS LLC,
Plaintiff,
v. Civil Action No. 1:21-cv-3226 (CJN)
DAWN PERLMUTTER, et al.,
Defendants.
MEMORANDUM OPINION
Sutton Investments LLC entered into a sales contract to sell property located in the District
to a third-party purchaser for over $10,000,000. See generally Compl. The contract requires the
sale to close on or before December 30, 2021. Id. Just over a month ago, Defendants Dawn
Perlmutter and Thomas Bolick recorded a notice of lis pendens against the property. Id. Sutton
Investments seeks an order cancelling the notice of lis pendens to ensure the sale closes before the
end of the year, and the company also seeks injunctive relief prohibiting Defendants from
recording other similar notices against the property without first receiving permission from the
Court. Id. For the reasons that follow, the Court issues an order cancelling the notice of lis pendens
and issues a temporary restraining order barring Perlmutter, Bolick, and their agents from
recording a notice of lis pendens against the property for the next 14 days unless they first receive
leave of the Court.
I. The Lis Pendens Doctrine
The doctrine of lis pendens has been around for centuries. See Bristow v. Thackston, 86
S.W. 94, 98 (Mo. 1905) (“Lis pendens is a notice of very ancient origin.”). The “well-established”
doctrine permits a plaintiff who wishes to enforce an interest in property to which the defendant
1
has title to give notice of the pendency of a civil action to third parties. Connecticut v. Doehr, 501
U.S. 1, 29 (1991) (Rehnquist, C.J., concurring in part); Cordoba Initiative Corp. v. Deak, 943
F.Supp.2d 74, 75 (D.D.C. 2013) (quotation omitted) (noting that the doctrine of lis pendens serves
“to enable interested third parties to discover the existence and scope of pending litigation affecting
property”). The recording of a notice of lis pendens often “has the effect of preventing sale or
lowering the market value of the property,” given the risk associated with acquiring property
clouded by a lawsuit. Pater v. City of Casper, 646 F.3d 1290, 1296 (10th Cir. 2011).
At common law, the doctrine required neither actual nor record notice to put a third-party
purchaser on alert over dueling claims to a piece of property. See William Douglas White, Lis
Pendens in the District of Columbia: A Need for Codification, 36 Cath. U. L. Rev. 703, 704 (1987).
States have responded to concerns about providing third parties with sufficient notice by enacting
lis pendens statutes. Id. These statutes often require the “filing of a notice of the pendency of
actions affecting real property with the appropriate land recordation office.” Id.The District of Columbia enacted a lis pendens statute in 2000. See D.C. Code § 42-1207;
Tr. 1245 13th St., NW No. 608 Tr. v. Anderson, 905 A.2d 181, 184 (D.C. 2006). In the District, a
notice of lis pendens may be filed with the land recordation office if an action in “state or federal
court in the District of Columbia” either “affect[s] the title to” or otherwise “assert[s] a mortgage,
lien, security interest, or other ownership interest in real property situated in the District of
Columbia.” D.C. Code § 42-1207(a).
Understanding that some litigants may use this procedure to frustrate the interests of others
in real property, in 2010 the District added subsection (h). See Havilah Real Prop. Servs., LLC v.
VLK, LLC, 108 A.3d 334, 349 (D.C. 2015). Subsection (h) permits a party to seek cancellation of
a recorded lis pendens under specified scenarios. It states in pertinent part that:
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A court in which a motion is filed or an action is brought under subsection (g) of
this section may issue an order canceling the notice of pendency of action prior to
the entry of judgment in the underlying action or proceeding if the court finds . . .
(A) The moving party will suffer an irreparable injury if the notice is not
cancelled;
(B) The moving party has demonstrated a substantial likelihood of success
on the merits in the underlying action or proceeding;
(C) A balancing of the potential harms favors the moving party; and
(D) The public interest favors cancelling the notice.
To seek cancellation of a lis pendens under subsection (h), the plaintiff must file a motion
or bring an action in conformity with subsection (g). Subsection (g) provides that:
A person with an ownership interest in real property upon which a notice of
pendency of action has been filed under this section may:
(1) If the action or proceeding underlying the notice is pending in either
state or federal court in the District of Columbia, file a motion to cancel the
notice with the court in which the underlying action or proceeding is
pending or, if the action is on appeal, in the court in which the action was
originally brought; or
(2) If the action or proceeding underlying the notice is not pending in a court
of the District of Columbia, bring an action in the Superior Court of the
District of Columbia to cancel the notice.
