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B.K., A Minor, Through Greg Kroupa, Her Guardian Ad Litem v. 4-H

July 12, 2012

B.K., A MINOR, THROUGH GREG KROUPA, HER GUARDIAN AD LITEM, PLAINTIFF,
v.
4-H, A SOUTH DAKOTA UNINCORPORATED ASSOCIATION; PETER A. NIELSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR OF 4-H YOUTH DEVELOPMENT; ROD GEPPERT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BRULE COUNTY EXTENSION 4-H REPRESENTATIVE; JOHN DOES, OF THE SOUTH DAKOTA 4-H LIVESTOCK ETHICS COMMITTEE UNIDENTIFIED IN ANY COMMUNICATION FROM THE OTHER DEFENDANTS OR IN THE 2011 SOUTH DAKOTA 4-H DIVISION HANDBOOK OF THE SOUTH DAKOTA COOPERATIVE EXTENSION SERVICE IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; AND MARY DOES, OF THE SOUTH DAKOTA 4-H LIVESTOCK ETHICS COMMITTEE UNIDENTIFIED IN ANY COMMUNICATION FROM THE OTHER DEFENDANTS OR IN THE 2011 SOUTH DAKOTA 4-H DIVISION HANDBOOK OF THE SOUTH
DAKOTA COOPERATIVE EXTENSION SERVICE IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART AND GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION IN PART

Plaintiff, B.K., a minor, through Greg Kroupa, her father and guardian ad litem, brought suit against defendants, 4-H, Peter Nielson, Rod Geppert, John Does, and Mary Does*fn1 in their individual and official capacities, alleging violations of her First, Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 after she was banned from participating in 4-H exhibition shows. Defendants move to dismiss B.K.'s claims against 4-H and against Nielson and Geppert in their official capacities, which plaintiff opposes. B.K. moves for a preliminary injunction to enjoin defendants from precluding B.K.'s participation in 4-H and to refrain from interfering with B.K.'s participation in 4-H activities, which defendants oppose. On June 8, 2012, the court conducted a hearing on the motions and allowed the parties to submit supplemental briefs.

BACKGROUND FACTS

The pertinent facts to this order are as follows: Greg Kroupa and his wife have four children, all of whom have participated or currently participate in 4-H. Tr. 9:14-15.*fn2 Two of the children, including B.K., still participate in the Brule County, South Dakota, 4-H program. Tr. 9:15; Tr. 16:17-21. B.K. is currently 16 years old. Tr. 9:17-18. Greg testified that "[t]here's not a more competitive family in the state, let alone in the union, that's been more successful than my children have been at national levels as well as the state competition." Tr. 10:4-7. According to Greg, his family is "the only family in South Dakota that has ever won at a national steer show level in Denver National Western in 2008." Tr. 11:4-5. Beyond 4-H, the family is also involved in breeding animals, which is part of Greg's business. Tr. 11:6-10.

B.K. has been involved with 4-H since she was eight years old. Tr. 43:19-20. She used to be involved with sports, but she had to choose between sports and 4-H. Tr. 43:24-44:5. B.K. testified that she "made the choice to do 4-H, because that's what meant the most to me." Tr. 44:4-5. B.K. is also involved with FFA (Future Farmers of America), FCCLA (Future Career and Community Leaders of America), and FBLA (Future Business Leaders of America). Tr. 44:8-16. The school provides excused absences for 4-H events and congratulates students who do well at 4-H events, but 4-H is not a school-run program. Tr. 17-24. B.K. hopes to take over the family farm and business one day. Tr. 46: 14-16.

Winning a livestock competition sometimes includes a monetary award. For example, a Sale of Champions award can be substantial, such as the $110,000 award that one of Greg's other daughters won at the Sale of Champions in Denver. Tr. 26:24-27:3. In approximately 2009, B.K. won $22,000 at the NAILE Louisville Livestock Show for a reserve champion steer, and she put the $22,000 into her college fund. Tr. 46:7-13. The South Dakota State Fair is a terminal event, meaning that after the animal is shown, it must be sold for slaughter; it may not be used for breeding purposes. Tr. 38:11-18.

The total award at the South Dakota State Fair for a champion animal is the value of the carcass and a $500 cash award. Tr. 26:13-27:3; Tr. 28:11-20.

The South Dakota State Fair took place from September 1 through September 6, 2011, and B.K. participated in the swine event. Tr. 11:11-13:18. One of the pigs that B.K. showed was named Moe, a crossbreed belted barrow. Tr. 13:18-14:25.

