## Facts

- In 2005, a federal district court entered a permanent injunction barring certain named anti-abortion protestors from entering the public sidewalk within fifteen feet of abortion-clinic entrances in the Western District of New York and from aiding and abetting others in doing so.
- In 2017, Jim Havens began “sidewalk counseling” outside a Planned Parenthood facility in Rochester, New York.
- Havens was not a party to the 2005 case, was not named in the injunction, and alleged he was unaware of the injunction when he began his activities.
- Havens invited others to join him; they later formed an unincorporated association, ROC Love Will End Abortion (ROC).
- Havens and ROC members often conducted their activities within the fifteen-foot area described in the 2005 injunction.
- The New York Attorney General and the City of Rochester took the position that Havens and ROC were bound by the 2005 injunction because they were “acting in concert” with the enjoined protestors and therefore could not enter the buffer zone.
- Havens sued for a declaration that he and ROC were not subject to the 2005 injunction and sought preliminary relief preventing its enforcement against them.
- The district court dismissed the complaint with prejudice, denied preliminary relief, and held Havens bound under Rule 65(d) because his conduct benefited enjoined parties and thus constituted “active concert or participation.”

## Issues

1. Under Federal Rule of Civil Procedure 65(d), when can an injunction bind a nonparty who is not legally identified with an enjoined party?
2. Is similarity of conduct or alignment of objectives sufficient to treat a nonparty as acting “in active concert or participation” with enjoined parties?
3. Did Havens plausibly plead entitlement to declaratory relief that he and ROC were not bound by the 2005 injunction, and did the district court apply the correct legal standard in denying preliminary relief?

## Decision

- The Second Circuit reversed the dismissal of Havens’s complaint for failure to state a claim.
- The court vacated the denial of Havens’s motion for a preliminary injunction.
- The court remanded for further proceedings.
- The court held that a nonparty not legally identified with an enjoined party is bound only when acting for the benefit of, or to assist, a named party in violating the injunction, and Havens’s allegations did not establish such conduct at the pleading stage.

## Legal Principles

- Rule 65(d)(2) binds (1) parties, (2) their officers/agents/employees/attorneys, and (3) other persons in “active concert or participation” with them.
- A court may not extend an injunction to independent nonparties based solely on parallel conduct or shared viewpoints; Rule 65(d) targets evasion by enjoined parties acting through others.
- A nonparty who is not legally identified with a named party is bound by an injunction only when the nonparty acts for the benefit of, or to assist, a named party in violating the injunction.
- At the motion-to-dismiss stage, allegations must plausibly show the kind of assistance or benefit tied to violation of the injunction; generalized “benefit” from similar advocacy is insufficient.

## Conclusion

The Second Circuit held that Rule 65(d) does not allow enforcement of an existing injunction against a nonparty based merely on similar protest activity or aligned objectives; absent legal identity with an enjoined party, a nonparty is bound only if acting to benefit or assist an enjoined party’s violation, so Havens plausibly stated a claim for declaratory relief and the denial of preliminary relief required reconsideration on remand.


Havens v. James, 76 F.4th 103 (2d Cir. 2023)