42 F.2d at 832-33. See also Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13 (1945) (courts may not grant an injunction "so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law"); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180 (1973); Hitchman Coal Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Kean v. Hurley, 179 F.2d 888, 890-92 (8th Cir. 1950). See generally Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 108-12 (1969) ("one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process").

Accordingly, a nonparty may be enjoined under Rule 65(d) only when its interests closely "identify with" those of the defendant, when the nonparty and defendant stand in "privity," or when the defendant "represents" or "controls" the nonparty. See Chase National Bank v. City of Norwalk, 291 U.S. 431, 436-37, 54 S.Ct. 475, 477-478, 78 L.Ed. 894 (1934); Kean v. Hurley, 179 F.2d 888, 890 (8th Cir. 1950). Whether a defendant may evade an injunctive order through the actions of a nonparty "ordinarily presents a question of fact requiring examination of the circumstances of each case as it arises."

The members of the City Council must exercise their individual judgment and discretion when they act, decide, and vote as members. Action as an alter ego, or in collusion, is required to find concert or participation under rule 65(d). United Pharmacal Corp. v. United States, 306 F.2d 515 (1 Cir. 1962); Swetland v. Curry, 188 F.2d 841 (6 Cir. 1951); Kean v. Hurley, 179 F.2d 888 (8 Cir. 1950); Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2 Cir. 1930), opinion by L. Hand. 4) Plaintiff further asserts that the representative position of the Mayor is such that the City and the City Council would be bound by a decision in the action, and that, therefore, a decree should have been issued. This issue involves the possibility of binding public bodies rather than the public officials as individuals.

v. NLRB, 324 U.S. 9, 13 (1945) (courts may not grant an injunction “so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law”); Chase National Bank v. City of Norwalk, 291 U.S. 431, 436, 479 (1934) (finding “clearly erroneous” an injunction that was directed at “all persons to whom notice of the order of injunction should come” and explaining that “[u]nless duly summoned to appear in a legal proceeding,” “a person not a privy [of a party] may rest assured that a judgment recovered therein will not affect his legal rights”); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930) (holding that district court lacked authority to issue an injunction against a non-party); see also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180 (1973); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1917); Kean v. Hurley, 179 F.2d 888, 890-92 (8th Cir. 1950); see generally Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“[O]ne is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.”)

v. NLRB, 324 U.S. 9, 13 (1945) (courts may not grant an injunction “so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law”); Chase National Bank v. City of Norwalk, 291 U.S. 431, 436, 479 (1934) (finding “clearly erroneous” an injunction that was directed at “all persons to whom notice of the order of injunction should come” and explaining that “[u]nless duly summoned to appear in a legal proceeding,” “a person not a privy [of a party] may rest assured that a judgment recovered therein will not affect his legal rights”); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930) (holding that district court lacked authority to issue an injunction against a non-party); see also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180 (1973); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1917); Kean v. Hurley, 179 F.2d 888, 890-92 (8th Cir. 1950); see generally Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“[O]ne is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.”)

Therefore, Plaintiffs' proposed remedy may extend beyond the Court's power to issue injunctive relief. See Fed. R. Civ. P. 65(d)(2); see also Kean v. Hurley, 179 F.2d 888, 890-91 (8th Cir. 1950). Finally, contract reformation would amount to the Court solving the agency's error, but courts only rarely do so by directing specific courses of agency action.

A nonparty may be enjoined under Rule 65(d) only when its interests closely "identify with" those of the defendant, when the nonparty and defendant stand in "privity," or when the defendant "represents" or "controls" the nonparty. See Chase National Bank v. City of Norwalk, 291 U.S. 431, 436-37 (1934); Kean v. Hurley, 179 F.2d 888, 890 (8th Cir. 1950). Here, there is no allegation the ADC is "closely identified with", or is "in privity" with the named Defendants. Nor is there any allegation the named Defendants "represent" or "control" the ADC. For this reason alone, the request for preliminary injunction should be denied.

As to parties and privies the final decision in Brown or in any court of final jurisdiction is res judicata, that is to say it is a conclusive adjudication as to all questions determined by the Court, whether of law or of fact. Kessler v. Eldred, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065; Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148; Hale v. Finch, 104 U.S. 261, 26 L.Ed. 732; Hansberry et al. v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; Kean v. Hurley, 8 Cir., 179 F.2d 888; 28 U.S.C.A. Rule 65(d). The general principles are set forth by Mr. Justice Stone in Hansberry v. Lee:

Any terms included in an injunction which go beyond the language of Rule 65(d) cannot enlarge the proper scope of the injunctive order. Regal Knitwear Co. v. N.L.R.B., 1945, 324 U.S. 9, 14, 65 S.Ct. 478, 89 L.Ed. 661; Kean v. Hurley, 8 Cir., 1950, 179 F.2d 888, 890. All persons who are in privity with parties to the litigation or who aid and abet such parties in disobeying the injunction are guilty of contempt of court if they have knowledge of the injunction although they are not named in the order granting the injunction or are not themselves parties to suit.

Accordingly, persons who are not parties to an injunction, nor in privity with them, and whose rights have not been adjudicated therein are not bound by a decree and cannot be held liable for acts done contrary thereto even though the decree assumes to bind them. Swetland v. Curry, 6 Cir., 188 F.2d 841; Kean v. Hurley, 8 Cir., 179 F.2d 888; Chase National Bank v. City of Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894; Alemite Mfg. Corp. v. Staff, 2 Cir., 42 F.2d 832; Scott v. Donald, 165 U.S. 107, 17 S.Ct. 262, 41 L.Ed. 648.           The fact that the applicants may subject themselves to contempt proceedings if they act in concert with the named defendants in violating the terms of the decree does not alter the basic nature of the original proceeding.