Mitchell v. Scottsdale, City of
ORDER - 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 (10) days from the date on which it receives a copy of this Order, file a response to 4 Plaintiffs motion for a preliminary injunction.. Signed by Senior Judge James A Teilborg on 4/14/2015. (TLB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Howard Lee Mitchell,
City of Scottsdale,
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.
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