SouthBark, Inc. et al v. Mobile County Commission et al

Filing 26

ORDER granting 14 Motion to Amend Complaint. The portion of Plaintiffs' complaint moving for injunctive relief is denied, as set out. Signed by Judge Kristi K. DuBose on 6/20/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SOUTHBARK, INC., et al.,
Plaintiffs,

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*
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vs.
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MOBILE COUNTY COMMISSION, et al., *
Defendants.
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CIVIL ACTION NO. 13-00183-KD-M

ORDER
This matter came before the Court on June 18, 2013 for a preliminary injunction hearing
as to “Plaintiffs’ Complaint for Declaratory and Injunctive Relief” (Doc. 1); and Plaintiffs’
Motion to Amend the Complaint (Docs. 14, 15) and Defendants’ Response (Doc. 20).
I.

Factual Background
This litigation stems from a dispute between the Mobile County Commission (“MCC”),

County Commissioner Connie Hudson (“Hudson”), County Commissioner Merceria Ludgood
(“Ludgood”), Nancy Johnson (“Johnson”), Administrator John Pafenback (“Pafenback”), and a
Mobile, Alabama non-profit corporation named SouthBark, Inc. (“SouthBark”) (formed to
rescue from euthanization animals from shelters for eventual foster or adoption) and SouthBark’s
President Emily Thompson (“Thompson”)1 and Vice-President Dusty Feller (“Feller”). The
dispute centers on Plaintiffs’ rescue activities at the Mobile County Animal Shelter (“MCAS”).2

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Plaintiffs moved for required or permissive joinder of Thompson. (Docs. 14, 15). The proper vehicle to add a
plaintiff is to file a motion for leave to amend the complaint. As such, this Court has construed Plaintiffs’ motion for
joinder as a motion for leave to amend. Defendants do not oppose the addition of Thompson as a plaintiff. (Doc.
20). As such, SouthBark’s unopposed motion (Docs. 14, 15) is GRANTED.

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MCAS operates pursuant to a statutory mandate through which the County of Mobile provides its
citizens with an animal shelter and related services to help alleviate the health and safety issues associated
with abandoned animals. The Alabama Code makes general provisions for animals running at large in
Mobile County and establishes certain holding periods. Ala. Code § 3-7A-1 et seq. The legislature left

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In the early part of 2011, an e-mail from a SouthBark Volunteer was sent to the Mobile
County Director of General Services Donna Jones, and Defendant Johnson, expressing concern
that animals in MCAS were viewed as a danger to the public rather than as adoptable pets. The
email indicated that SouthBark would continue to keep the public informed about MCAS. The
email also complained about the high rate of euthanasia in MCAS and the lack of a spay and
neuter program. The email stated that SouthBark “doesn’t intend to slow down [its] efforts at
MCAS, or stop letting the public know when we have had an animal fall through the cracks on
our watch.”
Shortly thereafter, SouthBark was notified that one of SouthBark’s volunteers had
threatened a shelter staff member via e-mail and as such, the county employees decided that
SouthBark should have a six (6) month cooling off period. After three or four months, MCAS
permitted SouthBark to resume rescuing animals. SouthBark officers and/or volunteers
continued to make postings on its Facebook page which were critical of the MCAS’s
euthanization policies and listed by name and picture dogs slated for euathansia, although Feller
testified that these postings were “less hostile” than before the ban.
In approximately July 2012, SouthBark VP Feller had a meeting, along with other
members of the animal rescue community. to discuss MCAS with Defendant Hudson. At this
meeting, questions were raised about the staff’s ability to handle questions regarding animal
availability for adoption, lack of staff training and intervention strategies for dogs slated for

specific operations to the discretion of county shelters and permitted county shelters to adopt more
stringent requirements than those in Title 2. Ala. Code § 3-9-4. The space needed to shelter abandoned
animals in Mobile, Alabama, exceeds available resources and thus, the County, in the exercise of the
discretion afforded it by the legislature, offers animal adoption and partners with certain individuals and
animal rescue organizations to facilitate adoptions. No statute mandates or requires that the County offer
animal adoption or partner with any specific individual or organization.

