Natural Resources Defense Council, Inc. v. Grant

No. 754-Civil (E.D.N.C. August 3, 1972)

Federal district court dissolves a preliminary injunction of the Chicod Creek Watershed project for plaintiff's failure to file his required security bond pursuant to Rule 65(c) Fed. Civ. The court also denies plaintiff's motions for reconsideration, stay and continuation, and expedited trial. Preliminary injunction conditioned upon filing of security bond is ineffective until such bond is filed. Failure to file the bond results in dissolution of the injunction, since court finds the $75,000 amount of the bond reasonable and that plaintiff had ample opportunity to file it. Motion for stay of an order in an action in which injunctive relief is sought is within the [2 ELR 20468] discretion of the court pursuant to Rule 62(c) Fed. Civ. On facts of this case, including damage to defendants from delay, defendant's obedience to orders of the court, and defendant's preparation of a voluminous environmental impact statement, the motion for stay is denied. Trial on the merits, the court finds, must await the completion of discovery and the determination of several other pending motions.

Counsel for Plaintiff
J. G. Speth
Natural Resources Defense Council, Inc.
1710 N St., NW
Washington, D.C. 20036

Richard J. Wertheimer
Norton F. Temmille
Arnold & Porter
1229 Nineteenth St., NW
Washington, D.C. 20036

John G. Shaw
Clark, Clark, Shaw & Clark
210 E. Russell St.
Fayetteville, N.C. 28302

Counsel for Defendant
Warren Coolidge U.S. Attorney
John R. Hughes Assistant U.S. Attorney
U.S. Courthouse
Raleigh, N.C.

Counsel for Intervenors
Clifton Everett
Everett & Cheatham
Railroad St.
Bethel, N.C. 27891

Charles B. Winberry
Briggs, Meadows, & Batts
225 So. Franklin
Rocky Mtn., N.C. 27801

Frank W. Wooten, Jr.
113 W. 3rd St.
Greenville, N.C. 27834

[2 ELR 20468]

Larkins, District Judge.

Now comes this cause before this Court upon various motions by the parties to this action. The plaintiffs move the Court to reconsider the Order of July 21, 1972, which defers any ruling upon plaintiffs' motion for partial summary judgment with respect to Count II of the Complaint. In the event that the Court denies such reconsideration and such partial summary judgment, plaintiffs move the Court to stay enforcement of the Order of July 21, 1972, and for continuation of the outstanding preliminary injunction prohibiting the Project, pending disposition of plaintiffs' appeal to the United States Court of Appeals for the Fourth Circuit, pursuant to Rule 8(a), Fed. R. App. P. In the event that the Court denies the foregoing relief, the plaintiffs move the Court for an expedited trial of this cause on the merits. The defendants respond to the plaintiffs motions and renew their motion to dismiss for failure of the plaintiffs to comply with the Federal Rules of Civil Procedure and with an Order of this Court. The intervenors renew their motions to dissolve the preliminary injunction and to dismiss this action (Rules 56, 12(c) and 12(d) and respond to plaintiffs' motions.

As the plaintiffs have not had opportunity to respond to the motions of the defendants and intervenors according to Local Rule 4(F), the only motions ready for ruling at this time are the motions of the plaintiffs to which the defendants and intervenors have responded. As to the above-enumerated motions of the defendants and intervenors, the plaintiffs have twenty days from service within which to respond under Local Rule 4(F). Gen. Rule 4(F), U.S. Dist. Ct., E.D.N.C.

FINDINGS OF FACT

By Order dated March 15, 1972, the Court issued a preliminary injunction and directed the plaintiffs to post a $75,000 security bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. By Order entered July 19, 1972, and filed July 21, 1972, the Court denied the plaintiffs' motion to reduce the bond to $100 and directed the plaintiffs to file a bond for security in the amount of $75,000 within five days of service of the Order. As of this date plaintiffs have failed to file said security. The date indicated on the plaintiffs' motions as to the time they were prepared is July 26, 1972, therefore, indicating service of the Order of July 21 by that date and that the plaintiffs have failed to file the required bond within five days of service. On August 2, 1972 this Court entered an Order amending the findings of facts and conclusions of law of the Order of July 21, 1972. Such amendments did not modify the directions or requirements of such Order, however.

CONCLUSIONS OF LAW

On March 16, 1972, this Court entered an Order on behalf of the plaintiffs granting a preliminary injunction enjoining the Chicod Creek Watershed Project. Pursuant to Rule 65(c) this Court required the giving of security by the applicant before the preliminary injunction shallissue. Therefore, until the required security is filed the preliminary injunction ordered March 16, 1972, does not have effect. The plaintiffs have had ample opportunity to file the bond and have failed to do so. By the Order of July 21, 1972, this Court reconsidered the amount of the bond and determined that $75,000 was an appropriate and reasonable amount. Plaintiffs request that this Court enter an Order directing summary judgment in their favor as to Count II of the Complaint. The Order of March 16, 1972, pertained solely to the matters in Count II of the Complaint, and until the plaintiffs comply with the requirements of such Order and the Order of July 21, 1972, this Court will refrain from hearing plaintiffs motion for summary judgment on the matters that were considered in granting the preliminary injunction.

A motion for a stay of an order in an action in which injunctive relief is sought, as in this case, is within the discretion of the district court pursuant to Rule 62(c). See Rule 8(a), Fed. R. App. P.; Rule 62(a) (c) (d) Fed. R. Civ. P. Upon review of all the facts of this case with particular interest focused upon the damages to the defendants and intervenors caused by delay to this project, and upon the fact that not only have the defendants and intervenors obeyed all the orders of this Court, but in good faith voluntarily stopped work on this project three months before this Court ordered that the project be enjoined, and upon the fact that the defendants have prepared and submitted to this Court a voluminous environmental impact statement, this Court is of the opinion that the motion for stay should be denied.

Plaintiffs also move "for continuation of the outstanding preliminary injunction prohibiting the project" pending disposition of plaintiffs' appeal. This Court on March 16, 1972 having granted preliminary injunction with the requirement and upon the condition that the plaintiffs post security bond in the amount of $75,000 and the plaintiffs having failed to do so, it is therefore ordered that said preliminary injunction heretofore issued be terminated and dissolved and the motion for continuation of the outstanding preliminary injunction is hereby denied.

The following motions remain pending in this action:

(1) Plaintiffs' Motion for Partial Summary Judgment,

(2) Defendants Motion to Dismiss,

(3) Plaintiffs' Motion to Compel Production of Documents,

(4) Intervenors' Motions for Summary Judgment and Alternative Motions,

(5) Defendants' Renewed Motion to Dismiss for Failure to Comply,

(6) Intervenors' Renewed Motions to Dissolve Preliminary Injunction and to Dismiss.

Trial on the merits in this cause must await determination of the above motions and the completion of discover.

ORDER

NOW THEREFORE, in accordance with the foregoing, it is

ORDERED, that plaintiffs' Motions for Reconsideration, Stay and Continuation, and Expedited Trial filed July 28, 1972, be and the same are hereby DENIED; and

[2 ELR 20469]

FURTHER ORDERED, that the preliminary injunction heretofore issued in this cause on March 16, 1972, be and the same is hereby TERMINATED and DISSOLVED upon the motion of the court; and

FURTHER ORDERED, that the clerk shall serve copies of this Order upon counsel of record.

Let this Order be entered forthwith.