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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SOUTHWEST METALS Inc., a 

Michigan Domestic Profit Corporation, 

and JOSEPH FAWAZ, an individual, 

Plaintiffs,

v. Case No.: 15-cv-11081

Hon. Marianne O. Battani

Mag. Anthony P. Patti

 

Defendants.

AYAD LAW, P.L.L.C.

NABIH H. AYAD (P59518)

Attorney for Plaintiffs

2200 N. Canton Center Rd., Ste. 220

Canton, MI 48187

Phone: (734) 983-0500

Fax: (734) 983-0520

Email: nayad@ayadlaw.com

PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY INJUCTION 

CITY OF DETROIT, MICHAEL E. 

DUGGAN, Mayor of Detroit, in his 

official capacity, DETROIT POLICE 

DEPARTMENT, JAMES CRAIG, 

Detroit Police Chief, in his official 

capacity, SGT. REBECCA McKAY in 

her individual and official capacities, 

jointly and severally.

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NOW COMES Plaintiffs, by and through undersigned counsel, and 

respectfully submits this motion pursuant to Fed. R. Civ. P. 65 for a temporary 

restraining order and preliminary injunction. As described below, and as 

demonstrated in Plaintiffs’ Verified Complaint, immediate and irreparable loss or 

damage will result before the adverse party can be heard in opposition. Notice should 

not be required as there is an immediate need to stop the conduct of Defendants. 

Defendant Sgt. Rebecca McKay continues to partake in unlawful conduct in an 

attempt to shut down Southwest Metals. If relief is not immediately granted, the 

ongoing conduct will jeopardize Southwest Metals’ business license and ability to 

remain in existence. Plaintiffs make this motion on the grounds that: (1) Plaintiffs 

are likely to prevail on the merits of their claim; (2) Plaintiffs will suffer irreparable 

harm if preliminary relief is not granted; (3) third parties will not be harmed by the 

relief sought; and (4) the public interest will be served by granting the relief sought. 

 Plaintiffs specifically request that the Court issue a temporary restraining 

order and preliminary injunction to:

1. Immediately suspend the prosecution of the March 2015 warrants issued 

against Greg Aslinger and Joseph Fawaz;

2. Immediately stay any proceedings for any criminal charge, citation or 

violation issued against Joseph Fawaz, Southwest Metals, or any of its 

employees;

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3. Immediately stay the administrative business license proceedings by the 

City of Detroit against Southwest Metals, and;

4. Remove Sgt. Rebecca McKay of the Copper Theft Task Force from any 

investigation regarding Southwest Metals, its employees, owners, 

operators, or Joseph Fawaz.

For the aforementioned reasons, and for the reasons stated in Plaintiffs’ Brief 

in Support, Plaintiffsrespectfully request that this Honorable Court grant this Motion 

for a Temporary Restraining Order and Preliminary Injunction.

Respectfully Submitted,

AYAD LAW, P.L.L.C. 

/s/ Nabih H. Ayad 

Nabih H. Ayad (P59518)

Attorney for Plaintiffs

2200 Canton Center Road, Suite 220

Canton, MI 48187

P: (734) 983-0500

F: (734) 983-0520

Dated: March 25, 2015 nayad@ayadlaw.com

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A Y A D L A W , P . L . L . C .

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR A 

TEMPORARY RESTRAINING ORDER AND PRELIMINARY 

INJUNCTION

QUESTIONS PRESENTED

Whether this Court should temporarily restrain and preliminarily enjoin 

Defendants, to immediately suspend the prosecution of the March 2015 warrants 

issued against Greg Aslinger and Joseph Fawaz, immediately stay the administrative 

business license hearing against Southwest Metals, Inc., and remove Sergeant 

Rebecca McKay of the Copper Theft Task Force from any investigation regarding

Southwest Metals, Inc., its employees, owners, operators, or Joseph Fawaz, when 

Plaintiffs have demonstrated a likelihood of success on the merits, irreparable and 

immediate harm, a service of the public interest, and that no harm will be caused to 

others?

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CONTROLLING OR MOST APPROPRIATE AUTHORITY

Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir. 1992)

Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000)

Sellers v. University of Rio Grande, 838 F. Supp. 2d 677 (S.D. Ohio 2012)

Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009)

United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Req’l 

Transit. Auth., 163 F.3d 341 (6th Cir. 1998)

Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734 (E.D. Mich. 2003)

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I. INTRODUCTION

 Plaintiffs brought the underlying lawsuit after suffering several outrageous 

violations of their constitutional rights, largely at the hands of Sergeant Rebecca 

McKay (“Sgt. McKay”) of the Detroit Police Department’s Copper Theft Task 

Force. Sgt. McKay’s unlawful actions against Plaintiffs include the planting of 

evidence at Southwest Metals, the issuance of unfounded warrants, lying to 

prosecutors in order to reopen closed cases and obtain new warrants against 

Plaintiffs, and reissuing properly dismissed citations without any personal 

knowledge of the underlying facts in an attempt to shut down Southwest Metals. 

Further, the City of Detroit and the Detroit Police Department have condoned and

Sgt. McKay’s unlawful actions as demonstrated by their failure to take any action to 

stop Sgt. McKay after receiving notice of her outrageous and unconstitutional 

conduct. 

Plaintiffs believe in and support the legitimate regulation of the metal 

recycling industry, and have a well-documented history of assisting law enforcement 

to that end. Despite being an honest business that helps fight crime and prosecute 

criminals, Plaintiffs were singled-out by Sgt. McKay, who is seemingly on a 

personal crusade against them. As further detailed in the underlying complaint, prior 

to Sgt. McKay’s involvement, Plaintiffs had been assisting the City of Detroit to 

help build a case against an alleged scrap metal thief, as they normally do. This 

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healthy and constructive relationship rapidly deteriorated after Sgt. McKay began 

improperly targeting the Plaintiffs. Indeed, rather than allow constructive talks with 

the City of Detroit to continue and help resolve the case, Sgt. McKay took it upon 

herself to investigate and request a criminal warrant against Mr. Fawaz, forcing Mr. 

Fawaz to turn himself in for arrest. Mr. Fawaz was charged with 40 citations 

accompanying the warrant due to Sgt. McKay’s alleged investigation, despite Mr. 

Fawaz’s relative lack of involvement with Southwest Metals. Mr. Fawaz has been, 

in all essence, constructively terminated from his employment by Southwest Metals, 

due to Sgt. McKay’s actions including the issuing of the aforementioned 40 citations. 

Mr. Fawaz tries to avoid even stepping foot on the company’s property because he 

fears incurring more fraudulent charges issued by Sgt. McKay. Indeed, Sgt. McKay 

operates with an air of invincibility and callousness, going so far as to bring a media

reporter to Southwest Metals during an active criminal investigation. The subsequent 

report contained inaccurate statements which forced Southwest Metals to contact the 

New York Times and ask that corrections be made. Should Defendants not be 

enjoined, Plaintiffs will continue to suffer irreparable injury, as Sgt. McKay will not 

stop until Southwest Metals is driven out of business. Plaintiffs face imminent harm, 

as they currently have a show cause hearing for their business license revocation 

scheduled for April 15, 2015. Furthermore, Mr. Fawaz is facing the prospect of 

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defending the aforementioned 40 citations that were issued by Sgt. McKay, making 

immediate intervention necessary. 

II. ARGUMENT 

Plaintiffs satisfy the standard for obtaining a temporary restraining order and 

preliminary injunction because (1) Plaintiffs have a strong likelihood of success on 

the merits; (2) Plaintiffs will be irreparably harmed if a temporary restraining order 

and preliminary injunction are not issued; (3) an injunction in favor of Plaintiffs will 

not cause substantial harm to others; and (4) an injunction in favor of Plaintiffs will 

serve the public interest. Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); 

McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997). 

These factors should be balanced against one another and are not considered 

prerequisites to the grant of a preliminary injunction. United Food & Commercial 

Workers Union, Local 1099 v. Southwest Ohio Req’l Transit. Auth., 163 F.3d 341, 

347 (6th Cir. 1998). 

