Defendant Response to Motion to Grant Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DEBORAH L. TOOMEY, et al.

Plaintiffs,

vs. No. 2:12-cv-01100-SMV-LAM

CITY OF TRUTH OR CONSEQUENCES,

a municipal corporation,

Defendant.

DEFENDANT’S RESPONSE TO MOTION TO GRANT

PRELIMINARY INJUNCTION FOR FAILURE TO SERVE 64

PLAINTIFFS WITHRESPONSE [Doc. 11]

COMES NOW Defendant, the City of Truth or Consequences, by and through its counsel

Coppler Law Firm, P.C. (Gerald A. Coppler and John L. Appel) and for its Response to the

“Motion to Grant Preliminary Injunction for Failure to Serve 64 Plaintiffs with Response” [Doc.

11] (hereinafter, the “Motion”) filed by Plaintiffs herein on November 9, 2012, states as follows.

I. PROCEDURAL BACKGROUND

On October 15, 2012, Plaintiff Deborah L. Toomey filed her Motion for Preliminary

Injunction [Doc. 1, Ex. “C”] in the Seventh Judicial District Court for Sierra County, New

Mexico, contemporaneously with the filing of the sixty-five Plaintiffs’ Complaint for

Declaratory Relief and Injunction [Doc. 1, Ex. “A”] (the “Complaint”) herein. The Motion for

Preliminary Injunction [Doc. 1, Ex. “C”] was filed only by and on behalf of Ms. Toomey. In

Case 2:12-cv-01100-SMV-LAM Document 39 Filed 11/20/12 Page 1 of 8

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fact, Ms. Toomey did not even state the position of the other sixty-four Plaintiffs regarding the

Motion for Preliminary Injunction, although she purported to speak on their behalf as to other

matters (e.g., “Plaintiffs are confident that they will prevail on the issues enumerated in the

Complaint . . . ,” Motion for Preliminary Injunction [Doc. 1-3, Ex. “C”] at 1).

On October 24, 2012, this case was removed to the United States District Court for the

District of New Mexico, and Defendant served notice of the removal on all 65 Plaintiffs.

On October 29, 2012, Defendant filed its Response to Plaintiff Deborah L. Toomey’s

Motion for Preliminary Injunction [Doc. 5] (the “Response”), and served a copy on Ms. Toomey

by mail. On November 2, 2012, Defendant filed its Answer to the Complaint [Doc. 6].

Defendant did not initially serve copies of the Response [Doc. 5] or the Answer [Doc. 6] on all

Plaintiffs by mail, because Defendant had been advised by Court staff that service by mail would

be effected by the Court.

On November 8, 2012, Defendant returned a call from Court staff and was advised that,

contrary to their previous understanding, the Court would not serve the pro se Plaintiffs by mail

(except apparently Ms. Toomey). Thereupon, counsel for Defendant immediately caused copies

of the Response to Plaintiff Deborah L. Toomey’s Motion for Preliminary Injunction [Doc. 5]

and the Answer [Doc. 6] to be mailed to all Plaintiffs. See “Amended Certificate of Service of

Defendant’s Response to Plaintiff Deborah L. Toomey’s Motion for Preliminary Injunction

[Doc. 5] and Defendant’s Answer to Complaint for Declaratory Relief and Injunction [Doc. 6]”

[Doc. 9], filed November 8, 2012. Service was complete upon the mailing of these three

documents on November 8, 2012.


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Then, on November 9, 2012, Plaintiffs filed their Motion [Doc. 11] asking the Court to

grant the requested Preliminary Injunction solely because the sixty-four Plaintiffs who did not

even join in the original Motion did not immediately receive a copy of Defendant’s Response to

the Motion.

II. ARGUMENT

Defendant has already submitted its Response [Doc. 5] to Plaintiff Deborah L. Toomey’s

Motion for Preliminary Injunction [Doc. 1-3, Ex. “C”]. The reasons why no injunction should

issue, as set forth therein, remain fully valid and will not be repeated here. The delay of 10

calendar days (8 business days) in serving Defendant’s Response on the sixty-four Plaintiffs who

were not parties to the original Motion did not prejudice them in any way. Ms. Toomey, the

only moving party, was timely served. Amended Certificate of Service [Doc. 9]. She timely

filed her Reply to Defendant’s Response to Plaintiff Deborah L. Toomey’s Motion for

Preliminary Injunction [Doc. 12] on November 13, 2012.

None of the sixty-four Plaintiffs other than Ms. Toomey has ever filed, or to Defendant’s

knowledge has sought to file, a response to the Motion for Preliminary Injunction or a reply to

the Defendant’s Response in opposition to it. In fact, nothing in the record even reflected those

sixty-four Plaintiffs’ positions on the Motion for Preliminary Injunction until they were induced

to sign the Motion [Doc. 11] filed on November 9, 2012. The Motion [Doc. 11] shows that at

least by November 9, 2012, all of the Plaintiffs were aware of the delay in service of the

Response [Doc. 5]. If any of the Plaintiffs believes that he or she was prejudiced by the delay, he


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or she could request an extension of time to file a reply, and a reasonable request will not be

opposed by counsel for Defendant. None of the Plaintiffs has requested an extension of time, nor

has any of the Plaintiffs other than Ms. Toomey as yet filed a reply.1

III. CONCLUSION

For the foregoing reasons and in the interest of justice, the Motion to Grant Preliminary

Injunction for Failure to Serve 64 Plaintiffs with Response should be denied.

