United States District Court, D. South Dakota
PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA, and CAROL E. BALL, M.D., Plaintiffs,
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
[Copyrighted Material Omitted]
For Planned Parenthood
Minnesota, North Dakota, South Dakota, Carol E. Ball, M.D., Plaintiffs: Andrew
D. Beck, PRO HAC VICE, Brigitte Amiri, PRO HAC VICE, ACLU (New York, NY), New
York, NY; Diana O. Salgado, PRO HAC VICE, Planned Parenthood Federation of
America, Washington, DC; Jennifer R. Sandman, PRO HAC VICE, Planned Parenthood
Federation of America, New York, NY; Michael Drysdale, PRO HAC VICE, Dorsey &
Whitney LLP, Minneapolis, MN; Roger K. Evans, PRO HAC VICE, Planned Parenthood
Federation of America, Inc., Legal Action for Reproductive Rights, New York, NY;
Stephen D. Bell, Dorsey & Whitney LLP, Denver, CO.
For Dennis Daugaard,
Governor, in his official capacity, Marty Jackley, Attorney General, in his
official capacity, Doneen Hollingsworth, Secretary of Health, Department of
Health, in her official capacity, Robert Ferrell, M.D., President, Board of
Medical and Osteopathic Examiners, in his official capacity, Defendants: John P.
Guhin, Patricia J. Archer, LEAD ATTORNEYS, Attorney General of South Dakota,
For Alpha Center, Black
Hills Crisis Pregnancy Center, Intervenor Defendants: Rory King, LEAD ATTORNEY,
Bantz, Gosch, Cremer, Peterson, Sommers & Wager, Aberdeen, SD; Harold J.
Cassidy, PRO HAC VICE, The Cassidy Law Firm, Shrewsbury, NJ.
MEMORANDUM OPINION AND ORDER
KAREN E. SCHREIER,
UNITED STATES 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.
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. 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, 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. Docket 54 at 20. 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, 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.
I. Voluntary Dismissal of Counts 8 and ...