UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Patricia A. Donovan

v. Civil No. 05-cv-211-SM

Linda S. Whalen

REPORT AND RECOMMENDATION

Plaintiff moves for a preliminary injunction seeking a court

order enjoining Defendant and certain non-parties from

threatening or harassing Plaintiff, publishing false statements

about Plaintiff, and from accessing Plaintiff’s internet service

provider account without Plaintiff’s consent. Defendant objects.

Chief Judge McAuliffe referred this matter to me to review

Plaintiff’s request for injunctive relief, to conduct any hearing

that may be held, and to issue a report and recommendation on

Plaintiff’s motion in accordance with 28 U.S.C. § 636(b)(1)(B). 

For the reason set forth below, I recommend that the Plaintiff’s

motion be denied.

Standard of Review

The court is authorized to grant an application for a

preliminary injunction in accordance with the provisions of Rule

65 of the Federal Rules of Civil Procedure. As the First Circuit

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has interpreted that rule, a court may grant a plaintiff’s

request for a preliminary injunction if the plaintiff satisfies a

four-part test: (1) the plaintiff is likely to succeed on the

merits; (2) the plaintiff will suffer irreparable harm if the

injunction is not granted; (3) the injury to the plaintiff

outweighs any harm that granting the injunction would inflict on

the defendant; and (4) the public interest will not be adversely

affected by the granting of the injunction. See Langlois v.

Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000). A party

seeking injunctive relief must independently satisfy each of the

four factors. See Auburn News Co. v. Providence Journal Co., 659

F.2d 273, 277 (1st Cir. 1981).

Background

Plaintiff Patricia Donovan is a resident of Greenfield, New

Hampshire. She commenced this diversity action, pro se, against

the Defendant Linda Whalen, a resident of Dallas, Texas, on June

13, 2005. Plaintiff and Defendant have never met each other in

person. They were introduced to each other in March 2003 through

an internet chat room hosted by America Online (“AOL”), an

internet service provider. 

Plaintiff claims, among other things, that Defendant has

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knowingly harassed, slandered, libeled and given repeated false

statements about her to law enforcement officials and others in

the states of New Hampshire, Indiana, and Connecticut, beginning

in June 2003, in order to cause the Plaintiff emotional distress,

to anger and annoy Plaintiff, and to invade Plaintiff’s privacy. 

According to Plaintiff, Defendant began a campaign of harassment

against Plaintiff after Plaintiff informed Defendant that she no

longer wanted to have any telephone or internet contact with her.

Plaintiff filed the instant motion for injunctive relief

(document no. 28) on September 21, 2005. She filed amendments to 

her motion (documents nos. 31 and 50) on September 30, 2005 and

January 6, 2006. Plaintiff states in her motion, as amended,

that she seeks to enjoin Defendant and non-parties Robert Fox, a

resident of Bloomsburg, Pennsylvania, and Andrea LeClair, a

resident of Enfield, Connecticut, from further harassing

Plaintiff, publishing false statements about Plaintiff, or from

accessing Plaintiff’s AOL account without her consent.

The Court held an evidentiary hearing on Plaintiff’s motion

on January 30, 2006. Plaintiff and Mauricia Flagg testified

during the hearing. Plaintiff called Ms. Flagg as a witness

solely to corroborate Plaintiff’s allegation that some

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1Plaintiff’s motion presents the issue of whether the court

has the authority to grant the relief that Plaintiff seeks with

regard to persons who are not parties in this case. Rule 65(d)

provides that if the court determines that a preliminary

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unidentified person or persons accessed Plaintiff’s AOL account

without Plaintiff’s consent on at least two occasions. In

addition, Plaintiff introduced several pages of documentary

exhibits, which were marked as Plaintiff’s Exhibits A-O.