Coppler Law Firm, P.C.

645 Don Gaspar Avenue

Santa Fe, New Mexico 87505

(505) 988-5656

(505) 988-5704 fax

/s/ Gerald A. Coppler

Gerald A. Coppler

John L. Appel

Attorneys for Defendant

1 Plaintiff Toomey states that she “anticipates many, if not all, of the other 64 self-represented plaintiffs

served with Defendant’s Response to Motion for Preliminary Injunction on November 8, 2012, will reply

within 14 days of service if Plaintiffs’ Motion to Grant Preliminary Injunction for failure of Defendant to

serve a response on all parties within 14 days is not granted prior.” Plaintiff Toomey’s Reply to

Defendant’s Response to Plaintiff Deborah L. Toomey’s Motion for Preliminary Injunction [Doc. 12], at

3. To Defendant’s knowledge, no reply on behalf of any of the sixty-four Plaintiffs other than Ms.

Toomey has yet been filed. However, based on service of the Response [Doc. 5] by mail on November 8,

2012, replies will not be due until November 26, 2012.


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Certificate of Service

I HEREBY CERTIFY that on the 20th

day of November, 2012, I filed the foregoing

electronically through the CM/ECF system, which caused all counsel of record and Plaintiff

Deborah L. Toomey to be served by electronic mail, fax, or USPS, as more fully reflected in the

Notice of Electronic Filing. In addition, I caused a true copy of the foregoing to be delivered to

the below-listed plaintiffs by First Class Mail, postage prepaid:

Ron Fenn

316 N. Foch Street

Truth or Consequences, NM

87901

Barbara Salasin

211 W. Riverside Drive


87901

Kathe Bachtel

590 Mims #5


87901

Bethann Fenn

316 N. Foch Street


87901

Patricia Sistrunk

506 S. Pershing Street, Apt. 1


87901

Glenn M. Allen

P.O. Box 413

Williamsburg, NM 87942

Gerald Trumbull

905 Pine Street


87901

Joan Conway

316 E. 3rd

Avenue


87901

John E. Rayburn

P.O. Box 715

Williamsburg, New Mexico

87942

Rebecca Otero

558 Mims


87901

John Pape

212 Austin Avenue


87901

Lynn Lara

P.O. Box 715


87942

Yarrow Dankert

819 Ivy Street


87901

Alison Rashedi

214 Oak Street


87901

Benjamin A. Sanchez

P.O. Box 432


87942

Felicitas Rodriguez

6 Mud Canyon Road


87901

Robert Hanseck

316 Broadway Avenue


87901

Bonnie Sue Sanchez

P.O. Box 432


87942


6

Debra George

822 N. Pershing Street


87901

William Charles Bennett Jr.

P.O. Box 3


87901

Maryann Walter

P.O. Box 403


87942

James C. Mallen

600 N. Foch Street


87901

Gordon Mishler

P.O. Box 684


87942

Thomas P. Barto

P.O. Box 83


87942

Patrick Finley

417 Charles Street


87901

Monica Mishler

P.O. Box 684


87942

Gretchen M. Barto

P.O. Box 83


87942

Linda Scott

508 S. Pershing Street


87901

Augusta Mishler

P.O. Box 684


87942

Arthur Levine

P.O. Box 37


87942

Robert R. Munnerlyn

P.O. Box 3028


87901

Joseph Mishler

P.O. Box 684


87942

Ramona Levine

P.O. Box 37


87942

Dianne Fox

P.O. Box 92


87942

Mildred I Reed

P.O. Box 201


87942

Edna Coble

P.O. Box 906


87942

Earl Fox

P.O. Box 92


87942

Michael W. Reed

P.O. Box 201


87942

Bruce Thompson

P.O. Box 906


87942

Louie Palacios

P.O. Box 37


87942

Cheryl Hollingsworth

P.O. Box 73


87942

Kenneth Hughes Smiley

408 N. Magnolia


87901


7

James Palacios

P.O. Box 37


87942

Don Childers

P.O. Box 104


87942

Ann B. Smiley

408 N. Magnolia


87901

Michelle Cambroto

P.O. Box 901


87942

Shirley M. Childers

P.O. Box 104


87942

Michal Schartz

605 S. Pershing


87901

Phyllis Madison

P.O. Box 901


87942

Betty Durham

P.O. Box 855


87942

Maria Baca

201 W. Riverside


87901

David Madison

P.O. Box 901


87942

Mary Rose

P.O. Box 6


87942

Alfredo Baca

201 W. Riverside


87901

William Mata

P.O. Box 85


87942

Carol Naranjo

P.O. Box 752


87942

Joseph Jaramillo

1208 Aluminum


87901

Amanda Bailey

P.O. Box 964


87942

Lucy Farrester

P.O. Box 909


87942

Marcus Jaramillo

1208 Aluminum


87901

Dana Villines

P.O. Box 92


87942

John B. Gillem

P.O. Box 909


87942

Michelle Ellinger

427 Van Patten


87901

Daronda Fox

P.O. Box 1763

Elephant Butte, New Mexico

87942


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on this 20th

day of November, 2012.

/s/ Gerald A. Coppler

T:\GAC\PLEADING\4130.2012-11-20 39 Response to Mtn for PI for Failure to Serve


Documents

Defendant Response to Motion to Grant Preliminary Injunction