Petition for Writ of Certiorari — City of Garland, Texas v. Dearmore (No. 07-1527)

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si Suprgms 60 US.

6 071527 JUN 5- 2008

No. (1) GFACE OF THE OLERK

Jn Whe

Supreme Court of the Anited States

CITY OF GARLAND, TEXAS,

Petitioner,

ROY DEARMORE, et al.,

Respondents.

On Petition for Writ of Certiorart to the United

States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Mark E. DEMPSEY R. BRADFORD NEIGHBOR

Sr. Asst. City ATTORNEY City ATTORNEY

Counsel of Record

WILLIAM F’. GLAZER MICHAEL J. BETZ

Sr. Asst. City ATTORNEY Sr. Asst. Ciry ATTORNEY

CitTy OF GARLAND, TEXAS

P.O. Box 469002

GARLAND, TEXAS 75046-9002

(972) 205-2380

Attorneys for Petitioner

June 2008

Becker Gallagher - Cincinnau, OH - Washington, D.C. - 800.890.5001

QUESTION PRESENTED

This case presents the question expressly reserved

by this Court in Sole v. Wyner, __ U.S. __ (2007) —

whether a party who obtains a preliminary injunction

in the absence of a final decision on the merits of a

claim for permanent injunctive relief is entitled to

prevailing party status so as to permit the award of

attorney’s fees under federal fee shifting statutes. It

is a question that has split and indeed confounded the

circuit courts. In this case, the Fifth Circuit held that

the fleeting modicum of victory represented by a

subsequently mooted preliminary injunction is

sufficient. The Fourth and Eighth circuits disagree,

relying on this Court’s disavowal of the “catalyst

theory” in Buckhannon Board & Care Home v. West

Virginia Dept. of Health, 532 U.S. 598 (2001) as

authority for their positions. Still other circuit courts

answer the question either “yes” or “sometimes” (or

both “yes” and “no”) based upon differing tests devised

by those circuits, none of which is entirely consistent

with the tests created by the other circuits.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner, the City of Garland, Texas (the “City”)

is a home-rule municipality created under the

constitution and laws of the State of Texas, thus Rule

29.6 does not apply.

Respondents, Roy Dearmore, A.C. Blair, and Marie

Combs, (collectively, “Dearmore”) were plaintiffs in the

district court and appellees in the court of appeals.

Dearmore and the others filed suit individually and as

putative representatives of a purported class -of

property owners, property managers, and tenants. No

such class or classes were ever certified by the district

court, and no appeal was taken from that ruling, so the

Respondents are in this Court as individuals only.

ill

TABLE OF CONTENTS

QUESTION PRESENTED .................... 1

PARTIES TO THE PROCEEDING AND RULE

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TABLE OF CITED AUTHORITIES ........ Lae

Ce ee UR hae eb ees Sew eda es 1

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STATUTORY PROVISIONS INVOLVED IN THE

RI cosh week a ee ale rh ino aa arated oats 1

PRELIMINARY 2g 44 | y a area 2

STATEMENT OF THE CASE ................ 3

REASONS FOR GRANTING THE PETITION ... 6

A. The Circuit Courts of Appeal Are in Conflict

Whether a Preliminary Injunction

Constitutes “Relief on the Merits” to Permit

“Prevailing Party” Status under Federal Fee

ee er re errs eee 6

1. The Court of Appeals for the Fourth

Circuit has completely rejected —

preliminary injunctive relief as the basis

for awarding attorney’s fees under

federal fee shifting statutes. .......... 7

2. The Court of Appeals for the Fifth

Circuit has held that preliminary

injunctive relief, without relief on the

merits, is sufficient to establish

prevailing party status under federal fee

ETE PEIN. 55 on As see bs 10

3. Treatment of this issue by the other

circuit courts of appeals is equally

SI oo cee eae eee 11

B. The Courts That Have Held Success on a

Preliminary Injunction Alone to be Sufficient

to Make the Recipient of the Injunction a

Prevailing Party Have Resurrected the

“Catalyst Theory” Abandoned by this Court

SO er a oe eto! 16

Ie 300 or ee les 19

APPENDIX

Appendix A: March 10, 2008 Fifth Circuit

Opinion and Judgment .................. la

Appendix B: September 6, 2006 District Court

Agreed Order Concerning Attorney’s Fees .. 22a

Appendix C: August 29, 2006 District Court

Memorandum Opinion and Order ......... 24a

Appendix D: November 30, 2005 District Court

Coreen iw ek ack cee 42a

Appendix E: November 3, 2005 District Court

Memorandum Opinion and Order and

Promammery Insmetaem «. . we ee ees 48a

Appendix F: June 28, 2005 District Court

Memorandum Opinion and Order ........ 73a

TABLE OF CITED AUTHORITIES

CASES

Advantage Media, L.L.C. v. City of Hopkins,

379 F. Supp. 2d 1030 (D. Minn. 2005) ...... 12

Advantage Media, L.L.C. v. City of Hopkins,

511 F.3d 833 (8th Cir. 2008), cert. denied,

eae Wa FO WPA SOUT ovcivercvss MW

Ashcroft v. American Civil Liberties Union,

ee APE, 6, oo 6 6s Wide o sb vee as 6 ewe 16

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res.,

BRR re passim

Dearmore, et al. v. City of Garland,

400 F. Supp. 2d 894 (N.D. Tex. 2005) ........ 1

Dearmore, et al. v. City of Garland,

237 © .R.D. 673 GND. Tex. 2006) ............ 1

Dearmore v. City of Garland,

519 F.3d 517 (Sth Cir. 2008) ........... passim

Haley v. Patacki,

106 F.3d 478 (2d Cir. 1997) ............ 15, 16

Hewitt v. Helms,

482 U.S. 755, 107 S.Ct. 2672 (1987) ........ 16

LaRouche v. Kezer,

ae ee Oe Ce Se. TE) nn ng ce ieee 16

vii

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ....... 13, 14, 20

Smyth ex rel. Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002), cert. denied,

Dae Ge PAI? 6 ive ei eee cect anes 7, 8,9

Sole v. Wyner,

sh aE oe eae a i

Texas State Teacher’s Assn. v. Garland

Independent School Dist.,

Ue Se PUT gone ove ees ev baween 18

University of Texas v. Camenisch,

OE i CRON) 65 bos esc eee vanavweds 11

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002), cert. denied,

ey es MUG 6 eS ee esses wees 12,13

STATUTES

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ke 2 | reer 1,7, 39

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RULES

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OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit (Pet. App. A) is published at 519

F.3d 517 (5th Cir. 2008). The order of the district

court (Pet. App. E) granting Dearmore a preliminary

injunction is reported at 400 F. Supp. 2d 894 (N.D.

Tex. 2005). The order of the district court dismissing

Dearmore’s suit as moot, but nonetheless finding

Respondents to be prevailing parties is unreported.

(Pet. App. D). The district court’s order denying the

City’s motion to amend that holding is reported at 237

F.R.D. 573 (N.D. Tex. 2006). (Pet. App. C).

JURISDICTION

The judgment of the United States Court of

Appeals for the Fifth Circuit was entered on March 10,

2008. Pursuant to Supreme Court Rule 13.1, this

petition has been filed within 90 days of that

judgment. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254 (1).

STATUTORY PROVISIONS

INVOLVED IN THE CASE

The relevant portion of 42 U.S.C. § 1988 provides:

In any action or proceeding to enforce a

provision of sections 1981, 198la, 1982, 1983,

1985, and 1986 of this title, title [IX of Public

Law 92-318 [20 U.S.C.A. § 1681 et seq.], the

Religious Freedom Restoration Act of 1993 (42

U.S.C.A. § 2000bb et seq.|, the Religious Land

Use and Institutionalized Persons Act of 2000

[42 U.S.C.A. § 2000cc et seq.], title VI of the

Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et

seq.], or section 13981 of this title, the court, in

its discretion, may allow the prevailing party,

other than the United States, a reasonable

attorney’s fee as part of the costs, except that in

any action brought against a judicial officer for

an act or omission taken in such officer’s

judicial capacity such officer shall not be held

liable for any costs, including attorney’s fees,

unless such action was clearly in excess of such

officer’s jurisdiction.

42 U.S.C. § 1988(b)

PREEIMINARY STATEMENT

Dearmore filed a civil action against the City

challenging an ordinance passed by the Garland City

Council that imposed certain minimum housing

standards on single family and multifamily residential

rental properties. The ordinance further required

inspections of those residences to ensure compliance

with the minimum housing standards. The district

court dismissed most of Dearmore’s claims related to

the minimum housing standards. At the same time -

but without notice to the parties or a preliminary

injunction hearing - the district court granted a

preliminary injunction against the City on the sole

remaining issue, a provision relating to a residential

rental inspection program created by the ordinance.

The district court enjoined that provision because,

according to the district court, it could imagine

hypothetical circumstances in which that provision

could be enforced in a manner contrary to the

restraints of the Fourth Amendment. Inasmuch as the

City did not intend to implement the inspection

program in the manner hypothesized by the district

court, the City Council amended the ordinance to

address the district court’s stated concerns.

Thereafter, the case was dismissed as moot. However,

in the order dismissing the case, the district court

determined that, based on the preliminary injunction,

Dearmore was a “prevailing party.” The district court

then awarded Dearmore attorney’s fees and costs. The

City appealed that determination and the award of

attorney’s fees. The Fifth Circuit Court of Appeals

affirmed. Dearmore v. City of Garland, 519 F.3d 517

(5th Cir. 2008).

STATEMENT OF THE CASE

On June 16, 2005, Dearmore filed an original

complaint under 42 U.S.C. § 1983 requesting

temporary, preliminary, and permanent injunctive

relief challenging Garland Ordinance No. 5895

relating to the maintenance of rental properties within

the City. The complaint alleged that various minimum

housing standards made applicable by the ordinance

to residential rental property, such as requiring

working air conditioners and window screens for

windows, and ensuring that windows could be opened

and used as an exit in the event of a fire, lacked a

rational basis and were, therefore, unconstitutional.

Dearmore also alleged that the ordinance permitted

the warrantless searches of rental units in

contravention of the Fourth Amendment of the United

States Constitution. Contemporaneously with the

filing of the original complaint, Dearmore filed a

motion for a temporary restraining order, seeking to

enjoin the City from enforcing the ordinance on Fourth

and Fifth Amendment grounds.

The district court considered the motion for

temporary restraining order and issued a

Memorandum Opinion and Order denying the motion.

(Pet. App. F). Dearmore then filed an amended motion

for temporary restraining order and a motion to

reconsider the district court’s denial of the previous

motion. Alternatively, Dearmore requested an

expedited hearing on his request for a preliminary

injunction. The motion did not request the district

court to issue a preliminary injunction at that time,

but rather, only asked the district court to either issue

a temporary restraining order, or alternatively,

establish an expedited schedule for discovery and a

hearing on a preliminary injunction. The district court

set the motion for a hearing on July 7, 2005.

The day before that hearing, the City filed a motion

to dismiss, seeking to dismiss Dearmore’s claims

pursuant to Federal Rule of Civil Procedure 12(b)(6).

On July 7, 2005, the district court held a hearing on

Dearmore’s motion, after which it issued an order

requiring Dearmore to file a response to the City’s

motion to dismiss by July 13, 2005. In apparent

response to what transpired at the hearing and the

City’s motion to dismiss, Dearmore amended his

pleadings, abandoning a number of his claims.

On November 3, 2005, without conducting any

other hearings and with no other notice relating to its

intentions regarding Dearmore’s request for a hearing

on a preliminary injunction, the district court issued a

Memorandum Opinion and Order and Preliminary

Injunction. (Pet. App. E). In that order, the district

court granted, for the most part, the City’s motion to

dismiss. In addition, though, the district court issued

a preliminary injunction enjoining the City from

enforcing an isolated provision of the challenged

ordinance relating toa non-resident owner’s consent to

inspection of unoccupied single family rental

properties. The order continued the preliminary

injunction until a trial could be conducted on the

merits. The order dismissed all of Deamore’s

remaining claims except the provision enjoined. On

the same date, the district court issued a scheduling

order setting the case for trial on October 2, 2006, and

setting a schedule for discovery and other pre-trial

preparations.

On November 15, 2005, the Garland City Council

amended the ordinance to change the provision called

into question by the district court, that is, the portion

of the ordinance related to a non-resident owner’s

consent to inspection of single family rental properties.

Because the only issue remaining in the case involved

the provision of the ordinance changed by the

amendment, the City immediately notified the district

court that the ordinance had been amended, and

moved to dismiss the case as moot. Dearmore did not

oppose the City’s request to dismiss the case as moot.

On November 30, 2005, the district court granted

the City’s motion to dismiss as moot. (Pet. App. D).

The order granting the motion, however, found that

Dearmore was a “prevailing party” because he had

obtained a_ preliminary’ injunction. In the

accompanying judgment, the district court dismissed

the action with prejudice, taxed costs against the City,

and purported to dissolve the injunction — which the

district court noted had not become effective in any

event (Pet. App. D).’

On December 12, 2005, the City filed a motion to

amend, requesting that the district court amend the

judgment to reflect that Dearmore was not a

prevailing party in the litigation and asking the court

to re-tax costs against the party incurring same. On

August 29, 2006, the district court denied the motion

to amend the judgment. (Pet. App. C). On September

6, 2006, following stipulation by the parties as to the

amount of fees only, the district court awarded

attorney’s fees to Dearmore. (Pet. App. B). The City

timely appealed. The Fifth Circuit Court of Appeals

affirmed.

REASONS FOR GRANTING THE PETITION

A. The Circuit Courts of Appeal Are in Conflict

Whether a Preliminary Injunction

Constitutes “Relief on the Merits” to Permit

“Prevailing Party” Status under Federal Fee

Shifting Statutes.

The circuit courts of appeal are in disagreement as

to whether a party who obtains only preliminary

injunctive relief is a prevailing party for purposes of an

' The district court noted in both the order granting the City’s

motion to dismiss as moot, and the accompanying judgment, that

the injunction had never become effective “because Plaintiff

Dearmore never posted the bond as ordered by the Court.” (Pet.

App. D at 44a, 46a).

award of attorney’s fees under federal fee-shifting

statutes. The Fourth Circuit Court of Appeals in

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 277 (4th

Cir. 2002), cert. denied 537 U.S. 825 (2002), held that

a preliminary injunction can never form the basis of

prevailing party status to support an award for

attorney’s fees. In sharp contrast, the Fifth Circuit

Court of Appeals in this case held that such

preliminary relief is sufficient to afford prevailing

party status. Dearmore v. City of Garland, 519 F.3d

517, 524 (5th Cir. 2008). Other circuits have likewise

breathed new life into the “catalyst theory” rejected by

this Court in Buckhannon Bd. Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res. , 532 U.S. 598 (2001)

by devising various tests (that differ from circuit to

circuit) to find that preliminary injunctive relief may,

under some circumstances, form the basis for

prevailing party status.

1. The Court of Appeals for the Fourth

Circuit has completely rejected

preliminary injunctive relief as the basis

for awarding attorney’s fees under federal

fee shifting statutes.

In Smyth, the court of appeals held that a

preliminary injunction could not meet the prerequisite

for prevailing party status under 42 U.S.C. § 1988.

Smyth, 282 F.3d at 277. The court explained that

“(t]he preliminary injunction inquiry, because of the

preliminary, incomplete examination of the merits

involved and the incorporation (if not the

predominance) of equitable factors, is ill-suited to

guide the prevailing party determination regardless of

how it is formulated.” Jd. at p. 277, n.8.

Smyth involved recipients of the Aid to Families

with Dependent Children (AFDC) program who

challenged a new policy requiring an applicant to

identify the father of the child for whom benefits were

sought, or to list the first and last names of all

individuals who might be the father. Id. at 271. Some

of the applicants for AFDC benefits were unable to

identify the fathers of their children, and as a result of

the deemed inability to “cooperate,” their benefits

under the AFDC program were reduced or eliminated.

