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New River Shopping Center, LLC v. Villenurve

United States District Court, M.D. Louisiana

May 5, 2017

NEW RIVER SHOPPING CENTER, LLC.
v.
VIVIAN G. VILLENURVE AND MARGARET C. KERNAN

          RULING

          JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on the Motion for Temporary Restraining Order and Preliminary Injunction[1]filed by Plaintiff, New River Shopping Center, LLC ("New River"), against Defendants, Vivian G. Villenurve and Margaret C. Kernan ("Defendants"). For the following reasons, the Motion for Temporary Restraining Order will be DENIED.

         I. FACTUAL BACKGROUND[2]

         Defendants' and New River's prior case before the Court resulted in the Court dismissing Defendants' case pursuant to Federal Rule of Procedure 12(b)(6).[3] New River asserts that, on March 10, 2017, Defendants sent New River a letter requesting one check for the rent due through January 2014[4] New River argues that "this shortage of rental income is not due to New River's failure to timely pay, " it is due to the Defendants who "voluntarily chose not to negotiate these checks, even after this Court dismissed their claims by ruling dated March 16, 2016."[5] According to New River, Defendants were "re- issued one check in the amount of $27, 212.50 despite no contractual obligation for New River to do so, and not withstanding Defendants' failure to honor their agreement to deliver the past tendered checks and a signed indemnity agreement."[6] Due to the fact that the re-issued check arrived on April 27, 2017, "one day after the arbitrary deadline imposed by Defendants - April 26, 2017- Defendants' representatives returned the check to New River the next day."[7]

         New River submitted a letter from Defendants dated April 27, 2017, titled "RE: Termination of Ground Lease and Notice to Vacate - New River Shopping Center, Tract C - 625 West Airline Highway, Gonzales, LA 70737."[8] In the letter, Defendants state:

This letter is to serve as notice that your lease of the premises at 625 W. Airline Hwy., Gonzales, Louisiana is now terminated by your failure to pay your monthly rentals as required by the lease between you and the Lester Gonzales Family Trust. Therefore, in accordance with Louisiana's Code of Civil Procedure, this letter will serve as your notice to vacate those premises within five (5) days from your receipt of this letter.[9]

         New River seeks the following relief from the Court:

Enjoin [Defendants], and any person acting on their behalf, from taking steps to raise the rents owed under New River's ground lease with Defendants, terminating the lease, ejecting New River from the premises although New River has not breached any obligations in the ground lease with New River's contractual relations with its sublessees of the New River Shopping Center in Gonzales, Louisiana.[10]

         II. LAW AND ANALYSIS - Legal Standard for Temporary Restraining Orders

         The Fifth Circuit Court of Appeal in Janvey v. Aiguire held that a plaintiff seeking a temporary restraining order ("TRO") must establish the following four criteria;

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction' is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.[11]

         The Court must examine and insure that New River has established each of the above requirements in analyzing whether the granting of a TRO is appropriate.[12]

         To prove likelihood of success on the merits, New River is "not required to prove [its] entitlement to summary judgment."[13] Nor is New River required to assure the Court that it will be successful in its suit; "All courts agree that plaintiff must present a prima facie case but need not show that he is certain to win."[14] In determining whether New River has presented theirpnma facie case the Court must "look to the standards provided by the substantive law."[15]

         At its core, this case turns on whether Defendants may properly evict New River pursuant to Louisiana landlord tenant law. New River asks the Court to "enjoin [Defendants], and any person acting on their behalf, from taking steps to raise the rents owed under New River's ground lease with Defendants, terminating the lease, [and] ejecting New River from the premises...".[16] The action threatened by Defendants is eviction for alleged late payment of rent. Whether eviction, under the fact presented, is legally available is a question of state law. This Court declines to prophytactically preclude a state court from determining the legal viability of an action for eviction under the facts presented.

         As a preliminary matter there is a question as to the exact nature of the dispute before the Court; Are Defendants seeking eviction based upon failure to pay rent under the 1976 lease agreement, or are Defendants seeking eviction based upon an extra-contractual agreement to provide Defendants with one rent check by the April 26, 2017 deadline? Given the factually intensive inquiry ...


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