Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-21-2008
Smith v. Meyers
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3999
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"Smith v. Meyers" (2008). 2008 Decisions. Paper 821.
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***AMENDED NOT PRECEDENTIAL
BLD-112
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3999
___________
DENNIS LEE SMITH,
Appellant
v.
PATRICIA A. MEYERS; MACK L. DAVIS, JR.;
STEVEN S. KREBS; BARBARA KREBS
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00525)
District Judge: Honorable Joseph J. Farnan, Jr.
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect or Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 25, 2008
Before: MCKEE, RENDELL and SMITH, Circuit Judges
(Opinion filed: July 21, 2008)
_________
OPINION
_________
PER CURIAM
Dennis Lee Smith appeals pro se from the memorandum order of the United States
District Court for the District of Delaware denying his motion for a temporary restraining
order. Treating this as an appeal from the denial of a preliminary injunction, we will
summarily affirm. See LAR 27.4; I.O.P. 10.6.
I.
Smith filed with the District Court a document partially entitled “Notice of Motion
Ex Parte EMERGENCY Temporary Restraining ‘Order,’” which he allegedly served on
the other parties. The motion apparently arose out of disputes regarding the alleged sale
and leasing of real estate owned by Defendant Patricia A. Meyers and the attempted
revocation of a power of attorney allegedly given by Meyers to Smith. Smith alleged that
related litigation has occurred in such forums as the Delaware Court of Chancery, the
District of Delaware, and this Court. In particular, he apparently attempted, without
success, to represent Meyers based on the alleged power of attorney, even though he is
not a licensed lawyer. In his motion, Smith claimed violations of the Due Process and
Equal Protection Clauses, 42 U.S.C. § 1981, and 42 U.S.C. § 1985 because he is a “black
male who stood up against racism while helping a white female to win a court case
against white males [sic] evildoers.” (Mot. Statement of Facts at 8 (emphasis omitted).)
He also alleged, among other things, slander, false arrest, and a conspiracy to cover-up
any misconduct.
With respect to the relief sought, the District Court observed that Smith wished “to
prevent further ‘irreparable hedonic damage(s)’ and to prevent ‘further irreparable
misleading/false outburst of pernicious - false statement(s) of the very unrealistic viability
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of very ignorant person(s) who know who they are.’” (9/12/07 Mem. Order at 1 (quoting
Mot. at 2.).) He further “seeks to preclude a number of actions including, but not limited
to, the issuance of outrageous and absurd documents, the sale or lease of certain real
property, an individual from speaking to him, hateful acts, conspiracy and/or frame-up by
certain Defendants.” (Id.)
Applying the preliminary injunction standard, the District Court denied Smith’s
motion. Smith timely appealed and subsequently filed a motion to disqualify the District
Judge as well as a motion to stay the current appeal pending a criminal investigation.
II.
While an appeal may not be taken from a decision denying a temporary restraining
order, see, e.g., In re Arthur Treacher’s Franchise Litig., 689 F.2d 1150, 1153 (3d Cir.
1982), we do have appellate jurisdiction over orders “granting, continuing, modifying,
refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1). Although Smith’s motion
was entitled a motion for a temporary restraining order and was apparently denied as such
by the District Court, the designation of an order is not controlling. See, e.g., Cohen v.
Bd. of Tr. of the Univ. of Med. & Dentistry of N.J., 867 F.2d 1455, 1466 (3d Cir. 1989)
(en banc). Instead, considering the purpose and effect of the memorandum order itself,
see, e.g., Arthur Treacher’s, 689 F.2d at 1155 n.7, we conclude that it should be treated as
a preliminary injunction ruling. In particular, the District Court expressly applied the
preliminary injunction standard, Smith apparently sought relief pending the resolution of
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his litigation, and he allegedly provided notice of his motion to the opposing parties. See,
e.g., Fed. R. Civ. P. 65(a)(1); Cohen, 867 F.2d at 1465 n.9.
In order to obtain the “extraordinary remedy” of a preliminary injunction, Frank’s
GMC Truck Center, Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (citation
omitted), the moving party must demonstrate: “(1) a likelihood of success on the merits;
(2) that [he] will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4) that
the public interest favors such relief.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700,
708 (3d Cir. 2004) (citation omitted). Smith appears to challenge the District Court’s
finding that he failed to establish a likelihood of success with respect to his federal racial
discrimination claims, claiming that his motion and the attached documents “spoke for
themselves” (11/2/07 Letter Resp. at 3.) Nevertheless, the District Court properly
determined that there was no real evidence indicating “an intent to discriminate against
Plaintiff on the basis of his race.” (9/12/07 Mem. Order at 6.) At best, he merely
presented his own confusing and conclusory claims of racism as well as various
contractual and similar documents, which were silent on their face as to the matter of
race. Likewise, we reject Smith’s bald assertions of racism, despotism, and similar kinds
of misconduct against the District Judge and other judicial personnel as unfounded and
devoid of any real factual support.1
1
We further lack the power to order a criminal investigation.
4
In addition, the District Court properly denied Smith’s motion because of his
failure to establish irreparable harm. As the District Court noted, many of his allegations
appeared to implicate rather ordinary state-law issues, including slander and breach of
contract. It would further appear that any harm he allegedly would suffer could be
remedied by an award of monetary damages. See, e.g., Frank’s, 847 F.2d at 102 (“[A]
purely economic injury, compensable in money, cannot satisfy the irreparable injury
requirement. . . .”) We therefore cannot say that the District Court’s finding as to
irreparable harm was erroneous.
III.
For the foregoing reasons, Smith’s appeal fails to present a substantial question on
appeal, and we accordingly will summarily affirm the District Court’s memorandum
order. See LAR 27.4; I.O.P. 10.6. His disqualification motion and motion to stay the
appeal are DENIED.
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