Case 2:12-cv-01100-SMV-LAM Document 39

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

DEBORAH L. TOOMEY, et al. Plaintiffs, vs. CITY OF TRUTH OR CONSEQUENCES, a municipal corporation, Defendant. DEFENDANTS RESPONSE TO MOTION TO GRANT PRELIMINARY INJUNCTION FOR FAILURE TO SERVE 64 PLAINTIFFS WITHRESPONSE [Doc. 11] No. 2:12-cv-01100-SMV-LAM

COMES NOW Defendant, the City of Truth or Consequences, by and through its counsel Coppler Law Firm, P.C. (Gerald A. Coppler and John L. Appel) and for its Response to the Motion to Grant Preliminary Injunction for Failure to Serve 64 Plaintiffs with Response [Doc. 11] (hereinafter, the Motion) filed by Plaintiffs herein on November 9, 2012, states as follows.

I. PROCEDURAL BACKGROUND On October 15, 2012, Plaintiff Deborah L. Toomey filed her Motion for Preliminary Injunction [Doc. 1, Ex. C] in the Seventh Judicial District Court for Sierra County, New Mexico, contemporaneously with the filing of the sixty-five Plaintiffs Complaint for Declaratory Relief and Injunction [Doc. 1, Ex. A] (the Complaint) herein. The Motion for Preliminary Injunction [Doc. 1, Ex. C] was filed only by and on behalf of Ms. Toomey. In

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fact, Ms. Toomey did not even state the position of the other sixty-four Plaintiffs regarding the Motion for Preliminary Injunction, although she purported to speak on their behalf as to other matters (e.g., Plaintiffs are confident that they will prevail on the issues enumerated in the Complaint . . . , Motion for Preliminary Injunction [Doc. 1-3, Ex. C] at 1). On October 24, 2012, this case was removed to the United States District Court for the District of New Mexico, and Defendant served notice of the removal on all 65 Plaintiffs. On October 29, 2012, Defendant filed its Response to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 5] (the Response), and served a copy on Ms. Toomey by mail. On November 2, 2012, Defendant filed its Answer to the Complaint [Doc. 6].

Defendant did not initially serve copies of the Response [Doc. 5] or the Answer [Doc. 6] on all Plaintiffs by mail, because Defendant had been advised by Court staff that service by mail would be effected by the Court. On November 8, 2012, Defendant returned a call from Court staff and was advised that, contrary to their previous understanding, the Court would not serve the pro se Plaintiffs by mail (except apparently Ms. Toomey). Thereupon, counsel for Defendant immediately caused copies of the Response to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 5] and the Answer [Doc. 6] to be mailed to all Plaintiffs. See Amended Certificate of Service of Defendants Response to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 5] and Defendants Answer to Complaint for Declaratory Relief and Injunction [Doc. 6] [Doc. 9], filed November 8, 2012. Service was complete upon the mailing of these three documents on November 8, 2012.

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Then, on November 9, 2012, Plaintiffs filed their Motion [Doc. 11] asking the Court to grant the requested Preliminary Injunction solely because the sixty-four Plaintiffs who did not even join in the original Motion did not immediately receive a copy of Defendants Response to the Motion.

II. ARGUMENT Defendant has already submitted its Response [Doc. 5] to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 1-3, Ex. C]. The reasons why no injunction should issue, as set forth therein, remain fully valid and will not be repeated here. The delay of 10 calendar days (8 business days) in serving Defendants Response on the sixty-four Plaintiffs who were not parties to the original Motion did not prejudice them in any way. Ms. Toomey, the only moving party, was timely served. Amended Certificate of Service [Doc. 9]. She timely filed her Reply to Defendants Response to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 12] on November 13, 2012. None of the sixty-four Plaintiffs other than Ms. Toomey has ever filed, or to Defendants knowledge has sought to file, a response to the Motion for Preliminary Injunction or a reply to the Defendants Response in opposition to it. In fact, nothing in the record even reflected those sixty-four Plaintiffs positions on the Motion for Preliminary Injunction until they were induced to sign the Motion [Doc. 11] filed on November 9, 2012. The Motion [Doc. 11] shows that at least by November 9, 2012, all of the Plaintiffs were aware of the delay in service of the Response [Doc. 5]. If any of the Plaintiffs believes that he or she was prejudiced by the delay, he

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or she could request an extension of time to file a reply, and a reasonable request will not be opposed by counsel for Defendant. None of the Plaintiffs has requested an extension of time, nor has any of the Plaintiffs other than Ms. Toomey as yet filed a reply.1

III. CONCLUSION For the foregoing reasons and in the interest of justice, the Motion to Grant Preliminary Injunction for Failure to Serve 64 Plaintiffs with Response should be denied. Coppler Law Firm, P.C. 645 Don Gaspar Avenue Santa Fe, New Mexico 87505 (505) 988-5656 (505) 988-5704 fax /s/ Gerald A. Coppler Gerald A. Coppler John L. Appel Attorneys for Defendant