Discussion

I. Defendant’s Direct Acts

Plaintiff acknowledged during her testimony that she did not

have any recent evidence that demonstrates that Defendant has

directly threatened Plaintiff, harassed Plaintiff, published

false statements about Plaintiff, or evidence that proves that

Defendant hacked into Plaintiff’s AOL account. Plaintiff further

acknowledged that a state-court restraining order is already in

place against Defendant, which enjoins Defendant from contacting

Plaintiff. Plaintiff cannot show that Defendant has committed

any acts that violate that restraining order. Therefore, I find

that Plaintiff did not present any evidence at the hearing that

shows that Defendant is directly committing any acts that warrant

an order from this court granting Plaintiff injunctive relief.

II. Defendant’s Alleged Acts Through Third Parties1

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injunction is warranted the court may issue an order that shall

be binding upon the parties to the action and upon “their

officers, agents, servants, employees, and attorneys, and upon

those persons in active concert or participation with them who

receive actual notice of the order by personal service or

otherwise.” Fed. R. Civ. P. 65(d). It is important to note,

however, that ordinarily a court’s order only binds those persons

over whom a valid basis for personal jurisdiction exists. See

11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 2956 at 335. Based on the evidence that

was presented during the evidentiary hearing, I find it

unnecessary to analyze the personal jurisdiction issue. 

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Plaintiff alleges in her motion that Robert Fox and Andrea

LeClair are two of Defendant’s “associates,” and that they have

been committing wrongful acts against Plaintiff in collaboration

with Defendant. To Plaintiff’s knowledge, Defendant met these

individuals through AOL chat rooms. Plaintiff does not believe

that Defendant, or any of the other persons about whom she

complains herein, know each other personally.

The Court next considers first whether Plaintiff

sufficiently demonstrated through evidence that Robert Fox and

Andrea LeClair are committing the wrongful acts of which

Plaintiff complains, and second whether Plaintiff has

demonstrated that an order granting Plaintiff an injunction

against Defendant is warranted because of acts committed by

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2The Court notes that Plaintiff seems to have the mistaken

belief that this court has the authority to issue an injunction

that will be binding on anyone who commits the wrongful acts of

which Plaintiff complains herein. That is not the case. The

court has no authority to issue an injunction that “binds the

world.” See Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431,

436-437 (1934); Kean v. Hurley, 179 F.2d 888, 890 (8th Cir.

1950); Alemite v. Mfg. Corp. v. Staff, 42 F.2d 832, 832-833 (2d

Cir. 1930). Only the persons described in Fed. R. Civ. P. 65(d)

may be enjoined by an order of this court. Plaintiff may not use

this lawsuit as a mechanism to bind other persons who are not

parties in the case or properly within the court’s jurisdiction. 

For purposes of consideration of the instant motion, I presume,

without deciding, that Robert Fox and Andrea LeClair could

potentially be bound under Rule 65(d) as “persons in active

concert or participation with” Defendant. 

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Robert Fox and Andrea LeClair in collaboration with Defendant.2

A. Fox’s Acts

Plaintiff alleges in her motion for injunctive relief that

Robert Fox committed the following acts:

(1) Robert Fox repeatedly published on the internet

“Patty is in for a surprise”; and

(2) Robert Fox has published, witnessed by third

parties, “Linda and I are the reason Patty was arrested

in Indiana.”

See Document No. 28 at 2, ¶¶ 7(A) and (B). During the hearing,

however, Plaintiff did not testify regarding any acts that Fox

allegedly committed. The Court further notes that the name

“Robert Fox” does not appear anywhere in Plaintiff’s Exhibits B

and C, which Plaintiff testified is the evidence that supports

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her claim that Defendant is harassing Plaintiff indirectly

through third parties that she has recruited.

While I recognize that Plaintiff is proceeding in this

action without a lawyer, nevertheless, she is not excused from

her obligation to meet the Plaintiff’s burden of proof with

competent evidence. Injunctive relief cannot be granted in this

court based solely on the allegations in her pleadings; they must

be proved by competent evidence at the hearing. Accordingly, I

find that Plaintiff is not entitled to an injunction pertaining

to Robert Fox because she has failed to present any evidence or

proof regarding Robert Fox’s conduct at the evidentiary hearing. 

