United States District Court, S.D. Illinois
KEMO D. WHIRL, Plaintiff,
TRANS UNION, LLC, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on plaintiff Kemo D.
Whirl's motion for a temporary restraining order. (Doc.
17.) For the following reasons, the Court
DENIES Whirl's motion.
Whirl is a prisoner at Centralia Correctional Center. Trans
Union, LLC (“TransUnion”) is a consumer reporting
agency. Whirl brought this action against TransUnion alleging
that the agency violated the Fair Credit Reporting Act by
failing to provide Whirl with a free copy of his annual
credit report. See 15 U.S.C § 1681g(a)(1).
the Court is faced with a different issue. Whirl has moved
for a temporary restraining order to stop TransUnion from
“threatening and committing libel and slander against
[him].” (Doc. 17.) Whirl has attached an affidavit in
support of his motion that explains that he received a letter
from TransUnion's attorney that contains “numerous
not-so-veiled threats to dismiss his legal action”.
(Doc. 17-1, ¶ 4.) Whirl believes that he “should
not have to bear the annoyance, oppression and burden of the
Defendant's threats”, and that he is “afraid
as to whether he should continue on with his litigation or
not.” (Id. at ¶¶ 7, 8.) Whirl
believes that TransUnion is taking advantage of him because
he is proceeding pro se. (Id. at ¶ 6.)
He has attached a copy of TransUnion's
“threatening” letter to his affidavit, and a
further look at this letter reveals that TransUnion has
instructed Whirl that they will move for Federal Rule of
Civil Procedure 11 sanctions against Whirl if he does not
withdraw his complaint. (Doc. 17-1.) Specifically, TransUnion
asserts that Whirl has fraudulently altered and/or
manufactured documents which he attached to his complaint in
this case. The letter also explains why TransUnion believes
that Whirl's case will fail on the merits.
of the Federal Rules of Civil Procedure governs when a court
may issue a temporary restraining order. The Rule specifies
that such an order may only issue if:
(a) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and
(b) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
Fed. R. Civ. P. 65(b)(2).
deciding whether to issue a temporary restraining order, the
Court applies the same standard as it does to a motion for a
preliminary injunction. Crue v. Aiken, 137 F.Supp.2d
1076, 1083 (C.D.Ill. 2001). Preliminary injunctive relief is
designed “to minimize the hardship to the parties
pending the ultimate resolution of the lawsuit.”
Platinum Home Mortgage Corp. v. Platinum Fin. Group
Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking
a preliminary injunction must make a threshold showing that
(1) it has some likelihood of success on the merits; (2) no
adequate remedy at law exists; and (3) it will likely suffer
irreparable harm if the injunction is not granted.
Ferrell v. United States Dep't of Housing and Urban
Dev., 186 F.3d 805, 811 (7th Cir. 1999). If the moving
party is able to establish these three factors, the Court
must then balance the harms to both parties using a
“sliding scale” analysis, also taking into
consideration the effect that granting or denying the
injunction will have on the public. “[T]he greater the
moving party's likelihood of prevailing on the merits,
the less strongly it must show that the balance of harms
weighs in its favor.” Ferrell, 186 F.3d at
811. “A preliminary injunction is an extraordinary
remedy that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.”
Chicago Dist. Council of Carpenters Pension Fund v. K
& I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir.
2001) (citing Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (per curiam)); accord Winter v. Natural Res.
Def. Council, Inc., 129 S.Ct. 365, 376 (2008).
accordance with Rule 65(a), the Court finds that the
plaintiff has presented specific facts in support of his
motion to the Court in an affidavit. In accordance with Rule
65(b), the Court finds that, by virtue of the CM/ECF system,
Defendants have been served notice of the Motion. The Court
cannot grant Whirl's request for a temporary restraining
order, however, because he has not demonstrated that he will
likely suffer irreparable harm if the Court does not grant
his request. Although Whirl believes that TransUnion is
engaging in “libel and slander” against him,
there is no evidence in favor of that argument. “Libel
and slander” claims are considered under Illinois
defamation law. To state a claim for defamation under
Illinois law, the plaintiff must show that “the
defendant made a false statement about the plaintiff, the
defendant made an unprivileged publication of that statement
to a third party, and that this publication caused
damages.” Solaia Tech., LLC v. Specialty Publ'g
Co., 852 N.E.2d 825, 839 (2006) (internal citations
is not engaging in defamation against Whirl because
TransUnion did not publish any statements to a third party.
Rather, TransUnion sent a private letter to Whirl in the
course of this litigation discussing the case and offering
what TransUnion believes to be a compromise. While the Court
sympathizes with Whirl's lack of training in law and his
uncertainty as to whether he should proceed with his case,
that is one of the dangers of proceeding as a pro se
litigant. The ...