Id. The district court entered a preliminary injunction

barring the State from enforcing the policy against the

plaintiffs. Jd. at 272. Thereafter, the federal

government changed its regulation by relaxing the

standard for obtaining a waiver of the identification

requirement and modifying its policy to make

identification of the fathers prospective only. Jd. at

273. Asa result of the government’s changes to the

policy, the district court dismissed plaintiffs’ claims as

moot. Id. at 273.

Plaintiffs filed a motion for attorney’s fees and

costs, which was granted. 7d. The district court found

that because the plaintiffs obtained a preliminary

injunction, they had prevailed, and were entitled to

attorney's fees. Id. The district court awarded the

plaintiff nearly $200,000 in fees, and the State

appealed the award of fees. Id.

The Court of Appeals for the Fourth Circuit found

that “[w]hile granting such an injunction does involve

an inquiry into the merits of a party’s claim, ... the

merits inquiry in the preliminary injunction context is

necessarily abbreviated.” Jd. at 276. Examining the

standard for granting a preliminary injunction, the

court explained that a party is not required to succeed

on the merits of their claim at that stage. “The fact

that a preliminary injunction is granted in a given

circumstance, then, by no means represents a

determination that the claim in question will or ought

to succeed ultimately; that determination is to be made

upon the ‘deliberate investigation’ that follows the

granting of the preliminary injunction.” /d. at 276.

The Fourth Circuit noted that to prevail at the

preliminary injunction stage, a plaintiff must only

demonstrate a strong showing or a substantial

likelihood of success by clear and convincing evidence

to obtain relief. Jd. at 276. In addition, in the

preliminary injunction context, the court is required to

weigh other factors in addition to the merits inquiry,

that is, irreparable harm to the plaintiff, public policy

considerations, and the balance of harm to plaintiff

weighed against harm to the defendant. Jd. at 276-

277. The Fourth Circuit observed that the “interplay

of these equitable and legal considerations and the less

stringent assessment of the merits of claims that are

part of the preliminary injunction context belie the

assertion that the district court’s decision to grant a

preliminary injunction was an ‘enforceable judgment{]

on the merits’ or something akin to one for prevailing

party purposes.” Id. at 277, citing Buckhannon, 532

U.S. at 604, and therefore disallowed an award of

attorney’s fees to the plaintiffs.

Thus, the “ourth Circuit, recognizing the limited

nature of review and other considerations inherent in

a decision to grant a preliminary injunction, correctly

found that such a decision is not a decision on the

merits within the meaning of Buckhannon and does

not confer prevailing party status. In contrast, the

Fifth Circuit’s decision in the instant case, with which

other circuit courts generally agree, holds instead that

preliminary injunctive relief may be relief on the

merits for purposes of evaluating prevailing party

status. Dearmore, 519 F.3d at 524.

2. The Court of Appeals for the Fifth Circuit

has held that preliminary injunctive relief,

without relief on the merits, is sufficient to

establish prevailing party status under

federal fee shifting statutes.

In the instant case, the district court awarded

attorney's fees to Dearmore because Dearmore

obtained a preliminary injunction order despite having

failed to obtain final relief on the merits of his claims.

Id. at 526. The district court found that the order

granting preliminary relief afforded Dearmore

prevailing party status, and that he was thus entitled

to attorney’s fees. Jd. at 524. The Fifth Circuit

recognized that the issue had not been decided by this

Court and that the circuit courts have applied less

than uniform standards in deciding the question. Id.

at 521. Nevertheless, the Fifth Circuit affirmed the

district court’s order and determined that Dearmore

was a “prevailing party” within the meaning of 42

U.S.C. § 1988. Id. at 526. In affirming, the Fifth

Circuit created a three part test to determine

“prevailing party” status. The plaintiff:

(1) must win a preliminary injunction, (2) based

upon an unambiguous indication of probable

success on the merits of the plaintiffs claims as

opposed to a mere balancing of the equities in

favor of the plaintiff, (3) that causes the

defendant to moot the action, which prevents

the plaintiff from obtaining final relief on the

merits.

Id. at 524.

In allowing Dearmore to be a prevailing party, the

Fifth Circuit disregarded this Court’s recognition in

University of Texas v. Camenisch, 451 U.S. 390 (1981),

of the necessarily abbreviated nature of a preliminary

injunction hearing. The decision of the Fifth Circuit

would effectively convert a proceeding that by its very

nature is not intended to result in a final judgment

into the equivalent of a trial on the merits. This is

particularly true where, as here: (1) the district court

did not notify the parties that it was considering a

preliminary injunction, (2) the district court did not

hold a preliminary injunction hearing, and (3) the

district court accepted the well pleaded facts of

Dearmore’s complaint as true.

3. Treatment of this issue by the other circuit

courts of appeals is equally inconsistent.

Several other circuit courts of appeal have

considered the question presented in this case. Those

courts are split both as to whether a preliminary

injunction is sufficient to confer such status and, even

amongst. those that have ruled a_ preliminary

injunction may sometimes be enough, they differ in

their reasoning as to when and why.

For example, the Eighth Circuit, in Advantage

Media, L.L.C. v. City of Hopkins, 511 F.3d 833, 838

(8th Cir. 2008), cert. denied, _ U.S. __, 76 U.S.L.W.

3557 declined to find a party who had obtained a

preliminary injunction, followed by a change in the

municipal ordinance which mooted the case, to be a

“prevailing party” under federal fee shifting statutes.

In that case, the district court granted a preliminary

injunction against the enforcement of a municipal sign

ordinance, finding that plaintiff had demonstrated a

“substantial likelihood of success on the merits. . .”

Advantage Media, L.L.C. v. City of Hopkins, 379 F.

Supp. 2d 1030, 1046 (D. Minn. 2005). In response to

the injunction the city enacted a new permanent sign

ordinance. Advantage Media, 511 F.3d at 835. The

new sign ordinance cured the constitutional infirmities

that formed the basis of Advantage’s lawsuit. Id.

Following resolution of plaintiffs other claims, the

district court denied plaintiffs motion for attorney’s

fees. Id. The plaintiff appealed, and the Eighth

Circuit held that the plaintiff was not a prevailing

party entitled to attorney’s fees. Id. at 839. The court

reasoned that, although the lawsuit resulted in the

city’s alteration of several potentially unconstitutional

provisions of the sign ordinance, that alone was

insufficient under this Court’s opinion in Buckhannon

to make the plaintiff a prevailing party. Jd. at 838.

Other circuit courts have held that a party that

obtains a preliminary injunction may be a “prevailing

party” where the injunction itself acts to render the

case moot. For example, in Watson v. County of

Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002), cert.

denied, 538 U.S. 923 (2003), the Ninth Circuit granted

attorney's fees in a case where the injunction sought

by the plaintiff granted him all of the relief he would

have obtained after trial by a final judgment on the

merits. In that case, the plaintiff, a deputy sheriff,

sought to enjoin the County of Riverside from using a

report against him in an administrative termination

proceeding on the ground that the report had allegedly

been obtained unlawfully. Jd. at 1094. The district

court granted the preliminary injunction and the

administrative termination proceeding was _ held

without the report. Jd. All of the remaining issues in

the case were disposed of, and the case became moot

once the administrative hearing had been held in the

manner sought by plaintiff. Jd.

The Ninth Circuit found that the plaintiff was

entitled to attorney’s fees because the relief he

obtained as a result of the court’s order — an

administrative hearing without the use of the report —

was the precise relief he sought in the lawsuit. Jd.

Indeed, the court specifically noted that the county did

not “voluntarily” decide not to use the report in the

administrative proceeding - it was prevented from

doing so because the district judge said it could not.

Id. at 1096 (“In this case, the County was prohibited

from introducing Watson’s report at the termination

hearing for one reason only: because Judge Timlin said

so.”) The court pointed out that the plaintiff, “obtained

significant, court-ordered relief that accomplished one

of the main purposes of his lawsuit.” Jd.

In Select Milk Producers, Inc. v. Johanns, 400 F.3d

939 (D.C. Cir. 2005), the plaintiff brought an action

against the Secretary of Agriculture regarding a

separate price class for certain dairy products. The

plaintiff obtained a preliminary injunction halting the

implementation of the regulations and the Department

of Agriculture changed the regulations, thereby

mooting the case. Jd. at 943. The D.C. Circuit, in

allowing the award of attorney’s fees to the plaintiff,

gleaned a three prong test from the Buckhannon

decision. Id. at 946-947. The court explained that

“Buckhannon embraces three core principles for

construing the term ‘prevailing party’ in federal fee

shifting statutes: ...” Id. The three principles are

that: (1) plaintiff must show a change in the legal

relationship; (2) judgment must be rendered in the

party’s favor; and, (3) there must be some judicial

relief as opposed to merely a judicial pronouncement.

Id. The D.C. Circuit Court further explained,

“In short, the holding in Buckhannon embraces

the possibility that, under’ certain

circumstances, a preliminary injunction, like a

consent decree, may result in a court-ordered

change in the legal relationship between the

parties that is sufficient to make a plaintiff a

‘prevailing party’ under a fee shifting statute

like the EAJA. Therefore, Buckhannon surely

does not endorse a per se rule that a

preliminary injunction can never transform a

party in whose favor the myjunction is issued

into a ‘prevailing party’ under the EAJA.”

Id. at 945.

In applying the three prong test discussed above,

the circuit court focused on the district court’s finding

that Milk Producers “undoubtedly would have

succeeded on the merits.” /d. at 948. “Milk Producers

secured a preliminary injunction in this case largely

because their likelihood of success on the merits was

never seriously in doubt.” /d. In other words, the

court’s prediction of success on the merits at the

preliminary injunction stage was sufficient to confer

prevailing party status.

In Haley v. Patacki, 106 F.3d 478, 483 (2d Cir.

1997), the Second Circuit Court of Appeals adopted the

approach that a decision to award a preliminary

injunction can establish prevailing party status if the

determination is made on the merits. In that case,

legislative employees brought an action against the

governor and state of New York, claiming that their

constitutional] and statutory rights were violated by

the governor’s withholding of their biweekly salary

payments from an appropriations bill pending passage

of the state budget. Jd. at 480. The district court

issued a _ preliminary injunction requiring the

payments to continue during the pendency of the

action. Jd. Before the case could be decided on the

merits, the state passed a budget thereby mooting the

case. Id. The district court found that the plaintiffs

were prevailing parties and awarded attorney’s fees

based upon their success in obtaining a preliminary

injunction. /d. at 481. The governor appealed. The

Second Circuit, in allowing the award of attorney’s fees

held that, “we do not automatically require a denial of

attorney's fees when a party receives a stay or

preliminary injunction but never obtains final

judgment...” Jd. at 483. “Instead, a decision to award

attorney's fees requires an analysis of whether the

party’s relief, whether by injunction or stay, resulted

from a determination on the merits.” Jd. Moreover,

the court explained that “[a] determination of whether

a court’s action is governed by its assessment of the

merits ‘requires close analysis of the decisional

circumstances and reasoning underlying the grant of

preliminary relief.” Jd. at 483, (quoting LaRouche v.

Kezer, 20 F.3d 68, 72 (2d Cir. 1994)).

Although a determination of entitlement to

preliminary relief can include an examination of the

merits, a preliminary injunction may be granted by the

mere showing of a likelihood of success on the merits.

Ashcroft v. American Civil Liberties Union, 542 U.S.

656, 666 (2004). According to some circuit courts of

appeal, with the exception of the Fourth and possibly

Eighth circuits, if a party prevails even on the lesser

standard of “likelihood of success,” the party may,

nonetheless, be considered a prevailing party entitled

to attorney’s fees. That standard is inconsistent with

this Court’s previous holdings that the standard must

be success on the merits. Buckhannon, 532 U.S. at 604;

Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672 (1987).

B. The Courts That Have Held Success on a

Preliminary Injunction Alone to be Sufficient

to Make the Recipient of the Injunction a

Prevailing Party Have Resurrected the

“Catalyst Theory” Abandoned by this Court in

Buckhannon.

To see how the Fifth Circuit’s decision in Dearmore

merely revives the catalyst theory, the Court need look

no further than the judicially enforceable result that

Dearmore took from the courthouse and compare that

result with the result in Buckhannon. Dearmore, like

the plaintiffs in Buckhannon, |eft the courthouse at the

end of the day with nothing. The problem with the

catalyst theory, as recognized by this Court in

Buckhannon, is that the plaintiff in such cases has not

truly “prevailed” because the plaintiff lacks the means

of ensuring by judicial imprimatur the change in law

brought about by the lawsuit. See Buckhannon at 605

(“A defendant’s voluntary change in conduct, although

perhaps accomplishing what the plaintiff sought to

achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change.”) Dearmore is in the

identical position; he left the courthouse — as did the

plaintiffs in Buckhannon — without any means of

enforcing the City Council’s voluntary change in

conduct. Unlike Buckhannon, however, the ordinance

that Dearmore wanted stricken down was, for the most

part, still very much intact.

The resurrection of the catalyst theory in any form

creates the very sort of problems that led this Court to

disavow that doctrine in Buckhannon. The City in this

case did what it thought was reasonable and right, and

what was fair to the district court, the plaintiff, and

the taxpayers who foot the bills for the City: instead of

waging a fight over the validity of the provision the

district court found to be constitutionally suspect, the

City changed that provision - a provision that was a

small part of a larger, comprehensive ordinance, a

provision that the City never intended to implement in

the manner hypothesized by the district court in any

event. In short, the City believed that it could modify

the ordinance in a manner that would address the

district court’s concerns without doing violence to its

single family rental program, and thereby save the

time, effort, and expense that continued litigation

would have entailed.

Opinions like the Fifth Circuit’s decision in

Dearmore will remove that option, forcing defendants

to litigate to the bitter end something that may be of

absolutely no moment to the defendant. This Court’s

decision in Buchhannon acknowledged that very

mischief by recognizing the disincentive that the

“catalyst theory” would have on a defendant’s decision

to voluntarily change its conduct. See Id. at 608

(noting that a defendant’s potential liability for

attorney’s fees may be as significant as, if not more

than, potential liability on the merits, and

acknowledging that the possibility of being assessed

attorney's fees may well deter a defendant from

altering its conduct in the manner sought by the

plaintiff). To the extent the abandonment of the

catalyst theory was meant to encourage a defendant to

give the plaintiff at least some of the relief the plaintiff

seeks, the same holds true with any form of relief short

of a judgment on the merits or a consent decree.

Whatever the form of “catalyst,” whether it be the

mere filing of a lawsuit or a preliminary opinion of a

district court, if a defendant finds itself facing an

inevitable award of attorney’s fees by capitulating even

a little, it has no alternative but to continue a battle

over something it would otherwise have never

contested. That sort of fight is the type of needless,

collateral litigation this Court has cautioned against

creating in Buckhannon and other cases. See

Buckhannon at 609 (“We have accordingly avoided an

interpretation of the fee-shifting statutes that would

have ‘spawn[ed] a second litigation of significant

dimension.”)(quoting Texas State Teacher’s Assn. v.

Garland Independent School Dist., 489 U.S. 782, 791

(1989)).

The effective revival of the catalyst theory by the

Fifth Circuit and other courts not only invites that sort

of needless litigation, it compels it. In its opinion, the

Fifth Circuit noted that “when a defendant moots an

action in response to the district court’s preliminary

injunction order, the defendant will have generally

acceded to the order and thus will not have appealed.

This lack of appeal by a defendant has been noted by

this Court and others to Se a factor favoring a finding

of prevailing party status.” Dearmore, 519 F.3d at 524,

n.3 (emphasis added). Thus, in order to avoid any sort

of implication that the defendant somehow concedes

prevailing party status for the plaintiff, the defendant

must continue what is otherwise an unwanted fight

through every level. Indeed, the Fifth Circuit would

apparently have required the City to engage in full-

fledged combat in the district court, then on appeal of

the preliminary injunction, and then, quite possibly, on

appeal again from the district court’s final order — all

arising from the hypothetical application of a provision

of an ordinance which was neither material or

necessary to protect the goals of the ordinance as

originally intended.

CONCLUSION

Since this Court’s opinion in Buckhannon, the

circuit courts have wrestled with the question of

whether, and under what circumstances, a preliminary

injunction, without a final judgment, can serve as the

basis for prevailing party status under federal fee

shifting statutes. It is a recurring problem that has

not only created a split in the circuits as to the “yes” or

“no” of the question, but inconsistencies, as well,

among those circuits that allow a_ preliminary

injunction to satisfy Buckhannon’s requirement of a

“final judgment or consent decree.”

Moreover, those circuits that allow a preliminary

injunction to confer prevailing party status have

strayed from this Court’s holding in Buckhannon by

allowing a party that leaves the courthouse with only

preliminary relief — without having obtained a final

judgment or court ordered consent decree — to

nevertheless receive attorney's fees as a prevailing

party. As was aptly observed by Judge Henderson in

his dissent in Select Milk Producers, “(t]he words

‘preliminary’ and ‘prevailing’ are not ones that easily

fit together.” Select Milk Producers, 400 F.3d at 962

(Henderson, J., dissenting). The Court should not

allow the catalyst theory rejected in Buckhannon to

reappear in the form created in some of the circuit

courts by equating the words “preliminary” and

“prevailing.”

This petition for a writ of certiorari should be

granted.

Respectfully Submitted,

R. Bradford Neighbor

City Attorney

Counsel of Record

Michael J. Betz

Senior Assistant City Attorney

Mark E. Dempsey

Senior Assistant City Attorney

William F. Glazer

Senior Assistant City Attorney

City of Garland, Texas

P.O. Box 469002

Garland, Texas 75046-9002

(972) 205-2380

Attorneys for Petitioner

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 06-11007

[Filed March 10, 2008]

ROY DEARMORE, Individually and as

Representative of all Owners of Single

Family Residential Property in Garland,

Texas; A C BLAIR, Individually and as

Representative of ali Property Managers

in Garland, Texas; MARIE COMBS,

Individually and as Representative of all

Tenants of Single Family Residential

Property in Garland, TX

Plaintiffs-Appellees

CITY OF GARLAND

Defendant-Appellant

ee ee de a a aa

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, Chief Judge, and WIENER and

CLEMENT, Circuit Judges. EDITH BROWN

CLEMENT, Circuit Judge:

Defendant-Appellant City of Garland (“the City”)

appeals from the district court’s order awarding

attorney’s fees to Plaintiffs-Appellees Roy Dearmore,

A.C. Blair, and Marie Combs (collectively “Dearmore’”),

under 42 U.S.C. § 1988(b). This statute authorizes an

award of attorney’s fees to a “prevailing party” in an

action to enforce the provisions of certain federal

statutes, including 42 U.S.C. § 1983. The City also

appeals from the district court’s order denying its

motion to alter or amend judgment under Federal Rule

of Civil Procedure 59(e). Because we conclude that

Dearmore is a prevailing party and the district court

committed no reversible error in its Rule 59(e) order,

we affirm.

I. FACTS AND PROCEEDINGS

On June 16, 2005, Dearmore filed a complaint

against the City under 42 U.S.C. § 1983, challenging

the constitutionality of Garland City Ordinance No.

5895 (‘the Ordinance”), which related to the

maintenance of rental properties in the City. The

complaint alleged that various minimum housing

standards and inspection procedures contained in the

Ordinance violated the Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution. That

same day, Dearmore filed a motion for a temporary

restraining order, seeking to enjoin the City from

enforcing the Ordinance.

On June 25, 2005, the district court denied

Dearmore’s motion for a temporary restraining order.

In response, on July 1, 2005, Dearmore filed an

amended motion for a temporary restraining order and

a motion to reconsider its denial of the temporary

restraining order, or in the alternative, a request for

an expedited preliminary injunction hearing. On July

6, 2005, the City filed a motion pursuant to Federal

Rule of Civil Procedure 12(b)(6) to dismiss Dearmore’s

complaint for failure to state a claim. Thereafter,

Dearmore amended his complaint and removed his

Fifth and Fourteenth Amendment takings and due

process claims. Thus, Dearmore’s amended complaint

alleged only that the Ordinance authorized

warrantless searches of private homes, failed to

provide a mechanism to notify tenants, property

owners, or property managers of their right to refuse

a search, and required applicants to disclose personal

information, all in violation of the Fourth and

Fourteenth Amendments. Dearmore’s amended

complaint sought a declaratory judgment, injunctive

relief, and attorney’s fees and costs.

On November 3, 2005, the district court granted

Dearmore’s motion for a preliminary injunction.” In its

order, the district court held that in so far as the

Ordinance allowed inspections and searches of

unoccupied property, it violated a property owner’s

Fourth Amendment right to be free from unreasonable

' The district court construed Dearmore’s amended motion for a

temporary restraining order as a motion for a preliminary

injunction, because Dearmore had requested a preliminary

injunction in his amended complaint.

searches and seizures. As a result, the district court

issued a preliminary injunction enjoining the City

from enforcing section 32.09(F) of the Ordinance,

which required a property owner who rents or leases

a single-family dwelling to allow an inspection of the

rental property as a condition of issuing a permit, or

penalizes the lessor for refusing to allow an

inspection.” The district court also dismissed

Dearmore’s other Fourth Amendment claims. On the

same date, the district court issued a scheduling order.

establishing discovery deadlines and setting the case

for trial on October 2, 2006.

Following the issuance of these orders on November

3, 2005, counsel for the City informed counsel for

Dearmore that he did not need to post the bond

necessary to enforce the preliminary injunction

because the City planned to amend the Ordinance to

address the district court’s order. On November 15,

2005, the Garland City Council amended the

Ordinance, removing the provisions related to a

nonresident owner’s consent to the inspection of

single-family rental properties and clarifying the

circumstances under which the City may seek a

warrant to inspect such properties when consent has

been refused or could not be obtained. The City

notified the district court of this amendment and filed

a motion to dismiss Dearmore’s action as moot, which

* The Ordinance provided for criminal penalties for certain

violations. Specifically, the Ordinance made it an offense if an

owner rented property without a permit. It also made it an offense

if an owner refused to allow an inspection by the City. The fines

for both offenses were up to $2000 per day.

Dearmore did not oppose. On November 30, 2005, the

district court granted the City’s motion and entered

final judgment dismissing the case as moot and with

prejudice. The order granting this motion found that

Dearmore was a “prevailing party” and awarded him

attorney’s fees and costs under 42 U.S.C. § 1988(b).

On December 12, 2005, the City filed a motion to

alter or amend judgment pursuant to Rule 59(e),

requesting that the district court not designate

Dearmore as a prevailing party and asking that the

court re-tax costs against the parties incurring them.

On December 13, 2005, Dearmore filed a motion for

attorney’s fees pursuant to Rule 54(d)(2). On August

29, 2006, the district court denied the City’s motion to

alter or amend judgment. On September 6, 2006,

following a stipulation by the parties as to the amount

of fees only, the district court granted Dearmore’s

motion for attorney’s fees. The City appeals both

rulings.

Il. STANDARD OF REVIEW

The district court has broad discretion to award

attorney’s fees under § 1988(b). See Hopwood v. Texas,

236 F.3d 256, 277 (5th Cir. 2000). In evaluating

whether the district court abused its discretion to

award attorney’s fees, this Court reviews the factual

findings supporting the grant or denial of attorney's

fees for clear error and the conclusions of law

underlying the award de novo. Energy Mgmt. Corp. v.

City of Shreveport, 467 F.3d 471, 482 (5th Cir. 2006).

“(T]he characterization of prevailing-party status for

awards under fee-shifting statutes such as § 1988 isa

legal question subject to de novo review.” Bailey v.

Mississippi, 407 F.3d 684, 687 (5th Cir. 2005). The

denial of a motion to alter or amend judgment under

Rule 59(e) is reviewed for abuse of discretion. Molina

v. Equistar Chems. LP, No. 06-41574, 2008 WL

104077, at *2 (5th Cir. Jan. 10, 2008) (unpublished).

“However, to the extent that a ruling was a

reconsideration of a question of law... the standard of

review is de novo.” Id. (internal quotations omitted).

This appeal presents a question of law that is reviewed

de novo.

Ill. DISCUSSION

In § 1988(b), Congress created an exception to the

“American Rule” that htigants pay for their own

attorney’s fees. See Sole v. Wyner, 127 S. Ct. 2188,

2191 (2007); Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res., 532 U.S. 598, 602

(2001). This section provides that “the court, in its

discretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs.” 42 U.S.C. § 1988(b). This appeal presents

an issue of first impression in this Circuit: Whether a

plaintiff qualifies as a “prevailing party” under

§ 1988(b) when he obtains a preliminary injunction

after the district court makes an unambiguous

indication of probable success on the merits of his

claim and the defendant subsequently moots the case

before trial in direct response to the court's

preliminary injunction order.

Supreme Court and Fifth Ci :uit precedent provide

general guidance on the qualifications for prevailing

party status. The Supreme Court has noted that “[t}]he

touchstone of the prevailing party inquiry’... is ‘the

material alteration of the legal relationship of the

parties in a manner which Congress sought to promote

in the fee statute.” Sole, 127 S. Ct. at 2194 (quoting

Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist.,

489 U.S. 782, 792-93 (1989)); see Buckhannon, 532

U.S. at 603 (explaining that “Congress intended to

permit the interim award of counsel fees only when a

party has prevailed on the merits of at least some of

his claims” (internal quotations omitted)). Such a

material alteration must have the “necessary judicial

imprimatur.” See Buckhannon, 532 U.S. at 605. The

Buckhannon. Court did not expressly define “judicial

imprimatur” but stated that enforceable judgments on

the merits and consent decrees are sufficient for

prevailing party status. Jd. at 604. In so holding, the

Buckhannon Court rejected the “catalyst theory,”

explaining that a defendant’s voluntary change in

conduct in response to the plaintiffs lawsuit and nota

court order, although perhaps accomplishing what the

plaintiff sought to achieve, lacks the necessary judicial

imprimatur to establish prevailing party status. Id. at

601, 605. This Court considered such Supreme Court

precedent in Energy Management and held that, to be

a prevailing party, a plaintiff must “(1) obtain actual

relicf, such as an enforceable judgment or a consent

decree; (2) that materially alters the legal relationship

between the parties; and (3) modifies the defendant’s

behavior in a way that directly benefits the plaintiff at

the time of the judgment or settlement.” 467 F.3d at

482.

Although an enforceable judgment on the merits

and a court-ordered consent decree have sufficient

judicial imprimatur, these examples are not exclusive.

See Buckhannon, 532 U.S. at 605 (referencing the

judgment on the merits and consent decree as mere

“examples”); Dupuy v. Samuels, 423 F.3d 714, 719 (7th

Cir. 2005); Select Milk Producers, Inc. v. Johanns, 400

F.3d 939, 945 (D.C. Cir. 2005); John T. v. Del. County

Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003);

Dubuc v. Green Oak Twp., 312 F.3d 736, 753-54 (6th

Cir. 2002); Watson v. County of Riverside, 300 F.3d

1092, 1096 (9th Cir. 2002). As a result, lower courts

have had difficulties in ascertaining what other forms

of judicial action have the “necessary judicial

imprimatur” to create prevailing party status,

particularly in the context of preliminary injunctions.

The Supreme Court has never expressed a view “on

whether, in the absence of a final decision on the

merits of a claim for permanent injunctive relief,

success in gaining a preliminary injunction may. . .

warrant an award of counsel fees.” Sole, 127 S. Ct. at

2196. Without a Supreme Court decision on point,

circuit courts considering this issue have announced

fact-specific standards that are anything but uniform. °

See Planned Parenthood of Houston & Se. Tex. v.

Sanchez, 480 F.3d 734, 740-41 (5th Cir. 2007). As this

Court has noted,

several circuits have determined that a

preliminary injunction that merely preserves

the status quo temporarily will not confer

“prevailing party” status on a party; instead,

the preliminary injunction must (i) reflect a

merits-based decision on an issue involved in

the case, see, e.g., John T. v. Del. County

Intermediate Unit, 318 F.3d 545, 558-59 (3d Cir.

2003); Dubuc v. Green Oak Twp., 312 F.3d 736,

753 (6th Cir. 2002); Taylor v. City of Fort

Lauderdale, 810 F.2d 1551, 1558 (ilth Cir.

1987); (ii) constitute substantive, indefeasible

relief akin to final relief on the merits because,

for example, “the partys claim [for al]

permanent injunction is rendered moot by the

impact of the preliminary injunction,” JN.

Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086

(8th Cir. 2006); see also, e.g., Dupuy v. Samuels,

423 F.3d 714, 719, 723 (7th Cir. 2005); (iii)

grant the party concrete and irreversible relief

in a merits-based decision that vindicates the

partys claim and is not appealed by the

opposing party, see, e.g., Select Milk Producers,

Inc. v. Johanns, 400 F.3d 939, 947-48 (D.C. Cir.

2005); or (iv) incorporate some combination of

these factors.

Yousuf v. Motiva Enters. LLC, 246 F. App’x 891, 894

(5th Cir. 2007) (per curiam) (footnotes omitted) (citing

Planned Parenthood, 480 F.3d at 740-41). “The Ninth

Circuit has . .. taken a relatively generous approach,

at least in principle, stating that a ‘preliminary

injunction issued by a judge carries all the ‘judicial

imprimatur’ necessary to satisfy Buckhannon.”

Planned Parenthood, 480 F.3d at 741 (quoting Watson,

300 F.3d at 1096). The Ninth Circuit, however, did

note that a plaintiff would not qualify as a prevailing

party if he obtained a preliminary injunction early in

the litigation but later lost on the merits and had a

judgment entered against him. /d. (citing Watson, 300

F.3d at 1096). “By contrast, the Fourth Circuit has

expressed strong skepticism that a_ preliminary

injunction could ever serve as the basis for prevailing

party status,” because “the merits inquiry in the

preliminary injunction contest is _ necessarily

10a

abbreviated.” Jd. (quoting Smyth v. Rivero, 282 F.3d

268, 276 (4th Cir. 2002)).

This Court has not yet created or endorsed a

particular test. Instead, this Court has held that a

plaintiff who obtains a preliminary injunction is not a

prevailing party if he fails to qualify under any of the

other circuits’ tests. In Planned Parenthood. the

plaintiffs alleged in part that Rider 8, a statute that

prohibited the distribution of federal family funds to

those who performed elective abortion procedures or

who contracted or provided funds to those who perform

such procedures, violated the Supremacy Clause. 480

F.3d at 736-37. The district court granted the

plaintiffs’ motion for a preliminary injunction,

enjoining enforcement of Rider 8, and the defendant

appealed. Id. at 737. On interlocutory appeal, this

Court determined that Rider 8 did not violate the

Supremacy Clause and remanded the case, with

instructions to dissolve the injunction. Jd. On remand,

the district court granted the defendant’s motion to

dismiss the case and denied the plaintiffs attorney’s

fees. Id. The plaintiff's appealed the denial of fees. Jd.

This Court held that the plaintiffs were not prevailing

parties because (1) the preliminary injunction involved

an abbreviated inquiry into the merits coupled with a

weighing of likely harms, (2) the preliminary

injunction only preserved the status quo between the

parties, (3) the case was not mooted after the

preliminary injunction was granted and the defendant

appealed, and (4) on remand, the plaintiffs did not

seek to avoid the dissolution of the injunction and

eventually lost on the merits. Jd. at 741-42. Under

these facts, this Court had no need to choose between

the tests of the other circuits because the plaintiffs

lla

clearly failed to qualify under any of them. See id. at

741.

Likewise, in Yousuf, this Court held that the

plaintiff was not a prevailing party because he did not

qualify under any test. 246 F. App’x at 894. The

plaintiff, who leased and operated a Shell service

station pursuant to a franchise agreement with the

defendant, filed suit after the defendant notified him

ofits intent to terminate the franchise relationship. Jd.

at 892. After suit was filed, the parties executed a

“Stipulated Standstill Agreement,” where they agreed

to maintain the status quo of the franchise

relationship pending the district court’s decision on the

preliminary injunction, which the district court

adopted as an order of the court. Jd. As discovery

progressed, the parties reached another agreement

and filed a joint stipulation and motion for the entry of

a consent judgment on the plaintiffs preliminary

injunction motion. Jd. The district court, in accordance

with the stipulation and motion, issued the

preliminary injunction maintaining the franchise

relationship, but the order stated that the court made

no findings of fact or law on the motion. Id. at 892-93.

Before the case could proceed to a jury trial, Hurricane

Katrina destroyed the service station, and the

defendant terminated the franchise agreement. Id. at

893. The plaintiff then moved to dismiss the case as

moot and filed for attorney’s fees under the Petroieum

Marketing Practices Act, 15 U.S.C. § 2801 et seq.,

based on the entry of the standstill agreement and

preliminary injunction. Jd. The district court denied

the attorney’s fees, and plaintiff anpealed. 7d. On

appeal, this Court affirmed the district court and

determined that the plaintiff was not a prevailing

12a

party because (1) the preliminary injunction did

nothing more than “temporarily preserve the status

quo, maintaining the parties’ preexisting franchise

relationship until the legal issues surrounding the

approaching termination of that relationship could be

addressed on the merits,” (2) the district court did not

consider the merits of plaintiffs claim and explicitly

noted that it had not made any findings of fact or

conclusions of law in its order granting the preliminary

injunction per the parties’ agreement, and (3) the

plaintiff's claim became moot “not because the court

orders were so successful for [the plaintiff] that they

rendered any further relief unnecessary, but rather

because of the unrelated impact of Hurricane Katrina.”

Id. at 894-95.

Unlike Planned Parenthood or Yousuf, this case

does not fail every test employed by the other circuits.

As noted, the Sixth Circuit provides that a plaintiff is

a prevailing party if the preliminary injunction

represents an “unambiguous indication of probable

success on the merits, and not merely a maintenance

of the status quo ordered because the balance of

equities greatly favors the plaintiff.” Dubuc, 312 F.3d

at 753 (internal quotations omitted). Likewise, the

Seventh Circuit states that a plaintiff may otain

atiorney’s fees when the district court engaged in a

discussion on the merits of the claim when considering

a preliminary injunction motion, and the case was

mooted after the plaintiffs were granted a preliminary

injunction but before they requested attorney’s fees.

See Dupuy, 423 F.3d at 722-23. Further, the Ninth

Circuit holds that a plaintiff is entitled to attorney’s

fees if he obtained a preliminary injunction and the

case was subsequently mcoted. See Watson, 300 F.3d

l3a

at 1096. Here, the district court considered the merits

of Dearmore’s claim and clearly concluded that a

provision of the Ordinance violated the Fourth

Amendment. In response to the district court’s grant

of this preliminary injunction, the City amended the

offending provision of the Ordinance, thereby mooting

the case. Under these facts, at a minimum, it appears

that Dearmore qualifies as a prevailing party under

the Sixth, Seventh, and Ninth Circuits’ tests. As a

result, we are not required to reverse the district

court’s grant of attorney's fees to Dearmore under

Planned Parenthood, 480 F.3d at 740-42, or Yousuf,

246 F. Avp’x at 894.

The City urges this Court to hold that Dearmore is

not a prevailing party because the preliminary

injunction stmply maintained the status quo until

trial, did not provide final relief on the merits, and did

not materially alter the legal relationship between the

parties. The City contends that it changed its position

by amending the offe» ding provision of the Ordinance

voluntarily, not because the preliminary injunction

required it to do so. Dearmore, on the other hand,

argues that he is a prevailing party because he won a

preliminary injunction sufficiently grounded in the

merits, which provided him with some judicial relief.

Dearmore also asserts that the grant of the

preliminary injunction and the City’s subsequent

amendment of the offending portion of the Ordinance

represents a judicially-sanctioned material change in

the legal relationship between the parties.

The position urged by the City is simply not

compelled by Buckhannon. Contrary to the City’s

argument, Buckhannon does not stand for the

l4a

proposition that a defendant should be allowed to moot

an action to avoid the payment of the plaintiffs

attorney's fees when a district court grants a

preliminary injunction based upon an unambiguous

‘indication of probable success on the merits. Instead,

we agree with Dearmore that this preliminary

injunction, coupled with the City’s subsequent mooting

of the case, is sufficient to establish prevailing party

status.

Under these facts, to qualify as a prevailing party

under § 1988(b), we hold that the plaintiff(1) must win

a preliminary injunction, (2) based upon an

unambiguous indication of probable success on the

merits of the plaintiffs claims as opposed to a mere

balancing of the equities in favor of the plaintiff, (3)

that causes the defendant to moot the action, which

prevents the plaintiff from obtaining final relief on the

merits.* Such a test satisfies Buckhannon, because it

requires that a party obtain a judicial ruling which

results in a material change in the legal relationship

between the parties. It also does not implicate the

“catalyst theory,” which the Supreme Court struck

down in Buckhannon, because this test grants

prevailing party status only when the defendant moots

* Although not part of our test, we note that when a defendant

moots an action in response to the district court’s preliminary

injunction order, the defendant will have generally acceded to the

order and thus will not have appealed. This lack of an appeal by

a defendant has been noted by this Court and others to be a factor

favoring a finding of prevailing party status. See, e.g., Planned

Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 733,

741-42 (5th Cir. 2007); Select Milk Producers, Inc. v. Johanns, 400

F.3d 939, 948 (D.C. Cir. 20%5).

15a

the plaintiff's action in response to a court order, not

just in response to the filing of a lawsuit. Likewise, it

complies with the general prevailing party standard

announced by this Court in Energy Management, 467

F.3d at 482.

Dearmore clearly satisfies the three-prong test for

prevailing party status announced herein. First, it is

undisputed that the district court granted Dearmore a

preliminary injunction—an enforceable judgment—by

court order on November 3, 2005. Thus, Dearmore has

satisfied the first prong of the test.

Second, the district court granted the preliminary

injunction based upon its assessment that Dearmore

would likely succeed on the merits of his Fourth

Amendment claim, not because of any balancing of the

equities in his favor. See Dubuc, 312 F.3d at 753

(holding that a plaintiff is entitled to prevailing party

status when he obtains a preliminary injunction based

upon the merits of his claim); Haley v. Pataki, 106 F.3d

478, 483 (2d Cir. 1997) (holding that “[w]Jhen a party

receives a stay or preliminary injunction but never

obtains a final judgment, attorney’s fees are proper if

the court’s action in granting the preliminary

injunction is governed by its assessment of the

merits”); Taylor v. City of Fort Lauderdale, 810 F.2d

1551, 1558 (11th Cir. 1987) (stating that “a

preliminary injunction on the merits, as opposed to a

merely temporary order which decides no substantive

issues but merely maintains the status quo, entitles

one to prevailing party status and an award of

attorney’s fees”). In its order, the district court clearly

informed the City that certain provisions of its

Ordinance violated the Fourth Amendment, stating:

16a

Inspections and searches of unoccupied property

would clearly infringe on the property owner’s

right undef the Fourth Amendment to the

United States Constitution to be free from

unreasonable search and seizure. In these

limited situations, where the property is

unoccupied, the protections guaranteed by the

Fourth Amendment to the United States

Constitution to the property owner outweigh

any interest that the government has in

protecting the health, safety or welfare of the

public. .. . The ease with which the City could

acquire an administrative search warrant

makes unnecessary the need for the City to

require property owners to forego in advance

their rights guaranteed by the Fourth

Amendment. The court fully understands that

the City has a valid and _ important

governmental interest in protecting the public,

however, the court sees no reason why this

should be done at the expense of infringing on

rights guaranteed by the Fourth Amendment to

the United States Constitution.

Dearmore v. City of Garland, 400 F. Supp. 2d 594, 903

(N.D. Tex. 2005). Although the district court indicated

that it was “viewing [the facts] in the light most

favorable to Dearmore” and that Dearmore was likely

to prevail, see id. at 904, this language was used to

conform to the standard necessary for the issuance of

a preliminary injunction. Therefore, this is not a case

where the preliminary injunction was based less on

the district court’s view of the merits than on a

perceived hardship to the plaintiff. Rather, the district

court’s grant of the preliminary injunction was clearly

17a

merit-based, and thus Dearmore has satisfied the

second prong of the test.

Third, the district court’s grant of the preliminary

injunction directly caused the City to amend the

offending portion of the Ordinance, thereby mooting

the case and preventing Dearmore from obtaining final

relief on the merits. We note that this is not a case in

which the City voluntarily changed its position before

judicial action was taken. Indeed, if the City had

mooted the case through amending the Ordinance

before the court granted the preliminary injunction,

then Dearmore could not qualify as a prevailing party

under Buckhannon because it would have improperly

invoked the “catalyst theory.” The City, however,

mooted the case after and in direct response to the

district court’s preliminary injunction order. There is

an obvious direct causal link between the district

court’s issuance of the preliminary injunction and the

City’s subsequent amendment of the Ordinance to

moot the case. Almost immediately following the

district court’s issuance of the preliminary injunction,

counsel for the City informed counsel for Dearmore

that Dearmore need not post the bond to enforce the

injunction, because the City planned to amend the

Ordinance to address the district court’s concerns.

Twelve days after the district court issued the

injunction, the Garland City Council amended the

provision of the Ordinance that the district court held

to be violative of the Fourth Amendment. Dearmore

18a

has satisfied the third prong of the test, and thus he is

entitled to attorney’s fees and costs under § 1988(b).*

In support of our holding, we note that the

merits-based preliminary injunction here, coupled with

the City’s mooting of the action in direct response to

the injunction, caused a material alteration in the

legal relationship between the parties. The fact that

Dearmore never obtained a jinal judgment on the

merits does not affect our ruling, as a final judgment

is not required. We, like the District of Columbia

Circuit, conclude that “Buckhannon embraces the

possibility that, under certain circumstances, a

preliminary injunction, like a consent decree [which

does not always include an admission of liability), may

result in a court-ordered change in the legal

relationship between the parties that is sufficient to

make the plaintiff a ‘prevailing party’ under a

fee-shifting statute.” Select Milk Producers, 400 F.3d

at 945. This is such a case. When the district court

granted the preliminary injunction, it provided

Dearmore with the interim judicial relief that he

requested—it blocked the City from enforcing the

portion of the Ordinance that violated the Fourth

Amendment. Because of this injunction, the City could

“ We note that the test we articulate here is only applicable in the

limited factual circumstances described above. By its terms, it

only applies when a plaintiff obtains a preliminary injunction

based on an unambiguous indication of probable success on the

merits, which causes the defendant to moot the action, thereby

preventing the plaintiff from obtaining final relief on the merits.

As a result, this test does not signal any disagreement with the

approaches adopted by the other circuits, with the exception of the

Fourth Circuit.

19a

not conduct warrantless searches or impose criminal

penalties for noncompliance under the offending

provision of the Ordinance. When the City modified its

behavior in direct response to the injunction and

mooted the case, it ultimately provided Dearmore with

his desired result. Dearmore was never subjected to

section 32.09(F) of the Ordinance, which is what he

sought. Such a situation satisfies Buckhannon and

justifies conferring prevailing party status to

Dearmore under these facts.

IV. CONCLUSION

The district court’s award of attorney’s fees and

denial of the City’s Rule 59(e) motion is AFFIRMED.

20a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11007

D.C. Docket No. 3:05-CV-1231

[Filed March 10, 2008}

ROY DEARMORE, Individually and as

Representative of all Owners of Single

Family Residential Property in Garland,

Texas; A C BLAIR, Individually and as

Representative of all Property Managers

in Garland, Texas; MARIE COMBS,

- Individually and as Representative of all

Tenants of Single Family Residential

Property in Garland, TX

Plaintiffs-Appellees

CITY OF GARLAND

Defendant-Appellant

a i a a ae a ee a a a a ee a a a a

Appeal from the United States District Court for the

Northern District of Texas, Dallas.

Before JONES, Chief Judge, and WIENER and

CLEMENT, Circuit Judges.

JUDGMENT

2la

This cause was considered on the record on appeal

and was argued by counsel.

It is ordered and adjudged that the judgment of the

District Court is affirmed.

IT IS FURTHER ORDERED that defendant-

appellant pay to plaintiffs-appellees the costs on

appeal to be taxed by the Clerk of this Court.

ISSUED AS MANDATE: APR 01 2008

A True Copy

Attest

Clerk, U.S. Court of Appeals,

Fifth Circuit

By: /s/

Deputy APR 01 2008

New Orleans, Louisiana

22a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

_ [Filed September 6, 2006]

ROY DEARMORE, individually and as

Representative of all Owners of Single

Family Residential Property in Garland,

Texas; MARIE COMBS, individually and as

Representative of all tenants of Single

Family residential property in Garland,

Texas, and A. C. BLAIR, individually and as

Representative of all property managers

in Garland, Texas

Plaintiffs,

VS.

CITY OF GARLAND

Defendant.

AGREED ORDER CONCERNING

ATTORNEYS’S FEES

23a

The Court previously issued a memorandum

opinion that Plaintiffs are entitled to attorneys fees in

this cause. The parties have agreed and stipulated

that $8,500 is a reasonable and necessary attorney’s

fee. The Court finds that such amount is a reasonable

and necessary fee. [handwritten notation: Accordingly,

the court grants Plaintiffs’ motion for attorney’s fees,

filed December 13, 2005. SAL]

IT IS, THEREFORE, ORDERED ADJUDGED

AND DECREED that Plaintiff Roy Dearmore recover

of and from Defendant City of Garland $8,500 as

reasonable and necessary attorney’s fees.

SIGNED this 6th day of September, 2006.

/s/

SAM A. LINDSAY

United States District Judge

APPROVED AND AGREED AS TO THE

AMOUNT OF ATTORNEY’S FEES:

/s/

MICHAEL BETZ

Attorney for the City of Garland

/s/

ROBERT A. MILLER

Attorney for the Roy Dearmore

24a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

[Filed August 29, 2006]

ROY DEARMORE, individually and as

Representative of all owners of Single

Family residential property in Garland

Texas, MARIE COMBS, individually

and as Representative of all tenants of

Single Family residential property in

Garland, Texas, and A. C. BLAIR,

individually and as Representative of

all property managers in Garland, Texas,

Plaintiffs,

CITY OF GARLAND,

Defendant.

a a ee ee a a Le a Le Le ee Lae Le ee, a

MEMORANDUM OPINION AND ORDER

25a

Before the court is Defendant’s Rule 59(e) Motion

to Amend Judgment, filed December 12, 2005. After

careful consideration of the motion, briefs, responses,

reply, supplemental briefs, record, hearing, and

applicable law, the court denies Defendant’s Rule

59(e) Motion to Amend Judgment.

I. Background

Plaintiff Roy Dearmore (“Dearmore”) filed this

action pursuant to 42 U.S.C. § 1983 against Defendant

City of Garland (the “City”) on June 16, 2005.’

Dearmore requested the court to enjoin the City from

enforcing City Ordinance No. 5895 (the “Ordinance”)

which amended the City’s Minimum Housing Code.

Dearmore contended that he would suffer irreparable

injury if the City were not enjoined. He maintained

that the Ordinance violated his Fourth Amendment

rights by: (1) authorizing warrantless searches of

private homes; (2) failing to provide a mechanism to

notify the tenant, property owner or property manager

of his or her right to refuse to allow the search; and (3)

requiring the applicant to disclose private information

that violated his right to privacy. Dearmore further

contended that the City had violated the Fourteenth

Amendment.”

' Dearmore amended his complaint on July 15, 2005, adding

Marie Combs and A.C. Blair as Plaintiffs.

* Deamore asserted that his Fourth Amendment claim was

applicable to the State via the Fourteenth Amendment. In his

Original Complaint, Dearmore also asserted that the Ordinance

violated the Fifth Amendment. This claim was omitted in his

First Amended Complaint; therefore, it was not before the court.

26a

On November 3, 2005, the court issued a

Memorandum Onion and Order and Preliminary

Injunction enjeiamng the City from enforcing any

provision of section 32.09 of the Ordinance thr’

required a person who rented or leased a single-family

dwelling to allow an inspection of the rental property

as a condition to issuing a permit, or that penalized

the lessor for refusing to allow an inspection of the

property. The preliminary injunction was not to

become effective until a $5,000 bond was posted by

Dearmore. Dearmore did not post the bond.