D.C. Code § 42-1207(h).
II. Factual Background
Joan Sutton left behind an estate worth millions when she passed away in 2010. See Compl.
¶ 22. The estate included Sutton Investments, a company formed under the laws of Maryland,
which owns a significant amount of property in the southeastern quadrant of Washington, D.C.
See id. ¶¶ 1, 16.
Joan’s children have litigated the distribution of her estate for a decade. Id. ¶ 6. One of
those children, Defendant Dawn Perlmutter, maintains that her sister, Trina Varone, has deprived
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her of her rightful inheritance of Sutton Investments. Id. ¶ 2; see Perlmutter v. Varone, No. 8:19-
CV-03402-PX, 2020 WL 2839097, at *1 (D. Md. June 1, 2020). Perlmutter, a resident of
Pennsylvania, has filed lawsuit after lawsuit contesting Varone’s entitlement to the company and
the accompanying property. See Perlmutter v. Varone, No. 422551V, 2020 WL 6707829, at *1
(Md. Ct. Spec. App. Nov. 16, 2020) (per curiam) (documenting the litigation history).
Over the last two years, Perlmutter and Defendant Thomas Bolick, also a resident of
Pennsylvania, have continued this crusade in both state and federal courts. See Compl. ¶ 3. In
April 2020, Perlmutter and Bolick filed an action in Pennsylvania state court disputing Varone’s
right to Sutton Investments. Id. ¶ 30. About a year later, Perlmutter and Bolick recorded a notice
of lis pendens against the property at issue in this case with the District’s land recordation office
based upon the pendency of the action filed in Pennsylvania state court. Id. ¶ 31. Soon after the
recordation, the company entered into a sales contract to sell the property for over $10,000,000 to
a third-party purchaser. Id. ¶ 32. The contract requires the sale to close on or before December
30, 2021. Id. ¶ 32 n.2.
In October 2021, the Pennsylvania Court of Common Pleas of Bucks County dismissed
Perlmutter and Bolick’s action. Id. ¶ 34. Following the dismissal, on November 12, 2021, the
Superior Court for the District of Columbia gave Perlmutter and Bolick five days to cancel the
notice of lis pendens. Id. ¶ 36. Three days later, Perlmutter and Bolick filed another lawsuit in
the United States District Court for the Eastern District of Pennsylvania, claiming once again that
Varone lacked a legitimate interest in Sutton Investments and the underlying property. Id. ¶ 37.
That afternoon, Perlmutter and Bolick recorded yet another notice of lis pendens against the
company’s property. Id. ¶ 38.
4
It’s unclear why Sutton Investments waited three weeks to file this suit, but on December
8, 2021, it initiated this action. See Compl. It seeks an order that would require the District’s land
recordation office to cancel the notice of lis pendens recorded on November 15, 2021 against the
company’s property. See generally Compl. It also seeks an injunction precluding Perlmutter,
Bolick, and their agents from recording any other notices of lis pendens against the company’s
property without first receiving leave of the Court. Id. ¶¶ 56–57; see Mot. for a Preliminary
Injunction (“Mot. for a PI”), ECF No. 2. And the company seeks sanctions, reasonable attorney
fees, and costs incurred. See Compl. ¶¶ 56–57.
Sutton Investments has made numerous efforts to notify Defendants of the lawsuit and of
the company’s request for injunctive relief. The Court, soon after initiation of the lawsuit,
instructed the Parties to meet, confer, and file a Joint Status Report addressing several issues. See
Minute Order, December 13, 2021. Sutton Investments filed a Status Report, informing the Court
that despite best efforts the company could not contact the Defendants. See Status Report, ECF
No. 6. The Court then ordered the Defendants to respond to the motion for injunctive relief on or
before Monday, December 20, 2021. See Minute Order, December 15, 2021. The Defendants
have yet to lodge a response.