A. Plaintiffs are likely to prevail on the merits

Plaintiffs will likely succeed on the merits. Plaintiffs brought forth claims for 

violations of the Fourteenth Amendment Equal Protection Clause, the Fourteenth 

Amendment Due Process clause, the First Amendment Free Speech Clause under 42 

U.S.C. § 1983, and state tort claims. Under the Equal Protection Clause, a state may 

not arbitrarily impose disparate treatment on similarly situated individuals. Under 

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the Due Process Clause, a state may not unreasonably, arbitrarily, or capriciously 

apply a law. Under the Free Speech Clause, a state may not retaliate against

individuals who report its agent’s unlawful activities through appropriate channels. 

Defendants have run afoul of these protections by unlawfully harassing 

plaintiffs with meritless criminal charges, by unreasonably, arbitrarily, and 

capriciously targeting Mr. Fawaz because of his Arab-American and Muslim 

ethnicity, and by retaliating against Plaintiffs after they reported the unconstitutional 

conduct to the Detroit Police Department’s Internal Affairs division. While 

Plaintiffs recognize the need and justification for reasonable regulation of the scrap 

metal industry, Defendants’ investigative and enforcement actions, especially with 

regards to those of Sgt. Rebecca McKay, have no lawful or legitimate purpose. 

The conduct of Sgt. McKay remains outrageous and numerous. The present 

case does not merely allege a single instance or small number of unconstitutional 

acts. Sgt. McKay’s actions such as the planting of evidence at Southwest Metals, the 

issuance of unfounded warrants, lying to prosecutors in order to reopen closed cases 

and obtain new warrants against Plaintiffs, and reissuing previously dismissed 

citations without any personal knowledge of the underlying facts are in clear 

violation of Plaintiffs’ constitutional rights. Some of this misconduct, such as the 

planting of evidence, was captured in physical video evidence. There is substantial 

and objective evidence against Sgt. McKay, corroborating her personal vendetta 

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against Plaintiffs. As such, Plaintiffs have a likelihood of proving the allegations as 

provided in their complaint. 

B. Plaintiffs will be irreparably harmed if relief is not granted

Plaintiffs will suffer irreparable harm if the relief requested in this motion is 

not granted. Harm is not irreparable if it is fully compensable by money damages. 

Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). An injury is not 

fully compensable by money damages if the nature of the loss would make damages 

difficult to calculate. Id. at 511-12. “A finding of irreparable harm is the single most 

important prerequisite that the Court must examine when ruling upon a motion for 

preliminary injunction.” Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 

734, 771 (E.D. Mich. 2003). In the present case, Plaintiffs cannot be fully 

compensated by money damages at the end of this litigation as events that will occur 

in the interim, if not enjoined by this Court, will irreparably harm Plaintiffs. If a 

temporary restraining order and preliminary injunction is not ordered, Plaintiff’s 

liberty will be wrongfully threatened if Mr. Fawaz is forced to defend the March 

2015 warrant and 40 accompanying citations. Furthermore, Mr. Fawaz will not be 

able to continue to be employed by his family’s business, as the business will likely 

be destroyed by Sgt. McKay, thus depriving the Fawaz family of their means of 

support. Further, if a temporary restraining order and preliminary injunction is not 

ordered, Southwest Metals’ business license, a protected property interest, could be 

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revoked due to Sgt. McKay’s unconstitutional conduct. See Spinelli v. City of New 

York, 579 F.3d 160, 169 (2d Cir. 2009). Without the requested relief, Plaintiffs will 

be forced to defend a criminal charge not supported by probable cause, and face the 

threat of losing the ability to remain in business and support themselves. Such harm 

to Plaintiff’s liberty and property are irreparable. 

C. Relief in favor of Plaintiffs will not harm third parties

 Issuing a temporary restraining order and preliminary injunction in favor of 

Plaintiffs will in no way harm third parties. First, it is obvious that preventing the 

continued prosecution of criminal charges not supported by probable cause will not 

harm third parties. This requested relief only applies to Mr. Fawaz and Southwest 

Metals, and the City of Detroit. Second, suspending the administrative licensing 

proceedings aimed at stripping Southwest Metals of its business license will not 

harm third parties. The only entity affected by such an order would be Southwest 

Metals, who currently holds the business license. No other individual will be 

affected by simply maintaining the status quo. Finally, removing Sgt. Rebecca 

McKay from any investigation regarding the Plaintiffs will not harm third parties. 

