IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BERNICE MUHAMMAD, )

Plaintiff, )

 )

v. ) CIVIL ACTION NO. 09-00053-KD-N

 )

HSBC BANK USA, N.A., as Trustee for )

Merrill Lynch Mortgage Investors, Inc., )

Mortgage Loan Asset-Backed Certificates, )

Series 2002-HEI, )

Defendant. )

ORDER

This matter is before the Court on Plaintiff’s pro se “First Amended Complaint in said

Lawsuit by Pro Se Plaintiff Bernice Muhammad, Brings this Diversity Actions against all Named

Defendants in said Lawsuit Motion for Temporary Restraining Order and Preliminary InjunctionFraud upon the Court and Conspiracy in Violation of 42 U.S.C. § 1985(3) and Motion for Sanction,

in which Leave to Refile has been Granted by the District Court.” (Doc. 56). While not a model

of clarity, a review of Plaintiff’s 40-page filing indicates that she seeks to file a First Amended

Complaint as well as obtain a temporary restraining order and preliminary injunction, barring

Defendant from foreclosing as scheduled on February 4, 2010. 

I. Factual Background

See Report and Recommendation. (Doc. 42).

II. Procedural Background

Plaintiff initiated this litigation on January 29, 2009, by filing a motion for temporary

restraining order against Defendant, HSBC Bank USA, N.A., to halt the foreclosure of her home

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which was at that time scheduled for February 5, 2009. (Doc. 2). In its response, the defendant

stated that it had notified Plaintiff by letter dated February 2, 2009 “that the foreclosure sale

previously scheduled for February 5, 2009, has been temporarily cancelled.” (Doc. 5 at 3). This

Court found that in light of the temporary cancellation of the foreclosure sale, plaintiff did “not state

a prima facie case for preliminary injunctive relief. Specifically, plaintiff [was] unable to adequately

show the presence of immediate, irreparable harm to warrant the court’s issuance of a Temporary

Restraining Order.” (Doc. 7). This Court denied Plaintiff’s motion for a temporary restraining order

“at this time,” noting that she “is granted leave to refile her motion as the circumstances may

warrant.” (Doc. 7 at n.1). The case continued and Plaintiff filed various motions, including a

motion for default judgment (Doc. 41), motion for summary judgment (Doc. 23), a motion

concerning defendants failure to respond to her restructuring proposal (Doc. 30), a motion

concerning defendants’ corporate disclosure (Doc. 33) – all of which were addressed in the

Magistrate Judge’s September 1, 2009 Report and Recommendation (Doc. 42).

On September 16, 2009, after receiving Plaintiff’s Objection to the Report and

Recommendation (Doc. 42), this Court issued an Order and final Judgment in this case. (Docs. 44,

45). In so doing, the Court adopted the Magistrate Judge’s Report and Recommendation (Doc. 42)

and granted Defendant’s motion to dismiss Plaintiff’s complaint. (Id.) On September 21, 2009,

Plaintiff moved to amend or vacate the prior orders (Doc. 46), relief which this Court denied on

September 24, 2009, because she had not set forth any grounds which provide the basis for the relief

she requested. (Doc. 47). On September 30, 2009, Plaintiff filed a Motion to Vacate (Doc. 48)

which sought to vacate the Court’s prior rulings (Docs. 44, 45, 47). On October 14, 2009, finding

no basis for the relief requested (“Plaintiff’s motion provides no legal basis to award the relief

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1 See In re Walker, 515 F.3d 1204, 1211 (11th Cir. 2008) (stating that “[t]he filing of a proper

notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the appellate court and

divests the trial court of its control over those aspects of the case involved in the appeal. Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 58 . . . (1982)[]”). See also Munoz v. U.S., Slip Copy, 2009

WL 1651427 (S.D. Fla. Jun.10, 2009) (finding that “[s]ince the Eleventh Circuit has acknowledged

receipt of Petitioner's appeal, is proceeding with the appeal, and . . . has not remanded the case, I do not

have jurisdiction to consider the instant Motion[]”); In re Roberts, 291 Fed. Appx. 296 (11th Cir. 2008)

(providing that “the filing of a notice of appeal generally 'confers jurisdiction on the court of appeals and

divests the district court of its control over those aspects of the case involved in the appeal.’” In re

Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007)”). 

