Planned Parenthood Minn. v. Daugaard

946 F.Supp.2d 913

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, South Dakota, and Carol E. Ball, M.D., Plaintiffs,

v. Dennis DAUGAARD, Governor, Marty Jackley, Attorney General, Doneen Hollingsworth, Secretary of Health, Department of Health, and Robert Ferrell, President, Board of Medical and Osteopathic Examiners, in their official capacities, Defendants.Alpha Center and Black Hills Crisis Pregnancy Center, d/b/a Care Net Pregnancy Resource Center, Intervenors.

No. Civ. 11–4071–KES.

United States District Court,

D. South Dakota,

Southern Division.

Feb. 28, 2013.

Opinion Denying Reconsideration Aug. 26, 2013.

Andrew D. Beck, Brigitte Amiri, ACLU, Jennifer R. Sandman, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, Diana O. Salgado, Planned Parenthood Federation of America, Washington, DC, Michael Drysdale, Dorsey & Whitney LLP, Minneapolis, MN, Stephen D. Bell, Dorsey & Whitney LLP, Denver, CO, for Plaintiffs.

John P. Guhin, Attorney General of South Dakota, Pierre, SD, for Defendants.

Rory King, Bantz, Gosch, Cremer, Peterson, Sommers & Wager, Aberdeen, SD, Harold J. Cassidy, The Cassidy Law Firm, Shrewsbury, NJ, for Intervenors.

Patricia J. Archer, Attorney General of South Dakota, Pierre, SD, for Defendants/Intervenors.

MEMORANDUM OPINION AND ORDER

KAREN E. SCHREIER, District Judge.

Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota, and Dr. Carol E. Ball, move for an award of attorneys' fees claiming that they have “prevailing party” status following success on a motion for a preliminary injunction and subsequent conduct by the South Dakota Legislature. Docket 95. Defendants, Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary Doneen Hollingsworth, and Board President Robert Ferrell, in their official capacities, argue that such motion is improper and untimely or that attorneys' fees should be assessed at the end of the litigation. Docket 100.

Plaintiffs also object to portions of the magistrate judge's order on discovery as being clearly erroneous and argue that intervenors should not be entitled to depose five factual witnesses. Docket 97. Defendants and intervenors, Alpha Center and Black Hills Crisis Pregnancy Center, claim that the discovery order was correctly determined because it was within the bounds of the original order granting intervention and because intervenors are now a party to the action. Docket 99.

Finally, plaintiffs move to voluntarily dismiss counts 8 and 9 of the third amended complaint without prejudice because they allege that the underlying facts supporting these claims have materially changed. Docket 104. Defendants do not object to the dismissal, but reserve their arguments and objections on this issue. Docket 106. Intervenors argue that if the court grants plaintiffs' motion to dismiss it must be with prejudice. Docket 107.

BACKGROUND

Plaintiffs brought this action in May of 2011 and raised a number of challenges under 42 U.S.C. § 1983 to South Dakota House Bill 1217, 2011 Leg. Reg. Sess. (S.D.2011) (the Act), which outlines women's access to abortion services under South Dakota law. Plaintiffs moved for a preliminary injunction on June 3, 2011, and asked this court to enjoin enforcement of the Act prior to its effective date of July 1, 2011. Docket 10. The court granted plaintiffs' motion for a preliminary injunction on June 30, 2011, 799 F.Supp.2d 1048 (D.S.D.2011). Docket 39. In doing so, the court enjoined four specific provisions of the Act: (1) the pregnancy help center requirements; (2) the 72–hour requirement; (3) the risk factors requirement; and (4) the coercion provisions.

Intervenors, two entities that operate as pregnancy help centers in South Dakota, moved to intervene in the case on July 1, 2011. Docket 40. On December 27, 2011, 836 F.Supp.2d 933 (D.S.D.2011), the court granted intervenors' motion to intervene, but found that intervenors' participation in the case would be limited to the pregnancy help center mandate and that intervenors' interests could be represented by the state defendants in all other aspects. 836 F.Supp.2d at 943. The court also directed the parties to participate in a discovery conference with the magistrate judge to establish more precise boundaries of intervenors' participation in discovery. Id.

