Skillicorn v. Dickey

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Allen Skillicorn, No. CV-24-01074-PHX-DWL 10 Plaintiff ORDER 11 v. 12 Ginny Dickey, et al., 13 Defendants. [14] 15 Pending before the Court is Plaintiff Allen Skillicorn’s motion for a temporary 16 restraining order (“TRO”). (Doc. 6.) For the reasons that follow, the motion is denied. 17 BACKGROUND 18 On May 10, 2024, Plaintiff initiated this action by filing a complaint. (Doc. 1.) The 19 complaint is not signed or otherwise verified by Plaintiff—instead, it is signed by 20 Plaintiff’s counsel. (Id. at 21.) The complaint alleges that Plaintiff is a member of the 21 Fountain Hills Town Council (the “Town Council”). (Id. ¶ 1.) The complaint further 22 alleges that Mayor Ginny Dickey, Town Council members Brenda Kalivianakis, Sharon 23 Grzybowski, and Peggy McMahon, and private attorney Tina Vannucci (together, 24 “Defendants”) improperly determined as a result of a “sham investigation” that Plaintiff 25 had committed two ethics violations. (Id. ¶¶ 2-6, 12-52.) The first alleged violation 26 stemmed from a January 17, 2024 Town Council meeting in which Plaintiff raised concerns 27 about possible conflicts of interest involving other Town Council members. (Id. ¶ 19.) 28 The second alleged violation occurred on September 16, 2023. (Id. ¶ 30.) The complaint 1 alleges that on that date, Plaintiff had placed various signs around Fountain Hills opposing 2 a bond measure, Plaintiff saw a Fountain Hills code enforcement officer remove one of his 3 signs, and Plaintiff then pursued the Fountain Hills code enforcement officer in his car and 4 tried to get that person to pull over so Plaintiff could discuss the removal of his sign, which 5 Plaintiff viewed as unlawful. (Id. ¶¶ 30-36.) 6 The complaint alleges that Defendants imposed sanctions against Plaintiff based on 7 these violations, including: (1) Plaintiff “could not be elected Vice Mayor”; (2) Plaintiff 8 “is not permitted to interact with Town staff members unless another person is present”; 9 (3) Plaintiff is “required to apologize to [the] Town employee”; and (4) Plaintiff “could not 10 be reimbursed for expenses for travel that he undertook as part of his official Town duties.” 11 (Id. ¶ 52.) The complaint alleges that Plaintiff will not apologize to the Fountain Hills code 12 enforcement officer and that “the Town will likely attempt to impose additional illegal 13 sanctions on [him] for this refusal.” (Id. ¶ 55.) The complaint further alleges that 14 “Defendant Councilmembers actions have encouraged citizens to file additional ethics 15 complaints seeking to silence [Plaintiff]” and that, as a result, Plaintiff is now the subject 16 of an additional, unrelated ethics investigation. (Id. ¶¶ 56-60.) The complaint alleges that 17 Ms. Vannucci is working on this investigation and is attempting to interview Plaintiff 18 regarding it, but Plaintiff refuses to be interviewed. (Id. ¶¶ 59-61.) 19 The complaint asserts two claims against Defendants. In Count One, the complaint 20 asserts a claim for “[v]iolation of Plaintiff’s rights to freedom of speech, freedom to petition 21 and communicate with government officials, and right to due process and equal protection 22 of the laws under the First and Fourteenth Amendments to the Constitution of the United 23 States.” (Id. at 16.) In Count Two, the complaint asserts a claim for “[v]iolation of 24 Plaintiff’s right to due process and equal protection of the laws under the First and 25 Fourteenth Amendments to the Constitution of the United States.” (Id. at 18.) In the prayer 26 for relief, the complaint asks the Court, inter alia, to “[i]ssue a temporary restraining order 27 and preliminary and permanent injunctions prohibiting Defendants from violating 28 Plaintiff’s rights in the future, and enjoining Defendants from imposing the ‘discipline’ of 1 [Plaintiff] adopted by a majority of the . . . Town Council.” (Id. at 20.) 2 On May 10, 2024, the Court issued the preliminary order, which in part stated: 3 “Plaintiff(s) must promptly serve a copy of this Order on Defendant(s) and file a notice of 4 service with the Clerk of Court” and “unless the Court orders otherwise, on August 9, 2024, 5 the Clerk of Court shall terminate without further notice any Defendant in this action that 6 has not been served.” (Doc. 4 at 6-7, emphasis omitted.) Plaintiff has not yet filed any 7 proofs of service, so there is no evidence that any Defendant has been served or otherwise 8 made aware of this action. 