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euthanasia. SouthBark also made suggestions for improvements of the MCAS facility. Feller
felt that the meeting was productive.
In August 2012, SouthBark received a letter from Pafenback, advising SouthBark would
no longer be able to participate in acquiring dogs from the MCAS which stated: “[p]lease be
advised that because of repeated incidents disruptive of Shelter operations by SouthBARK
and/or its officers and members, the Mobile County Animal Shelter will no longer honor your
authorization that they represent Illinois Animal Rescue in acquiring dogs from the Shelter."
(Doc. 1-1 at 37). SouthBark inquired of the reason for the ban and was told by defendant
Johnson that the reason for not allowing SouthBark to participate in facilitating adoptions of
animals at the MCAS was the “same” as the prior year. Feller alleges that other reasons have
also been given for the ban. In spite of the ban, Feller testified that SouthBark continues to
rescue animals from MCAS through other rescue organizations.
On April 12, 2013, SouthBark initiated this lawsuit against Defendants MCC, two
Commissioners and two employees of the county. In so doing, SouthBark claims to have been
prohibited from participating in rescuing animals from the MCAS because its officers and
volunteers have been critical of Mobile County’s handling of animals in the MCAS. The
Plaintiffs assert two types of claims of alleged federal claims: retaliation by the county and
county employees based on SouthBark and its officers exercising their free speech rights, and
defamation. Plaintiffs also assert state law claims of violation of free speech, defamation and
negligence.
The issue currently before the Court is whether the plaintiffs are entitled to a preliminary
injunction which: 1) enjoins the Defendants from barring SouthBark from participating in

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rescuing animals from the county’s shelter and 2) enjoins the Defendants from euthanizing any
further animals pending completion of this case.
II.

Injunctive Relief
A preliminary injunction is an extraordinary remedy available in equity. To be eligible

for preliminary injunctive relief under Rule 65 of the Federal Rules of Civil Procedure, a movant
must establish each of the following elements: 1) a substantial likelihood of success on the
merits; 2) that irreparable injury will be suffered if the relief is not granted; 3) that the threatened
injury outweighs the harm the relief would inflict on the non-movant; and 4) that entry of the
relief would not disserve the public interest. See, e.g., Levins v. Deutsche Bank Trust Co.
Americas, 2013 WL 308999, *2 (S.D. Ala. Jan. 25, 2013); KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d
1223, 1225-1226 (11th Cir. 2005); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). In the
Eleventh Circuit, “a preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly established the burden of persuasion as to the four requisites.”
McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (citations omitted).
Further, where a party “[does] not carry the burden as to irreparable harm . . . it is unnecessary
to address the other prerequisites to such relief.” U.S. v. Jefferson County, 720 F.2d 1511,
1519 (11th Cir. 1983) (alteration in original); See also, e.g., Curves Intern., Inc. v. Mosbarger,
525 F. Supp. 2d 1310 (M.D. Ala. 2007) (noting that because plaintiff failed to demonstrate
irreparable harm, there is no need to address remaining preliminary injunction requisites); See
also, e.g., Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (“the absence of a substantial
likelihood of irreparable injury would, standing alone, make preliminary relief improper”).3
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Despite instruction to specifically address irreparable injury at oral argument, both parties elicited
testimony directed to “the merits” of the case. Therefore, this Court briefly addresses the likelihood of

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Here, Plaintiffs fail to carry the burden as to irreparable harm. As the Supreme Court
stated in Sampson v. Murray, 415 U.S. 61, 90 (1974) (citation omitted) (emphasis added):
The key word in this consideration is irreparable. Mere injuries, however
substantial, in terms of money, time and energy necessarily expended in the
absence of a stay, are not enough. The possibility that adequate compensatory or
other corrective relief will be available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable harm.
At the hearing, Feller alleged that SouthBark had been harmed by the ban in their efforts
at fundraising. Clearly this type of harm is compensable by a money award and thus does not
constitute irreparable harm. Feller also testified that SouthBark has been harmed because the
prohibition from fostering and/or adopting animals from MCAS4 has resulted in loss of revenue
to Plaintiffs.5 Again, any such injury can be adequately compensated by an award of monetary
damages.6
Plaintiffs also contend that they suffered a direct penalization (removal from the ranks of
organizations which defendants’ permitted to rescue animals) as a result of First Amendment
free speech comments made by SouthBark’s volunteers, and that this constitutes irreparable
harm. In other words, the ban from adopting animals has resulted in chilling SouthBark’s
speech.
In order to sustain a free speech claim, and thus a presumption of irreparable harm, the
plaintiffs must show that the exercise of free speech has resulted in an adverse action. The

