United States District Court, D. Colorado
A. Brimmer Chief United States District Judge.
matter is before the Court on Plaintiff's Application for
a Temporary Restraining Order and/or Preliminary Injunction
[Docket No. 104]. On July 5, 2019, plaintiff, a raw pet food
manufacturer, filed a lawsuit against defendants alleging
that the Food and Drug Administration (“FDA), through
the Colorado Department of Agriculture (“CDA”)
and the Association of American Feed Control Officials
(“AAFCO”), had created an ultra vires
regulatory rule governing the proper procedure to address
Salmonella found in pet foods without going through
the requisite formal rule-making process. Docket No. 1 at
November 12, 2019, plaintiff filed the instant motion. Docket
No. 104. Plaintiff alleges that the AAFCO has prohibited
plaintiff and “everyone associated with the natural pet
food industry and/or sympathetic to [p]laintiff's
plight” from accessing AAFCO materials. Id. at
2. Specifically, the AAFCO's executive director emailed
plaintiff and notified it that its access to all AAFCO
resources, including access to AAFCO meetings, would be
restricted pending resolution of the underlying lawsuit.
Id. at 6. Plaintiff claims that, in doing so, the
AAFCO - and the FDA - are in violation of the Federal
Advisory Committee Act (“FACA”), 5 U.S.C. app. 2
§§ 1-16, which requires that advisory committees,
like AAFCO, “be fairly balanced in terms of the points
of view represented and the functions to be performed.”
5 U.S.C. app. 2 § 5(b)(2); Docket No. 104 at 1, 8.
Plaintiff seeks either a temporary restraining order or a
preliminary injunction (1) “[r]equiring [d]efendants to
comply with Section 10 of FACA - opening their meetings and
committees to the public”; and (2) “[r]equiring
[d]efendants to comply with the non-discretionary duties of
Section 5 of FACA to ensure fair, balanced, and equal
representation of ALL pet food manufacturers and their
positions, including, but not limited to, natural pet food
manufacturers and their trade groups.” Docket No. 104
at 14. Plaintiff also seeks a declaratory judgment
“[d]eclaring [d]efendants in violation of 5 U.S.C.
[app. §§ 5, 10].” Id.
obtain a temporary restraining order or a preliminary
injunction, “the moving party must demonstrate four
factors: (1) a likelihood of success on the merits; (2) a
likelihood that the movant will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of
equities tips in the movant's favor; and (4) that the
injunction is in the public interest.” RoDa
Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.
2009). A mandatory injunction - “one which requires the
nonmoving party to take affirmative action - is ‘an
extraordinary remedy' and is generally disfavored.”
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010) (quoting Att'y Gen. of Okla. v. Tyson Foods,
Inc., 565 F.3d 769, 776 (10th Cir. 2009)). Accordingly,
“a movant seeking such an injunction [must] make a
heightened showing of the four factors.” RoDa
Drilling, 552 F.3d at 1209.
the moving party “must establish ‘a relationship
between the injury claimed in the party's motion and the
conduct asserted in the complaint.'” Id.
(quoting Devose v. Herrington, 42 F.3d 470, 471 (8th
Cir. 1994)); see also Ala. v. United States Army Corps of
Engineers, 424 F.3d 1117, 1134 (11th Cir. 2005)
(“[I]njunctive relief must relate in some fashion to
the relief requested in the complaint.”). “When
the movant seeks intermediate relief beyond the claims in the
complaint, the court is powerless to enter a preliminary
injunction.” Means v. Lambert, 2008 WL 483606,
at *1 (W.D. Okla. Feb. 20, 2008); see also Penn v. San
Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975)
(stating that the moving party must present “clear
proof that he will probably prevail when the merits are
tried, so to this extent there is a relation between
temporary and permanent relief.”).
motion, plaintiff seeks an order requiring the AAFCO to
“comply with” FACA - in other words, requiring
the AAFCO to reinstate plaintiff's access to AAFCO
materials and meetings. Docket No. 104 at 14. But
plaintiff's complaint does not raise a claim under FACA
and, furthermore, contains no allegations relevant to the
relief plaintiff seeks in its injunctive relief motion.
Because plaintiff does not seek the “grant [of]
intermediate relief of the same character as that which may
be granted finally, ” De Beers Consol.
Mines v. United States, 325 U.S. 212, 220 (1945), the
Court cannot enter injunctive relief here. See Stewart v.
U.S. I.N.S., 762 F.2d 193, 199 (2d Cir. 1985) (affirming
district court's denial of preliminary injunctive relief
where the movant's “motion for preliminary
injunctive relief . . . present[ed] issues which [were]
entirely different from those which were alleged in [the]
original complaint” and where movant “neither
filed a separate complaint in the district court relating to
[the new allegations] . . . nor sought to avail himself of
the liberal rules which would have allowed for the amendment
of his original . . . complaint” because “no
jurisdictional basis existed upon which the district court .
. . could have issued its preliminary injunctive
relief.”). Indeed, plaintiff cannot demonstrate a
likelihood of success on the merits - as required for the
issuance of a temporary restraining order or a preliminary
injunction - where the merits claims are unrelated to the
relief sought in the injunctive relief motion. See Alley
v. Aurora Loan Servs. LLC, No. 10-cv-02163-REB-CBS, 2011
WL 3799035, at *14 (D. Colo. July 21, 2011), report and
recommendation adopted, 2011 WL 3799585 (“[T]o
obtain preliminary injunctive relief, the moving party bears
the burden of establishing, a[m]ong other elements, that he
or she has a likelihood of success on the merits of the
underlying claims.”) (emphasis added); cf.
Army Corps of Engineers, 424 F.3d at 1134
(“Granting a preliminary injunction based on a showing
that the plaintiffs were likely to succeed in establishing a
violation of an ancillary court order, rather than a showing
that they were likely to succeed on the merits of any of
their claims, was a misapplication of the legal standard for
likelihood of success on the merits, and thus an abuse of
acknowledges that the relief it now seeks is not of the same
character as the relief it seeks in its underlying complaint.
Docket No. 104 at 1 n.1. However, plaintiff
“respectfully requests the claims contained within this
Motion, for purposes of this Motion, be grafted into
Plaintiff's Complaint pursuant to Federal Rule of Civil
Procedure 15(d) pending formal Amendment thereunder after the
Court has determined the outstanding dispositive
15(d) of the Federal Rules of Civil Procedure provides that,
“[o]n motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that
happened after the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d). Plaintiff has cited
no authority in support of its request for
“grafting” plaintiff's new allegations into
its complaint for purposes of this motion. Moreover,
plaintiff has not filed a motion seeking such relief, as
required by Rule 15(d), see D.COLO.LCivR 7.1(d)
(“A motion shall be filed as a separate
document.”), and has not argued that just cause exists
for granting such relief.
plaintiff's motion for injunctive relief is not
reasonably related to, and seeks relief that is wholly
separate from, the relief sought in its complaint, the motion
will be denied. Wherefore, it is
that Plaintiff's Application for a Temporary Restraining
Order and/or Preliminary Injunction [Docket No. 104] is
Similarly, the Court will not construe
plaintiff's motion as a motion to amend the complaint.
Aside from amendments as a matter of course, party can amend
its complaint “only with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). Plaintiff has not indicated that it has
defendants' consent to amend its complaint and has not
sought the Court's leave to amend. See ...