The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
Soscia Holdings, LLC
v. Civil No. 22-cv-266-LM
Opinion No. 2023 DNH 089 P
State of Rhode Island, et al.
ORDER
Soscia Holdings LLC has again moved for a preliminary injunction (doc. no.
48) and has more recently moved for emergency relief to preserve the status quo in
this case (doc. no. 52). The defendants have moved for an extension of time of 30
days to address both motions. Doc. no. 53. For the reasons that follow, the court
grants the defendants’ motion for an extension of time and imposes an emergency
and temporary injunction to preserve the status quo in this case until the
preliminary injunction issues can be fully briefed and resolved.
BACKGROUND
Soscia brought federal and state claims against the State of Rhode Island, the
Rhode Island Department of Environmental Management (“DEM”), DEM Director
Terrence Gray, and Administrator of DEM Office of Compliance and Inspection
David E. Chopy. Soscia’s claims arise from its operation of the Flat River Reservoir
Dam (“Dam”) in Coventry, Rhode Island. In July 2022, DEM sent letters to Soscia
under a law requiring permits for certain dams, Rhode Island General Laws § 46-
19.1-1 (“Permitting Act”), directing Soscia to reduce the water flow from the Dam in
order to raise the water level in the reservoir created by the Dam, known as
Johnson’s Pond. Those letters expired without further action.
Soscia previously moved for a preliminary injunction, which the court denied
by an oral motion on January 24, 2023, during the hearing on the defendants’
motion to dismiss and Soscia’s motion for injunctive relief. On June 15, 2023, the
court granted in part and denied in part the defendants’ motion to dismiss, holding
that sovereign immunity barred Soscia’s claims for money damages against the
State of Rhode Island and the individual defendants in their official capacities and
that qualified immunity barred Soscia’s claims for money damages against Terrence
Gray and David Chopy in their individual capacities. Doc. no. 42. The federal
claims that remained in the case following the court’s order were Counts I through
IV brought against Gray and Chopy in their official capacities and seeking only
prospective injunctive relief, and state law claims in Counts V and VI.
On July 17, 2023, the defendants filed a second motion to dismiss. Doc. no.
43. In response, on July 19, Soscia Holdings filed a motion for leave to amend the
complaint. Doc. no. 44. On July 19, Soscia Holdings again moved for a temporary
restraining order or a preliminary injunction to stop the defendants from enforcing
the Permitting Act. Doc. no. 48. On July 24, Soscia Holdings moved for extra time
to respond to the motion to dismiss. Doc. no. 49.
On July 26, 2023, the court held a scheduling conference on the pending
motions. The court granted Soscia’s motion to amend to file a fourth amended
complaint with direction to Soscia to clarify that the court had dismissed its claims
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for compensatory and punitive damages in Counts I through IV and dismissed all
claims in Counts I through IV except those seeking prospective injunctive relief
against Terrence Gray and David Chopy. Doc. no. 50. Soscia has now filed the
fourth amended complaint. Doc. no. 51.
During the scheduling conference, the court discussed Soscia’s motion for a
preliminary injunction and directed counsel to confer with clients and work with
each other to draft a preliminary injunction that preserves the status quo ante in
this case. The court also stated that if the parties were unable to reach agreement,
either party could file a properly supported motion seeking an emergency
preliminary injunction.
Unfortunately, the parties were unable to agree to a preliminary injunction
to preserve the status quo ante. Soscia filed a motion for a temporary restraining
order. Doc. no. 52. The defendants filed a motion for an extension of time of 30
days to respond to both pending motions for injunctive relief. Doc. no. 53. Those
motions are addressed here.
STANDARD OF REVIEW
A temporary restraining order (“TRO”) is extraordinary relief that is issued
without notice to the adverse party. Fed. R. Civ. P. 65(b)(1); Lucero v. Coppinger,
2023 WL 363592, at *2 (D. Mass. Jan. 23, 2023). To succeed on a motion for a TRO,
the moving party must provide “(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in opposition; and (B)
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the movant's attorney certifies in writing any efforts made to give notice and the
reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1). A TRO may only be
issued for a period of up to 14 days. Fed. R. Civ. P. 65(b)(2).
A preliminary injunction requires notice to the adverse party. Fed. R. Civ. P.
65(a). “‘A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir.