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requested. Plaintiff has not set forth any viable ground(s) for vacating the Court’s prior Orders[]”),

the Court denied Plaintiff’s motion. (Doc. 49). On October 20, 2009 (docketed October 21, 2009),

Plaintiff filed a Notice of Appeal in the Eleventh Circuit, “to Appeal the Orders, and Actions by

District Judge Kristi K. DuBose, and U.S. Magistrate Judge Katherine P. Nelson . . . . ” (Doc. 50).

At present, Plaintiff’s appeal remains pending in the Eleventh Circuit.

III. Discussion

A review of Plaintiff pro se “First Amended Complaint ...Motion for Temporary Restraining

Order and Preliminary Injunction...in which Leave to Refile has been Granted by the District Court”

(Doc. 56) indicates that she seeks to file a First Amended Complaint as well as obtain injunctive

relief to stop the February 4, 2010 foreclosure on her home. 

First, to the extent Plaintiff seeks to file a First Amended Complaint, her motion is DENIED.

The final Order and Judgment was issued by this Court on September 16, 2009 and Plaintiff filed

her Notice of Appeal on October 20, 2009. (Docs. 44, 45). Accordingly, this Court lacks

jurisdiction to grant the relief Plaintiff seeks. Put simply, Plaintiff cannot amend her complaint

when her case is already on appeal to the Eleventh Circuit.1

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Federal Rule of Civil Procedure Rule 62(c) and Federal Rule of Appellate Procedure Rule 8

address injunctions pending appeal, such that even after notice of an appeal has been filed, the trial court

still has jurisdiction to make an order under Rule 62(c). Specifically, Rule 62 provides that when an

appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the

court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the

appeal. Under Rule 8, application for an order suspending, modifying, restoring or granting an injunction

during the pendency of an appeal must be made first in the district court.

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 For Rule 62 motions, courts examine a plaintiff's substantial likelihood of success on the merits,

irreparable injury to plaintiff unless the injunction issues, whether the threatened injury to the movant

outweighs whatever damage the proposed injunction may cause the opposing party, and if issued, whether

the injunction would not be adverse to the public interest. See, e.g., In re Lickman, 286 B.R. 821, 827

(Bkrtcy. M.D. Fla. 2002); In re Gulf States Steel, Inc. of Alabama, 285 B.R. 739, 741 (Bkrtcy. N.D. Ala.

2002).

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Second, in light of the foregoing, Plaintiff’s requested injunctive relief – which is construed

as a Rule 62 injunction pending appeal2

 – and any relief granted by this Court for same must be

based on the allegations contained in her prior complaint in this case. This Court previously

dismissed Plaintiff’s complaint (which sought injunctive relief as to a February 5, 2009 foreclosure

date) for failure to state a claim. The Court adopts the reasoning in the previous dismissal and finds

that Plaintiff cannot possibly show a likelihood of success on the merits of her claim for injunctive

relief on a foreclosure date (Feb. 5, 2009) that was cancelled and that has passed.3

 (Docs. 42, 44,

45).

Additionally, while the Court previously denied Plaintiff’s motion for a temporary

restraining order “at this time,” noting that she “is granted leave to refile her motion as the

circumstances may warrant” (Doc. 7 at n.1), that leave to file was specifically tied to the February

5, 2009 foreclosure date and injunctive relief for same. This was based on the fact that the defendant

only temporarily cancelled going forward with the February 5, 2009 foreclosure. Had the defendant

reinstated the February 5, 2009 foreclosure, Plaintiff could have again requested injunctive relief.

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In sum, the current motion for injunctive relief presents new facts tied to a new foreclosure

date of February 4, 2010. The new claims and new foreclosure date are not a part of the case

pending before the Eleventh Circuit. Thus injunctive relief in this case is not appropriate.

Accordingly, Plaintiff’s motion seeking entry of a temporary restraining order and/or injunction is

DENIED. 

DONE and ORDERED this the 25th day of January 2010.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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