Opinion
CIVIL ACTION NO: 03-2161, SECTION: "R" (4)
November 6, 2003
ORDER AND REASONS
Before the Court is Fairhope Farms, Inc.'s motion for a preliminary injunction. For the following reasons, the Court grants plaintiff's motion.
I. BACKGROUND
On May 8, 1997, plaintiff Fairhope Farms, Inc. purchased immovable property that included a gate at the end of Silica Road about 2000 feet from Louisiana Highway 16. On July 9, 2003, defendant, Richard Kivett, an alderman of the Village of Sun, allegedly removed the gate on authority of the Village of Sun, without giving advance notice to Fairhope Farms or an opportunity to be heard.
On July 30, 2003, Fairhope Farms filed this suit under 42 U.S.C. § 1983, asserting that defendants violated its due process rights under the Fourteenth Amendment. It also filed a state law claim under Article 1, § 4 of the Louisiana Constitution, together with a state law possessory action. Fairhope Farms now seeks preliminary injunctive relief to maintain its possession during the pendency of the possessory action. Specifically, Fairhope Farms seeks to prohibit defendants from interfering with its possession and from impeding it from reinstalling its gate. Defendants assert that Fairhope Farms has failed to satisfy the applicable test for preliminary injunctive relief. For the following reasons, the Court finds that Fairhope Farms is entitled to a preliminary injunction.
II. DISCUSSION
Plaintiff asserts that Louisiana Civil Code of Procedure article 3663, sets the applicable standard for preliminary injunctive relief here because applying federal law would affect the substantive rights of Fairhope Farms. The Court finds this argument to be without merit. The standard for granting preliminary injunctions is a procedural matter. Therefore the applicable Federal Rule of Civil Procedure, Rule 65, controls. See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 799 (3d Cir. 1989) (quoting System Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1141 (3d Cir. 1977) "([A]1though the right upon which the cause of action based is state-created, Rule 65(a) of the Federal Rules of Civil Procedure contemplates a federal standard as governing requests addressed to federal courts for preliminary injunctions."); see also Dice v. Clinicorp, Inc., 887 F. Supp. 803, 808 (W.D. Pa. 1995); Niagara Mohawk Power Corp. v. Graver Tank Mfg. Co., 470 F. Supp. 1308, 1312 (N.D.N.Y. 1979) (citing to Am. Brands, Inc. v. Playgirl, Inc., 498 F.2d 947 (2d Cir. 1974)); see generally Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1448 (11th Cir. 1991) (applying federal standard for preliminary injunctive relief despite state law presumption that an injunction was an appropriate remedy).
Article 3663 as interpreted by Louisiana Courts does not require a threat of "irreparable harm." See generally Carbo v. City of Slidell, 2001-0710 at *12 (La.App. 1 Cir. 1/8/03).
In any event, the result in this case would be the same even the Court applied the Louisiana preliminary injunction standard under Louisiana Civil Procedure Article 3663.
B. Preliminary Injunctive Relief
1. Legal Standard
A preliminary injunction is an extraordinary remedy that should be treated as the exception, rather than the rule. Mississippi Power Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). A preliminary injunction should not be granted unless the movant demonstrates by a clear showing: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any potential harm to the non-movant; and (4) that the injunction will not undermine the public interest. See Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997); see also Ingebresten v. Jackson Public Sch. Dist., 88 F.3d 274, 278 (5th Cir. 1996); Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 163 (5th Cir. 1993); Holland Am. Ins. Co. v. Succession of Roy, 111 F.2d 992, 997 (5th Cir. 1985). The movant must satisfy all four factors; a failure to satisfy even one of the four factors requires a denial of the preliminary injunction. Mississippi Power, 760 F.2d at 621; compare Calmes v. United States, 926 F. Supp. 582, 591-92 (N.D. Tex. 1996) (stating that a person seeking a permanent injunction must demonstrate actual success on the merits as a oppose to a substantial likelihood of success on the merits).
(1) Success on the merits
To determine whether Fairhope Farms is entitled to a preliminary injunction in connection with its possessory action, the Court will apply state substantive law to determine its likelihood of success on the merits. To prevail in a possessory action, Fairhope Farms must establish that: (1) it was in possession of the property at the time that the disturbance occurred; (2) it possessed the property quietly and without interruption for more than a year before the disturbance; (3) the disturbance was in fact or in law; and (4) it brought the possessory action within a year of the disturbance. See LA. CODE CIV. PROC. art. 3658 and 3655; see also New Orleans 2000 Partnership v. City of New Orleans, 1993 WL 302636 (E.D. La.) Poirrier v. Dale's Dozer Serv., Inc., 770 So.2d 531, 535, 1999-2593 (La.App. 1 Cir. 11/3/00); Carbo v. City of Slidell, 844 So.2d 1, 2001-0170 (La.App. 1 Cir. 1/8/03).
Here, Fairhope Farms has established a substantial likelihood of success in proving the foregoing four elements. It is undisputed that Fairhope Farms had possession of the property for more than a year before the disturbance. Further, removal of the fence constitutes a disturbance in fact. See Miller v. Hilton, 527 So.2d 537, 539 (La.App. 3rd Cir. 1988) (stating "[a] disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment"). Fairhope Farms also instituted this possessory action within a year after the removal of the fence.
Defendants assert that the property in question does not belong to Fairhope Farms. A possessory action, however, "does not require any proof of title or ownership, and instead premises relief on a simple showing of actual possession at the time of a disturbance and throughout the prior year." LA. CODE CIV. PROC. art. 3658; see also Pendarvis v. Ormet Corp., 135 F.3d 1036, 1039 (5th Cir. 1998). The Court finds that Fairhope Farms has shown a substantial likelihood of success on the merits of its possessory action.
(2) Threat of irreparable harm
An injury is irreparable if it cannot be undone through monetary remedies. Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Lionhart v. Foster, 100 F. Supp.2d 383, 392 (E.D.La. 1999); Foster v. Super Vending, Inc., 1995 WL 7430, *7 (E.D, La.) (finding that an injunction would not serve its intended purpose of preventing irreparable injury to the moving party when plaintiff failed to demonstrate that he would not be able to recover any monetary damages after a trial on the merits); MGJ Corp. v. City of Houston, 544 S.W.2d 171, 174-76 (Tex.Civ.App.-Houston 1976) (reversing the district court's decision not to grant a temporary injunction enjoining the city from trespassing on plaintiff's property).
Since the removal of the fence, Fairhope Farms possession and enjoyment of the property have been and will continue to be routinely disturbed by trespassers. Further, Fairhope Farms attests without contradiction that defendants have passed a resolution to have St. Tammany Parish maintain the roadway on the property past the point where the gate was located. This action indicates that defendants intend to continue to interfere with Fairhope Farm's right to possession. Moreover, Fairhope Farms asserts without contradiction that defendants have refused to permit it to reinstall the gate on the property. The Court finds that the essence of the right of possession is possession of the property and that Fairhope Farms' right to possession cannot be protected adequately absent preliminary injunctive relief.
(3) Balance of Harms
The Court finds that the threatened injury to Fairhope Farms outweighs any damage to defendants that a temporary injunction will impose during the pendency of the action. Defendants have not even suggested that a preliminary injunction would injure them.
(4) Public interest
Finally, the injunction will not disserve the public interest. Rather, awarding preliminary injunctive relief is consistent with Louisiana's policy to protect its citizens' possessory rights associated with immoveable property.
III. CONCLUSION
For the foregoing reasons, the Court grants plaintiff's motion for preliminary injunctive relief, enjoining defendants, as well as their agents and employees, from interfering with plaintiff's possession of the property during the pendency of this action.