III. The Court’s Authority Under D.C. Code §§ 42-1207(g) & (h)
The Court must first determine whether it possesses the authority under D.C. Code § 42-
1207(g) & (h) to cancel the notice of lis pendens. Sutton Investments calls Maryland home while
Perlmutter and Bolick reside in Pennsylvania, and the amount in controversy involves property
worth over $10,000,000. See Compl. ¶¶ 1–3. The Court therefore possesses diversity jurisdiction
over this dispute. See 28 U.S.C. § 1332. It is unclear, however, whether the Court has the authority
to cancel a notice of lis pendens where, as here, the lawsuit underlying the notice of lis pendens
was filed outside of the District.
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Recall that subsection (h) permits a court to cancel a notice of lis pendens so long as the
motion or action is “brought under subsection (g).” Subsection (g) specifies two scenarios where
a property owner can ask a court to render a judgment cancelling a notice of lis pendens pursuant
to subsection (h).
First, under subsection (g)(1), a “person with an ownership interest in [the disputed] real
property” may “file a motion to cancel the notice with the court in which the underlying action or
proceeding is pending” only when the “action or proceeding underlying the notice is pending in
either state or federal court in the District of Columbia.” The action underlying the notice in this
case pends in federal court in Pennsylvania. Subsection (g)(1) thus does not authorize the
cancellation of the notice of lis pendens here.
Second, under subsection (g)(2), a “person with an ownership interest in [the disputed] real
property” may “bring an action in the Superior Court of the District of Columbia to cancel the
notice” when “the action or proceeding underlying the notice is not pending in a court of the
District of Columbia.” Subsection (g)(2) contemplates that the action to cancel the notice of lis
pendens is brought in the Superior Court of the District of Columbia; that subsection says nothing
about bringing the cancellation request in federal court. In theory, then, because the underlying
action in this case pends in federal court in Pennsylvania only the Superior Court of the District of
Columbia has the statutory authority to cancel the notice of lis pendens. That reading, however,
conflicts with a core principle underpinning the federal Constitution and the laws of the United
States.
Article III of the United States Constitution provides that the “judicial Power shall extend
to all Cases . . . between Citizens of different States.” U.S. Const. art. III, § 2. A federal court
sitting in diversity may hear a case between a defendant and a plaintiff from different states
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involving a cause of action emanating solely from state law. See Owensboro Waterworks Co. v.
City of Owensboro, 200 U.S. 38, 46 (1906); 28 U.S.C. § 1332(e) (noting that Congress has
provided that the District of Columbia is a “State” for purposes of diversity jurisdiction). A federal
court’s authority to hear a state cause of action pursuant to diversity jurisdiction is tethered to the
longstanding principle that “[w]henever a general rule as to property or personal rights, or injuries
to either, is established by State legislation, its enforcement by a Federal court in a case between
proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to
State limitation.” Chicago & N.W.R. Co. v. Whitton, 80 U.S. 270, 286 (1871); see also Wright &
Miller, State Attempts to Limit Federal Jurisdiction, 17A Fed. Prac. & Proc. Juris. § 4211 (3d ed.
2021) (“[I]t remains true that a state may not limit the jurisdiction of the federal courts.”). A state
statute, in other words, cannot deprive a federal court of diversity jurisdiction by providing that a
claim actionable under state law may be prosecuted only in a state court. See Tennessee Coal, Iron
& R. Co. v. George, 233 U.S. 354, 360 (1914) (holding that “a State cannot create a transitory
cause of action and at the same time destroy the right to sue on that transitory cause of action in
any court having jurisdiction”).
Against that core principle, the Court interprets D.C. Code § 42-1207(g)(2) to permit a
litigant to file an action in federal court seeking to cancel a notice of lis pendens when the action
underlying the notice of lis pendens is pending outside of the District. A contrary reading would
permit the District to box out federal courts from hearing claims or actions to cancel a notice of lis
pendens that the Superior Court of the District of Columbia would otherwise have the statutory
authority to entertain.
IV. The Court Will Order the Cancellation of the Notice of Lis Pendens
To obtain a judgment ordering the cancellation of a notice of lis pendens under D.C. Code
§ 42-1207(h)(2), a court must find that (A) the “moving party will suffer an irreparable injury if
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the notice is not cancelled;” (B) the “moving party has demonstrated a substantial likelihood of
success on the merits in the underlying action or proceeding;” (C) a “balancing of the potential
harms favors the moving party; and” (D) the “public interest favors cancelling the notice.” The
Court finds that Sutton Investments is entitled to a judgment ordering the cancellation of the notice
of lis pendens against its property recorded on November 15, 2021.
