Rose et al v. City of Denver

Filing 7

ORDER granting in part 5 Motion for Temporary Restraining Order. As described in the order, the City is enjoined from putting the following dogs up for adoption: Vinnie, Souffle, Bchamel, Pearl, Wyatt, Biscuit, and Nougat. A hearing on the motion for preliminary injunction is set for September 29, 2017 at 2:00 PM in Courtroom A901 before Chief Judge Marcia S. Krieger. By Chief Judge Marcia S. Krieger on 9/20/2017. (msklc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-CV-2263-MSK-STV
DAWN ROSE,
MICHELLE TIPPET,
PATTI SEARS,
KATHY CLAYTON,
Plaintiffs,
v.
CITY OF DENVER,
Defendant.

OPINION AND ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

THIS MATTER comes before the Court on the Plaintiffs’ ex parte Motion for Temporary
Restraining Order (# 5). For the following reasons, the motion is granted in part.
Accepting the statements submitted by affidavit with the motion as true, it appears that the
Plaintiffs are owners of French Bulldogs — Raven, Vinnie, Soufflé, Bechamel, Champagne,
Wyatt, Biscuit, Bernaise, Pearl, and Nougat (collectively the Dogs) — that are registered with the
American Kennel Club.1 They each gave Marleen Puzak physical possession of the Dogs and
authorizing her to board them, care for them, and show them in dog shows. On July 7, 2017,
defendant City and County of Denver (the City) raided Ms. Puzak’s home and seized the Dogs for
reasons unclear at this stage. The Plaintiffs have made attempts to retrieve their dogs from City
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Raven, Vinnie, Soufflé, Bechamel, and Pearl all belong to plaintiff Dawn Rose. Wyatt (also
called Premiers Law Man) belongs to plaintiff Patti Sears. Biscuit and Nougat (also called
Nugget) belong to plaintiff Kathy Clayton. Champagne and Bearnaise belong to plaintiff
Michelle Tippet.
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custody, but with one exception, their requests have been refused.2
Until recently, the Plaintiffs have been working with the City through counsel to establish
ownership of the Dogs and get them returned. On September 13, however, Assistant City
Attorney Lee Zarzecki apprised counsel for the Plaintiffs that the Dogs could be adopted out to
new owners, regardless of ownership, effective immediately.
Based on these allegations, the Plaintiffs’ Complaint (# 1) asserts four causes of action: (1)
deprivation of property in violation of the Fifth and Fourteenth Amendments via 42 U.S.C. § 1983;
(2) extreme and outrageous conduct causing emotional distress; and (3) willful and wanton
conduct. The Plaintiffs’ ex parte Motion for Temporary Restraining Order (# 5). They request
that the Court: (1) enjoin the City from adopting or transferring the Dogs without Court approval
and (2) enjoin the City from performing further veterinary procedures on the Dogs without Court
approval.
With the exception of Champagne and Bearnaise,3 the Plaintiffs have adequately
demonstrated ownership of the Dogs and that the City’s offering of the Dogs for adoption poses an
imminent and irreparable harm to their property interest. Without determining the question, the
Court assumes that dogs sold in good faith to new owners would be unrecoverable by the
Plaintiffs. See Robbins v. City of Greeley, No. 15-CV-0683, Doc. 35, slip op. at 1 (D. Colo. Mar.
9, 2016). At the very least, the practical hurdles of reclaiming a dog that has been adopted out to
a new owner would be especially onerous. This harm is imminent for the Plaintiffs because the
City’s representation that the Dogs can be adopted out is not qualified by any protection for the

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Raven has been returned to Ms. Rose.
Ms. Tippet has submitted no affidavit or statement from which the Court can ascertain
particular facts about her dogs, which the Court assumes are Champagne and Bearnaise by process
of elimination.
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Plaintiffs’ alleged property rights. Under these circumstances, the Court is satisfied that the
Plaintiffs have met the requirements of Rule 65(b)(1)(A) and (B).
The Court also finds that the Plaintiffs have made a facial showing of their entitlement to ex
parte relief under the traditional preliminary injunction factors. The City’s counsel has advised
the Plaintiffs’ counsel that litigation is required, so practically speaking, the City has received
notice of the Plaintiffs’ request. The City’s code requires release of any impounded animal to the
owner upon submission of proof of ownership, suggesting a likelihood of success on their claim
for injunctive relief. Assuming their allegations to be true, the balance of the equities tips in favor
of the Plaintiffs because they have strong ownership rights in the Dogs and the City has little right
to infringe on that ownership. Any harm to the public interest caused by enjoining the City from
releasing the Dogs for adoption is outweighed by the public’s interest in robust property rights.
Accordingly, the Motion for Temporary Restraining Order is GRANTED IN PART as
follows:
1.

Pending a preliminary injunction hearing, the City, its agents, and all those acting

in concert with it, are hereby enjoined from putting the following dogs up for adoption for a period
of 10 days from the date of this order: Vinnie, Soufflé, Bechamel, Pearl, Wyatt/Premiers Law
Man, Biscuit, and Nougat/Nugget;
2.

The Court will conduct a non-evidentiary hearing on the Motion for Preliminary

Injunction at 2:00 PM on Friday, September 29, 2017. At this hearing, the Court will hear the
preliminary injunction motion by proffer and determine whether a full evidentiary hearing on that
motion needs to be held.

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Dated this 20th day of September, 2017, at 5:10 PM.
BY THE COURT:

Marcia S. Krieger
United States District Court

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