On March 2, 2012, H.B. 1254, 2012 Leg. Reg. Sess (S.D. 2012) (the Amended Act), was signed into law and was to take effect on July 1, 2012. This Amended Act altered the language of the original Act as it pertained to the risk factors requirement and the coercion provisions and removed the language that was at issue in the preliminary injunction. Plaintiffs admit that the Amended Act mooted their challenge to the risk factors and coercion provisions of the 2011 Act. Because of the changes to the statute, on June 26, 2012, plaintiffs, defendants, and intervenors filed a joint stipulation to dissolve in part and continue in part the preliminary injunction in this case. Docket 81. The court granted the motion. Docket 82.

On August 23, 2012, plaintiffs moved for attorneys' fees, claiming that they were a “prevailing party” on the issues that were mooted by the South Dakota Legislature's passing of the Amended Act. Docket 95. On August 29, 2012, 2012 WL 3777041, the magistrate judge entered an order clarifying the intervenors' participation in discovery based on his analysis of the scheduling order, the motion granting intervention, and rights of all the parties. Docket 96. The magistrate judge concluded that intervenors could participate in discovery on the 72–hour requirement issue and that, like plaintiffs and defendants, intervenors would be entitled to take five factual depositions.

DISCUSSION

I. Voluntary Dismissal of Counts 8 and 9

Plaintiffs assert that due to a change in staffing, the facts that they alleged in their amended complaint materially changed. Because of such change, plaintiffs argue that counts 8 and 9 should be dismissed without prejudice. Defendants do not object, but reserve any objections they could raise if the claims are brought again at a later date. Intervenors argue that if the counts are dismissed they must be dismissed with prejudice.

The court will address first whether the motion should be considered as a voluntary dismissal under Federal Rule of Civil Procedure 41(a), or as a motion to amend under Federal Rule of Civil Procedure 15.¹ Federal Rule of Civil Procedure41(a) states that parties may voluntarily dismiss “an action,” but says nothing about individual claims within an action. SeeFed.R.Civ.P. 41(a)(2) (“[A]n action may be dismissed at the plaintiff's request only by a court order[.]”). “But while often dubbed a rule 41(a) voluntary dismissal, the procedure [whereby a court grants plaintiff's motion to dismiss one count of a multi-count complaint] is more properly viewed as a Rule 15 amendment to the complaint.” Gronholz v. Sears, Roebuck & Co., 836 F.2d 515, 518 (Fed.Cir.1987) (quotations and citations omitted); see also Envtl. Dynamics, Inc. v. Robert Tyer & Assocs., Inc., 929 F.Supp. 1212, 1227–28 (N.D.Iowa.1996) (citations omitted) (“[Plaintiff's] motions for partial summary judgment ‘dismissing’ some, but not all, of its claims ... must be construed as having been brought not pursuant to Fed.R.Civ.P. 41(a)(2), but pursuant to Fed.R.Civ.P. 15.”). The court finds that because the request for dismissal pertains only to a specific claim and not the entire action, it is more properly viewed as a motion to amend.

Second, the court will address whether the amendment should be allowed. After the time period for amending pleadings as a matter of course has passed, Rule 15 provides that “a party may amend its pleadings only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend should be granted unless “there are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.2008) (quotation and citation omitted). The burden of proving prejudice lies with the party opposing the motion. Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir.2001).

In this case there is no evidence of undue delay on the part of plaintiffs. The case has progressed normally throughout the discovery process absent some minor disagreements by the parties that will be discussed below. Although this voluntary motion to dismiss was brought approximately seven months after plaintiffs filed their third amended complaint, the motion was brought well before the dispositive motions deadline, which is currently set for May 30, 2013. Docket 94 at 2.

There is no evidence that plaintiffs are moving to dismiss counts 8 and 9 because of bad faith. The 72–hour requirement imposed a waiting period of 72 hours from the time a woman engages in the required initial consultation with a physician until she may proceed with an abortion with the same physician who conducted her initial consultation. As alleged in the third amended complaint, plaintiffs claimed that such a wait imposed an undue burden on women's reproductive rights and violated their right to equal protection of the laws.

Plaintiffs explain that its factual circumstances have changed. At the time of filing, plaintiffs alleged that the waiting period would prove to be much longer than 72 hours because the physician who traveled from out of state to conduct abortion services could not come to Sioux Falls, South Dakota, regularly and could not see a woman for the second time soon or immediately after the 72–hour wait lapsed. The effect was that the wait period would be closer to a week or up to a month between visits. Plaintiffs state that it now employs a physician whose schedule allows the waiting period...