Plaintiff Toomey states that she anticipates many, if not all, of the other 64 self-represented plaintiffs served with Defendants Response to Motion for Preliminary Injunction on November 8, 2012, will reply within 14 days of service if Plaintiffs Motion to Grant Preliminary Injunction for failure of Defendant to serve a response on all parties within 14 days is not granted prior. Plaintiff Toomeys Reply to Defendants Response to Plaintiff Deborah L. Toomeys Motion for Preliminary Injunction [Doc. 12], at 3. To Defendants knowledge, no reply on behalf of any of the sixty-four Plaintiffs other than Ms. Toomey has yet been filed. However, based on service of the Response [Doc. 5] by mail on November 8, 2012, replies will not be due until November 26, 2012.
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Certificate of Service I HEREBY CERTIFY that on the 20th day of November, 2012, I filed the foregoing electronically through the CM/ECF system, which caused all counsel of record and Plaintiff Deborah L. Toomey to be served by electronic mail, fax, or USPS, as more fully reflected in the Notice of Electronic Filing. In addition, I caused a true copy of the foregoing to be delivered to the below-listed plaintiffs by First Class Mail, postage prepaid: Ron Fenn 316 N. Foch Street Truth or Consequences, NM 87901 Bethann Fenn 316 N. Foch Street Truth or Consequences, NM 87901 Gerald Trumbull 905 Pine Street Truth or Consequences, NM 87901 Rebecca Otero 558 Mims Truth or Consequences, NM 87901 Yarrow Dankert 819 Ivy Street Truth or Consequences, NM 87901 Felicitas Rodriguez 6 Mud Canyon Road Truth or Consequences, NM 87901 Barbara Salasin 211 W. Riverside Drive Truth or Consequences, NM 87901 Patricia Sistrunk 506 S. Pershing Street, Apt. 1 Truth or Consequences, NM 87901 Joan Conway 316 E. 3rd Avenue Truth or Consequences, NM 87901 John Pape 212 Austin Avenue Truth or Consequences, NM 87901 Alison Rashedi 214 Oak Street Truth or Consequences, NM 87901 Robert Hanseck 316 Broadway Avenue Truth or Consequences, NM 87901 Kathe Bachtel 590 Mims #5 Truth or Consequences, NM 87901 Glenn M. Allen P.O. Box 413 Williamsburg, NM 87942

John E. Rayburn P.O. Box 715 Williamsburg, New Mexico 87942 Lynn Lara P.O. Box 715 Williamsburg, New Mexico 87942 Benjamin A. Sanchez P.O. Box 432 Williamsburg, New Mexico 87942 Bonnie Sue Sanchez P.O. Box 432 Williamsburg, New Mexico 87942

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Debra George 822 N. Pershing Street Truth or Consequences, NM 87901 James C. Mallen 600 N. Foch Street Truth or Consequences, NM 87901 Patrick Finley 417 Charles Street Truth or Consequences, NM 87901 Linda Scott 508 S. Pershing Street Truth or Consequences, NM 87901 Robert R. Munnerlyn P.O. Box 3028 Truth or Consequences, NM 87901 Dianne Fox P.O. Box 92 Williamsburg, New Mexico 87942 Earl Fox P.O. Box 92 Williamsburg, New Mexico 87942 Louie Palacios P.O. Box 37 Williamsburg, New Mexico 87942

William Charles Bennett Jr. P.O. Box 3 Truth or Consequences, NM 87901 Gordon Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Monica Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Augusta Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Joseph Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Mildred I Reed P.O. Box 201 Williamsburg, New Mexico 87942 Michael W. Reed P.O. Box 201 Williamsburg, New Mexico 87942 Cheryl Hollingsworth P.O. Box 73 Williamsburg, New Mexico 87942

Maryann Walter P.O. Box 403 Williamsburg, New Mexico 87942 Thomas P. Barto P.O. Box 83 Williamsburg, New Mexico 87942 Gretchen M. Barto P.O. Box 83 Williamsburg, New Mexico 87942 Arthur Levine P.O. Box 37 Williamsburg, New Mexico 87942 Ramona Levine P.O. Box 37 Williamsburg, New Mexico 87942 Edna Coble P.O. Box 906 Williamsburg, New Mexico 87942 Bruce Thompson P.O. Box 906 Williamsburg, New Mexico 87942 Kenneth Hughes Smiley 408 N. Magnolia Truth or Consequences, NM 87901

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James Palacios P.O. Box 37 Williamsburg, New Mexico 87942 Michelle Cambroto P.O. Box 901 Williamsburg, New Mexico 87942 Phyllis Madison P.O. Box 901 Williamsburg, New Mexico 87942 David Madison P.O. Box 901 Williamsburg, New Mexico 87942 William Mata P.O. Box 85 Williamsburg, New Mexico 87942 Amanda Bailey P.O. Box 964 Williamsburg, New Mexico 87942 Dana Villines P.O. Box 92 Williamsburg, New Mexico 87942

Don Childers P.O. Box 104 Williamsburg, New Mexico 87942 Shirley M. Childers P.O. Box 104 Williamsburg, New Mexico 87942 Betty Durham P.O. Box 855 Williamsburg, New Mexico 87942 Mary Rose P.O. Box 6 Williamsburg, New Mexico 87942 Carol Naranjo P.O. Box 752 Williamsburg, New Mexico 87942 Lucy Farrester P.O. Box 909 Williamsburg, New Mexico 87942 John B. Gillem P.O. Box 909 Williamsburg, New Mexico 87942 Daronda Fox P.O. Box 1763 Elephant Butte, New Mexico 87942

Ann B. Smiley 408 N. Magnolia Truth or Consequences, NM 87901 Michal Schartz 605 S. Pershing Truth or Consequences, NM 87901 Maria Baca 201 W. Riverside Truth or Consequences, NM 87901 Alfredo Baca 201 W. Riverside Truth or Consequences, NM 87901 Joseph Jaramillo 1208 Aluminum Truth or Consequences, NM 87901 Marcus Jaramillo 1208 Aluminum Truth or Consequences, NM 87901 Michelle Ellinger 427 Van Patten Truth or Consequences, NM 87901

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on this 20th day of November, 2012. /s/ Gerald A. Coppler

T:\GAC\PLEADING\4130.2012-11-20 39 Response to Mtn for PI for Failure to Serve