The family bought Moe from Aaron Cooper, who trades in show pig prospects, at a mutual acquaintance's farm in Nebraska. Tr. 39:9-40:6. Neither B.K. nor Greg maintained records of Moe's sale. Tr. 40:15-41:6. B.K. trained Moe to drive by giving him marshmallows as a treat if he successfully completed the exercise. Tr. 13:20-14:4; Tr. 45:21-24; Tr. 55:22-56:13 ("[Y]ou use the term 'driving,' because when you hit him on his jowl, he will move whichever direction you put him in."). Moe received reserve grand honors for the entire 4-H division, and he was the champion market barrow at the FFA show at the fair's conclusion. Tr. 14:9-13.

After the fair, B.K. received e-mails, text messages, and Facebook messages from 4-H members stating that B.K. did not care for Moe, she was a cheater, a liar, and a hypocrite, and she was not a good 4-H leader. Tr. 17:25-18:1; Tr. 47:12-21. B.K. found these messages to be hurtful, and she eventually deleted her Facebook account due to the hurtful messages. Tr. 48:2-5. B.K. told her parents about the comments. Tr. 48:12-19.

Greg called Geppert about the harassment. Tr. 18:17-24. Geppert told Greg that he would speak with Nielson and get back to Greg. Tr. 19:6-9. Greg had a phone call with Geppert, and possibly also Nielson, regarding the situation. Tr. 19:10-21:1. Greg testified that the family did not have any other contact with either Geppert or Nielson until the family received a letter dated October 3, 2011, from Nielson. Exhibit 2; Docket 25-1. The letter stated that B.K. was banned from 4-H:

This letter is to inform you that you will no longer be allowed to participate in South Dakota 4-H exhibition programs. When you enrolled in the South Dakota 4-H program, you and your parent/guardian signed the South Dakota 4-H Code of Conduct Policy and Procedures document agreeing to certain behaviors at all 4-H events and activities (4-H821). The code notified you that those who have been found to have violated the code of ethics "will forfeit premiums and awards and may be prohibited from future exhibitions." The code also required that you as an exhibitor ". . . affirm that . . . [you] . . . have owned and/or cared for . . . your . . . project animal. . . ." It also goes on to say that, "Misrepresentations of ownership, age, identification numbers or facts relating thereto is prohibited." After being shown pictures on September 9, 2011, your father, Mr. Greg Kroupa, admitted to Mr. Rod Geppert and then, to Mr. Peter Nielson that you have not owned or cared for your recent swine entry for the project season. He also admitted that your swine entry had been submitted and competed in this year's Missouri State Fair. The South Dakota 4-H Livestock Ethics Committee met on September 20, 2011 and concluded that you misrepresented the ownership of this animal and violated the code of ethics.

Based on the events surrounding the misrepresentation of ownership of your Reserve Champion Over-all 4-H Market Swine entry, the State 4-H Office has permanently removed you from the South Dakota 4-H exhibition program and any future eligibility or participation in such programs. In addition, you are ineligible to receive any awards of premium monies from the 4-H Swine Project or 4-H Beef Project areas of the 2011 South Dakota State Fair. The South Dakota 4-H program takes the Behavioral Expectations and Code of Conduct outlined in 4-H821 very seriously and does not take this action lightly.

Exhibit 2; Docket 25-1.

In an affidavit, Nielson stated he, along with Geppert, investigated whether B.K. had violated 4-H's ethics. Docket 25 ¶ 4. Nielson maintains that when he "confronted Greg Kroupa, [Greg] admitted the swine had been shown in the Missouri State Fair and that B.K. had not owned or cared for B.K.'s recent swine entry for the project season[.]" Docket 25 ¶ 5.

During the hearing, Greg and B.K. maintained that B.K. cared for Moe, and Greg contended that he did not tell Nielson and Geppert otherwise. Tr. 23:11-24:13; Tr. 50:7-15; Tr. 45:16-20. Greg further asserted that Moe did not compete in the Missouri State Fair. Tr. 24:5-8.

Neither B.K. nor Greg received notification that the Livestock Ethics Committee was going to meet on September 20, 2011. Tr. 24:15-18; Tr. 50:19-51:2. B.K. never received the opportunity to appear before the Ethics Committee, but Greg received a text message from Geppert stating that the matter "was under an Advisory Committee hands[.]" Tr. 24:19-23. After the Ethics Committee made its decision, Greg met with Nielson to determine if a compromise could be reached, and Nielson informed him that the decision was final. Tr. 25:23-26:7. Nielson did not identify the Ethics Committee's members for Greg. Tr. 26:6-12. B.K. has never met Nielson. Tr. 51:9-15.