The Complaint along with its exhibits show that the company will suffer irreparable injury
if the notice is not cancelled. Sutton Investments has entered into a sales contract with a third-
party purchaser, which calls for the sale to close on or before December 30, 2021. See Compl. ¶
32 n.2. The company claims, and the Court has no reason to doubt, that the sale will not close as
long as the notice of lis pendens continues to cloud title and that the sale must close before the end
of the year or the contract may fall apart. See Mot. for a PI at 13. The Court finds that the company
will suffer an irreparable injury if the sale does not close on or before December 30, 2021.
Sutton Investments also has demonstrated a substantial likelihood of success on the merits
in the underlying action. Recall that Perlmutter and Bolick filed a lawsuit in the United States
District Court for the Eastern District of Pennsylvania disputing Varone’s entitlement to the
company and the accompanying property. That pending action appears to lack merit for at least
two reasons. First, a federal court in Pennsylvania almost certainly lacks personal jurisdiction over
Sutton Investments to adjudicate a dispute involving real property located in the District. See Mr.
Sandless Franchise, LLC v. Karen Cesaroni LLC, 498 F. Supp. 3d 725, 733 (E.D. Pa. 2020).
Second, a number of courts have issued final judgments on the same claims raised in the latest
action. The principles of res judicata therefore likely render the pending action meritless. See
Ashbourne v. Hansberry, 894 F.3d 298, 302 (D.C. Cir. 2018). The Court finds that the company
has demonstrated a substantial likelihood of success on the merits in the underlying action.
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A balancing of the potential harms also tilts in favor of an order cancelling the notice of lis
pendens. Sutton Investments, together with its manager Varone, have battled Perlmutter and
Bolick in litigation for over a decade. See Trina Varone’s Affidavit, ECF No. 2-2. Both the
company and Varone stand to lose a suitable third-party purchaser because of the notice of lis
pendens, which is based upon allegations and claims that have been resolved against Defendants
time and time again. The Court finds that a balancing of potential harms favors the company.
The public interest also favors ordering the cancellation of the notice of lis pendens. Courts
must protect property rights, Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), because
protecting property rights preserves freedom, Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017).
This duty extends to shielding property owners from vexatious and frivolous litigation, which, as
is the case here, interferes with the property owner’s ability to alienate title to a bona fide third-
party purchaser. See Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1322 (3d Cir. 1982). The
Court finds that it is in the public interest to order the cancellation of the notice of lis pendens.
Even though the District of Columbia Court of Appeals has instructed that the power of a
court to order the cancellation of a notice of lis pendens before the entry of judgment in the
underlying action “must be exercised parsimoniously,” Heck v. Adamson, 941 A.2d 1028, 1030
(D.C. 2008), the Court finds that the circumstances of this case warrant such an order here, see
Jenkins v. Kerry, 928 F. Supp. 2d 122, 138 (D.D.C. 2013) (“Plaintiff’s Notice of Lis Pendens
presents one of those rare cases clearly requiring cancellation by the Court.”).1
1
An order cancelling a notice of lis pendens is immediately appealable under the collateral order doctrine. See
McAteer v. Lauterbach, 908 A.2d 1168, 1169 (D.C. 2006).
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V. The Court Will Issue a Temporary Restraining Order
Federal Rule of Civil Procedure 65 covers a court’s authority to issue a preliminary
injunction and a temporary restraining order. The substantive standards undergirding both forms
of equitable relief mirror one another. See Open Tech. Fund v. Pack, 470 F. Supp. 3d 8, 16 (D.D.C.