On November 12, 2005, twelve days after the court

issued its preliminary injunction, the City passed

Ordinance No. 5957, amending section 32.09(F) and

removing the requirements that a landlord consent to

a warrantless inspection and that a person (landlord)

who rents or leases a single-family dwelling allow an

inspection of the rental property as a condition to the

issuance of a permit.. Immediately after the

amendment to the Ordinance, the City filed a motion

to dismiss the lawsuit as moot. On November 30,

In any event, a reading of the First Amended Complaint readily

reveals that the essence of this lawsuit is based on the Fourth

Amendment claim; it was the big-ticket item of the lawsuit. As

Dearmore received a favorable ruling on it, the court determined

that costs should be taxed against the City. This is totally

consistent with existing precedent. With respect to costs, Fed. R.

Civ. P. 54(d)(1) provides that “costs other than attorney’s fees

shall be allowed as of course to the prevailing party unless the

court otherwise directs.” Rule 54(d) creates a strong presumption

that the prevailing party will be awarded costs. Schwarz v.

Folloder, 767 F.2d 125, 131 (5" Cir. 1985). No reason existed for

the court not to follow this precedent.

27a

2005, the court issued an order (1) granting the City’s

motion to dismiss, (2) holding that Dearmore was a

“prevailing party” to the extent the court declared

section 32.09(F) to be in violation of the Fourth

Amendment, and (3) dissolving the preliminary

injunction. On the same day, the court also issued a

judgment dismissing this action, and taxed all

allowable and reasonable costs against the City.

In its motion to amend the judgment, the City

contends that Dearmore is not the “prevailing party”

in this litigation, and that the court should therefore

amend its judgment to reflect that he is not the

“prevailing party” and to retax costs to the party

incurring them. Dearmore disagrees and contends

that he is the “prevailing party.” He contends that he

is a “prevailing party” because he has obtained some

relief on the merits of his claim and that the injunctive

relief altered the legal relationship between the

parties.

Il. Legal Standard for Relief under Fed. R.

Civ. P. 59(e)

Under Rule 59%e), “[mlotions . . . to alter or amend

a judgment must clearly establish either a manifest

error of law or fact or must present newly discovered

evidence.” Szmon v. United States, 891 F.2d 1154,

1159 (5 Cir. 1990) (citations omitted). Such motions

may not be used to relitigate issues that were resolved

to the movant’s dissatisfaction. Forsythe v. Saudi

Arabian Airlines Corp., 885 F.2d 285, 289 (5" Cir.

1989). A Rule 59 motion may not be used to relitigate

old matters, raise arguments, or present evidence that

could have been raised prior to entry of judgment. See

28a

generally 11 C. WRIGHT, A. MILLER & M. KANE

§ 2810.1 at 127-28 (2d ed. 1995); see also Simon, 891

F.2d at 1159. With respect to newly discovered

evidence, a court may not grant such a motion unless

the movant establishes: “(1) the facts discovered are of

such a nature that they would probably change the

outcome; (2) the alleged facts are actually newly

discovered and could not have been discovered earlier

by proper diligence; and (3) the facts are not merely

cumulative or impeaching.” Infusion Resources, Inc. v.

Minimed, Inc., 351 F.3d 688, 696-97 (5" Cir. 2003).

District courts have “considerable discretion in

deciding whether to grant or deny a motion to alter a

judgment.” Hale v. Townley, 45 F.3d 914, 921 (5™ Cir.

1995). In exercising this discretion, a district court

must “strike the proper balance between the need for

finality and the need to render just decisions on the

basis of all the facts.” Jd. With this balance in mind,

the Fifth Circuit has observed that Rule 59(e) “favor|s]

the denial of motions to alter or amend a judgment.”

Southern Constructors Group, Inc. v. Dynalectric Co.,

2 F.3d 606, 611 (5 Cir. 1993).

Il. Analysis

The City premises its argument that Dearmore is

not a “prevailing party” on the Supreme Court’s

decision in Buckhannon Bd. and Care Home, Inc. v.

West Virginia Dep't of Health and Human Res., 532

29a

U.S. 598 (2001), which rejected the “catalyst theory”

as a permissible basis to award attorney’s fees under

a federal fee-shifting statute. The City is the party

shat asserts Dearmore is seeking to establish

“prevailing party” status through the “catalyst theory.”

Dearmore makes no such assertion. The question

presented to the Court in Buckhannon was whether

the term “prevailing party” “includes a party that has

failed to secure a judgment on the merits or a court-

ordered consent decree, but has nonetheless achieved

the desired result because the lawsuit brought about

a voluntary change in the defendant’s conduct.” Id. at

600. For the reasons set forth herein, the court

believes that the City reads Buckhannon much too

broadly, and the “catalyst theory” is not the basis on

which Dearmore would be considered a “prevailing

party” under the specific facts of this case.

In Buckhannon, the state fire marshal issued

citations to a number of residential-care facilities for

allegedly violating a state law which required all

residents of residential board and care homes to be

capable of “self-preservation,” or be capable of moving

themselves from situations which presented imminent

danger. These citations, or “cease-and-desist” orders,

required the residential care facilities to close their

* Under the “catalyst theory,” “a plaintiff is a ‘prevailing party’ if

{such plaintiff] achieves the desired result because the lawsuit

brought about a voluntary change in the defendant’s conduct.”

Buckhannon, 532 U.S. at 601.

* Since Dearmore filed this action pursuant to 42 U.S.C. § 1983,

the applicable fee-shifting statute to determine whether he is a

“prevailing party” is 42 U.S.C. § 1988(b). See 42 U.S.C. § 1988(b).

30a

facilities within 30 days of the issuance of citation. A

lawsuit ensued on behalf of a number of the facilities

against the State of West Virginia, two of its agencies,

and eighteen individuals. Defendants agreed to stay

enforcement of the cease-and-desist orders, and the

parties proceeded to take discovery. The following

year, the state legislature deleted the “self-

preservation” requirement in the statute. After the

district court dismissed the action for mootness, the

residential-care facilities sought attorney’s fees under

the “catalyst theory.” Jd. at 600-01. The Court

ultimately held that the “catalyst theory” was not “a

permissible basis for the award of attorney’s fees”

under the two federal statutes in question. Jd. at 610.

As the Court recognized, “a ‘prevailing party’ is one

who has been awarded some relief by the court.” Jd. at

603. The City acknowledges that neither the Supreme

Court nor the Fifth Circuit has addressed whether a

preliminary injunction creates a sufficient material

alteration of the legal relationship between the parties

to allow a determination that a plaintiff qualifies as a

“prevailing party.” The court determines that the

preliminary injunction obtained by Dearmore in this

case satisfies the “prevailing party” standard.

The City is correct that the preliminary injunction

never became effective because no bond was posted by

Plaintiffs. According to the City, Dearmore failed to

take the necessary steps to effectuate any changes

made possible through the injunction. The City argues

that the legal relationship between the parties was

never materially altered because Dearmore was never

entitled to enforce the injunction against the City.

3la

This argument is fundamentally flawed, is

disingenuous, and reflects “dirty pool” on the part of

the City. The record amply reveals that Dearmore did

not seek to post a bond on the preliminary injunction

because the City’s legal counsel told and convinced

Dearmore’s counsel that no injunction was necessary,

as the City would amend the Ordinance to address the

court’s concerns. The City’s counsel does not dispute

that he made this statement or representation to

Dearmore’s counsel. Dearmore’s counsel relied on this

representation, and that the City now seeks to use it

to Dearmore’s detriment is simply astounding. The

essence of this is that the City did not want the

preliminary injunction to become effective; so its legal

counsel informed Dearmore’s counsel] that the City

would change the Ordinance to delete the

constitutionally offensive provisions. Based on the

representation of the City’s legal counsel to

Dearmore’s counsel, Dearmore’s action in not posting

a bond was quite reasonable. Under these

circumstances, rather than incur’ unnecessary

expenses and increase litigation costs, Dearmore,

through his counsel, “took the City’s counsel at his

word.” The court can think of no reason to increase

litigation costs unnecessarily, or engage in needless

litigation.

Contrary to its assertions, the City did not

voluntary change or amend the Ordinance; it changed

the Ordinance because of the court’s Memorandum

Opinion and Order and Preliminary Injunction. The

totality of the court’s opinion and its tone apprised the

parties that certain provisions of the Ordinance were

clearly offensive to the United States Constitution and

would not pass constitutional muster. While it is true

32a

that the court stated, “[blecause the Ordinance does

not allow the landlord an opportunity to refuse

consent, or include a warrant procedure if consent is

refused, section 32.09(F) of the Ordinance is likely to

be held unconstitutional,” see Memorandum Opinion

and Order and Preliminary Injunction at 15, that

language was used to conform to the standard

necessary for the issuance of a preliminary injunction.

The court certainly could have used much stronger

language, and, in retrospect, it should have, but the

court used euphemistic language in part of its ruling

to “let the City down easy.” If this was a mistake, the

court assures the City it will not happen again.

Moreover, the language to which the City refers cannot

be read in a vacuum. Other parts of the court’s

opinion unequivocally put the City on notice that the

Ordinance was constitutionally infirm. Specifically,

the court stated:

Inspections and searches of unoccupied property

would clearly infringe on the property owner’s

right under the Fourth Amendment to the

United States Constitution to be free from

unreasonable search and seizure. In these

limited situations, where the property is

unoccupied, the protections guaranteed by the

Fourth Amendment to the United States

Constitution to the property owner outweigh

any interest that the government has in

protecting the health, safety or welfare of the

public. If it becomes necessary to inspect

unoccupied properties, the City could readily,

with a modicum of effort, obtain an

administrative search warrant to inspect any

property that may pose a danger to the public.

33a

The ease with which the City could acquire an

administrative search warrant makes

unnecessary the need for the City to require

property owners to forego in advance their

rights guaranteed by the Fourth Amendment.

The court fully understands that the City has a

valid and important governmental interest in

protecting the public, however, the court sees no

reason why this should be done at the expense

of infringing on rights guaranteed by the Fourth

Amendment to the United States Constitution.

Memorandum Opinion and Order and Preliminary

Injunction at 14. The City was aware of its soon-to-be

unpleasant fate, which is why it acted with dispatch to

amend the Ordinance.® Under these circumstances, it

strains credulity and requires a quantum leap of logic

to assert that the City voluntarily changed the

Ordinance.

The situation here is quite different from that

which faced the parties in Buckhannon. In

Buckhannon, there was no judicial determination or

grant of injunctive relief, as in this case, to cause a

party to modify its conduct. In Buckhannon, the

° Twelve days is a short period of time for the council to act and

pass an ordinance, considering that City officials had to discuss

the proposed Ordinance among themselves, brief the Garland City

Council at some point on the amended Ordinance, place it on the

agenda for official council action, and post notice of the meeting

and the agenda to the public at least 72 hours before the start of

the meeting at which the council would take official action on the

proposed Ordinance. See Tex. Gov’t Code Ann. § 551.043 (Vernon

Supp. 2005)

34a

defendants ceased their allegedly improper conduct by

agreement merely because a lawsuit had been filed,

not because of judicial intervention. This court has an

extremely difficult time comprehending how the City

can characterize conduct as “voluntary” when a ruling

makes clear that the Ordinance is constitutionally

infirm and it acts immediately to address the court’s

concerns and rectify the constitutionally repugnant

provisions. Stated another way, but for this court’s

ruling and granting the preliminary injunction, the

City would not have acted to delete the offensive

portions of the Ordinance. Accordingly, the necessary

judicial imprimatur is present in this case for

Dearmore to meet the standard for a “prevailing

party.” It was not present in Buckhannon. Moreover,

as a result of the court’s ruling and the City acting in

direct response to that ruling, Dearmore obtained

what he sought — relief from the Ordinance which

violated the Constitution. There is no doubt that the

relationship between Dearmore and the City has been

materially altered. To say otherwise merely exalts

form over substance.

The court fully recognizes that a preliminary

injunction is ordinarily not a decision on the merits;

but in this case, it is the functional equivalent of a

ruling on the merits because of the manner and the

circumstances under which the City amended the

Ordinance. As previously stated, the City, as any

intelligent party would, saw “the handwriting on the

wall” in light of the court’s opinion and injunction.

There is no doubt in the court’s mind that the City

resorted to the use of legal legerdemain in an effort to

avoid the inevitable and, in the process, convinced

Dearmore that he need not take steps to make the

35a

injunction effective by posting a bond because the City

was going to amend its Ordinance to make it

constitutionally sound. Rather than press the court to

expedite or advance the trial on the merits, Dearmore

graciously relied on the City’s assurance that it would

amend the Ordinance, which would moot the case.

This is precisely what happened in Palmetto

Properties, Inc. v. County of Dupage, 375 F.3d 542 (7"

Cir. 2004), after the court had granted a motion for

partial summary judgment.® The county contended

that Palmetto was not a “prevailing party” because the

partial summary judgment never became final or

enforceable, as the case was dismissed for mootness.

Id. at 549. The Seventh Circuit did not accept the

county’s argument, determined that Palmetto was a

“prevailing party,” and refused to reverse the district

court’s award of attorney’s fees. Jd. at 550. The court

finds this reasoning solid and equally applicable to the

facts of this case.

On occasion, the City has attempted to minimize

the effect and importance of the court’s ruling by

referring to it as a “preliminary opinion.” The court’s

ruling was “preliminary” only in the sense that it dealt

with a preliminary injunction. The facts of this case

were undisputed, and the only matters to resolve were

the legal issues. The court’s Memorandum Opinion

and Order and Preliminary Injunction made a

substantive determination regarding the

unconstitutionality of certain provisions of the

® That Palmetto involved a partial summary judgment and this

case involves a preliminary injunction is really of no moment,

given the special circumstances of this case.

36a

Ordinance and left no doubt as to the resolution of the

legal issues. The City knew this, which is why it

pursued the course of action it did in amending the

Ordinance.

Finally, the City contends that it was not given

proper notice before the court granted the preliminary

injunction and that the propriety of the preliminary

injunction was “legally problematic.” Specifically, the

City conterids that it was not given an opportunity “to

fully present its views on the merits of the legal issues

addressed by the Court’s Preliminary Injunction.” City

of Garland’s Rule 59(e) Motion to Amend Judgment at

The court does not understand the basis for this

argument. The City, as reflected in its motion to

amend judgment, knew that Dearmore sought to

enjoin enforcement of the Ordinance in question.

Moreover, as the City correctly points out, after the

court initially denied Plaintiffs Request for Temporary

Restraining Order, Dearmore filed an amended motion

for a temporary restraining order and requested the

court to reconsider its earlier denial of the temporary

restraining order, or hold an expedited preliminary

injunction hearing. As the City acknowledges, the

court held a hearing on Dearmore’s request on July 6,

2005. The City, of course, received notice that the

hearing would take place and attended the hearing.

The City had a chance to present its views. The court

questioned both sides with respect to the

constitutionality of the Ordinance at the héaring and

allowed the parties ample time to address the motion

37a

to dismiss, as the request for injunctive relief and the

motion to dismiss necessarily had overlapping issues.’

The City relies on Kaepa, Inc. v. Achilles Corp., 76

F.3d 624 (5 Cir. 1996), to support its lack of notice

argument. This reliance, however, is misplaced. In

Kaepa, the court stated:

Rule 65(a)(1) provides that “[nJo preliminary

injunction shall be issued without notice to the

adverse party.” We have interpreted the notice

requirement of Rule 65(a)(2) to mean that

“where factual. disputes are presented, the

parties must be given a fair opportunity and a

meaningful hearing to present their differing

versions of those facts before a preliminary

injunction may be granted.” If no factual

dispute is involved, however, no oral hearing is

required; under such circumstances the parties

need only be given “ample opportunity to

present their respective views of the legal issues

involved.”

Id. at 628 (footnote and citations omitted). In this

case, the material facts were not in dispute. The

issues to be decided were strictly legal in nature. Had

it been clear to the court initially that there were no

disputed facts, it would have not held a hearing, and

would have decided the matter strictly on the written

"Frankly, the court was disappointed by the dearth of briefing by

the parties on the Fourth Amerdment issue. The court essentially

did its own research regarding the constitutionality of the

Ordinance.

