Salman et al v. Phoenix, City of et al

Filing 45

ORDER denying 44 Emergency Motion for Preliminary Injunction. Signed by Judge James A Teilborg on 7/9/12.(MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Salman and Suzanne Salman,
husband and wife,

No. CV 12-1219-PHX-JAT
ORDER

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Plaintiffs,

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v.

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City of Phoenix, a municipal corporation of
the State of Arizona,

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Defendant.

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Pending before the Court is Plaintiffs’ Emergency Motion for Preliminary

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Injunction. (Doc. 44). On June 15, 2012, this Court denied Plaintiffs’ Motions for a

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Temporary Restraining Order and a Preliminary Injunction and dismissed this case

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without prejudice. (Doc. 36). On July 3, 2012, Plaintiffs filed a Notice of Appeal with

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the Ninth Circuit Court of Appeals. (Doc. 40).

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injunctive relief before the Court of Appeals. The Court of Appeals denied Plaintiffs’

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Motion for Emergency Motion for Injunctive Relief “without prejudice to its renewal

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following presentation to the district court.” (Doc. 42 at 1). Plaintiffs then re-filed their

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Motion for Preliminary Injunction in this Court. (Doc. 44).

Plaintiffs also sought emergency

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It appears that Plaintiffs attempted to appeal to the Court of Appeals under Ninth

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Circuit Rule 3-3 by titling the caption of their Notice of Appeal “Preliminary Injunction

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Appeal.” However, because this entire action has been dismissed on the merits, the Court

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of Appeals noted that, in reality, this is not an appeal of a denial of a preliminary

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injunction, but instead is an appeal of the entire case. To that end, the Court of Appeals

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confirmed the prior briefing schedule for the merits of the appeal.

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The Court of Appeals went on to note that Plaintiffs could seek a stay or

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injunction pending appeal under Federal Rule of Appellate Procedure 8(a). Pursuant to

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Federal Rule of Appellate Procedure 8(a)(1), to obtain a stay or injunction from the Ninth

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Circuit Court of Appeals while an appeal is pending, “[a] party must ordinarily move first

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in the district court.” Fed. R.App. P. 8(a)(1)(C), as Plaintiffs have now done. Plaintiffs

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do not attempt to satisfy the test for a stay pending appeal under Federal Rule of

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Appellate Procedure 8(a). Instead, Plaintiffs re-filed with this Court what they had

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originally filed with the Ninth Circuit Court of Appeals, which is essentially an attempt to

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appeal the denial of the original preliminary injunction motion.

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At the district court level, the Court analyzes a request for a stay or injunction

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pending appeal under Federal Rule of Civil Procedure 62. Pursuant to Federal Rule of

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Civil Procedure 62(c), while an appeal is pending, a district court “may suspend, modify,

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restore, or grant an injunction on terms for bond or other terms that secure the opposing

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party’s rights.” Fed.R.Civ. P.62(c). Rule 62(c) codifies the exception to the general rule

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of exclusive appellate jurisdiction.

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Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982). Rule 62(c) “does not

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restore jurisdiction to the district court to adjudicate anew the merits of the case.” Id.

McClatchy Newspapers v. Cent. Valley

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The Supreme Court has held that “[u]nder both [Federal Rule of Civil Procedure

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62(c) and Federal Rule of Appellate Procedure 8(a) ], . . . the factors regulating the

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issuance of a stay are generally the same: (1) whether the stay applicant has made a

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strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

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irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure

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the other parties interested in the proceeding; and (4) where the public interest lies.”

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Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (internal citations omitted).

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To find that Plaintiffs have made a strong showing that they were likely to succeed

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on the merits, the Court would have to reconsider its previous Order that Plaintiffs’
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claims are barred by either res judicata, Heck v. Humphrey, 512 U.S. 477 (1994), and/or

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the Rooker-Feldman doctrine. Because Plaintiffs’ present motion does not state any new

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reasons that they are likely to succeed on the merits that were not already asserted in their

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prior motions for temporary restraining order and preliminary injunction, this Court

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cannot find that Plaintiffs are likely to succeed on the merits of their appeal. Because

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Plaintiffs must meet all four prongs of the Hilton test to obtain Rule 62(c) relief, the

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Court need not examine the other three prongs of the Hilton test.

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Based on the foregoing,

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IT IS ORDERED that Plaintiffs’ Emergency Motion for Preliminary Injunction

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(Doc. 44) is denied.
Dated this 9th day of July, 2012.

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