2020). To obtain either form of relief, the plaintiff “must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Sutton Investments requests injunctive relief because the history of harassing litigation
shows that Perlmutter and Bolick will “continue to file cases in federal and state jurisdictions of
their choosing based upon the same frivolous claims and record notices of lis pendens in an effort
to preclude” the conveyance of the property. Compl. ¶ 15. In particular, the company requests an
order precluding Perlmutter, Bolick, and their agents from recording, or attempting to record, any
notice of lis pendens against the company’s property without seeking prior leave of the Court. See
Mot. for a PI at 16. The Court finds that Sutton Investments is entitled to a temporary restraining
order precluding Perlmutter, Bolick, and their agents from recording, or attempting to record, any
notice of lis pendens against the company’s property without first seeking leave of the Court.2
2
Though the same substantive standard governs both temporary restraining orders and preliminary injunctions,
important differences between the two caution in favor of issuing the former before issuing the later. See generally
Sterling Com. Credit-Michigan, LLC v. Phoenix Indus. I, LLC, 762 F. Supp. 2d 8, 13 (D.D.C. 2011). Preliminary
injunctions differ from temporary restraining orders in at least two critical respects. First, the adverse party must have
notice before a court may issue a preliminary injunction, whereas a court may issue a temporary restraint order even
if the adverse party lacks notice. Compare Fed. R. Civ. P. 65(b)(1) (“The court may issue a temporary restraining
order without written or oral notice to the adverse party or its attorney.”), with Fed. R. Civ. P. 65(a)(1) (“The court
may issue a preliminary injunction only on notice to the adverse party.”); see also Granny Goose Foods, Inc. v. Bhd.
of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 432 n.7 (1974) (describing the notice required for a
court to issue a preliminary injunction). Second, a preliminary injunction “is of indefinite duration extending during
the litigation,” U.S. Dep’t of Lab. v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006), whereas a temporary
restraining order lasts for no more than 14 days, Fed. R. Civ. P. 65(b)(2); Tooele Cty. v. United States, 820 F.3d 1183,
1186 (10th Cir. 2016) (“After fourteen days, the order either lapses or becomes a preliminary injunction.”).
10
Sutton Investments has demonstrated a substantial likelihood of success on the merits on
potential claims brought in the next 14 days against the company’s property. See Council on Am.-
Islamic Rels. v. Gaubatz, 667 F. Supp. 2d 67, 74 (D.D.C. 2009).3 Perlmutter and Bolick have
shown a propensity to file frivolous and duplicative lawsuits against Sutton Investments and
Varone. In recent months, Perlmutter and Bolick have resorted to state and federal courts in an
effort to prevent the company from consummating the sale of its property to a third-party
purchaser. Court after court has found meritless Perlmutter and Bolick’s claims. Sutton
Investments has and will continue for the immediate future to have a substantial likelihood of
success on the merits of any claims brought by Perlmutter and Bolick against the property.
The company also would suffer irreparable injury if the Court did not preclude Perlmutter,
Bolick, and their agents from filing yet another notice of lis pendens before the sale contract closes
on or before December 30, 2021. See Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011).
Sutton Investments stands to lose a suitable third-party purchaser for the property as long as a
notice of lis pendens remains lodged with the District’s land recordation office. That loss has the
potential to cause both it and Varone irreparable injury.
Granting a temporary restraining order would not substantially injure other interested
parties. See Gomez v. Kelly, 237 F. Supp. 3d 13, 14 (D.D.C. 2017). Perlmutter and Bolick will
not suffer harm because they have had their years in court and have lost at every turn. It did not
take, and should not have taken, multiple judicial opinions to make clear that neither Perlmutter
nor Bolick has an interest in the property.
3
The Court concludes that, considering that Perlmutter and Bolick have filed lawsuit after lawsuit against Sutton
Investments and Varone and multiple notices of lis pendens against the underlying property, the company has standing
to seek equitable relief to prohibit Perlmutter, Bolick, and their agents from filing yet another notice of lis pendens
against the property. See generally City of Los Angeles v. Lyons, 461 U.S. 95 (1983); see also Kareem v. Haspel, 986
F.3d 859, 865 (D.C. Cir. 2021) (quotation omitted) (noting that the plaintiff to seek prospective injunctive relief “must
establish an ongoing or future injury that is certainly impending; he may not rest on past injury”).
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Issuing a temporary restraining order under the facts and circumstances of this case would
also serve the public interest. See Hall v. Johnson, 599 F. Supp. 2d 1, 3 (D.D.C. 2009). The public
has an interest in courts protecting property owners from vexatious and frivolous litigation.
Temporarily prohibiting Perlmutter and Bolick from interfering with Sutton Investments’ right to
convey its title to a bona fide third-party purchaser serves the public interest.