success on the merits in determining whether or not “removal from the ranks of organizations which
defendants’ permitted to rescue animals” constitutes irreparable injury.
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Plaintiffs not only facilitate the adoption and fostering of animals from MCAS, some animals are
adopted by Plaintiffs in their individual capacity. (Doc. 11 at 7).

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SouthBark’s revenue is described as stemming from Plaintiffs’ practice of charging adoption fees and
collecting donations with respect to specific foster pets acquired from MCAS. (Doc. 11 at 11-12).

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Plaintiffs seek approximately one half million dollars in monetary relief. (Doc. 1 at 52).

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Eleventh Circuit has adopted an objective test for determining if an individual has suffered an
“adverse action” as a result of exercising First Amendment rights. In Bennett v. Hendrix, 423
F.3d 1247, 1250 (11th Cir. 2005) the Court stated that “[a] plaintiff suffers adverse action if the
defendant’s allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from
the exercise of First Amendment rights.” Further, “how plaintiff[s] [have] acted might be
evidence of what a reasonable person would have done.” Id. at 1255 (alteration in original).
In applying this test for purposes of the preliminary injunction request, this Court finds
that Plaintiffs have failed to show that a person of ordinary firmness would be deterred from
exercising their First Amendment rights as a result of not being provided the privilege to
adopt/rescue animals from the MCAS.

Additionally, the uncontradicted testimony at the

preliminary-injunction hearing indicated that plaintiffs’ speech has not actually chilled, as
Plaintiffs have continued to be critical of the MCAS’s operation and have continued to adopt
animals from the MCAS through other animal rescue groups. This conduct is probative on how
a person of ordinary firmness would act under the circumstances. Accordingly, there is no
presumption of irreparable harm.
Additionally, a preliminary injunction is appropriate to grant relief only of “the same
character as that which may be finally granted.” DeBeers Consol. Mines v. U.S., 325 U.S. 212,
220 (1945). A preliminary injunction cannot be granted where the injunction requests relief
which is not available even if the plaintiffs prevail on all of their claims.

Id.

See also e.g.,

Mason Tenders Dist. Council Pension Fund v. Messera, 1997 WL 223077, *5 (S.D.N.Y. May 1,
1997); Federal Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 560-561 (5th Cir. 1987).
Plaintiffs seek to enjoin all further “unnecessary euthanization, where the animals are
otherwise healthy, do not represent an imminent threat to others, and where there is a willing,

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able, suitable adoptee, rescuing organization, or foster parent waiting in the wings to provide a
home.” (Doc. 7 at 7).

In other words the plaintiffs would have this court review and revise the

policies of the Mobile County Commission as they relate to the activities of the MCAS. This is
not relief that the court could afford even if plaintiffs’ free speech or defamation claims
succeeded. Moreover, even if this relief was possible the court must consider that:
[i]n this country, democracy in government is, of course, viewed as a good and
normal thing. When a federal court before trial enjoins the enforcement of a
municipal ordinance adopted by a duly elected city council, the court overrules
the decision of the elected representatives of the people and, thus, in a sense
interferes with the processes of democratic government. Such a step can
occasionally be justified by the Constitution (itself the highest product of
democratic processes). Still, preliminary injunctions of legislative enactments -because they interfere with the democratic process and lack the safeguards against
abuse or error that comes with a full trial on the merits -- must be granted
reluctantly and only upon a clear showing that the injunction before trial is
definitely demanded by the Constitution and by the other strict legal and equitable
principles that restrain courts.
Northeastern Florida Chapter of Ass’n of General Contractors of America v. City of
Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). Plaintiffs have utterly failed to meet
this standard.
III.

Conclusion
Accordingly, it is ORDERED that portion of Plaintiffs’ Complaint moving for Injunctive

Relief (Doc. 1) is DENIED.
DONE and ORDERED this the 20th day of June 2013.
/s/Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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