Powrzanas v. Jones Utility and Contracting Co Inc
Filing
125
MEMORANDUM OPINION and ORDER- Pltf's Motion for a Restraining Order (Doc 112 ); Not later than fourteen (14) days after the date of this Memorandum Opinion and Order, the deft may petition the court for an award of attorneys' fees and costs incurred responding to this motion; If a petition is filed by the deft, the pltf may respond to it by January 9, 2019; Further instructions within. Signed by Magistrate Judge T Michael Putnam on 12/12/18. (MRR, )
FILED
2018 Dec-13 AM 08:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MANDY POWRZANAS,
Plaintiff,
vs.
JONES UTILITY AND
CONTRACTING CO., INC.
Defendant.
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Case No. 2:17-cv-975-TMP
MEMORANDUM OPINION and ORDER
On November 6, 2018, the plaintiff filed a second motion styled “Motion for
a Restraining Order.” (Doc. 112). Similar to her first such motion, the current
motion alleges that the defendant’s father and owner of the defendant company,
Richard Jones, has attempted to intimidate the plaintiff by driving his vehicle on
Highway 31 in Gardendale, Alabama, near a location where he knew she would be.
It alleges that Jones acts erratically and that the plaintiff is afraid of him.
The
motion seeks a restraining order from the court, pursuant to 42 U.S.C. §§ 12203(c),
12117, 2000e-5, or Rule 65 of the Federal Rules of Civil Procedure, to stop
Richard Jones from attempting to intimidate or harm the plaintiff.
Findings of Fact
After receiving the defendant’s response to the motion on November 12,
2018 (Doc. 115), the court conducted an evidentiary hearing on the motion on
December 11, 2018, hearing the testimony of the plaintiff, the plaintiff’s husband,
Mr. Jones, and Mr. Jones’s wife.
The evidence generally established that at
approximately 5:19 p.m. on Monday, November 5, the plaintiff was leaving her
lawyer’s office, which fronts Highway 31 in Gardendale. She was looking to turn
right out of the office driveway onto Highway 31, which is a heavily-traveled,
main thoroughfare through Gardendale. Very soon after she turned right out of the
driveway and into traffic, a white pickup truck also turned onto Highway 31
immediately in front of her from a location somewhere north of her lawyer’s
office.1 Although the plaintiff could not see the passengers in the truck to identify
them, she did see there were silhouettes of two people in it. Being immediately
behind the truck, the plaintiff noticed it had a “25” tag, signifying it was registered
in Cullman County, where Mr. and Mrs. Jones live. Using her cellphone, the
plaintiff took several photographs of the truck ahead of her until it moved over into
the left turn lane and turned off Highway 31 onto Mt. Olive Boulevard in the
direction of Interstate 65 North toward Cullman County.
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The plaintiff then
There is a conflict in the testimony about where the pickup truck came from. The
plaintiff testified that the truck turn out of a gravel driveway about 20 to 30 feet north of the
driveway to her lawyer’s office. Mr. and Mrs. Jones testified, however, that they were not in the
gravel driveway, but a paved parking lot near a used car lot. The exact location of where the
truck was is immaterial to this motion.
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telephoned her husband, who is a Gardendale police officer, to get him to check
the registration of the tag number shown in the photograph of the truck. He
checked with a Gardendale dispatcher, who informed him the tag was register to
Richard Jones, the defendant’s father. The plaintiff testified that, but for the truck
turning into traffic immediately ahead of her, there were no other threats or
aggressive actions taken toward her. She could not see the passengers in the truck,
and there is no indication that they acted in any hostile or aggressive manner
toward her.
The Joneses’ account of events is very similar, but with added details as to
why they were in the area of plaintiff’s lawyer’s office. Both Mr. and Mrs. Jones
testified that they were unaware that the plaintiff was following them until they
received the instant motion and the photographs annexed to it. They testified that
Mr. Jones had received a text 2 earlier in the day that an order for prescription
medication was ready for him to pick up at a Walgreens pharmacy on
Highway 31. 3 Although the prescription, in fact, was not ready, they left the
Walgreens, traveling north on Highway 31, going toward the Gardendale Post
Office to mail bills. Mrs. Jones had been experiencing upset stomach issues,
2
Mr. Jones offered into evidence a photograph of a cellphone showing a text
message he purportedly received from Walgreens in Gardendale, but it does not reveal the date
of the text message. (Doc. 115-1, Ex. A).
3
Mr. Jones testified that the Walgreens pharmacy in Gardendale is the one he is
required to use for prescription medication by his medical insurance carrier.
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causing her to become nauseated. As they were passing in front of the plaintiff’s
lawyer’s office, Mrs. Jones noticed a small white car in the office parking lot and
wondered whether it was the plaintiff’s car. The car was parked and no one was in
or near it. At that same time, she began to feel nauseated and touched Mr. Jones’s
arm to indicate that she needed to pull over in case she had to vomit. Mr. Jones
then pulled off Highway 31 into a paved parking area in front of several businesses
(not the lawyer’s office), which Mr. Jones contends is about a half mile from the
plaintiff’s lawyer’s office. They remained there from thirty seconds to a minute
while Mrs. Jones sipped water and the nausea passed. They then pulled out of the
parking lot, onto Highway 31 going north.4 They did not notice any white car near
them at the time.
Plaintiff testified that, although Mr. Jones is her father, she is afraid of him.
She testified that he has threatened her with physical violence in the past and that
she has had no contact with him for almost two years. She admits that he has not
contacted her in over two years, nor has she seen him near her family or home.