38a

submissions of the parties. Since the parties did not

present differing versions of the facts, no oral hearing

was even necessary. As the record reflects, both sides

had ample opportunity to submit their respective

views of the legal issues involved, whether on the

request for injunctive relief or the motion to dismiss

Further, the court determines that the City has

forfeited its right to raise any issues — procedurally or

subsvantively — regarding the propriety of the

preliminary injunction. When the preliminary

injunction was granted, the City could have requested

the court to reconsider its ruling, appealed to the Fifth

Circuit pursuant to 28 U.S.C. § 1292(a)(1) and Fed. R.

App. P. 4(a), or continued to challenge the injunctive

relief at the district court level and appeal the final

judgment. The City did none of these, and it is too late

to do so at this juncture. Rather than raising

questions related to the legality of the preliminary

injunction, the City discouraged Dearmore’s counsel

from posting a bond and sought an immediate

amendment to the Ordinance to remove the

constitutionally repugnant language. The City

accepted the court’s ruling regarding the preliminary

injunction, and did not exercise other options which

could easily have addressed and preserved any

substantive or procedural challenges it desired to

make regarding the preliminary injunction. For these

reasons, the court concludes that the City has forfeited

any right to challenge the issuance of the preliminary

injunction.®

* Although courts often use “forfeiture” and “waiver”

interchangeably, the court believes “forfeiture,” rather than

39a

IV. Mootness

On May 24, 2006, the court issued an order and

directed the parties to submit supplemental briefing

on the issue of mootness. The court ordered the

supplemental briefing because of remarks made by the

City’s counsel at one of the hearings. In discussing

that the legal relationship between the parties had not

been materially altered, the City’s counsel stated that

the City could, if it chose, re-enact the Ordinance made

the basis of this lawsuit. This statement by counsel

caused the court some concern because it was not

“absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Friends of

Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,528 U.S. 167,

189 (2000). The question in the court’s mind was

whether, in light of the statement, this case was really

moot. The court, because of the decision it has reached

regarding “prevailing party,” finds it unnecessary to

revisit the issue of mootness.

Vz. Conclusion

If this were a “catalyst theory” case as the City

contends, the court agrees that Buckhannon controls.

The court, however, for the reasons previously stated,

believes that this case ts not a “catalyst theory” case,

“waiver,” is the appropriate term to describe the City’s actions.

“Forfeiture” is the “failure to make timely assertion of a right,”

and “waiver” is the “intentional relinquishment or abandonment

of a known right.” United States v. Olano, 507 U.S. 725, 733

(1993) (citations omitted); Douglas v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1420 (5 Cir. 1996).

40a

and therefore Buckhannon has limited use and

application. If the City’s conduct in amending the

Ordinance can be termed “voluntary,” both Black’s

Law Dictionary (8" ed.) and Merriam-Webster’s

Collegiate Dictionary (11™ ed.) need to update their

respective dictionaries to add a new definition for the

meaning of “voluntary.” If the City is going to prevail

on its argument, it will have to do so at the appellate

level, because its approach, as far as this court is

concerned, deprives section 1988(b) of all vitality in

cases with the same or substantially similar facts as

those present in this case.

This court simply does not accept the legal theory

that a preliminary injunction can never give rise to

“prevailing party” status. The City appears to embrace

this theory. Under this approach, no matter how

unconstitutionally egregious the enjoined violation or

conduct, a governmental entity can readily escape

liability, costs, and attorney’s fees by simply amending

an ordinance to remove the constitutionally offensive

provisions and thereby moot the action. This is

precisely what we have in this case. The court has

seen nothing to indicate that Congress intended such

a scheme when it enacted 42 U.S.C. § 1988(b), or that

Congress intended for courts to discard common sense

and fairness to reach absurd legal results.

For the reasons stated herein, the court determines

that Dearmore has obtained the necessary relief to

establish that he is a “prevailing party.” The City has

failed to meet the necessary standard to justify an

amendment of the court’s judgment or order issued on

November 30, 2005. Accordingly, the court denies

Defendant’s Rule 59(e) Motion to Amend Judgment.

4la

The only pending motion is that for attorney’s fees

filed by Dearmore. As stated previously, “ja} request

for attorney’s fees should not result in a second major

litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437

(1983). The parties, through counsel, are ordered to

confer and make every reasonable effort to resolve the

matter of attorney’s fees without court intervention.

From what the court can ascertain from previous

communications between the parties, the amount of

attorneys fees is small, and there had been some

stipulation regarding attorney’s fees. This matter

needs to be resolved.? The parties are therefore

directed to inform the court in writing by September

7, 2006 whether they are able to resolve the attorney’s

fees issue. If not, the court will proceed to issue a

separate order pursuant to Fed. R. Civ. P. 58 on the

issue of attorney’s fees.

It is so ordered this 29" day of August, 2006.

/s/

Sam A. Lindsay

United States District Judge

*Ifthe City wishes to appeal the merits of the court’s ruling, the

parties can still stipulate to the amount of attorney’s fees and

make their stipulation subject to what happens on appeal.

42a

APPENDIY D

IN THE UNITED STATES DISTRICT COURT

FOR. THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

[Filed November 30, 2005]

ROY DEARMORE, individually and as

Representative of all owners of Single

Family residential property in Garland

Texas, MARIE COMBS, individually

and as Representative of all tenants of

Single Family residential property in

Garland, Texas, and A. C. BLAIR,

individually and as Representative of

all property managers in Garland, Texas,

Plaintiffs,

Vv.

CITY OF GARLAND,

Defendant.

ee ee ee

ORDER

43a

Before the court is the City of Garland’s Motion to

Dismiss as Moot, filed November 16, 2005. After

careful consideration of the motion and the record in

this case, the court grants the City of Garland’s

Motion to Dismiss as Moot. On November 3, 2005, the

court in its Memorandum Opinion and Order granted

Plaintiff Roy Dearmore’s request for a preliminary

injunction as to Garland, Tex., Code of Ordinances ch.

32, § 32.09(F). That section of the Ordinance required

a person who rents or leases a single-family dwelling

to allow an inspection of the rental property as a

condition of issuing a permit, and criminally penalized

a lessor for refusing to allow an inspection.

On November 15, 2005, the City of Garland

amended Section 32.09(F), removing the requirements

that a landlord consent to a warrantless inspection

and that a person who rents or leases a single-family

dwelling allow an inspection of the rental property as

a condition of issuing a permit. On November 21,

2005, the court’s law clerk conferred with counsel for

the parties, and the parties agreed that the only

outstanding issue is that of attorney’s fees. The court

determines that Plaintiff Roy Dearmore is a prevailing

party to the extent that the court declared Section

32.09(F) of the Ordinance to be in violation of the

Fourth Amendment to the United States Constitution.

Dearmore is therefore entitled to reasonable attorney’s

fees on this claim. Any request for attorney’s fees shall

be filed in accordance with Fed. R. Civ. P. 54(d)(2). The

court also determines that the matter of attorney’s fees

can be addressed postjudgment pursuant to Fed. R.

Civ. P. 54(d)(2). Regarding attorney’s fees, the

Supreme Court has strongly admonished that “[a]

request for attorney’s fees should not result in a second

44a

major litigation.” Hensley v. Eckerhart, 461 US. 424,

437 (1983). Accordingly, the parties shall confer and

make every reasonable effort to resolve the matter of

attorney’s fees without court intervention.

In light of the court’s Memorandum Opinion and

Order of November 3, 2005, the city’s subsequent

action in amending and removing the enjoined section

of the Ordinance, and the parties’ agreement regarding

matters remaining for adjudication, the court grants

the City of Garland’s Motion to Dismiss as Moot,

dissolves the preliminary injunction issued on

November 3, 2005, and dismisses this action with

prejudice. The court will issue judgment by separate

document as required by Fed. R. Civ. P. 58. Any

application for attorneys fees must be filed

postjudgment in accordance with Fed. R. Civ. P.

54(d)(2). The response and reply shall be filed in

accordance with the local civil rules of ths district.

It is so ordered this 30th day of November, 2005.

Is/

Sam A. Lindsay

United States District Judge

* While the court dissolves the preliminary injunction, Plaintiffs

shall have the right to seek judicial relief if the removed provision

of the Ordinance is reinstated, or a similar provision is adopted by

the City. Further, although the court issued a preliminary

injunction, it never became effective because Plaintiff Dearmore

never posted a bond as required by the court.

‘45a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

[Filed November 30, 2005]

ROY DEARMORE, individually and as

Representative of all owners of Single

Family residential property in Garland

Texas, MARIE COMBS, individually

and as Representative of all tenants of

Single Family residential property in

Garland, Texas, and A. C. BLAIR,

individually and as Representative of

all property managers in Garland, Texas,

Plaintiffs,

CITY OF GARLAND,

Defendant.

mee Ne eee eee Ne”

JUDGMENT

This judgment is issued pursuant to the court’s

Memorandum Opinion and Order of November 3,

2005; and the court’s order of November 30, 2005. By

its opinion and order of November 3, 2005, the court

granted Plaintiff Roy Dearmore’s request for a

preliminary injunction as to Garland, Tex., Code of

46a

Ordinances ch. 32, § 32.09(F). That provision required

a person who rents or leases a single-family dwelling

to allow an inspection of the rental property as a

condition of issuing a permit; and criminally penalized

a lessor for refusing to allow an inspection. As a result

of the court’s opinion and order, the City of Garland

amended its Ordinance and removed the offensive

provision, thereby mooting the case or controversy and

rendering the injunction unnecessary. The court

dissolved the injunction because of the City of

Garland’s corrective action.’ In light of the

Memorandum Opinion and Order, the action taken by

the City of Garland, and the court’s subsequent order

of November 30, 2005, no case or controversy exists

between the parties.

It is therefore ORDERED, ADJUDGED, and

DECREED that this action is dismissed with

prejudice;’ that all relief not expressly granted herein

is denied, except for any claim regarding attorney’s

fees; and that all allowable and reasonable costs are

taxed against the City of Garland.

Signed this 30th day of November, 2005.

' The injunction never became effective because Plaintiff

Dearmore never posted bond as ordered by the court.

* Although the,court dismisses this action with prejudice, nothing

herein shall preclude Plaintiffs from seeking judicial review ifthe

City of Garland seeks to reinstate the section of the Ordinance

that the court declared unconstitutional, or implements an

ordinance of similar import to that declared unconstitutional by

the court.

47a

_ EEG ECL aT RI

Sam A. Lindsay

United States District Judge

48a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

[Filed November 3, 2005]

ROY DEARMORE, individually and as

Representative of all owners of Single

Family residential property in Garland

Texas, MARIE COMBS, individually

and as Representative of al! tenants of

Single Family residential property in

Garland, Texas, and A. C. BLAIR,

individually and as Representative of

all property managers in Garland, ‘Texas,

Plaintiffs,

CITY OF GARLAND,

Defendant.

;

MEMORANDUM OPINION AND ORDER AND

PRELIMINARY INJUNCTION

49a

Before the court is Plaintiff Roy Dearmore’s

Amended Motion for Temporary Restraining Order

and Motion to Reconsider Court’s Denial of Temporary

Restraining Order, filed July 1, 2005;' and Defendant

City of Garland’s Motion to Dismiss for Want of

Subject Matter Jurisdiction (12(b)(1)) and for Failure

to State a Claim (12(b)(6)), filed July 6, 2005. After

careful consideration of the request for injunction, the

testimony given at the preliminary injunction hearing,

argument of counsel, the motions and briefs, response,

reply and applicable law, the court grants in part

Plaintiff's request for a preliminary injunction; denies

as moot Plaintiff's Amended Motion for ‘Temporary

Restraining Order and Motion to Reconsider Court’s

Denial of Temporary Restraining Order; denies as

moot City of Garland’s Motion to Dismiss for Want of

Subject Matter Jurisdiction (12(b)(1)); and grants in

part and denies in part City of Garland’s Motion to

Dismiss for Failure to State a Claim (12(b)(6)).

I. Factual and Procedural Background

Plaintiff Roy Dearmore (“Dearmore” or “Plaintiff”’)

filed this action pursuant to 42 U.S.C. § 1983 against

Defendant City of Garland (the “City” or “Defendant”)

‘In his motion, Plaintiff requests a temporary restraining order

and also a hearing on a preliminary injunction. In his First

Amended Complaint, Plaintiff requests a preliminary injunction

against enforcement of the ordinance until a final hearing on the

merits of the case. The court therefore treats Plaintiff's motion as

a metion for preliminary injunction.

50a

on June 16, 2005.2 Dearmore requests the court to

enjoin the City from enforcing City Ordinance No.

5895 (the “Ordinance”) which amends the City’s

Minimum Housing Code. Dearmore contends that he

will suffer irreparable injury if the City is not enjoined.

He maintains that the Ordinance violates his Fourth

Amendment right by: (1) authorizing warrantless

searches of private homes; (2) failing to provide a

mechanism to notify the tenant, property owner or

property manager of his or her right to refuse to allow

the search; and (3) requiring the applicant to disclose

private information that violates the right to privacy.

Dearmore further contends that the City has violated

the Fourteenth Amendment.*

Dearmore owns four properties in the City that he

rents to various tenants. The City adopted the

Ordinance on April 19, 2005. The Ordinance provides

two separate and distinct criteria for the permitting of

rental property in the City. Section 32.07 provides the

criteria for obtaining a Multifamily License —

necessary to lease “three or more residential dwelling

units to another person or persons which are part of a

multifamily dwelling.” Garland, Tex., Code of

Ordinances ch. 32, § 32.07 (2005). Section 32.09

provides the criteria for obtaining a Single Family

* Dearmore amended his complaint on July 15, 2005, adding

Marie Combs and A.C. Blair as Plaintiffs.

* Deamore asserts that his Fourth Amendment claim is applicable

to the State via the Fourteenth Amendment. In his Original

Complaint, Dearmore also asserted that the Ordinance violated

the Fifth Amendment. This claim is omitted in his First Amended

Complaint; therefore, it is not before the court.

5la

Permit — necessary to rent or lease “a single-family

residential dwelling.” Id. § 32.09 (2005).

To obtain a Single Family Permit, the Ordinance

requires a person or entity that owns one or more rent

houses to: (1) submit an application to operate each

rental property; (2) pay the appropriate fee ($65); and

(3) post and display the permit in a visible location

inside the rental property. Jd. § 32.09(B)(D). The

application and permit fee are to be paid no later than

60 days from the effective date of the Ordinance. Id.

§ 32.09(C). The application is to include the name,

address, telephone number and driver’s license

number of the owner, tenant and property manager.

Id. § 32.09(B)(1)(aXc). As a condition of the permit, the

City will inspect the property a least once a year.

Failure of an owner, who is not a resident at the

property, to allow an inspection is an offense. Id.

§ 32.09(F)(1)(3). When consent to inspect has been

refused or cannot be obtained, the City is authorized to

obtain a search warrant to conduct an inspection. /d.

§ 32.09(F)(4). This section also provides that:

[Nlo search warrant shall be obtained without

probable cause to believe that a fire or health

hazard or violation or unsafe building condition

is present on the premises sought to be

inspected. A search warrant is not authorized

based solely upon the failure of an owner to

obtain a permit under this section.

Id.

Dearmore received a letter from the Garland

Health Department Code Compliance Division, dated

52a

June 10, 2005, advising him of the adoption of the

Ordinance and its permit and inspection requirements.

The letter stated that owners of rent houses are

required to “allow the Health Department access to the

exterior and interior of the home for the purposes of

determining compliance with all applicable sections of

the Code.” Affidavit of Roy Dearmore, Exhibit A. The

letter also stated that “[als a rule, owners will be given

a three to seven day notice of the initial inspection to

facilitate scheduling the inspection.” Jd. The letter

further stated that “[t]he compliance deadline for

submitting a complete application and paying the

permit fee is July 11, 2005. Failure to comply with the

permit application deadline will result in the issuance

of Class C misdemeanor citations carrying fines [] from

$100 to $2000 per day.” Id.