2021), cert. denied sub nom. Does 1-3 v. Mills, 212 L. Ed. 2d 9, 142 S. Ct. 1112
(2022) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365,
172 L.Ed.2d 249 (2008)). Irreparable harm is measured on a sliding scale in
relation to the likelihood of success – the greater the likelihood, the less harm must
be shown. Braintree Labs., Inc. v. Citigroup Glob. Markets Inc., 622 F.3d 36, 42-43
(1st Cir. 2010). Constitutional violations are not per se irreparable harm, although
violations of certain First Amendment rights and “other rights as to which
temporary deprivation is viewed of such qualitative importance as to be
irremediable by any subsequent relief.” Vaqueria Tres Monjitas, Inc. v. Irizarry,
587 F.3d 464, 485 (1st Cir. 2009). Because preliminary injunctive relief is an
extraordinary remedy, the party seeking an injunction bears the burden of
establishing all four factors. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445
F.3d 13, 18 (1st Cir. 2006). The most important factors, however, are likelihood of
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success and irreparable harm. District 4 Lodge of the Int’l Assoc. of Machinists &
Aerospace Workers Local Lodge 207 v. Raimondo, 40 F.4th 36, 39 (1st Cir. 2022).
DISCUSSION
Soscia moves for a TRO or a preliminary injunction to preserve the status quo
in this case. Because Soscia filed the motion with notice to the defendants, the
court considers it as a motion for a preliminary injunction on an emergency basis.
The defendants have not yet responded to the motion and ask for an additional 30
days to do so.
Soscia contends, based on its memorandum in support of its motion for a
preliminary injunction (doc. no. 48), that it is likely to show that the Permitting Act
and the defendants’ actions have violated and continue to violate the Contracts
Clause, Article 1, § 10, the Takings Clause of the Fifth Amendment, its due process
rights under the Fifth and Fourteenth Amendments, and the Equal Protection and
Due Process Clauses of the Fifth and Fourteenth Amendments. The defendants’
motion to dismiss, which is now moot, argues that Soscia does not state cognizable
claims. Therefore, Soscia’s likelihood of success is disputed, based on the current
record.
Soscia argues that without injunctive relief it will suffer irreparable harm,
based on new circumstances since the prior motion was denied in January of this
year. In support, Soscia states that the defendants have now imposed a fine of
$23,000 and that failure to comply with the Permitting Act could result in fines of
$2,000 per day. Soscia also contends that the newly enacted regulations under the
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Permitting Act require it to apply for a permit that will cause it significant expense.
Soscia contends that because of the court’s ruling on sovereign immunity and
qualified immunity it will not be able to recover those costs from the defendants.
Under the circumstances presented here, without a response from the
defendants, the court is unable to determine whether Soscia is likely to succeed on
the merits of its claims or whether it will suffer irreparable harm in the absence of
an injunction. With respect to irreparable harm, the court’s recent rulings on
sovereign immunity and qualified immunity preclude compensation on the federal
claims through money damages in this case, which may support a finding of
irreparable harm caused by the fine and the costs of the permitting process. See,
e.g., Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 222 (1st Cir. 2003); N.J.
Staffing Alliance v. Fais, No. 1:23-CV-02494, 2023 WL 4760464, at *7 (D.N.J. July
26, 2023). In addition, the most recent motion for injunctive relief was filed late
yesterday afternoon. No hearing on the motion would be possible until Monday.
Further, the defendants have asked for an additional 30 days to respond to Soscia's
motions for injunctive relief, which would delay the court’s consideration of the
matter.
For these reasons, the better course at this juncture is to enjoin the parties
from actions that would change the status quo until the preliminary injunction
issues can be fully briefed, heard, and resolved. See, e.g., Pre-Paid Legal Servs.,
Inc. v. Smith, 2011 WL 4862429, at *1 (E.D. Okla. Oct. 13, 2011). The status quo is
the state of affairs that existed before Soscia lowered the water level in Johnson’s
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Pond and the defendants responded by enforcing the Permitting Act, which
precipitated Soscia’s claims alleged here. Therefore, the court will issue a
temporary preliminary injunction that will continue until an order on Soscia’s
motion for a preliminary injunction is issued.
CONCLUSION
For the foregoing reasons, the defendants’ motion for an extension of time
(doc. no. 53) is granted and the defendants’ response to Soscia’s pending motions for
injunctive relief (doc. nos. 48 and 52) will be due on or before September 1, 2023.
The parties are hereby enjoined from changing the status quo that existed
with respect to Johnson’s Pond and enforcement of the Permitting Act before Soscia
lowered the water level in Johnson’s Pond below its historic levels. Soscia shall
maintain the water levels in Johnson’s Pond in accordance with the requirements of
the Coventry Lease. The fine of $23,000 recently issued against Soscia shall be held
in abeyance without enforcement or accrual of interest or other penalties. The
application requirement under the Permitting Act and its regulations is also held in
abeyance without imposition of fines or other penalties. The defendants shall not
impose any other fines or penalties on Soscia arising from its operation of the dam
on the Pawtuxet River or its control of water levels in Johnson’s Pond absent prior
authorization of the court.
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This emergency preliminary injunction shall continue until the court issues
an order resolving Soscia’s motions for injunctive relief (doc. nos. 48 and 52).
SO ORDERED.
______________________________
Landya B. McCafferty
United States District Judge
Sitting by designation.
July 29, 2023
cc: Counsel of record.
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