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It is not clear from the testimony whether the Joneses stopped at the Gardendale
Post Office before or after Mrs. Jones felt sick and they pulled over. Mr. Jones seems to testify
that it was before they passed the lawyer’s office and Mrs. Jones felt sick. Mrs. Jones, however,
testified that they stopped at the post office after she became ill. The court notes that the
Gardendale Post Office is significantly further north on Highway 31 than the lawyer’s office,
much closer to the intersection of Mt. Olive Boulevard. Therefore, if they stopped at the post
office, it seems more likely that it was after Mrs. Jones felt sick, as she testified.
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Conclusions of Law
The court has previously addressed its authority to enter a personal-safety
restraining order, and it will not be repeated here at length. The district court is
authorized to enter a preliminary injunction or restraining order under the
Americans with Disabilities Act (“ADA”) pursuant to 42 U.S.C. § 12203(c),
42 U.S.C. § 12117, 42 U.S.C. § 2000e-5, and Fed. R. Civ. P. 65. Title 42 U.S.C.
§ 12203(b) makes it “unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of . . . any right granted or protected by this
chapter.” This protection can be enforced through the remedies “available under
sections 12117, 12133, and 12188 of this title. . . .” 42 U.S.C. § 12203(c). Read
together, these statutory provisions seem to provide an injunctive remedy for
retaliatory intimidation. If a “person” seeks to retaliate against an employee who
has “opposed” unlawful disability discrimination or who has “made a charge” of
unlawful disability discrimination by seeking to “coerce, intimidate, [or] threaten”
that employee, injunctive remedies may be available to stop or prevent such
retaliatory intimidation under § 12203(c).
Section 12117, which is explicitly
referenced by § 12203(c), provides remedies for discrimination in the employment
context, specifically referring to the remedies available under 42 U.S.C. 2000e-5,
among other sections. Pursuant to this authorization of equitable relief, the court
could enter a preliminary injunction or restraining order under Fed. R. Civ. P. 65,
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which binds “the parties; . . . the parties’ officers, agents, servants, employees and
attorneys; and . . . other persons who are in active concert or participating with
anyone described in Rule 65(d)(2)(A) or (B).” Fed. R. Civ. P. 65(d)(2)(A)-(C).
Just because the court has the authority to restrain coercive and intimidating
conduct designed to interfere with rights under the ADA does not mean that
authority should be exercised. Once again, the court finds that the evidence does
not sufficiently establish a need for such preliminary injunctive relief.
preliminary injunction is a drastic and extraordinary remedy.
A
American Civil
Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., 557 F.3d 1177,
1198 (11th Cir. 2009); United States v. Jefferson County, 720 F.2d 1511, 1519
(11th Cir. 1983); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998). Whether to grant preliminary injunctive relief is weighed pursuant to a
four-factor test, on each of which the movant must clearly carry the burden of
persuasion. The movant must demonstrate “(1) a substantial likelihood of success
on the merits of the underlying case, (2) the movant will suffer irreparable harm in
the absence of an injunction, (3) the harm suffered by the movant in the absence of
an injunction would exceed the harm suffered by the opposing party if the
injunction is issued, and (4) an injunction would not disserve the public interest.”
Odebrecht Const., Inc. v. Secretary, Florida Dep’t of Transp., 715 F.3d 1268,
1273–74 (11th Cir. 2013); see also Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir.
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2011) (quoting North American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d
1211, 1217 (11th Cir. 2008)). However, “none of the four prerequisites has a fixed
quantitative value. Rather, a sliding scale is utilized, which takes into account the
intensity of each in a given calculus.” Unisource Worldwide, Inc. v. S. Cent.
Alabama Supply, LLC, 199 F. Supp. 2d 1194, 1199 (M.D. Ala. 2001), quoting
State of Texas v. Seatrain Int'l, 518 F.2d 175, 180 (5th Cir. 1975).
In the unusual context of this case, where the plaintiff seeks an injunction to
prevent Mr. Jones from attempting to coerce, intimidate, or threaten her with
respect to her pending claims under the ADA, the plaintiff must establish a
substantial likelihood that Mr. Jones has engaged in, or is threatening to engage in,
such coercive and intimidating retaliatory conduct. The evidence simply does not
support that conclusion. The instant application for injunctive relief, like her first
one, appears to involve a coincidental meeting on a public street being traveled by
both parties. There is no evidence that Mr. Jones attempted to intimidate or
threaten the plaintiff, or was even aware of her presence.
It simply is not
surprising that coincidental contact may occur on Highway 31, which is the
heavily-traveled, main thoroughfare through Gardendale.
Plaintiff’s lawyer’s
office is on this main street. Mr. Jones’s business is located in Fultondale, just
south of Gardendale. The post office Mr. Jones uses is on Highway 31, as is the
pharmacy he uses, which is south of where the lawyer’s office is located. Both
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parties admit that there have been no communications between them for over two
years. On this particular occasion, other than the plaintiff following Mr. Jones and
photographing his truck, nothing happened, much less anything threatening or
coercive.
There is no basis for finding that the coincidental meeting on
Highway 31 in Gardendale was anything but a coincidence, not an intended effort
to intimidate or threaten the plaintiff. The court is unwilling to order Mr. Jones to
refrain from using Highway 31 or traveling to Gardendale just to prevent the
possibility that the plaintiff may inadvertently see him or his vehicle on the
highway.
The Motion for Restraining Order (Doc. 112) is DENIED.
Not later than fourteen (14) days after the date of this Memorandum Opinion
and Order, the defendant may (if it so chooses) petition the court for an award of
attorneys’ fees and costs incurred responding to this motion. The petition should
explain the legal basis for an award of fees and costs against the plaintiff, and have
a clear explication of the amounts sought and for what they were incurred. The
defendant should supply such billing records, time-sheets, and other documentation
necessary to consider the petition. If a petition is filed by the defendant, the
plaintiff may respond to it by January 9, 2019.
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DONE this 12th day of December, 2018.
_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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