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Aubrey v. D Magazine Partners, L.P.

United States District Court, N.D. Texas, Dallas Division

July 29, 2019

STEVEN B. AUBREY and BRIAN E. VODICKA, Plaintiffs,
v.
D MAGAZINE PARTNERS, L.P.; ALLISON MEDIA, INC.; JAMIE L. THOMPSON; ROBERT L. ERMATINGER, JR. SCOTT ROBERT SAYERS; ERIC VAUGHN MOYE; CITY OF DALLAS; DALLAS COUNTY, TEXAS; and DOES 1-20, all whose true names are unknown, Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' Application for Temporary and Permanent Injunction (Doc, 17, the “Motion”) against Defendant, the City of Dallas (the “City”). For the reasons stated below, the Motion is DENIED without prejudice to refile.

         I.

         BACKGROUND

         Plaintiffs in this case bring a variety of federal- and state-law claims against various defendants based on events surrounding the death of Ira E. Tobolowsky. This Motion seeks to enjoin the City from complying with a state-court order to turn over Dallas Police Department's homicide file on Ira Tobolowsky's death to a private citizen, namely Tobolowsky's son. Doc. 17, Mot., 2, 10; Doc. 45, Pls.' Reply, 4. Plaintiffs were at one point suspects in that case, and during the investigation the City allegedly compiled personal information on Plaintiffs, including records of their medical, cell phone, email, and credit card history, as well as photographs and videotapes of a strip search that was performed. Doc. 17, Mot., 4. Plaintiffs assert that all of the information in that file was improperly obtained, is private, and should not be publicized to anyone, much less Tobolowsky's son. Doc. 45, Pls.' Reply, 3-4.

         Plaintiffs were never parties to the state-court suit that issued the order for the City to disclose the homicide file, although a different state-court judge previously quashed a subpoena Tobolowsky's son issued for some of Plaintiffs' confidential information. Id. Ex. A. Plaintiffs state that they first learned of this state-court order on or about February 28, 2019. Id. Ex. D, ¶ 4 (Aubrey Declaration); Id. Ex. E, ¶ 4 (Vodicka Declaration).

         In their Motion, Plaintiffs raise several merits arguments as to why the state-court order was improperly issued: (1) that Tobolowsky's son violated the notice requirements of Texas Rule of Civil Procedure 202.2(f) in failing to give interested persons like Plaintiffs notice of his attempts to obtain the homicide file; (2) the law enforcement privilege should have barred Tobolowsky's son's request; and (3) the order would violate Plaintiffs' right to privacy. Doc. 17, Mot. 3-7; Doc. 45, Pls.' Reply, 3.

         The City itself opposes the state-court order, albeit on the grounds of law-enforcement privilege and undue burden, not on the Plaintiffs' privacy rights. See Doc. 41, Def.'s Resp., 2; Doc. 45, Pls.' Reply, Ex. C (City's response in opposition to Tobolowsky's son's Rule 202 petition). The City has appealed the state-court order, and litigation is ongoing in the Fifth Court of Appeals, Dallas, Texas. Doc. 41, Def.'s Resp., 2. Until the appeal is resolved, the order is suspended. See Tex. Civ. Prac. & Rem. Code § 6.002(b); Tex.R.App.P. 25.1(h).

         In short, Plaintiffs argue that this Court should enjoin the City from complying with the state-court order. The City responds: (1) Plaintiffs fail to establish jurisdiction; (2) the Court should decline to exercise jurisdiction; (3) Plaintiffs lack standing; and (4) Plaintiffs fail to meet their burden to show injunctive relief is warranted. See generally, Doc. 41, Def.'s Resp. As all briefing has been received, the Court considers the Motion.

         II.

         LEGAL STANDARD

         There are four prerequisites for the extraordinary relief of a preliminary injunction. A court may grant such relief only when the movant establishes that:

(1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury [to the movant] outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest.

Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th 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 & Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993. Otherwise stated, if a ...


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