Burns v. The Department of the United States Army ( 2024 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION KENON L BURNS, § § Plaintiff, § § v. § CIVIL NO. W-23-CV-00698-ADA § THE DEPARTMENT OF THE § UNITED STATES ARMY, THE § UNITED STATES DEPARTMENT OF § VETERANS AFFAIRS, DEFENSE FI- § NANCE AND ACCOUNTING SER- VICE, Defendants. ORDER DENYING PRELIMINARY INJUNCTION Before the Court is pro se Plaintiff Kenon L Burns’s Motion for a Preliminary Injunction. ECF No. 17. The Motion was filed on January 8, 2024, and no opposition was filed by January 22, 2024. Having considered the briefing, the relevant facts, and the applicable law, the Court DE- NIES the Motion WITHOUT PREJUDICE to refiling. Plaintiff, a former member of the United States Army, was apparently discharged, had his security clearance revoked, and was denied benefits. See ECF No. 17 at 1. Plaintiff alleges viola- tions of a variety of laws throughout his Complaint and Motion for a Preliminary Injunction. See generally ECF Nos. 4, 17. Plaintiff requests an injunction that will reinstate his benefits, with potential backpay, and his U.S. Armed Forces Retired Identification Card. ECF No. 17 at 2. The Motion includes a certificate of service at the end stating that the complaint was elec- tronically filed with the Clerk of Court on January 8, 2024. Id. at 3. The Motion also certifies that Plaintiff “served the document on all counsel and/or pro se parties of record by a manner author- ized by Federal Rules of Civil Procedure 5 (b)(2).” Id. However, ever since this case was transferred from the Northern District of Texas, where it was filed, summonses have been neither issued nor served. As of the date of this order, no counsel has appeared for any Defendant. Indeed, the filing receipt for the Motion shows that notice was provided to Plaintiff and no one else. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). “Because Rule 65(a)(1) does not define the amount or type of notice required, ‘[t]he sufficiency of written and actual notice is a matter for the trial court’s discretion.’” Document Operations, L.L.C. v. AOS Legal Techs., Inc., No. 20-20388, 2021 WL 3729333, at *2 (5th Cir. Aug. 23, 2021) (per curiam) (quoting Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 302 (5th Cir. 1978) (per curiam)). The current situation is on all fours with the denial of a preliminary injunction in Buckler v. Austin, No. EP-22-CV-00368-DCG, 2023 WL 2557360 (W.D. Tex. Jan. 20, 2023). In Buckler, the plaintiff moved for a preliminary injunction without first having served any of the Defendants with process. Id. at *1. The Court stated, “Until Plaintiff validly serves Defendants with process, the Court cannot grant Plaintiff the injunctive relief he requests.” Id. (emphasis added). The Court noted that the motion included a certificate of service attesting that service had been made accord- ing to Fed. R. Civ. P. 5(b)(2). See id. “However, because no Defendant has yet appeared in this case, neither Defendants nor their counsel received an electronic notice from the Court when Plain- tiff filed his Motion. The Court therefore has no hard proof that Defendants received the Motion.” Id. The Buckler Court therefore denied the motion for preliminary injunction without prejudice to refiling “once Plaintiff has validly served Defendants with process and provided Defendants the requisite notice under Federal Rule of Civil Procedure 65(a)(1).” Id. The Court holds that Plaintiff has failed to prove that he provided sufficient notice of the Motion to the Defendants. As in Buckler, no Defendant has appeared or been validly served with process. See 2023 WL 2557360, at *1. As in Buckler, electronic notice of the preliminary injunc- tion motion was not provided to any Defendant. See id. Thus, this Court, like the Buckler Court, lacks “hard proof” that any Defendant knows about the motion. See id. Plaintiff's pro forma reci- tation of service consistent with Rule 5(b)(2) changes neither the underlying facts nor the Court’s ultimate conclusion. The Federal Rules of Civil Procedure therefore prohibit this Court from grant- ing a preliminary injunction. See Fed. R. Civ. P. 65(a)(1). Because Plaintiff's Motion is procedurally deficient, the Court will deny the motion with- out prejudice to refiling once the procedural deficiencies are cured. The Court notes that the United States and its agencies cannot waive service of process through Rule 4(d). See Fed. R. Civ. P. □□□□ advisory committee’s notes to 1993 amendment. Therefore, in the exercise of its discretion, the Court will require Plaintiff to validly serve Defendants with process before refiling this Motion. For the foregoing reasons, Plaintiff's Motion for a Preliminary Injunction is DENIED WITHOUT PREJUDICE to refiling once Plaintiff has validly served Defendants with process and provided Defendants the requisite notice under Federal Rule of Civil Procedure 65(a)(1). SIGNED this 24th day of January, 2024. ‘ UNITED STATES DISTRICT JUDGE