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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CITY OF AUSTIN, et al., §

§

Plaintiffs, §

§

v. § 1:20-CV-138-RP

§

KINDER MORGAN TEXAS PIPELINE, §

LLC, et al., §

§

Defendants. §

ORDER

Before the Court is Plaintiffs City of Austin, City of San Marcos, Travis County, Hays 

County, Barton Springs Edwards Aquifer Conservation District, Larry Becker, Arlene Becker, Jonna 

Murchison, and Mark Weiler’s (collectively, “Plaintiffs”) Opposed Motion Requesting Emergency 

Hearing. (Dkt. 11). Defendants Kinder Morgan Texas Pipeline, LLC and Permian Highway Pipeline, 

LLC (collectively, “Defendants”) filed a response in opposition. (Dkt. 12). Having considered 

Plaintiffs’ motion and Defendants’ response, the Court will deny Plaintiffs’ motion for emergency 

hearing. 

Plaintiffs filed their opposed motion for preliminary injunction, 48-page memorandum1in 

support, and opposed motion requesting an emergency hearing just before close of business on 

Friday, February 7, 2020. (Mot. Prelim. Inj., Dkt. 9; Mem., Dkt. 12; Mot. Hr’g, Dkt. 11). Plaintiffs 

request “an emergency hearing” on their application for preliminary injunction prior to February 15, 

2020. (Mot. Hr’g., Dkt. 11, at 2). Defendants oppose Plaintiffs’ motion for emergency hearing, 

noting that Plaintiffs seek a “TRO-like” expedited hearing on their application before Defendants’

opposition would be due under the local rules. (Resp., Dkt. 12, at 1); see also W.D. Tex. Loc. R. CV-

 

1 The Court reminds Plaintiffs that nondispositive motions under the local rules are limited to 10 pages unless 

otherwise authorized by the Court. See W.D. Tex. Loc. R. CV-7(d). Should Plaintiffs wish to exceed the page 

limits imposed by the local rules in the future, they must request leave to do so. See id.
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7(e) (response to a nondispositive motion is due 7 days after the filing of the motion). Defendants 

contend that holding a preliminary injunction hearing at this juncture—before Defendants have 

“adequate time to mount a defense and response to the arguments, authorities and evidence in 

Plaintiffs’ briefing”—would “materially prejudice” them. (Resp., Dkt. 12, at 1). The Court agrees.

Unlike an application for a temporary restraining order (“TRO”), a court “may issue a 

preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). “This 

requirement means that where factual disputes are presented, the parties must be given a fair 

opportunity and a meaningful hearing to present their differing versions of those facts before 

a preliminary injunction may be granted.” Mendenhall v. Hughes, 487 F. App’x 132, 133 (5th Cir. 2012); 

see also Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (citing Commerce Park at DFW 

Freeport v. Mardian Construction Co., 729 F.2d 334, 342 (5th Cir. 1984)). The animating principle behind 

the notice requirement is to give the nonmoving party a fair opportunity to oppose the preliminary 

injunction. 

Here, though Plaintiffs ask for an “emergency hearing,” they have moved for a preliminary 

injunction—not a TRO—and the notice requirement of Rule 65 applies. Fed. R. Civ. P. 65(a)(1). 

Given Plaintiffs’ voluminous briefing, the Court declines to set a hearing in this case before 

Defendants have the opportunity to meaningfully respond to Plaintiffs’ motion. Accordingly, IT IS 

ORDERED that Plaintiffs’ motion requesting emergency hearing, (Dkt. 11), is DENIED. 
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IT IS FURTHER ORDERED that the parties appear by phone for a telephone 

conference on Wednesday, February 12, 2020 at 3:30 p.m. Counsel for Plaintiffs shall be 

responsible for coordinating the call and providing dial-in information at least 24 hours in advance 

to opposing counsel and to the Courtroom Deputy at julie_golden@txwd.uscourts.gov. The parties 

should be prepared to set a date for a preliminary injunction hearing and to discuss an appropriate 

briefing schedule.

SIGNED on February 10, 2020.

_____________________________________

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE