United States District Court, D. Arizona
Cherie A. Fishburne, Plaintiff,
CitiMortgage Incorporated, et al., Defendants.
Honorable John J. Tuchi United States District Judge
issue is pro se Plaintiff Cherie A. Fishburne's
Emergency Motion for Preliminary Injunction (Doc. 28, Mot.),
which asks the Court to enjoin Defendant CitiMortgage
Inc.'s (“CMI”) non-judicial foreclosure sale
of the property on which Plaintiff resides, scheduled for
March 11, 2019. Because all Defendants had already filed
Motions to Dismiss in this action before Plaintiff filed her
Emergency Motion, and Plaintiff filed the Emergency Motion
just five business days before the scheduled sale, the Court
excused Defendants from filing responses to Plaintiff's
Emergency Motion. At the Court's prompting, Plaintiff
filed a Response (Doc. 31) to CMI's Motion to Dismiss
(Doc. 19) as it pertains to Plaintiff's Emergency Motion,
and specifically her likelihood of success on the merits.
obtain preliminary injunctive relief, Plaintiff must show
that “(1) she is likely to succeed on the merits, (2)
she is likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in her
favor, and (4) an injunction is in the public
interest.” Garcia v. Google, Inc., 786 F.3d
733, 740 (9th Cir. 2015) (citing Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth Circuit
Court of Appeals, employing a sliding scale analysis, has
also stated that a “likelihood of success per se is not
an absolute requirement, ” and “‘serious
questions going to the merits' and a hardship balance
that tips sharply toward the plaintiff can support issuance
of an injunction, assuming the other two elements of the
Winter test are also met.” Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1085 (9th Cir.
2013) cert. denied, 134 S.Ct. 2877 (2014) (quoting
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1132 (9th Cir. 2011)).
Emergency Motion for Preliminary Injunction, Plaintiff does
not proffer any new evidence to show a likelihood of success
on the merits, but rather points to her allegations in the
Complaint. (Mot at 3-4 (“The Complaint states
Defendants' violations that render the Judgment void and
the subject Deed of Trust unenforceable.”).) CMI
challenges the merits of Plaintiff's claims in this
action by way of its Motion to Dismiss (Doc. 19).
Specifically, CMI argues that Plaintiff is estopped from
bringing her challenge to the validity of the Deed of Trust
on the property because she already made that challenge in a
state court action brought by CMI, and the state court ruled
on the merits, and on reconsideration, that the Deed of Trust
is a valid encumbrance on the property.
judicially created doctrine of claim preclusion, or res
judicata, “bars all grounds for recovery which
could have been asserted, whether they were or not, in a
prior suit between the same parties on the same cause of
action.” Costantini v. Trans World Airlines,
681 F.2d 1199, 1201 (9th Cir. 1982) (internal quotations and
citations omitted). Federal courts must look to state law to
determine the preclusive effect of a state court judgment.
See Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499
F.3d 1048, 1052 (9th Cir. 2007). Under Arizona law, there
must be (1) a final judgment on the merits, (2) common
identity of the parties and the capacity in which they
appeared, (3) common identity of the subject matter, and (4)
common identity of the cause of action. Beseder, Inc. v.
Osten Art, Inc., No. CV 05-00031-PHX, 2006 WL 2730769,
at *5 (D. Ariz. Sep. 25, 2006) (citing Hall v.
Lalli, 952 P.2d 748, 750 (Ariz.Ct.App. 1999)). Arizona
follows the “same evidence test” in which
“the plaintiff is precluded from subsequently
maintaining a second action based upon the same transaction,
if the evidence needed to sustain the second action would
have sustained the first action.” Pettit v.
Pettit, 189 P.3d 1102, 1105 (Ariz.Ct.App. 2008)
(internal citation omitted).
the Arizona Superior Court's judgment was a final
judgment on the merits. (See Doc. 19-3 Ex.
Moreover, the same parties were involved in a dispute over
ownership of the same property; Plaintiff has claimed that
CMI's Deed of Trust on the property is unenforceable in
both actions. Finally, the evidence Plaintiff now alludes to
in support of her request for a Preliminary Injunction is the
same evidence that would have sustained the state court
action and any counterclaims therein. To the extent that
Plaintiff now argues that she has uncovered new evidence that
CMI recorded an allegedly “false Notice of Substitution
of Trustee and Notice of Trustee's Sale with the Maricopa
County Recorder in 2008, ” Plaintiff concedes that she
“did attempt to seek relief from the lower Court and
filed a Motion for Reconsideration based on the new
evidence[, ] which the Court denied.” (Doc. 31 at 3.)
By “lower Court, ” this Court presumes Plaintiff
is referring to the state court, which is not a “lower
Court” to this Court. Even if the state court did not
have the newly uncovered evidence before it, Plaintiff does
not begin to show that she could not have uncovered the new
evidence with reasonable diligence in the state court action.
As a result, the doctrine of res judicata applies to
bar Plaintiff's present claims underlying her request for
a Preliminary Injunction.
Court also notes that, to the extent Plaintiff's request
for a Preliminary Injunction is based on her contention that
the state court erred in reaching its judgment (e.g.
Mot. at 3), the Rooker-Feldman doctrine also bars
Plaintiff's request. The Rooker-Feldman doctrine
derives from two Supreme Court decisions, Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and D.C.
Court of Appeals v. Feldman, 460 U.S. 462 (1983). First
in Rooker and later in Feldman, the Supreme
Court held that federal district courts cannot review state
court decisions in an appellate capacity. The Ninth Circuit
Court of Appeals has held that Rooker-Feldman
“prevents federal courts from second-guessing state
court decisions by barring the lower federal courts from
hearing de facto appeals from state-court
judgments.” Bianchi v. Rylaarsdam, 334 F.3d
895, 898 (9th Cir. 2003). “It is a forbidden de
facto appeal under Rooker-Feldman when the
plaintiff in federal district court complains of a legal
wrong allegedly committed by the state court and seeks relief
from the judgment of that court.” Noel v.
Hall, 341 F.3d 1148, 1163 (9th Cir. 2004).
Plaintiff s claims in the Complaint fall squarely within the
ambit of Rooker-Feldman by attempting to challenge
the state court judgment that CMI's Deed of Trust on the
property is valid and enforceable. Those claims are thus also
barred under Rooker-Feldman.
Emergency Motion for Preliminary Injunction, Plaintiff has
failed to show any possibility of success on the merits of
her claim that CMI's Deed of Trust on the property is
unenforceable, which forms the premise of her request for the
Court to enjoin the Trustee's Sale scheduled for March
11, 2019. Accordingly, the Court must deny the Emergency
THEREFORE ORDERED denying Plaintiffs Emergency Motion for
Preliminary Injunction (Doc. 28).
 The Court takes judicial notice of the
state court records in the prior proceeding (Docs. ...