As but one officer assigned to the Copper Theft Task Force, who is currently under 

investigation by the Detroit Police Department’s Internal Affairs division, the City 

of Detroit will be able to continue to investigate and regulate metal recycling 

operations, including Plaintiffs’, within its jurisdiction. Allowing Plaintiffs to 

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continue this suit would only benefit third parties and the public in general by 

curtailing abuses of government power and ensuring the honest and legitimate

regulation of the metal recycling industry. 

D. Relief in favor of Plaintiff will serve the public interest

 Ordering a temporary restraining order and preliminary injunction will serve 

the public interest. It is clearly in the public interest to prevent violations of 

constitutional rights by state actors. One would be hard pressed to find an individual 

who would argue that protecting constitutional rights is not in the best interest of the 

public. Further, it is in the public interest to prevent rogue police officers, individuals 

with whom the public entrusts to protect and defend their rights, from abusing their

power and authority under color of law, and hold them accountable for their unlawful 

actions. 

III. CONCLUSION

Sgt. McKay, through her pattern of unconstitutional conduct, and as enabled 

by the City of Detroit’s failure to properly curtail these illegal actions, has shown 

that she will not stop persecuting Plaintiffs unless forced to do so by court order. For 

all of the aforementioned reasons, including the severe harm Plaintiff will suffer if 

relief is not granted, as well as the lack of any impact on third parties of Defendant, 

Plaintiff respectfully requests that this Honorable Court grant this Motion for a 

temporary restraining order and preliminary injunction, and:

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1. Immediately suspend the prosecution of the March 2015 warrants issued 

against Greg Aslinger and Joseph Fawaz;

2. Immediately stay any proceedings for any criminal charge, citation or 

violation issued against Joseph Fawaz, Southwest Metals, or any of its 

employees;

3. Immediately stay the administrative business license proceedings by the 

City of Detroit against Southwest Metals, and;

4. Remove Sgt. Rebecca McKay of the Copper Theft Task Force from any 

investigation regarding Southwest Metals, its employees, owners, 

operators, or Joseph Fawaz.

Respectfully Submitted,

AYAD LAW, P.L.L.C. 

/s/ Nabih H. Ayad 

Nabih H. Ayad (P59518)

Attorney for Plaintiff

2200 Canton Center Road, Suite 220

Canton, MI 48187

P: (734) 983-0500

F: (734) 983-0520

Dated: March 25, 2015 nayad@ayadlaw.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SOUTHWEST METALS Inc., a 

Michigan Domestic Profit Corporation, 

and JOSEPH FAWAZ, an individual, 

Plaintiffs,

v. Case No.: 15-cv-11081

Hon. Marianne O. Battani

 Mag. Anthony P. Patti

 

Defendants.

AYAD LAW, P.L.L.C.

NABIH H. AYAD (P59518)

Attorney for Plaintiffs

2200 N. Canton Center Rd., Ste. 220

Canton, MI 48187

Phone: (734) 983-0500

Fax: (734) 983-0520

Email: nayad@ayadlaw.com

CERTIFICATE OF SERVICE

CITY OF DETROIT, MICHAEL E. 

DUGGAN, Mayor of Detroit, in his 

official capacity, DETROIT POLICE 

DEPARTMENT, JAMES CRAIG, 

Detroit Police Chief, in his official 

capacity, SGT. REBECCA McKAY in 

her individual and official capacities, 

jointly and severally.

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I hereby certify that on March 25, 2015, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system, which will send notification 

of such filing to the attorneys of record.

Respectfully Submitted,

AYAD LAW, P.L.L.C. 

/s/ Nabih H. Ayad 

Nabih H. Ayad (P59518)

Attorney for Plaintiffs

2200 Canton Center Road, Suite 220

Canton, MI 48187

P: (734) 983-0500

F: (734) 983-0520

Dated: March 25, 2015 nayad@ayadlaw.com

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