9 On May 14, 2024, Plaintiff filed a motion for a TRO and preliminary injunction. 10 (Doc. 6.) Although the motion includes a certificate of service, it does not indicate whether 11 any Defendant has been served and/or whether any attempts were made to provide any 12 Defendant with notice. (Id. at 19.) 13 DISCUSSION 14 I. Legal Standard 15 Under Rule 65 of the Federal Rules of Civil Procedure, a party may seek injunctive 16 relief if it believes it will suffer irreparable harm during the pendency of an action. There 17 are two types of injunctions available under Rule 65: TROs and preliminary injunctions. 18 TROs may be issued without notice to the adverse party and are of limited duration. See 19 Fed. R. Civ. P. 65(b). Preliminary injunctions, in contrast, may only be issued after 20 adequate notice is provided to the adverse party. See Fed. R. Civ. P. 65(a). See generally 21 Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000) (“The interplay between Rule 22 65(a) (governing preliminary injunctions) and Rule 65(b) (governing TROs) is fluid, 23 requiring greater procedural formality and notice for preliminary injunctions that remain 24 operative for an unlimited time period . . . . Because a preliminary injunction is unlimited 25 in duration, its entry always requires notice to the opposing party sufficient to give that 26 party an opportunity to prepare an opposition to entry of an injunction.”). 27 Because Plaintiff has not established that Defendants have received notice, the 28 Court will limit its analysis here to Plaintiff’s seeming request for a no-notice TRO and 1 will rule on Plaintiff’s request for a preliminary injunction in due course. A request for a 2 TRO and a request for a preliminary injunction are analyzed under the same standards. 3 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832 , 839 n.7 (9th Cir. 4 2001). “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 6 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (cleaned up); see also Winter v. Nat. 7 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an 8 extraordinary remedy never awarded as of right.”) (citation omitted). “A plaintiff seeking 9 a preliminary injunction must establish that [1] he is likely to succeed on the merits, [2] 10 that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the 11 balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 12 Winter, 555 U.S. at 20 . “But if a plaintiff can only show that there are ‘serious questions 13 going to the merits’—a lesser showing than likelihood of success on the merits—then a 14 preliminary injunction may still issue if the ‘balance of hardships tips sharply in the 15 plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. 16 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild 17 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this “serious questions” 18 variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing 19 of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072 . 20 II. Analysis 21 Although the standards for evaluating a request for a TRO and preliminary 22 injunction are the same, these remedies serve different purposes. “A TRO should be 23 restricted to preserving the status quo and preventing irreparable harm just so long as is 24 necessary to hold a hearing and no longer.” E. Bay Sanctuary Covenant v. Trump, 932 25 F.3d 742, 779 (9th Cir. 2018) (cleaned up); see also Arizona Recovery Hous. Ass’n v. 26 Arizona Dep’t of Health Servs., 462 F. Supp. 3d 990 , 996 (D. Ariz. 2020) (“The purpose 27 of a preliminary injunction is to preserve the status quo and the rights of the parties until a 28 final judgment on the merits can be rendered, while the purpose of a TRO is to preserve 1 the status quo before a preliminary injunction hearing may be held.”) (cleaned up). 2 At the outset, Plaintiff has not demonstrated that he has served Defendants with any 3 documentation regarding this lawsuit or otherwise provided them with notice of his TRO 4 request. Grandinetti v. Bowden, 2010 WL 259077 , *1 (D. Ariz. 2010) (“Plaintiff does not 5 indicate that the motion was served on Defendants or that he attempted to serve his motion 6 on Defendants. As a result, Plaintiff appears to seek a temporary restraining order without 7 notice under Rule 65(b) of the Federal Rules of Civil Procedure.”). Ex parte TRO motions 8 are disfavored. Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 9 2006) (“[C]ourts have recognized very few circumstances justifying the issuance of an ex 10 parte TRO.”); Steven S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 11 Commentary, Rule 65 (“Federal courts view ex parte TROs with disfavor and rarely grant 12 them.”) 13 Pursuant to Rule 65(b)(1)(B), a court may not grant an ex parte TRO unless the 14 plaintiff’s attorney certifies “in writing any efforts made to give notice and the reasons why 15 it should not be required.” Plaintiff’s attorney has not done this. (Doc. 6.) This alone 16 means the TRO request must be denied. Fed. R. Civ. P. 65(b)(1)(B) (“The court may issue 17 a temporary restraining order without written or oral notice to the adverse party or its 18 attorney only if . . . the movant’s attorney certifies in writing any efforts made to give notice 19 and the reasons why it should not be required.”) (emphasis added); see also Grandinetti, [20] 2010 WL 259077 at *1 (“The Court may not grant a temporary restraining order without 21 notice unless the applicant certifies to the court in writing the efforts, if any, which have 22 been made to give notice and the reasons that notice should not be required. Plaintiff has 23 not satisfied this requirement. No reason has been offered by Plaintiff to forgo notice to 24 the adverse party. Accordingly, Plaintiff’s motion for temporary restraining order will be 25 denied.”) (citation omitted). 26 Additionally, a court may not grant an ex parte TRO unless the movant has provided 27 a verified complaint or affidavit demonstrating that irreparable harm will occur if the ruling 28 is delayed until after the adverse parties are given a chance to respond. Fed. R. Civ. P. 1 65(b)(1)(A) (“The court may issue a temporary restraining order without written or oral 2 notice to the adverse party or its attorney only if . . . specific facts in an affidavit or a 3 verified complaint clearly show that immediate and irreparable injury, loss, or damage will 4 result to the movant before the adverse party can be heard in opposition.”). Here, the 5 complaint is not verified. (Doc. 1.) And the only document attached to the motion that 6 even arguably qualifies as an affidavit for purposes of Rule 65(b) is a document signed by 7 one of the Defendants affirming that the minutes from the January 17, 2024 Town Council 8 meeting are accurate. (Doc. 6 at 37.) Regardless of whether this qualifies as an affidavit 9 under Rule 65, it does not establish the truth of the allegations that Plaintiff claims support 10 irreparable harm. (Id. at 16.) It shows that Plaintiff raised the conflict-of-interest issues at 11 the Town Council meeting and that several other Town Council members took issue with 12 his decision to raise those issues. (Id. at 23-24, 30, 34, 36.) It does not establish that 13 Plaintiff has been sanctioned, as the complaint alleges, or establish why those sanctions 14 will cause Plaintiff to suffer irreparable harm. (Id. at 16.) This lack of a verified complaint 15 or affidavit establishing irreparable harm provides an independent basis why the TRO 16 request must be denied. See, e.g., Egan v. Lonza Houston Inc., 2023 WL 3431910 , *2 17 (C.D. Cal. 2023) (“Egan’s TRO Application must be denied because it does not contain 18 specific facts in an affidavit or a verified complaint that clearly show that immediate and 19 irreparable injury, loss, or damage will result absent a restraining order.”) (cleaned up). 20 … 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that: 3 1. Plaintiff's motion (Doc. 6), insofar as it seeks a TRO, is denied. The Court will rule on Plaintiff's request for a preliminary injunction (Doc. 6) in due course. 5 2. Plaintiff must serve a copy of his motion for preliminary injunction (Doc. 6) 6 || and this order upon each Defendant and file proof thereof with the Court by May 31, 2024. 7 3. Each Defendant must respond to Plaintiffs motion for preliminary injunction 8 || (Doc. 6) within 14 days of service. 9 4. Plaintiff may file a reply responding to any such response within seven days 10 || of when the response is filed. 11 Dated this 17th day of May, 2024. [12] 13 Lam a’ 14 f CC —— Dominic W. Lanza 15 United States District Judge [28] -7-