Case 1:15-cv-00104-CG-N Document 12 Filed 02/27/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY,
Plaintiff,
v.
MOBILE COUNTY PROBATE
JUDGE DON DAVIS, individually
and in his official capacity,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 15-00104-C

OPPOSITION TO PLAINTIFFS REQUEST FOR

PRELIMINARY INJUNCTIVE RELIEF
COMES NOW the Defendant, DON DAVIS, MOBILE COUNTY JUDGE OF
PROBATE, individually and in his official capacity, by and through undersigned counsel,
and respectfully files his Brief in Opposition to Plaintiffs Request for Preliminary
Injunctive Relief. The Plaintiffs request for a preliminary injunction is due to be denied,
for the following reasons:
INTRODUCTION
1.

On February 24, 2015, the Plaintiff initiated this civil action by filing a

complaint and request for preliminary and permanent injunctive relief against the
Defendant, Don Davis, Mobile County Judge of Probate, both individually and in his
official capacity. On February 25, 2015, this Honorable Court issued an order setting this
matter for hearing on the preliminary injunction for Monday, March 2, 2015, at 1:00 pm.

Case 1:15-cv-00104-CG-N Document 12 Filed 02/27/15 Page 2 of 5

On February 27, 2015, this Defendant filed a Motion to Dismiss and brief in support of
said motion.
ARGUMENT AND CITATION TO AUTHORITY
2.

A preliminary injunction is an extraordinary and drastic remedy not to be

granted unless the movant clearly established the burden of persuasion. McDonalds
Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital,
Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (a preliminary injunction is issued only when
drastic relief is necessary.)
3.

The decision to grant or deny a preliminary injunction is within the sound

discretion of the district court . . . Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.
2002). This court may grant a preliminary injunction only if the plaintiff demonstrates
each of the following prerequisites: (1) a substantial likelihood of success on the merits;
(2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3)
the threatened injury outweighs the potential damage the required injunction may cause
the non-moving parties; and (4) the injunction would not be adverse to the public interest.
Id., 287 F.3d at 1329; see also McDonalds Corp. v. Robertson, 147 F.3d. 1301, 1306
(11th Cir. 1998). Federal Rule of Civil Procedure 65(a) states that No preliminary
injunction shall be issued without notice to the adverse party. The United States
Supreme Court has noted in passing that [t]he notice required by Rule 65(a) before a
preliminary injunction can issue implies a hearing in which the defendant is given a fair
opportunity to oppose the application and to prepare for such opposition. Baker v.

Case 1:15-cv-00104-CG-N Document 12 Filed 02/27/15 Page 3 of 5

Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988)(quoting Granny Goose
Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974).
4.

A preliminary injunction is an extraordinary and drastic remedy one that

should not be granted unless the movant, by a clear showing, carries the burden of
persuasion as to the four requisites. The Plaintiff has not met her burden of persuasion in
proving the four requisites in fact, the Plaintiff does not even address specifically in her
Complaint why she is entitled to injunctive relief or the four requisites she must prove to
be so entitled.
5.

The Plaintiff has failed to show a substantial likelihood of success on the

merits. The Defendant currently has a pending Motion to Dismiss in front of this Court,
which if granted may dispose of part of this action or this action in its entirely. Further,
the Defendants Motion to Dismiss includes immunity defenses that would entitle him to
be dismissed from this action before the commencement of discovery. As a result, the
Plaintiff has not shown that she is substantially likely to succeed on the merits.
6.

It is also clear that irreparable injury will not be suffered by the Plaintiff

absent injunctive relief. As also addressed in detail in the Defendants Motion to Dismiss,
the Plaintiff has not yet suffered any injury nor did she even state in the Complaint the
nature and extent of any alleged injury. Plaintiffs Complaint is premature at best and
frivolous at worst, because Plaintiff has yet to suffer any legally recognizable damage or
injury. In addition, the Plaintiff has still not even complied with the applicable adoption
laws and other procedures of the Probate Court as would be sufficient to set the adoption

Case 1:15-cv-00104-CG-N Document 12 Filed 02/27/15 Page 4 of 5

for the required dispositional hearing, which is a statutory requirement before a final
adoption order can be issued.
7.

Moreover, the Plaintiff does not show how the alleged injury to her

outweighs the harm the relief would inflict on the Defendant. Since the Plaintiff has not
even shown injury, much less irreparable injury, it is clear that she also cannot meet her
burden in showing how it would outweigh the potential harm to the Defendant.
8.

Finally, the Plaintiff also does not meet her burden because she fails to

show how entry of injunctive relief would serve the public interest. On the contrary, it is
in the public interest that the probate court be allowed to function without interruption.
For example, the United States Supreme Court recognized the importance that
government officials such as Judge Davis be protected from such censures by immunity
defenses. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
CONCLUSION
9.

For the foregoing reasons, the Defendant requests that Plaintiffs request

for preliminary injunctive relief be denied, and for such other further and relief the Court
deems appropriate.
Respectfully submitted,

/s/ Harry V. Satterwhite

J. MICHAEL DRUHAN, JR. (Druh2816)
HARRY V. SATTERWHITE (Satth4909)
Attorneys for the Honorable Don Davis,
Mobile County Judge of Probate

Case 1:15-cv-00104-CG-N Document 12 Filed 02/27/15 Page 5 of 5

OF COUNSEL:
SATTERWHITE, DRUHAN, GAILLARD & TYLER, LLC
1325 Dauphin Street
Mobile, Alabama 36604
(251) 432-8120 (phone)
(251) 405-0147 (fax)
harry@satterwhitelaw.com

/s/ Lee L. Hale________________

LEE L. HALE (HAL026)
Attorney for the Honorable Don Davis,
Mobile County Judge of Probate
501 Church Street
Mobile, Alabama 36602
(251) 433-3671 Ext. 2 (phone)
lee.hale@comcast.net

CERTIFICATE OF SERVICE
I hereby certify that on this the 27th day of February 2015, I electronically filed
the foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following:

Christine C. Hernandez
The Hernandez Firm, LLC
Post Office Box 66174
Mobile, Alabama 36660-1174
Christine@hernandezlaw.comcastbiz.net
David G. Kennedy
The Kennedy Law Firm
Post Office Box 556
Mobile, Alabama 36601
david@kennedylawyers.com

/s/ Harry V. Satterwhite

HARRY V. SATTERWHITE
5