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Rasier, LLC v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

June 14, 2017


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02134 C\W 2016-02135, DIVISION "N-8" Honorable Ethel Simms Julien, Judge


          James M. Garner Timothy B. Francis Matthew M. Coman Joshua P. Clayton SHER GARNER CAHILL RICHTER KLIEN & HILBERT, L.L.C.COUNSEL FOR PLAINTIFF/APPELLANT, RASIER, LLC

          David M. Strachan Assistant City Attorney Anita B. Curran Deputy City Attorney Adam J. Swensek Chief Deputy City Attorney Cherrell R. Simms Sr. Chief Deputy City Attorney Rebecca H. Dietz City Attorney COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF NEW ORLEANS

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore

          Marion F. Edwards, Judge Pro Tempore [1]

          Rasier, LLC, and John Doe appeal the district judge's denial of their request for a preliminary injunction which sought to prevent the City of New Orleans from acting on a public records request brought by the New Orleans Advocate seeking the release of information from the City's transportation network company driver registry and trip data relative to third-party automobile drivers working on a contractual basis. Finding merit in appellants' argument that the district judge abused her discretion in ruling that Mr. Doe's privacy rights will not be violated by the City's release of the driver registry information, we reverse in part the district court's judgment, grant in part the appellants' request for a preliminary injunction, and affirm in all other aspects. We now explain our ruling in greater detail.


         We first examine this matter's procedural and factual background.

         This matter concerns the City's attempt to respond to a local newspaper's public records request for documents detailing the operation of Rasier, a wholly owned subsidiary of Uber and one of the City's licensed transportation network companies. In 2015, the City passed a series of laws permitting TNCs to operate within the parish. A TNC is an organization "that connects passengers with drivers using their personal vehicle for purposes of for-hire transportation services by means of a TNC digital network." City Code Section 162-1700. TNC services comprise "the transportation of a passenger between points chosen by the passenger and is prearranged by a TNC using a TNC digital network." Id. A TNC digital network is "any online-enabled application, software, website, or system offered or utilized by a TNC that enables the prearrangement of rides with TNC drivers." Id. A TNC driver is "a person who uses his or her personal vehicle to provide for-hire transportation services for passengers matched through a TNC digital network. A TNC driver need not be an employee of a TNC." Id. A TNC vehicle is a motor vehicle used to provide TNC services through a TNC network that is:

(1) Owned or leased by the TNC driver, or otherwise authorized for use by the TNC driver to provide TNC services, and is not wholly owned or leased by a TNC;
(2) Not licensed as a taxicab, limousine, horse-drawn carriage, pedicab, general charter tour vehicle, sightseeing tour vehicle, courtesy vehicle, non-emergency medical vehicle, airport shuttle, or any other classification of for-hire vehicle as provided under Article III of this chapter or licensed by any other political subdivision or the Louisiana Public Service Commission;[2]

         Therefore, TNCs, like Rasier/Uber, are transportation companies that have developed proprietary software that enables smartphone users to hail rides via the internet from a member of the TNC's fleet of contractor drivers. The TNCs market their services under the company's trade name, process payments from riders, and provide confirmation receipts once a ride is complete.

         The City's ordinances also reveal that the City does not regulate TNCs like taxicab companies. That is, unlike its licensure of taxicabs, the City's ordinances permit TNCs to self-regulate and to ensure that its drivers satisfy the City's permitting standards. For example, a TNC driver does not obtain his Certificate of Public Necessity and Convenience/CPNC or driver's permit through the City. Rather, he obtains licensure by virtue of his contractual affiliation with the TNC, which serves as the de facto regulatory authority for its drivers. Further, the TNC is tasked with performing criminal background checks and drug testing on its drivers. Moreover, each TNC is required to maintain a registry of all employed or contracted TNC drivers and to provide an updated list of drivers to the City each month. The TNC registry shall include each TNC driver's: 1) full name; 2) date of birth; 3) Louisiana driver's license number; 4) license plate number of the vehicle used by the driver to provide TNC services; and, 5) active dates of employment. See City Code Section 162-1709. TNC drivers, unlike taxicab drivers, do not hold city-issued occupational licenses.

         On February 3, 2016, the New Orleans Advocate filed a public records request with the City seeking both Rasier's TNC driver registry as well as additional trip data submitted by all TNCs operating in Orleans Parish. The City, on February 24, 2016, informed Rasier that it had received the Advocate's request, concluded that the requested information was not exempt from disclosure, and noted that it intended to comply with the request. The City did note, however, that it intended to redact TNC driver's license numbers and birth dates prior to disclosure. The City, accordingly, notified Rasier that it would be disclosing all of its drivers' names, vehicle registration/license plate numbers, and dates of employment. Rasier opposed the disclosure, arguing that the information to be released contained information that was exempt from Louisiana's Public Records Act.

         On March 1, 2016, Rasier and John Doe, individually and on behalf of other similarly situated TNC drivers, simultaneously filed separate verified petitions seeking temporary restraining orders and injunctive relief seeking to prohibit the City's compliance with the Advocate's public records request. Rasier asserted that the requested information is protected by the Public Records Act's trade secret exemption, while Mr. Doe asserted that the release of the requested information would violate his constitutional rights to privacy. See La. Const. Art. 1, Section 5; La. Const. Art. XII, Section 3; La. R.S. 44:3.2. Temporary restraining orders were issued in both matters. The two suits were subsequently consolidated prior to the preliminary injunction hearing.[3]

         On May 6, 2016, the district judge conducted a hearing on the appellants' request for a preliminary injunction and took the matter under advisement. The district judge subsequently issued a judgment on July 8, 2016 that granted the appellants' request for a preliminary injunction enjoining the City's release of the aggregate trip data, but denied their request with respect to the redacted driver registry information. The City did not appeal that portion of the judgment which enjoined it from releasing the aggregate trip data. This portion of the judgment, accordingly, is now final. See La. C.C.P. art. 3612 C; Elysian Fields Church of Christ v. Dillon, 08-0989, p. 7 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1231-1232. Rasier and Mr. Doe, on the other hand, appeal that portion of the judgment that denied their request to enjoin the release of the redacted driver registry information. The appellants timely secured a suspensive appeal and persuaded the district judge to stay the effect of her July 8, 2016 judgment until this Court acts upon appellants' appeal.


         "A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits." Smith v. Brumfield, 13-1171, p. 5 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 74, quoting Elysian Fields, supra. Injunctive relief is an equitable remedy, which is ordinarily only available when a party has no adequate legal remedy. Cf. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665, 670 (La. 1967) on reh'g (3/25/68) ("By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity."). See also C. Napco, Inc. v. City of New Orleans, 06-0603, p. 6 (La.App. 4 Cir. 3/7/07), 955 So.2d 155, 160 ("An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law.").

         A "court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases." La. C.C.P. art. 3609. "A preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing." La. C.C.P. art. 3602. Ordinarily, to prevail in the district court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: 1) he will suffer irreparable injury, loss, or damage if the motion for preliminary injunction is not granted; and 2) he is entitled to a preliminary injunction through at least a showing that he will likely prevail on the merits of the case. See Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208; La. C.C.P. art. 3601. The prima facie standard of proof to obtain a preliminary injunction is less than that required for a permanent injunction. See Smith, 13-1171 at p. 6, 133 So.3d at 74.

         In order to prove that irreparable harm will befall a party from the non-issuance of a preliminary injunction, the petitioning party must show that "money damages cannot adequately compensate for the injuries suffered and that the injuries 'cannot be measured by pecuniary standards.' " Historic Restoration, 06-1178 at p. 11, 955 So.2d at 208 (quoting Saunders v. Stafford, 05-0205, p. 6 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754). "[M]ere inconvenience is not enough to show irreparable injury needed for the issuance of a preliminary injunction." Hobbs v. Gorman, 595 So.2d 1264, 1266 (La.App. 4th Cir. 1992). However, in Jurisich v. Jenkins, 99-0076, p. 4 (La. 10/19/99), 749 So.2d 597, 599, the Supreme Court established an exception to the irreparable harm requirement for instances when a plaintiff requests a prohibitory injunction that seeks only to order compliance with a prohibitory law. The requisite showing of irreparable injury is dispensed with "when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right." Jurisich, 99-0076, p. 4, 749 So.2d at 599, citing to South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 555 So.2d 1370 (La. 1990). Thus, under Jurisich, "[o]nce a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists." 99-0076, p. 4, 749 So.2d at 599.

         "A trial court has broad discretion in the granting or denial of a preliminary injunction, and will not be disturbed on review absent a clear abuse of that discretion." Yokum v. Pat O'Brien's Bar, Inc., 12-217, p. 6 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 80 (citing Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La. 1979)) (internal quotations omitted). This "broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion." Yokum, 12-0217 at p. 7, 99 So.3d at 80 (citing South East Auto Dealers Rental Ass'n, Inc. v. EZ Rent to Own, Inc., 07-0599, pp. 4-5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93). ...

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