* Section 2 of the Ordinance provides that “[A] violation of any

provision of this Ordinance shall be a misdemeanor punishable in

accordance with Sec. 10.05 of the Code of Ordinances of the City

of Garland, Texas.” Section 10.05 of the Code of Ordinances

provides:

Whenever in this [Code or in any ordinance of the City an

act is prohibited, or is made or declared to be unlawful, or

an offense or a misdemeanor, or wherever in such Code or

ordinance the doing of any act is required, or the failure

to do any act is declared to be unlawful, the violation of

any such provision of this Code or any such ordinance

shall be punished by a fine of not exceeding two thousand

dollars ($2,000.00). ... Fach day or portion of a day any

violation of this code or any ordinance shall continue or

occur shall constitute a separate offense.

Garland, Tex., Code of Ordinances ch. 10, § 10.05 (2005).

53a

Dearmore filed his Original Complaint and Request

for Temporary Preliminary and Permanent Injunctive

Relief on June 16, 2005. He also filed a Motion for

Temporary Restraining Order. The court denied

without prejudice Dearmore’s Motion for Temporary

Restraining Order. The court determined that

Dearmore failed to meet all the prerequisites for a

temporary restraining order. On July 1, 2005,

Dearmore filed his Amended Motion for Temporary

Restraining Order and Motion to Reconsider Court’s

Denial of Temporary Restraining Order or in the

Alternative Request for Expedited Preliminary

Injunction Hearing.

The City filed its motion to dismiss on July 6, 2005.

The City contends that Dearmore has failed to allege

sufficient facts to establish the court’s subject matter

jurisdiction over his Fifth Amendment claims;’ failed

to allege sufficient facts to state a claim upon which

relief may be granted as to his substantive due process

claim under the Fourteenth Amendment; and failed to

establish that he has standing to assert his Fourth

° The City contends that Dearmore has failed to plead sufficient

facts to establish this court’s subject matter jurisdiction over bis

Fifth Amendment claims that his property has been taken without

just compensation and that the Ordinance violates his due process

rights. Dearmore amended his complaint on July 15, 2005, after

the City filed its motion to dismiss. See First Amended Original

Complaint, Docket No. 20. ‘The amended complaint does not

include a Fifth Amendment claim, and this claim is no longer

before the court. As the basis for the City’s motion to dismiss for

want of subject matter jurisdiction is Deamore’s Fifth Amendment

claim, the City of Garland’s Motion to Dismiss for Want of Subject

Matter Jurisdiction (12(b\1))is denied as moot.

54a

Amendment claim. A preliminary injunction hearing

was held on July 7, 2005. The court now considers the

request for injunctive relief and the motion to dismiss.

II. Applicable Standards of Law

A. Preliminary Injunction

There are four prerequisites for the extraordinary

relief of a temporary restraining order or preliminary

injunction. To prevail, Plaintiff must demonstrate: (i)

a substantial likelihood of success on the merits; (ii) a

substantial threat of immediate and irreparable harm,

for which he has no adequate remedy at law; (iii) that

greater injury will result from denying the temporary

restraining order than from its being granted; and (iv)

that a temporary restraining order will not disserve

the public interest. Clark v. Prichard, 812 F.2d 991,

993 (5™ Cir. 1987); Canal Auth. of the State of Florida

v. Callaway, 489 F.2d 567, 572 (5™ Cir. 1974) (en

banc). The party seeking such relief must satisfy a

cumulative burden of proving each of the four elements

enumerated before a temporary restraining order or

preliminary injunction can be granted. Mississippi

Power and Light Co. v. United Gas Pipeline, 760 F.2d

618, 621 (5 Cir. 1985); Clark, 812 F.2d at 993.

Otherwise stated, if a party fails to meet any of the

four requirements, the court cannot grant the

temporary restraining order or preliminary injunction.

B. Rule 12(b)(6) Failure to State a Claim

A motion to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6) “is viewed with disfavor

and is rarely granted.” Lowrey v. Texas A&M Univ.

55a

Sys., 117 F.3d 242, 247 (5™ Cir. 1997). A district court

cannot dismiss a complaint, or any part of it, for

failure to state a claim upon which relief can be

granted “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of

Marshall, 42 F.3d 925, 931 (5 Cir. 1995). Stated

another way, “[a] court may dismiss a complaint only

if it is clear that no relief could be granted under any

set of facts that could be proved consistent with the

allegations.” Swierkiewicz v. Sorema, 534 U.S. 506,

512 (2002) (quoting Hishon v. King & Spalding, 467

U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6)

motion, the court must accept all well-pleaded facts in

the complaint as true and view them in the light most

favorable to the plaintiff. Baker v. Putnal, 75 F.3d

190, 196 (5 Cir. 1996). In ruling on such a motion,

the court cannot look beyond the pleadings. Id.; Spivey

v. Robertson, 197 F.3d 772, 774 (5 Cir. 1999), cert.

denied, 530 U.S. 1229 (2000). The pleadings include

the complaint and any documents attached to it.

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,

498-99 (5 Cir. 2000). Likewise, “[d]ocuments that a

defendant attaches to a motion to dismiss are

considered part of the pleadings if they are referred to

in the plaintiffs complaint and are central to [the

plaintiff's] claims.” Id. (quoting Venture Assocs. Corp.

v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7" Cir.

1993)). The ultimate question in a Rule 12(b)(6)

motion is whether the complaint states a valid cause

of action when it is v.>wed in the light most favorable

to the plaintiff and with every doubt resolved in favor

of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff,

however, must plead specific facts, not mere conclusory

56a

allegations, to avoid dismissal. Guidry v. Bank of

LaPlace, 954 F.2d 278, 281 (5 Cir. 1992).

III. Analysis

A. Introduction

Dearmore contends that the Ordinance violates the

Fourth Amendment by: (1) authorizing warrantless

searches of private homes; (2) failing to advise the

tenant or owner that he does not have to consent to a

search; and (3) requiring private information in the

application process. See First Amended Original

Complaint at 6-7. The City maintains that Dearmore’s

Fourth Amendment claims fail because he has failed

to allege sufficient facts to state a claim upon which

relief may be granted. Specifically, the City contends

that Dearmore: (1) has no standing to challenge the

Ordinance under the Fourth Amendment; (2) makes a

facial challenge to the Ordinance and the Ordinance is

facially valid; and (3) has failed to assert any facts to

demonstrate that he has a subjective expectation of

privacy in the property that he leases to third parties.

The Fourth Amendment provides that:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

57a

place to be searched, and the persons or things

to be seized.

U.S. Const. amend. IV.

B. Standing

A party has standing if: (1) he has suffered a

“concrete and particularized” injury that is actual or

imminent rather than conjectural or hypothetical; (2)

there is a causal relationship between the injury and

the challenged conduct; and (3) it is likely and not

merely speculative that the injury will be redressed by

a favorable decision. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992); Westfall v. Miller, 77 F.3d

868, 871 (5" Cir. 1996). The City contends that

Dearmore does not have standing because he, as a

non-resident landlord, does not have a reasonable

expectation of privacy in residential property leased to

a tenant, and he is not required to give consent for the

tenant. The court agrees that the property owner has

no expectation of privacy if the property is leased. See

United States v. Dyar, 574 F.3d 1385, 1390 (5™ Cir.

1978), cert. denied, 439 U.S. 982, 99 (1978) (an owner

of a leasehold interest in an aircraft had no

expectation of privacy, and therefore lacked standing,

when possession of the aircraft was given to another).

If, however, the rental property is not occupied, the

only logical person who would have standing and an

expectation of privacy would be the owner of the

property. The property owner therefore has not

relinquished his standing or expectation of privacy in

situations where the property is not occupied.

58a

Moreover, a property owner’s rental property is

commercial property. Indeed, it would be fatuous to

argue otherwise, as rental property is property which

is put in the stream of commerce for economic

purposes. The Supreme Court has recognized that the

Fourth Amendment’s prohibition of unreasonable

search and seizures is applicable to commercial

premises as well as private residences. See New York

v. Burger, 482 U.S. 691, 699 (1987). As the court

stated in Burger:

An owner or operator of a business thus has an

expectation of privacy in commercial property,

which society is prepared to consider to be

reasonable. This expectation exists not only

with respect to traditional police searches

conducted for the gathering of criminal evidence

but also with respect to administrative

inspections designed to enforce regulatory

statutes.

Id. (internal citations omitted). Although Dearmore

does not reside at his rental properties, the court views

his ownership interest in his rental property as that of

the owner of a commercial business, as it is used for

commercial purposes. As such, he has a reasonable

expectation of privacy in his rental property. See v.

City of Seattle, 387 U.S. 541, 543 (1967). In that case,

the Court stated:

The businessman, like the occupant of a

residence, has a constitutional right to go about

his business free from unreasonable official

entries upon his private commercial property.

The businessman, too, has that right placed in

59a

jeopardy if the decision to enter and inspect for

violation of regulatory laws can be made and

enforced by the inspector in the field without

official authority evidenced by a warrant.

Id.

The Fourth Amendment prchibition against

unreasonable searches protects against warrantless

intrusions during civil as well as_ criminal

investigations. Marshall v. Barlow’s Inc., 436 U.S.

307, 312 (1978). “If the government intrudes on a

person’s property, the privacy interest suffers whether

the government’s motivation is to investigate

violations of criminal laws or breaches of other

statutory or regulatory standards.” Jd.

Under the terms of the Ordinance, in order to rent

his property, an owner must obtain a permit. Ifa

permit is not obtained, the owner cannot make

commercial use of rental property without incurring a

substantial penalty. When the owner applies for a

permit, he must agree to abide by the Ordinance. The

Ordinance requires that the owner consent to an

annual inspection of his rental property whether it is

occupied or not, as long as he is not the occupant. It is

an offense if an owner rents his property without a

permit. It is also an offense if an owner refuses to

allow an inspection by the City. An owner, therefore,

can be fined up to $2000 per day for renting his

property without a permit. He may also be fined up to

$2000 per day for refusing to allow an inspection of his

rental property. Dearmore thus has a concrete injury

that is actual or imminent — involuntary consent in

order to receive a permit or risk being cited for a

60a

separate offense for each day he is not in compliance.

Although the City has not cited Dearmore for an

offense, it could do so at any time, which makes the

injury imminent rather than conjectural or

hypothetical. Dearmore must ¢ snsent in advance to

the annual inspection, even if the property is

unoccupied. There is a causal relationship between

Dearmore’s injury and the enforcement of the

Ordinance; and the injury is likely to be redressed by

a favorable decision in this action. Dearmore therefore

has standing to bring this action challenging the

constitutionality of the Ordinance with respect to the

provisions that require him to consent to the

inspection in order to receive a permit or be cited for

an offense. See generally Lujan, 504 U.S. at 560-61.

As the court determines that Dearmore has standing,

it now addresses the City’s argument that Dearmore

has failed to state a valid claim upon which relief can

be granted.

e.. Warrantless Administrative

Searches

Dearmore contends that the Ordinance’s

requirement that he consent to a _ warrantless

inspection of his property in order to obtain a rental

permit violates the Fourth Amendment. The City

counters that the only person required to consent to an

inspection is a non-resident owner, and such owner

has no Fourth Amendment protection in non-owner

occupied rental premises because he has no reasonable

expectation of privacy. The City maintains that the

tenant can still refuse the warrantless search. The

City is correct insofar as its arguments goes; however,

the City’s argument falls short in that the Ordinance

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provides no safeguards or protections in_ those

situations when the rental property is unoccupied.

The Ordinance simply does not take into account such

situations. If the property is unoccupied, the only

logical person to have standing is the owner or

someone authorized to act on behalf of the owner

regarding the property in question.

The leading case on the issue of warrantless

administrative searches is Camara v. Municipal Court

of City and County of San Francisco, 387 U.S. 523

(1967). Camara invelved a tenant who refused to

consent to an inspection of his property by municipal

housing officials. The tenant was arrested for refusing

to allow a lawful inspection. Id. at 526. The tenant

argued that the section of the housing code that

authorized municipal officials to enter a private

dwelling without a search warrant and without

probable cause to believe that a violation of the

housing code existed was a violation of the Fourth and

Fourteenth Amendment. Id. at 527. The Supreme

Court agreed and held that warrantless searches of

residential property by municipal inspectors violated

the Fourth Amendment protection against

unreasonable searches and seizures. Id. at 528. The

Court reasoned that “administrative searches of the

kind at issue here are significant intrusions upon the

interest protected by the Fourth Amendment, that

such searches when authorized and conducted without

a warrant procedure lack the traditional safeguards

which the Fourth Amendment guarantees to the

individual|[.]” /d. at 534. The Court acknowledged the

strong governmental interest in inspecting for housing

code violations and established standards for obtaining

administrative search warrants to inspect for such

62a

violations. Id. at 538-40. The Court concluded that

probable cause to issue an administrative warrant

exists if reasonable legislative or administrative

standards for conducting the inspection are satisfied

with respect to a particular dwelling. Jd. Factors to be

considered include the passage of time, the nature of

the building, or the condition of the entire area. /d.

The Court, however, went on to conclude that

reasonableness is the ultimate standard. Id.

The City maintains that Camara is inapplicable

here because Camara involved the tenant’s refusal to

allow a warrantless inspection of his residence, and

that its Ordinance only requires that non-resident

owners consent to an inspection. The parties do not

cite any Fifth Circuit authority on the issue of

warrantless administrative searches of residences

used for commercial purposes, and the court was

unable to find any.® Although no Fifth Circuit

* The City cites cases from the Sixth and Ninth Circuits to support

its contention that non-resident landlords do not have a

reasonable expectation of privacy in residential areas they have

leased to others. See United States v. Shamaeizadeh, 80 F.3d

1131, 1139 (6" Cir. 1996); Shamaeizadeh v. Cunigan, 338 F.3d

535, 544 (6" Cir. 2003), cert denied, 541 U.S. 1041(2004); Bonds

v. Cox, 20 F.3d 697, 701 (6 Cir. 1994); LPI Downtown Investors

1 v. Hahn, 139 F.3d 906 (9" Cir.), cert. denied, 525 U.S. 1002

(1998). Dearmore offers authority from New York, Indiana, Ohio,

California and Hlinois for his position that requiring a property

owner to consent to a warrantless inspection of his property in

order to obtain a rental permit is a violation of the Fourth

Amendment. See Sokolov vu. Freeport, 52 N.Y.2d 341, 420 N.F.2d

55 (1981); Currier v. City of Pasadena, 48 Cal. App. 3d 810, 121

Ca. Rptr. 913 (1975); Wilson v. City of Cincinnati, 346 N.E. 2d 666

63a

authority directly on point was located, the court

believes the parties could have been more direct and

forceful in presenting their respective cases and

providing the court with the necessary research. Such

failure unnecessarily caused the court to expend scarce

judicial resources.

Upon reviewing Camara, the parties’ authorities

and arguments, and conducting its independent

research, the court disagrees with the City that

Camara is inapplicable here. Camara makes no

distinction between owner and tenant, but rather

holds that an administrative search of a private

residence, including a private residence owned by one

person and rented by another, must include a warrant

procedure. In this case the City ignores that the

permitting process does not allow the owner to refuse

consent when the property is unoccupied without being

subject to criminal penalties, which can be quite

substantial. The court finds the City’s reasoning

unpersuasive because the property owner is being

penalized for his failure to consent in advance to a

warrantless search of unoccupied property. The

property owner’s consent thus ts not voluntary at all. A

valid consent involves a waiver of constitutional rights

and must be voluntary and uncoerced. See United

States v. Santiago, 410 F.3d 193, 198-99 (5" Cir. 2005);

United States v. Olivier-Becerril, 861 F.2d 424, 425 (5"

Cir.1988). The alternatives presented to the property

owner are to consent in advance to a warrantless

(Ohio 1976); City of Vincennes v. Emmons, 817 N.E.2d 291 (Ct.

App. — Indiana 2005); Brower v. Bolingbrook, 735 F Supp. 768

(N.D. Ill 1990).

64a

inspection, or to face criminal penalties; thus consent

is involuntary. On. the other hand, if the owner does

not consent to the warrantless search, he does not

receive a permit. The whole purpose of receiving a

permit is to rent the property for commercial purposes.

Without a permit, the owner cannot engage in lawful

commercial activity. The owner is thus faced with

equally unavailing situations.