Having considered the facts, history, and circumstances surrounding the request for
injunctive relief, and having balanced the equities, the Court will grant a temporary restraining
order prohibiting Perlmutter, Bolick, and their agents from recording, or attempting to record, any
notice of lis pendens against the company’s property over the next 14 days without first seeking
leave of the Court.4
4
The Court notes that Sutton Investments has included an affidavit from Varone. See Trina Varone’s Affidavit, ECF
No. 2-2. Varone serves as the managing member of the company and has declared under penalty of perjury that the
facts alleged in the affidavit are true. Id. ¶¶ 1, 30. This affidavit brings the request for equitable relief into conformity
with one of the two necessary conditions to obtain a temporary restraining order. See Fed. R. Civ. P. 65(b)(1)(A)
(“The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney
only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in opposition . . .”). The company has
also moved for an order deeming the Defendants to have been served with process by alternative means. See Mot. for
Service, ECF No. 8. The motion explains the company’s effort to serve both Perlmutter and Bolick and to provide
both with adequate notice of the request for injunctive relief. See id. ¶¶ 1, 6. This motion brings the request for
equitable relief into conformity with second of the two necessary conditions to obtain a temporary restraining order.
See Fed. R. Civ. P. 65(b)(1)(B) (“The court may issue a temporary restraining order without written or oral notice to
the adverse party or its attorney only if: (B) the movant’s attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required . . .”).
An additional remark. Rule 65(c) instructs that a “court may issue a preliminary injunction or a temporary restraining
order only if the movant gives security in an amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained.” Courts have fractured over whether
that Rule’s mandatory language requires a movant seeking injunctive relief to post security in all circumstances.
Compare Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013);
Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 458 (7th Cir. 2010); Johnson v. Couturier, 572 F.3d 1067, 1086
(9th Cir. 2009); with Tilden Recreational Vehicles, Inc. v. Belair, 786 F. App’x 335, 343 (3d Cir. 2019);
Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Engineers, 826 F.3d 1030, 1043 (8th Cir. 2016).
Against that backdrop, the Court instructed Sutton Investments to address whether it had to post security as
contemplated by Rule 65(c). See Minute Order, December 21, 2021. In response, the company asserts that the Court
has the discretion under this Circuit’s caselaw to waive the security requirement. See Response to Court Order, ECF
No. 9. The Court agrees. Other Judges in this Circuit have found that Rule 65(c) “vest[s] broad discretion in the
district court to determine the appropriate amount of an injunction bond,” DSE, Inc. v. United States, 169 F.3d 21, 33
(D.C. Cir. 1999), including the discretion to require no bond at all, Council on American–Islamic Rels. v. Gaubatz,
667 F.Supp.2d 67, 80 (D.D.C. 2009); see also Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759
(D.C. Cir. 1980) (“[T]he district court has power not only to set the amount of security but to dispense with any
12
One last note. Sutton Investments requested relief in the form of a permanent injunction,
too. See Compl. ¶¶ 52–57. The Court, having determined that the issuance of a temporary
restraining order allows for the sales contract to close without additional interference from
Perlmutter and Bilock, declines at this juncture to issue either a preliminary or a permanent
injunction. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (“If a less
drastic remedy . . . [is] sufficient to redress [the] injury, no recourse to the additional and
extraordinary relief of an injunction [is] warranted.”); eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006).
VI. Conclusion
Because Sutton Investments has satisfied the conditions under D.C. Code § 42-1207(h)(2),
the Court GRANTS the request for an order cancelling the notice of lis pendens. The Court also
GRANTS in PART Sutton Investments’ Motion for Equitable Relief. An Order will be entered
contemporaneously with this Memorandum Opinion.
DATE: December 22, 2021
CARL J. NICHOLS
United States District Judge
security requirement whatsoever where the restraint will do the defendant no material damage, where there has been
no proof of likelihood of harm, and where the applicant for equitable relief has considerable assets and is . . . able to
respond in damages if defendant does suffer damages by reason of a wrongful injunction.”) (quotation omitted); Nat.
Res. Def. Council, Inc. v. Morton, 337 F. Supp. 167, 168 (D.D.C. 1971) (“It is well settled that Rule 65(c) gives the
Court wide discretion in the matter of requiring security.”). The Court concludes that Sutton Investments need not
post security given the circumstances of this case.
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