Mitchell v. City of Scottsdale

Full title: Howard Lee Mitchell, Plaintiff, v. City of Scottsdale, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Apr 14, 2015

No. CV-15-00637-PHX-JAT (D. Ariz. Apr. 14, 2015)

Opinion

No. CV-15-00637-PHX-JAT

04-14-2015

Howard Lee Mitchell, Plaintiff, v. City of Scottsdale, Defendant.

James A. Teilborg Senior United States District Judge

ORDER

Pending before the Court is Plaintiff's "Emergency Motion/Request for Emergency Injunction Secondary to Complaint" (Doc. 4). Plaintiff requests in this document that the Court issue a preliminary injunction requiring Defendant and any other custodians of his animals to "retain and provide proper care" during the duration of the present case. (Doc. 4 at 5). Federal Rule of Civil Procedure ("Rule") 65 governs the issuance of preliminary injunctions, and states that "[t]he court may issue a preliminary injunction only on notice to the adverse party." Fed. R. Civ. P. 65(a)(1).

Plaintiff has filed a proof of service form with the Court that states, under penalty of perjury, that he has served a summons on the City of Scottsdale. (Doc. 5). The Court notes that Plaintiff's actions do not qualify as proper service under the Federal Rules of Civil Procedure because a party to an action may not serve a summons and complaint. See Fed. R. Civ. P. 4(c)(2). Nevertheless, the rules for a preliminary injunction require only notice, not service. Because the City of Scottsdale must have notice and an opportunity to respond to Plaintiff's motion for a preliminary injunction, the Court will order Plaintiff to give a copy of this Order to the City of Scottsdale.

Plaintiff has not, however, provided notice to the other party sought to be enjoined, the Arizona Humane Society. See Parker v. Ryan, 960 F.2d 543, 545 (5th Cir. 1992) ("When dealing with a preliminary injunction, the 'adverse party' means the party adversely affected by the injunction, not the opponent in the underlying action."); see also Washington v. Wa. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 692 n.32 (1979). Therefore, unless Plaintiff also gives notice to the Arizona Humane Society and provides them with a copy of this Order, the Arizona Humane Society cannot be the subject of an injunction.

For the foregoing reasons,

IT IS ORDERED that Plaintiff shall give the City of Scottsdale a copy of this Order. Plaintiff shall file an affidavit describing the details of this service.

IT IS FURTHER ORDERED that the City of Scottsdale shall, within ten days from the date on which it receives a copy of this Order, file a response to Plaintiff's motion for a preliminary injunction.

Dated this 14th day of April, 2015.

/s/ _________

James A. Teilborg

Senior United States District Judge