IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION
BRANDON CALLIER, ANA CALLIER, CRAIG CUNNINGHAM, Plaintiffs, v. BILLIE BAUER aka CREDITWRENCH,
Defendant. § § § § § § § § § § § EP-07-CV-0226-KC ORDER
On this day, the Court sua sponte considered Plaintiffs' Complaint and Motion for a
Temporary Restraining Order. On July 25, 2007, the Court ordered Plaintiffs to clarify their
claims and to provide evidence in support of their Motion for a Temporary Restraining Order.
The Court gave Plaintiffs until August 10, 2007 to comply with the above Order. Two weeks
have passed since that date and Plaintiffs have failed to respond.
Plaintiffs must meet four requirements in order to obtain a preliminary injunction. A party
seeking an injunction must demonstrate: (1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction is not granted, (3) the threatened injury to
movant outweighs the threatened harm the injunction may do to nonmovant, and (4) the
injunction will not undermine the public interest. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003) (citing Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)).
In the Fifth Circuit, "[t]he decision to grant a preliminary injunction is to be treated as the
exception rather than the rule." Id. at 363-64 (citing Miss. Power & Light Co. v. United Gas Pipe
Case 3:07-cv-00226-KC Document 14 Filed 08/28/2007 Page 1 of 3 Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). "[A] preliminary injunction is `an extraordinary
remedy' which should only be granted if the party seeking the injunction has `clearly carried the
burden of persuasion' on all four requirements." Id. In the instant case, Plaintiffs have provided
only bare allegations and conclusory statements in support of their Motion for a Temporary
Restraining Order. They have failed to provide any evidence that Defendant's actions threaten to
cause irreparable harm to their business, nor have they demonstrated a likelihood of success on
the merits. They have therefore failed to demonstrate that the exceptional measure of a temporary
injunction is appropriate. Accordingly, Plaintiffs' Motion for a Temporary Restraining Order is DENIED.
In the July 25 Order, the Court also ordered Plaintiffs to demonstrate the existence of
federal subject matter jurisdiction. Plaintiffs have failed to respond. Federal courts have an
obligation to thoroughly examine their own jurisdiction. United States v. Hays, 515 U.S. 737, 742
(1995). A federal court has the affirmative duty to inquire into jurisdiction whenever the
possibility of a lack of jurisdiction arises. Villareal v. Smith, 201 Fed. App'x 192, 194 (5th Cir.
2006) (citing Marshall v. Gibson's Prods., Inc., 584 F.2d 668, 672 (5th Cir. 1978)). Rule
12(h)(3) of the Federal Rules of Civil Procedure provides that whenever it appears that the court
lacks subject matter jurisdiction, the court must dismiss the action. F
ED
.R.C
IV
.P. 12(h)(3).
For a plaintiff to invoke the diversity jurisdiction of the federal court, the plaintiff must
allege facts that indicate the amount in controversy exceeds $75,000, excluding interests and
costs. 28 U.S.C. § 1332(a). The rule governing dismissal for want of diversity jurisdiction as to
amount in controversy is that "[u]nless the law gives a different rule, the sum claimed by the
plaintiff controls if the claim is apparently made in good faith." De Aguilar v. Boeing Co., 47
F.3d 1404, 1408 (5
th
Cir. 1995) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
Case 3:07-cv-00226-KC Document 14 Filed 08/28/2007 Page 2 of 3 283, 288 (1938)).
In this case, Plaintiffs allege that they have suffered $840,000 in damages due to
statements posted by Defendant on the Internet; however, Plaintiffs have provided no facts or
evidence to support this amount in controversy. Moreover, Plaintiffs have failed to respond to the
Court's July 25, 2007 Order requiring Plaintiffs to provide facts and evidence as to the Court's
subject matter jurisdiction. The Court therefore has concerns whether Plaintiffs have made their
claims in good faith as to amount in controversy. Accordingly,Plaintiffs are HEREBY ORDEREDTO SHOW CAUSE no later than September 21, 2007 why this Court should not
dismiss this action for lack of subject matter jurisdiction. SO ORDERED. SIGNED on this 28
th
day of August 2007.
______________________________________
KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE
Case 3:07-cv-00226-KC Document 14 Filed 08/28/2007
