Murphy v. Town of Geneva Wisconsin

Filing 20

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that the plaintiffs 5 motion for a temporary restraining order is denied. The court withholds ruling on the plaintiffs request for a preliminary injunction pending a hearing before this court on April 2, 20152014 at 9:30 AM in Courtroom 284 of the United States Courthouse, 517 E. Wisconsin Avenue, Milwaukee. IT IS FURTHER ORDERED that the plaintiffs 18 motion to strike is denied. (cc: all counsel) (asc) Modified on 3/30/2015 (asc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARTIN J. MURPHY,
Plaintiff,
v.

Case No. 15-CV-222

TOWN OF GENEVA WISCONSIN,
Defendant.
ORDER
Currently before the court is the motion of plaintiff Martin J. Murphy for a
temporary restraining order and a preliminary injunction barring the defendant, Town
of Geneva, Wisconsin, from enforcing its ordinance prohibiting the advertisement of
properties available for short-term rentals in residential areas. (ECF No. 5.) The motion
was filed on February 27, 2015, the day after the complaint was filed. The town was
served on March 3, 2015 (ECF No. 7) and filed its answer on March 13, 2015 (ECF No. 9).
Murphy’s motion was filed as an expedited non-dispositive motion under Civil Local
Rule 7(h) and the town’s response was due within seven days. The town did not
respond to the motion until March 26, 2015 (ECF No. 17). Consequently, Murphy
moved to strike the town’s response as untimely. (ECF No. 18.)
Murphy’s motion to strike is denied. Although he is correct that the town’s
response was untimely under this district’s local rules, motions to strike based upon a

party’s violation of the local rules are disfavored. See Gen. L.R. 1 (“[T]he rules are
intended to be enforced primarily upon the Court’s own initiative, and the filing of
motions alleging noncompliance with a rule may be reserved for egregious cases.”).
The town’s failure to timely respond was undoubtedly perilous; it ran the risk that the
court would enter an order on the motion under the assumption that the town had no
response. However, that did not happen. Because the motion was a request for
immediate relief filed in a case directly assigned to a magistrate judge who had not yet
received the consent of all the parties, pursuant to this district’s standard practices it
was to be resolved by the duty district judge. The duty district judge had not resolved
the motion by the time the town responded and all parties consented to the full
jurisdiction of a magistrate judge. Thus, the motion is now before this court.
Murphy owns a home in a residential district of the Town of Geneva that he
seeks to rent to visitors for periods of less than 30 days. To find such short-term renters,
he has been advertising the availability of his property on various websites. However,
such advertising is prohibited by a town ordinance. The town has threatened Murphy
with enforcement should he continue to violate the ordinance. Murphy contends that
such a prohibition on advertising is an infringement of his First Amendment rights,
among other things, because the town is barring speech related to an otherwise lawful
activity (the short-term rental of residential property).

2

According to the town, such short-term rentals in residential areas are barred by
county ordinance and thus the town is simply prohibiting the advertisement of an
unlawful activity. Murphy acknowledges that the property is zoned R-1 Residential.
(ECF No. 1, ¶ 12.) Walworth County Ordinance Sec. 74-54 outlines the principle,
accessory, and conditional uses of property zoned R-1. (ECF No. 17-1 at 6-8.) Not
included as a permissible use of property zoned R-1 is any sort of establishment that
offers rentals of less than 30 days to persons “traveling away from their permanent
place of residence for vacation, pleasure, recreation, culture, business or employment.”
(See ECF No. 17-1 at 9 (Walworth Cnty. Ord. Sec. 74-131).)
A temporary restraining order, like a preliminary injunction, requires the
moving party to “show that it is reasonably likely to succeed on the merits, it is
suffering irreparable harm that outweighs any harm the nonmoving party will suffer if
the injunction is granted, there is no adequate remedy at law, and an injunction would
not harm the public interest.” Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006); Madison Vigil for Life, Inc. v. City of Madison, 1 F. Supp. 3d 892, 895 (W.D. Wis.
2014). In a First Amendment case, “the likelihood of success on the merits will often be
the determinative factor” in determining whether injunctive relief should be granted.
ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Village of
Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004)).

3

Having reviewed the filings of the parties, the court declines to issue a temporary
restraining order. Murphy has failed to show a threat of such immediate harm
necessitating-- the extraordinary relief of a temporary restraining order. Moreover, it is
not at all clear that Murphy has a likelihood of success on the merits sufficient to merit
the issuance of a temporary restraining order. Commercial speech is protected under
the First Amendment only if it concerns a lawful activity. Cent. Hudson Gas & Elec. Corp.
v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980). The activity about which Murphy
complains is, based upon the record presently before the court, unlawful. Nevertheless,
the court shall set a hearing on Murphy’s request for a preliminary injunction.
IT IS THEREFORE ORDERED that the plaintiff’s motion for a temporary
restraining order (ECF No. 5) is denied. The court withholds ruling on the plaintiff’s
request for a preliminary injunction pending a hearing before this court on April 2, 2014
at 9:30 AM in Courtroom 284 of the United States Courthouse, 517 E. Wisconsin
Avenue, Milwaukee.
IT IS FURTHER ORDERED that the plaintiff’s motion to strike (ECF No. 18) is
denied.
Dated at Milwaukee, Wisconsin this 30th day of March, 2015.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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