Dawn Cable is one of B.K.'s 4-H leaders for Brule County. Tr. 58:1-22. Geppert sent Cable a text message stating that B.K. had been banned from shows. Tr. 59:6-60:1. Geppert told Cable to contact Nielson with questions, but she never did. Tr. 59:25-60:3. In her 27 years of experience with 4-H, Cable had never heard of a student being banned from showing animals. Tr. 61:3-5.

While B.K. is banned from showing her animals and participating in events, she is still considered to be a member of 4-H. Tr. 49:13-22. B.K. is also a member of FFA and may attend shows with FFA, but some major shows will not let her show her animals because she is banned from 4-H. Tr. 53:22-54:12 ("[I]f you have been banned from 4-H, even if you are in FFA, you still cannot exhibit.").

DISCUSSION

I. Motion to Dismiss

A. Standard of Review

The local rules require a party to specify "the Federal Rule of Civil Procedure on the basis of which the motion is made." D.S.D. LR 7.1B. In their motion, defendants move to dismiss under Rule 12 but do not specify under which provision of Rule 12 their motion is made. During oral argument, the court asked defendants if they were moving under Rule 12(b)(1). Tr. 99:1-3. Defendants stated that they were making a facial and factual motion under Rule 12(b)(1). Tr. 99:5-19.

Federal Rule of Civil Procedure 12(b)(1) provides that the court may dismiss an action for lack of subject matter jurisdiction. Rule 12(b)(1) "is rooted in the unique nature of the jurisdictional question." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (quotation omitted). The Court of Appeals for the Eighth Circuit has drawn a distinction between facial and factual 12(b)(1) motions, explaining the applicable standard in each instance. See id. at 728-30. Because the court needs to examine the facts to determine jurisdiction, the court will use the Rule 12(b)(1) factual standard, which provides that the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. at 730 (quotation omitted). In determining a Rule 12(b)(1) motion, the court may look to evidence outside the pleadings. Id. Reviewing outside evidence under Rule 12(b)(1) does not convert the motion into a Rule 56(c) summary judgment motion like reviewing outside evidence does in the context of a Rule 12(b)(6) motion to dismiss or a Rule 12(c) motion for judgment on the pleadings. Deuser v. Vecera, 139 F.3d 1190, 1192 n.3 (8th Cir. 1998).

The plaintiff bears the burden to establish that subject matter jurisdiction exists. V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citing Nucor Corp. v. Neb. Pub. Power Dist., 891 F.2d 1343, 1346 (8th Cir. 1989)). If the court finds that subject matter jurisdiction is lacking, it must dismiss the case. Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999) (citations omitted).

B. Discussion

Defendants move to dismiss B.K.'s claims against 4-H pursuant to Federal Rule of Civil Procedure 17(b)(3) because 4-H does not have the capacity to sue and be sued. Defendants also move to dismiss B.K.'s claims against Nielson and Geppert in their official capacities under the sovereign immunity doctrine.

1. Motion to Dismiss 4-H

Federal Rule of Civil Procedure 17(b) governs whether an entity has the power to sue and be sued. 4-H is not an individual or a corporation, so Rules 17(b)(1) and (2) do not apply. Instead, Rule 17(b)(3), which covers "all other parties," controls. Rule 17(b)(3) provides that "[c]apacity to sue or be sued is determined . . . by the law of the state where the court is located[.]"

The parties first dispute whether 4-H is a federal or state program. B.K. contends that 4-H is "a federal program run through the State's land grant university." Docket 16 at 1.*fn3 Defendants assert that "[b]ecause 4-H is a program of SDSU [South Dakota State University], it is not amenable to suit." Docket 10 at 2.

In 1862, Congress passed the Morrill Land-Grant Act of 1862. 7 U.S.C. §§ 301-309. In 1890, Congress passed the Morrill Act of 1890, which is also known as the Agricultural College Act of 1890. 7 U.S.C. §§ 321-329. Congress granted "an amount of public land" to the states to be used for land grant colleges. 7 U.S.C. § 301. South Dakota agreed "to all the provisions of" and the "terms and conditions" associated with the land grant act. SDCL 13-54-8. South Dakota designated SDSU as its "land grant" college. SDCL 13-54-1.

In the Smith-Lever Act of 1914, Congress provided that the state land colleges should be engaged in "[c]ooperative agricultural extension work," including educating the public on agriculture and home economics. 7 U.S.C. § 342. "Agricultural sciences" includes 4-H clubs. 7 U.S.C. § 3103(9)(L). Congress provided that the Secretary of Agriculture and the state's land-grant, agricultural college should mutually agree upon how the program should be run. 7 U.S.C. § 342. Congress also provided a funding scheme for the ...


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