B. LeClair’s Acts

Plaintiff alleges in her motion for injunctive relief, as

amended, that Andrea LeClair committed the following acts:

(1) On the morning of September 20, 2005, LeClair

published on the internet witnessed by third parties,

“Patty is in for a surprise”;

(2) LeClair falsely reported to Detective Cooper of the

Enfield (Connecticut) Police Department that Plaintiff

stated that “she wanted to molest her daughter” and

that Plaintiff had “threatened” LeClair;

(3) Plaintiff received a call from Detective Cooper on

September 20, 2005 at approximately 2:00 p.m. informing

her that the prosecutor who received the false report

had dropped the complaint.

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3Plaintiff testified that on AOL a person can use up to six

different “screen names.” Plaintiff hand-marked the names of the

individuals whom she believes are responsible for posting the

comments or sending the e-mails next to these “screen names” on

Plaintiff’s exhibits. See e.g., Ex. B (last page), Ex. C (last

two pages); and Ex. D (last page).

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See Document No. 28 at 2, ¶¶ 7(C), (D) and (E) and Document No.

31 at 1. The Court next considers whether Plaintiff’s testimony,

together with the credible exhibits introduced during the

hearing, establishes that Plaintiff is entitled to the injunctive

relief against Defendant and Andrea LeClair.

As a preliminary matter, the Court recognizes that it need

not strictly apply the rules of evidence in consideration of a

motion for a preliminary injunction. See Asseo v. Pan Am. Grain

Co., Inc., 805 F.2d 23, 25-26 (1st Cir. 1986); Kos Pharms., Inc.

v. Andrx Corp., 369 F.3d 700, 718-719 (3d Cir. 2004). The extent

to which Plaintiff relies upon hearsay and documents that

Plaintiff admits cannot be validated as accurate to prove the

statements of the individuals purportedly involved,3 however,

greatly diminishes the value of her evidence. With that

cautionary note, the Court gives close consideration to

Plaintiff’s evidence.

 Plaintiff testified during the hearing that Andrea LeClair

called the Enfield (Connecticut) Police Department on July 3,

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2005 reporting that six or eight weeks earlier Plaintiff

threatened her in a chat room. While making her report to the

police, LeClair informed the police that Defendant was her

friend, and that Plaintiff had also threatened Defendant. 

Plaintiff’s Exhibit C shows that while LeClair was making her

report to the police, LeClair called Defendant, who spoke with

the officer taking LeClair’s report. Exhibit B further shows

that Cathy Cmelo, who is also not a party to this action, called

the Enfield police officer to inform him that she had obtained a

restraining order against Plaintiff in Wisconsin.

During the hearing, Plaintiff claimed that Exhibit C

demonstrates that Defendant has been acting through third parties

in order to harass her. Exhibit C is comprised of the following

documents: (1) a case report and two supplements dated July 4,

2005 from Officer Ralph E. Jensen, Jr., of the Enfield Police

Department pertaining to a complaint made by Andrea LeClair

against Plaintiff; (2) a supplement dated September 20, 2005 from

Detective W. J. Cooper of the Enfield Police Department

indicating that he called LeClair and Plaintiff to inform them

that an application for an arrest warrant against Plaintiff had

been denied and that the case was closed; and (3) two pages of

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4I find that the last two pages attached to the end of

Plaintiff’s Exhibit C, allegedly containing statements made by

Cathy Cmelo and Andrea LeClair, are so wholly lacking in

reliability that the court may not consider them credible. I do

not discuss them further herein. 

