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Matthes-Opus lawsuit: Opposition to Motion to Dissolve TRO

Matthes-Opus lawsuit: Opposition to Motion to Dissolve TRO

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Opposition to Temporary Restraining Order dissolution
Opposition to Temporary Restraining Order dissolution

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Published by: The Columbia Heart Beat on Aug 25, 2014
Copyright:Traditional Copyright: All rights reserved


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DB04/838794.0002/2273657.7 DD02
This Court entered a temporary restraining order on Wednesday, August 13 to preserve the status quo and protect the Plaintiffs' rights from being violated any further by the Defendants. The TRO this Court entered complied with Rule 92.02(b) in every respect. Given the nature of the Defendants' conduct and their continual assurances to the Proposed Intervenors regarding their ability to proceed with this project regardless of the Plaintiffs' rights, a no notice TRO was appropriate. In their motion to dissolve the temporary restraining order, the Proposed Intervenors claim that they have already suffered irreparable harm and millions of dollars in damages since Wednesday. This Court should reject their hollow bombast and rely instead on the clear evidence that the Plaintiffs' rights have already been and, absent restraint from this Court, will continue to be violated by the Defendants in this case. As will be shown below, Plaintiffs have a high likelihood of success on the merits of this civil rights case.
I. A TRO Without Notice under Rule 92.02(b) Was Appropriate Under the Circumstances of this Case.
Missouri rules allow a party to seek a temporary restraining order without notice when "notice would defeat the purpose of the order." Plaintiffs sought a temporary restraining order
Case 2:14-cv-04220-NKL Document 3-4 Filed 08/22/14 Page 1 of 10
DB04/838794.0002/2273657.7 DD02
without notice because they reasonably believed that the Defendants, upon receipt of notice of the motion for temporary restraining order, would begin to issue permits related to the project. The verified petition demonstrates facts that the Defendants had already gone to great lengths to support the project, despite the agreed upon absence of appropriate infrastructure to serve the proposed use and two citizen petitions rejecting the bargain struck by the City Council to facilitate this student housing development. Upon receipt of notice of the TRO, the proponents of the proposed development sought to intervene in this case, and marshalled more evidence of the City's intent to issue permits in violation of the Plaintiffs' rights. Notably, the Defendants have not yet come to this Court and argued otherwise. Indeed, as described in the Plaintiffs' Motion for Sanctions against the Defendants, despite the entry of a temporary restraining order, the Defendants continued to facilitate the development despite this Court's Temporary Restraining Order. It is clear from the conduct of the Defendants that this case presents the rare circumstances where a TRO without notice was warranted. Proposed Intervenors suggest that the use of Rule 92.02(b) was also improper because HSRE-ODC II MIZZOU, LLC's ownership of the real estate was a matter of public record prior to the filing of this lawsuit. Neither Plaintiffs nor their counsel knew or could have reasonably anticipated that a foreign corporation that did not exist until June 2014 would file for a license to transact business in Missouri on July 30, 2014 and then become the entity to purchase the real property at issue in this case one week later. If anything, this suggests that the Proposed Intervenors, acting in concert with the Defendants, were trying to obscure the progress of this development from the purview of the public until they could issue permits that would entitle the development to proceed without regard for the rights of the Plaintiffs. Again, these are the exact circumstances where a no-notice TRO is appropriate.
Case 2:14-cv-04220-NKL Document 3-4 Filed 08/22/14 Page 2 of 10
DB04/838794.0002/2273657.7 DD02
II. The TRO Should Not Be Dissolved Because the Plaintiffs have a High Probability of Success on the Merits.
Plaintiffs and Proposed Intervenors agree on the four elements required to sustain preliminary injunctive relief or a temporary restraining order: (1) likelihood of success on the merits; (2) the threat of irreparable harm absent the injunction; (3) the balance of harms to the Plaintiff and others from issuing the injunction; and (4) the public interest. What Proposed Intervenors completely misunderstand, however, is the nature of the plaintiffs' claims in this case. This is a civil rights case alleging violations of rights protected by the Columbia City Charter, the Missouri Constitution, and the Constitution of the United States.
In Civil Rights Cases, Likelihood of Success on the Merits is the Determining Factor in Whether an Injunction or Temporary Restraining Order Should Issue.
"It is well-settled law that a loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
Phelps-Roper v. Nixon
, 545 F.3d 685, 690 (8th Cir. 2008) (internal quotations omitted),
overruled on other grounds by
Phelps-Roper v. City of Manchester 
, 697 F.3d 678 (8th Cir. 2012). If Plaintiffs can establish a sufficient likelihood of success on the merits of their civil rights claim, they will also have established irreparable harm.
See id.
 "Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights."
 "The balance of equities, too, generally favors the constitutionally-protected freedom of expression. In a First Amendment case, therefore, the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue."
Case 2:14-cv-04220-NKL Document 3-4 Filed 08/22/14 Page 3 of 10

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