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B.K., A Minor, Through Greg Kroupa, Her Guardian Ad Litem v. Peter A. Nielson

August 29, 2012

B.K., A MINOR, THROUGH GREG KROUPA, HER GUARDIAN AD LITEM, PLAINTIFF,
v.
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 DENYING MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL

Plaintiff, B.K., a minor, through Greg Kroupa, her father and guardian ad litem, brought suit against defendants, Peter Nielson and Rod Geppert 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. B.K. moved for a preliminary injunction to enjoin defendants from precluding B.K.'s participation in 4-H and to refrain them from interfering with B.K.'s participation in 4-H activities. Docket 18. The court granted that motion as to Nielson and Geppert until further court order. Docket 35. Defendants now move to stay the court's order enjoining their actions pending appeal. Docket 36. Plaintiff resists this motion. Docket 43. For the following reasons, defendants' motion to stay the preliminary injunction pending appeal is denied.

BACKGROUND

On July 12, 2012, this court entered its order that granted plaintiff's motion for a preliminary injunction, which enjoined defendants from preventing or interfering with B.K.'s participation in 4-H activities. Docket 35. The court dismissed 4-H as a defendant because the court found that as a state entity, 4-H was protected by sovereign immunity. Docket 35 at 13. As to Nielson and Geppert, the court determined that plaintiff satisfied the Dataphase factors and B.K. was able to show that she was likely to prevail on the merits of her procedural due process claim against defendants in their official capacities. The court did not reach any of plaintiff's other claims and did not analyze the case against defendants in their individual capacities. On August 1, 2012, defendants moved to stay the preliminary injunction pending appeal to the Eighth Circuit Court of Appeals. Docket 36.

DISCUSSION

Whether it is appropriate to suspend injunctive or equitable relief imposed by the district court during the pendency of an appeal is controlled by Federal Rule of Civil Procedure 62(c).*fn1 The rule " 'codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment.' " Knutson v. AG Processing, Inc., 302 F. Supp. 2d 1023, 1033 (N.D. Iowa 2004) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 (2d ed. 2012)). The court considers the following factors*fn2 in determining whether to grant a stay pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

Brady v. Nat'l Football League, 779 F. Supp. 2d 1043, 1045-46 (D. Minn. 2011) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987))).

A stay intrudes upon the ordinary process of judicial review and administration and is not routinely done as a matter of right even if the moving party might sustain irreparable harm. Nken, 556 U.S. at 427 (citations omitted). Because stays are matters of judicial discretion, the moving party "bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 434 (citations omitted). "Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied." Brady, 779 F. Supp. 2d at 1046 (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 at 503-05 (2d ed. 1995)).

In its order granting preliminary relief, the court determined that B.K. successfully showed that she had a likelihood of success on the merits on her procedural due process claim against defendants in their official capacities because she may have a liberty interest or privilege to show livestock animals at 4-H events. Docket 35 at 28. Defendants now claim that they will succeed on the merits of their appeal because B.K. cannot show irreparable harm or a cognizable property interest when numerous courts*fn3 have determined that a person cannot have a property interest in participation in a high school sporting event, and thus, they cannot prove they are likely to succeed on the merits or establish irreparable harm. Defendants' brief in support of their motion to stay, however, has presented neither new facts nor new law to persuade the court that its decision to grant injunctive relief was not warranted, that the area of the law is novel, or that the equities and facts of this case support a stay of any part of the injunctive relief ordered. Defendants presented the same case law in their brief in support of the motion to stay as they did in their brief in support of the motion for a preliminary injunction, and when the court analyzed these cases and issues previously it found against defendants. Nothing has changed since that decision that would help defendants' cause now.

In fact, since the court's opinion was issued that granted the preliminary relief, B.K.'s argument as to her irreparable harm and her property interest or privilege in participating in 4-H events has gotten stronger. Although it was not a 4-H show, B.K. participated in the Summer Spotlight event on July 28, 2012, which is a preview to the South Dakota State Fair. There she won the bred market steer division (winning a $100 gift certificate), the "Grand Champion Market Heifer" (winning $150), and the "Reserve Grand Champion" (winning $250). Docket 43 at 2. B.K. also participated in the 2012 Brule County 4-H Achievement Days, where she won Grand Champion market overall "Champion Market Beef" and "Reserve Grand Champion" for her goat. This was a pre-qualification event for the State Fair. ...


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