While the City has shown a strong governmental

need or interest to make such a requirement in most

instances to protect the public health, safety and

welfare, the court believes the Ordinance goes too far

with respect to those situations in which the rental

property is not occupied by a tenant. By way of

example, the court provides the following illustration:

A property owner obtains a permit and leases

his property to a tenant beginning January 6,

2006. The City inspects the property in March

2006. The tenant moves out in November and

the property is vacant. The following January,

the owner obtains a new permit with the intent

to lease to a new tenant. The City seeks to

conduct its annual inspection in March 2007,

although the property is still vacant.

Under the regulatory scheme established under the

Ordinance, the property owner must consent in

advance to the inspection, no matter how unreasonable

the search or inspection.

Another illustration also identifies the overbreadth

of the City’s Ordinance. Consider the following

situation:

65a

A property owner obtains a permit on January

6, 2006. The tenant moves in on February 1,

2006, and moves out in May 2006. The City did

not inspect the property prior to the tenant

vacating the premises. The City decides to

inspect the property in June 2006, and the

owner cannot refuse to consent to the inspection

of the vacant property, regardless of the

necessity or reasonableness of the inspection.

With respect to either hypothetical, the City’s

argument is that the owner has no expectation of

privacy and cannot refuse the inspection. “This dog

will not hunt,” and the argument is clearly contrary to

the Supreme Court’s holding in New York v. Burger,

482 U.S. at 699, in which it states that an owner or

operator of a business has an expectation of privacy in

commercial property. Inspections and searches of

unoccupied property would clearly infringe on the

property owner’s right under the Fourth Amendment

to the United States Constitution to be free from

unreasonable search and seizure. In these limited

situations, where the property is unoccupied, the

protections guaranteed by the Fourth Amendment to

the United States Constitution to the property owner

outweigh any interest that the government has in

protecting the health, safety or welfare of the public.

If it becomes necessary to inspect unoccupied

properties, the City could readily, with a modicum of

effort, obtain an administrative search warrant to

inspect any property that may pose a danger to the

public. The ease with which the City could acquire an

administrative search warrant makes unnecessary the

need for the City to require property owners to forego

in advance their rights guaranteed by the Fourth

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Amendment. The court fully understands that the

City has a valid and important governmental interest

in protecting the public, however, the court sees no

reason why this should be done at the expense of

infringing on rights guaranteed by the Fourth

Amendment to the United States Constitution.

In the limited circumstances previously set forth,

the court does not believe that a property owner's lot

is so hapless that it places him or her between Scylla

and Charybdis.’ Here the equally repugnant choices,

or the “between a rock and a hard place” dilemma, for

the owner of rental property are: (1) the denial of a

permit for refusing to consent to the inspection and

thus loss of the ability to make commercial use of one’s

property for economic gain; (2) the withdrawal of

” According to Greek mythology, Scylla was originally a beautiful

nymph who was later turned into a monster by Circe, an

enchantress. Glaucus, a sea god, fell in love with Scylla; however,

she wanted no part ofhim. When Scylla rebuffed Glaucus’s efforts

to spark her, he enlisted the aid of Circe to persuade Scylla that

she should love him. Circe, however, had ideas of her own and

tried to convince Glaucus to love her instead of Scylla. When

Glaucus spurned Circe’s amorous efforts, she became enraged and

turned Scylla into a monster to spite Glaucus.

After being turned into a monster, Scylla lived in a cave

overlooking the Strait of Messina, which separates the island of

Sicily from Italy. Immediately opposite the cave where Scylla

lived was the whirlpool Charybdis. When mariners navigated the

Strait of Messina, they were faced with equally repugnant

alternatives of either (1) being devoured by Scylla, or (2) being

sucked into and drowned by the deadly waters of the whirlpool

Charybdis, which is the proverbial “between a rock and a hard

place” dilemma.

67a

consent, which will result in the imposition of

substantial monetary fines for refusing to allow the

inspection; or (3) consent in advance to the warrantless

search or inspection, regardless of the necessity of such

an inspection or search.

The court determines that in order to comply with

the requirements of Camara and the protections of the

Fourth Amendment, the Ordinance must give the

landlord the opportunity to refuse to consent if the

property is unoccupied and include a _ warrant

procedure to be followed in the event the landlord

refuses. Because the Ordinance does not allow the

landlord an opportunity to refuse consent, or include a

warrant procedure if consent is refused, section

32.09(F) of the Ordinance is likely to be held

unconstitutional. To hold otherwise would give the

City carte blanche authority to conduct searches and

inspections with impunity or without any type of

safeguards on property in which the owner clearly has

an expectation of privacy.®

For the reasons stated herein, accepting all

well-pleaded facts in the complaint as true and

viewing them in the light most favorable to Dearmore,

the court cannot say that it appears beyond doubt that

Dearmore can prove no set of facts in support of his

* Dearmore has established that no set of circumstances exist

under which section 32.09( F) of the Ordinance would be valid with

respect to warrantless administrative searches of unoccupied

property. Accordingly, Dearmore has mounted a successful facial

challenge to this provision of the Ordinance. See United States v.

Robinson, 367 F.3d 278, 290 (5" Cir. 2004).

68a

claim which would entitle him to relief. Dearmore

thus states a valid cause of action against the City,

and the City’s motion to dismiss as to Plaintiffs

Fourth Amendment claim should be denied.

D. Right to Privacy

Dearmore contends that the Ordinance’s

requirement that the applicant disclose his name,

address and driver’s license number and those of the

tenant in a public document violates his right to

privacy. Dearmore offers no authority in support of

this contention. The City maintains that even if

Dearmore has a constitutional right to privacy that

would protect his driver’s license number, the number

is protected from disclosure under Texas law. The

court agrees.

Pursuant to Tex. Government Code § 552.130(a),

the following information is excepted from public

disclosure:

(1) a motor vehicle operator’s or driver’s license

or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by

an agency of this state; or

(3) a personal identification document issued by

an agency of this state or a local agency

authorized to issue an identification document.

Id. In Whalen v. Roe, 429 U.S. 589, 599-606 (1977), the

Supreme Court stated that privacy interests are

adequately protected if there are statutes that provide

safeguards against disclosure of personal information

collected by the government. As there is a statute that

69a

adequately safeguards Dearmore and his tenant’s

driver’s license numbers, and Dearmore has not

alleged that this or any other private information has

been disclosed by the City, he can prove no set of facts

in support of his violation of right to privacy claim

which would entitle him to relief. Accordingly, the

City’s motion to dismiss as to this claim should be

granted.

IV. Conclusion

For the reasons stated herein, the court denies as

moot Defendant City of Garland’s Motion to Dismiss

for Want of Subject Matter Jurisdiction (12(b)(1));

denies Defendant City of Garland’s Motion to Dismiss

for Failure to State a Claim (12(b)(6)) as to Plaintiff

Roy Dearmore’s claim that City of Garland Ordinance

No 5895 is unconstitutional because it provides for

warrantless searches of private homes and commercial

property; and grants Defendant City of Garland’s

Motion to Dismiss for Failure to State a Claim

(12(b)(6)) as to Plaintiff Roy Dearmore’s claim that the

Ordinance violates his constitutional right to privacy

by requiring that he disclose his name, address and

driver’s license number and those of the tenant in the

application, and this claim is dismissed with

prejudice for failure to state a claim upon which

relief can be granted pursuant to Fed. R. Civ. P.

12(b)(6).

¥. Preliminary Injunction

For the reasons stated in Section III (B)and (C),

which are incorporated in this section by reference as

if repeated verbatim, the court determines that

70a

Dearmore has demonstrated a substantial likelihood

of success on the merits as to his claim that the

Ordinance will violate the Fourth Amendment’s

protection from unreasonable searches by requiring

that the owner of rental property consent in advance

to an annual inspection in order to receive a permit,

and citing an owner for an offense if he refuses to

consent. Dearmore has also demonstrated a

substantial threat of immediate and irreparable harm,

for which he has no adequate remedy at law, because

in order to receive a permit he must agree to abide by

all the provisions of the Ordinance, which includes

agreeing in advance to a warrantless inspection.

Dearmore also is subject to being fined, or even

arrested, for a misdemeanor violation. Each day for

which he is not in compliance or violates the

Ordinance constitutes a separate offense. Dearmore

has further demonstrated that granting a preliminary

injunction will subject the City to minimal harm, if

any, while protecting him from irreparable harm

which could not otherwise be adequately remedied at

law. The City, with minimal effort, may amend its

ordinance to include the owner’s right of refusal of an

inspection and include a warrant requirement upon

that refusal. The court determines that the effect, if

any, on the City’s regulatory scheme would be

negligible. Finally, Dearmore has demonstrated that

a preliminary injunction will not disserve the public

interest, as enjoining the enforcement of an

unconstitutional provision of the Ordinance promotes

rather than disserves the public interest. Enjoining

such enforcement ensures that private citizens will not

be subject to unconstitutional actions by the City.

Moreover, constitutional violations should be enjoined

Tla

as soon as practicable; otherwise, the Constitution is

of little value.

Accordingly, the court grants Plaintiff Roy

Dearmore’s request for a preliminary injunction as to

section 32.09(F) of the Ordinance that requires a

person who rents or leases a single-family dwelling to

allow an inspection of the rental property as a

condition of issuing a permit, and that criminally

penalizes a lessor for refusing to allow an inspection;

and denies as moot Plaintiff Roy Dearmore’s

Amended Motion for Temporary Restraining Order

and Motion to Reconsider Court’s Denia! of Temporary

Restraining Order.

As Dearmore has established the four prerequisites

for a preliminary injunction, the court hereby enjoins

the City from enforcing any provision of section 32.09

of the Ordinance that requires a person who rents or

leases a single-family dwelling to allow an inspection

of the rental property as a condition of issuing a

permit, or penalizes the lessor for refusing to allow an

inspection. This preliminary injunction does not affect

the remainder of the Ordinance, as the court

determines that the Ordinance, without the offensive

provisions, can function independently. See Alaska

Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).

The court hereby sets a bond in the amount of

$5,000, and this preliminary injunction shall not

become effective until Plaintiff Roy Dearmore tenders

to the clerk of the court the sum of $5,000 cash, or a

bond for $5,000 in a form approved by the clerk of the

court, in compliance with Fed. R. Civ. P. 65(c).

72a

This preliminary injunction shall remain in

effect until a trial is conducted on the merits, or until

it is otherwise modified by the court. This injunction

is issued at 1:40 p.m. on November 3", 2005.

It is so ordered this 3" day of November, 2005.

/s/

Sam A. Lindsay

United States District Judge

73a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:05-CV-1231-L

[Filed June 28, 2005]

ROY DEARMORE, individually and as

Representative of all owners of single

Family residential property in

Garland Texas,

Plaintiff,

CITY OF GARLAND,

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiffs Motion for Temporary

Restraining Order, filed June 16, 2005. After careful

consideration of the motion and applicable law, the

court denies without prejudice Plaintiffs Motion for

Temporary Restraining Order.

74a

I. Factual and Procedural Background

Plaintiff Roy Dearmore (“Dearmore” or “Plaintiff’)

seeks to have the court enjoin Defendant City of

Garland (“City” or “Defendant”) from enforcing the

City’s Ordinance No. 5895 (“Ordinance”). Dearmore

contends that he will suffer irreparable injury if the

City is not enjoined. He maintains that the Ordinance

violates his Fourth Amendment right to be free from

unreasonable searches; Fifth Amendment right to

procedural and substantive due process and privacy;

and 14° Amendment rights.

Dearmore owns four properties in the City that he

rents to various tenants. The City adopted the

Ordinance on April 19, 2005. The Ordinance requires

a person or entity that owns one or more rent houses

to (1) submit an application to operate each rental

property; (2) obtain an annual permit by paying the

appropriate fee ($65); and (3) post and display the

permit in a visible location inside the rental property.

Garland, Tex., Ordinances ch. 32, § 32.09 (2005). The

application and permit fee are to be paid no later than

60 days from the effective date of the Ordinance.

§ 32.09(C). The application is to include the name,

address, telephone number and driver’s license

number of the owner, tenant and property manager.

§ 32.09 (B)((1)(a)(c). The City will inspect the property

a least once a year, and failure of an owner to allow an

inspection is an offense. § 32.09(F)(1)(3). When

consent to inspect has been refused or cannot be

obtained, the City is authorized to obtain a search

warrant to conduct an inspection. § 32.09(F)(9).

75a

Section 32.07 of the Ordinance requires that “a

person who rents or leases three or more residential

dwelling units to another person or persons which are

part of a multifamily dwelling must obtain and

maintain a valid multifamily license.” Application for

a multifamily dwelling license constitutes consent for

the City’s agents to enter and inspect individual

dwelling units to determine compliance with the City’s

housing standards. § 32.07(E)(1). The application

does not require the driver’s license number of the

owner, property manager or tenant. § 32.07 (B)(1).

The Ordinance requires that all exterior windows

designed to be opened on rented dwellings must be

screened (§ 32.04(B)(5)); and all rented multifamily or

single-family structures must be air conditioned.

§ 32.04(D)(5).

II. Motion for Temporary Restraining Order

There are four prerequisites for the extraordinary

relief of a temporary restraining order or preliminary

injunction. To prevail, Plaintiff must demonstrate (i)

a substantial likelihood of success on the merits; (11) a

substantial threat of immediate and irreparable harm,

for which he has no adequate remedy at law; (iii) that

greater injury will result from denying the temporary

restraining order than from its being granted; and (iv)

that a temporary restraining order will not disserve

the public interest. Clark v. Prichard, 812 F.2d 991,

993 (5th Cir. 1987); Canal Author v. Callaway, 489

F.2d 567, 572 (5th Cir. 1974) (en banc). Ifa party fails

to meet any of the four requirements, the court cannot

grant the temporary restraining order or preliminary

injunction. Id.

76a

The court determines that Plaintiff has failed to

meet the four requirements for a temporary

restraining order, and his motion should be denied.

Plaintiff contends that the Ordinance is invalid on its

face because it authorizes warrantless inspections of

private residences, has no rational basis and requires

the disclosure of sensitive private information.

Specifically, Plaintiff maintains that the City is

violating his Fourth Amendment rights by requiring

him to consent to warrantless searches of his rental

property as part of the permit process. Plaintiffs Brief

at 3. He further contends that his Fifth Amendment

rights are violated because there is no rational basis of

many of the Ordinance provisions, including requiring

that rental property be air conditioned and the

windows be screened. Jd. Plaintiff maintains that

owner occupied housing does not have to meet these

requirement. Jd. Plaintiff further maintains that

privacy and due process rights are violated by the

Ordinance requirement that he disclose his and the

tenants driver’s license number in the application. Jd.

Plaintiff asserts that he will suffer irreparable harm

because these constitutional rights are being violated.

He states that he is “faced with either complying with

an unconstitutional statute, or resisting and facing

criminal prosecution.” /d. at 4.

Although Plaintiff offers some proof regarding

irreparable harm, the court is not convinced that he

has carried his burden on this element. Regarding the

other three prerequisites for a temporary restraining

order, he wholly fails to address them. Specifically,

Plaintiff fails to demonstrate a substantial likelihood

of success on the merits; that greater injury will result

from denying the temporary restraining order than

T7a

from its being granted; and that a temporary

restraining order will not disserve the public interest.

Plaintiff simply states in a conclusory fashion that

there is “little harm to the City of Garland in delaying

enforcement of the statu[t]e, and it does irreparable

harm to the Plaintiff whose constitutional rights are

being violated.” Jd. at 4. Indeed, much of Plaintiff

Dearmore’s affidavit consists of arguments,

conclusions and opinions, rather than facts in support

of his temporary restraining order. See Affidavit of

Roy Dearmore {J 4-8. In sum, Plaintiff fails to provide

the necessary evidence and legal authority to

demonstrate that he is entitled to a temporary

restraining order. As Plaintiff has not met all the

prerequisites for a temporary restraining order, the

court denies without prejudice Plaintiffs Motion for

Temporary Restraining Order.

It is so ordered this 28" day of June, 2004.

/s/

Sam A. Lindsay

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.