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text that Plaintiff alleges contain statements made by Cathy

Cmelo, under the name “Firecrackeriris” and Andrea LeClair, using

the name “AndreaAldridge35" on July 2, 2005.4

After reviewing Exhibit C, it appears that the events of

which Plaintiff complains, specifically as they pertain to Andrea

LeClair, took place in the following order: (1) LeClair made a

report to the Enfield Police Department regarding Plaintiff on

July 3, 2005; (2) an Enfield police officer spoke with LeClair,

Defendant and Cmelo as part of his investigation and reviewed

obscene comments about LeClair that Plaintiff allegedly posted on

the internet; (3) on the morning of September 20, 2005, LeClair

allegedly posted on the internet that “Patty is in for a

surprise”; and (4) at approximately 2:00 p.m. on September 20,

2005, Plaintiff and LeClair received telephone calls from

Detective Cooper informing them that the application for an

arrest warrant had been denied and the case was closed. I find

that the foregoing evidence does not demonstrate that Plaintiff

is likely to succeed on the merits of her claims against

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Defendant. Merely showing that LeClair told a police officer

that Defendant was her friend, and that LeClair and Defendant

spoke to the police during the investigation of a complaint that

was not prosecuted, does not prove either that LeClair’s

allegations about Plaintiff’s conduct was false, or that

LeClair’s allegations were made in bad faith. The Court has no

way to judge LeClair’s credibility as LeClair did not testify at

the hearing, and no other evidence that would prove her

credibility, or lack thereof, was presented at the hearing. 

Similarly, I do not find that Cathy Cmelo’s August 8, 2005

statement, introduced into evidence as part of Plaintiff’s

Exhibit B, requires the court to find that Plaintiff is likely to

succeed on the merits of her claims against Defendant. In Ms.

Cmelo’s statement, she states that Defendant convinced Ms. Cmelo,

after numerous telephone conversations, that Plaintiff’s

threatening remarks to Ms. Cmelo in an internet chat room should

not be taken lightly and that Plaintiff was dangerous. According

to Ms. Cmelo, Defendant’s urging eventually convinced Ms. Cmelo

that she should get a restraining order against Plaintiff. Ms.

Cmelo goes on to state that Defendant began calling Ms. Cmelo so

often to complain about Plaintiff that Ms. Cmelo instead became

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fearful of Defendant. Ms. Cmelo indicates in her statement that

she intends to ask that the restraining order issued against

Plaintiff be rescinded. Since Ms. Cmelo was not present at the

hearing to give live testimony under oath and subject to crossexamination, however, neither Defendant’s counsel nor the Court

had any opportunity to obtain additional details from Ms. Cmelo

regarding the content of her statement.

Moreover, even if it is accepted as true that Andrea LeClair

and Defendant intentionally gave false statements to the Enfield

Police in July 2005 that does not show that Plaintiff is likely

to suffer irreparable harm if this court does not grant

Plaintiff’s request for a preliminary injunction against the

Defendant. To the extent that Plaintiff’s Exhibits B and C refer

to communications with Defendant or to statements that Defendant

allegedly made, all of those communications and statements appear

to have been made before August 2005. Although Plaintiff may be

able to prove her claims against Defendant at trial for past

harms, the court cannot enjoin past acts. See City of Los

Angeles v. Lyons, 461 U.S. 95, 95-96 (1983) (finding that

although a showing of a past injury may be sufficient to sue for

damages, it is not a sufficient basis for standing to sue for

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injunctive relief); Am. Postal Workers Union v. Frank, 968 F.2d

1373, 1376 (1st Cir. 1992) (“[Lyons] reaffirmed the principle

that past exposure to harm will not, in and of itself, confer

standing upon a litigant to obtain equitable relief absent a

sufficient likelihood that he will again be wronged in a similar

way.” (internal quotation marks omitted)). Therefore, I find

that Plaintiff did not show that she is entitled to an injunction

against Defendant because Plaintiff did not show that Defendant

is currently committing any acts that will cause Plaintiff to

suffer irreparable harm if an injunction is not granted. 

Conclusion

While Plaintiff’s allegations against Defendant in this

lawsuit are deeply disturbing, if true, and Plaintiff may

therefore be successful at trial if they can be proven with

admissible evidence, I find that Plaintiff has not established

that she is entitled to injunctive relief at this time. 

Accordingly, for all of the reasons set forth above, I recommend

that Plaintiff’s motion for a preliminary injunction (document

no. 28) be denied.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

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file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 3, 2006

cc: Patricia A. Donovan, pro se

Michael J. Sheehan, Esq. 

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