Opinion
C. A. 2:23-03218-RMG-MHC
03-05-2024
David Anthony Babb, Plaintiff, v. David Isom, Rudy Socha, William Ladue, Mayor John J. Tecklenburg and Charleston City Council Board Members, Mike Merrill, SC Attorney General Alan Wilson, Wounded Nature - Working Veterans 501c3, Sarah E. Reed, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is a civil action filed by Plaintiff David A. Babb. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
Plaintiff filed an Amended Complaint in which he claims that his First and Fourteenth Amendment rights have been violated. He also appears to be attempting to assert claims under South Carolina law for an alleged violation of the South Carolina Public Trust Doctrine and other state laws. ECF No. 4.
On February 29, 2024, his motion to correct the name of Defendant DHEC Agent to Sarah E. Reed was granted. ECF No. 22.
PLAINTIFF'S MOTIONS FOR TEMPORARY RESTRAINING ORDERS/MOTION FOR RULING
On September 8, 2023, Plaintiff filed a motion for an ex parte temporary restraining order (TRO) pursuant to Federal Rule of Civil Procedure 65(b)(1). ECF No. 12. He provided numerous attachments to his motion. See ECF Nos. 12-1 and 12-2. On October 16, 2023, Plaintiff supplemented his motion with additional documents. See ECF Nos. 12-3 and 12-4.
On February 20, 2024, Plaintiff filed a motion for a ruling on his TRO. ECF No. 18. In it, he appears to be attempting to supplement his motion for a TRO by alleging various acts by Defendant Socha as to a vessel owned by another person. He also submitted copies of alleged warning notices for violations of City of Charleston Ordinance 21-73 for “Debris, algae, excessive growth, etc[.]” issued to Plaintiff's vessels “Cirrhosis of the River” and “Pagan Wind” by Officer Defendant Mike Merrill on February 14, 2024. ECF No. 18 at 16-17.
Plaintiff requests that this Court issue orders:
1) immediately restraining Defendant(s) Rudy Socha and/or Wounded NatureWorking Veterans, and others associated with the Defendants from cutting Plaintiff's rodes and/or moving Plaintiff's vessels; 2) that Ordinance 2023-097 be stayed or held in abeyance until a merits hearing or resolution of the case; 3) that Socha's DHEC permit, OCRM04513, be stayed until a merits hearing to determine its revocation, and for a temporary restraining order against David Isom or the management at Safe Harbor Marina from removing my vehicle which has been on account there since 2012.ECF No. 12 at 1. In a section titled Relief, Plaintiff also requests:
A. That the: 1) Ordinance 2023-097; b) DHEC's permit OCRM 04513; c) Socha's act of development from OCRM04513; and d) Socha's acts of piracy and vandalism be stayed until a merits hearing or held in abeyance until a ruling on the issues.
B. That Plaintiff's parking at the SHM-Beach Co. parking lot, which is a public parking lot, at 17 Lockwood Blvd. not be disrupted by Defendant David Isom and or management at SHM. Plaintiff has made timely payments since 2012 and wishes to continue.Id. at 32.
To the extent that Plaintiff's motions request temporary restraining orders (TRO) or preliminary injunctions, it is recommended that these motions be denied. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the court may issue a TRO without notice to the adverse party or the party's attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). A TRO “expires at the time after entry-not to exceed 14 days-that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Fed.R.Civ.P. 65(b)(2). “The stringent restrictions imposed ... by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438-39 (1974).
To the extent that Plaintiff's motions are requests for a TRO, they should be denied because Plaintiff has not complied with Fed.R.Civ.P. 65(b)(1) by providing specific facts in an affidavit or a verified complaint to clearly show that immediate and irreparable injury will result to him before Defendants can be heard in opposition. Additionally, Plaintiff appears to be requesting relief exceeding fourteen days. See Fed.R.Civ.P. 65(b)(2). It also does not appear that Plaintiff, who has not asserted that he is an attorney, can satisfy the “attorney certification” requirement for a TRO as required under Rule 65(b)(1)(B). See Demorcy v. Cook, No. CA 8:13-1494-JFA-JDA, 2013 WL 5332146 (D.S.C. Sept. 23, 2013) (noting that the plaintiff could not satisfy the “attorney certification” requirement for a TRO under Rule 65(b)(1)(B) because he was not an attorney admitted to practice before the court).
Additionally, Plaintiff fails to show that immediate and irreparable injury, loss, or damage will result before Defendants have an opportunity to be heard on this matter. He only speculates about possible injury that may occur to him, including that he may have to move his vessel(s), that someone may cut his rode, and that Safe Harbor Marina may refuse to take his money to park his truck at that site. Thus, Plaintiff fails to satisfy the immediacy requirement in Rule 65(b)(1). See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (“[T]he required ‘irreparable harm' must be ‘neither remote nor speculative, but actual and imminent.' ”) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). Accordingly, Plaintiff has failed to meet Rule 65(b)'s standard for the issuance of a temporary restraining order without notice. Thus, to the extent his motion seeks an ex parte restraining order, it should be denied.
Plaintiff also discusses alleged injuries to others. Although 28 U.S.C. § 1654 allows individuals to “plead and conduct their own cases personally,” the statute does not extend that right to represent other parties. See Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) (finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others); Asad v. Arab Bank, PLC, 117 Fed.Appx. 466, 467 (7th Cir. Nov. 12, 2004) (a litigant who is not a lawyer may not represent the interests of any other litigant).
Additionally, to the extent that Plaintiff is requesting a preliminary injunction, any request should be denied because the motion is premature as this action has not yet been served. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).
CITY OF CHARLESTON'S MOTION TO DISMISS
On November 6, 2023, the City of Charleston filed a Motion to Dismiss. ECF No. 15. The City of Charleston argues that this action should be dismissed because Plaintiff has not served it within 90 days of the filing of the Complaint. The City of Charleston asserts that it was erroneously named in the Complaint and Amended Complaint “as Mayor John J. Tecklenburg and Charleston City Council Board Members” instead of the City of Charleston. Id. It argues, under Federal Rule of Civil Procedure 4(m), that it is entitled to dismissal because it has not been served within 90 days of the filing of the Complaint. ECF No. 15. Plaintiff filed a Response in which he argues that the Motion is premature. ECF No. 17.
This action is under initial review and has not been authorized for service. Accordingly, the City of Charleston's Motion to Dismiss is premature and, thus, should be denied.
RECOMMENDATION
Based on the foregoing, it is recommended that Plaintiff's Motion for a TRO (ECF No. 12) and Motion for a TRO/Motion for Ruling (ECF No. 18) be DENIED. It is also recommended that the City of Charleston's Motion to Dismiss (ECF No. 15) be DENIED.
The parties' attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).