United States District Court, E.D. Arkansas, Western Division
ORDER
Kristine G. Baker United States District Judge
At the
hearing on July 22, 2019, defendants moved the Court to
consider all the exhibits in Planned Parenthood Arkansas
and Eastern Oklahoma v. Jegley, No. 4:15-cv-00784-KGB
(“Jegley”), as part of the record in
this matter. Plaintiffs objected to this request, and the
Court informed the parties that it would rule on this matter
separately.[1] For the reasons set forth below, the Court
declines to incorporate all the exhibits from Jegley
into the record in this case.
I.
Background
For
clarity's sake, the Court will recount the various
arguments made regarding the relationship between this case
and Jegley. First, plaintiffs filed along with their
motion for temporary restraining order and/or preliminary
injunction a motion for expedited consolidation or, in the
alternative, to give notice of a related case (Dkt. No. 3).
In that motion, plaintiffs represented that
“consolidation or an order deeming the cases related is
warranted here because (i) the two litigations involve a
common set of factual and legal issues, (ii) there are
overlapping discovery issues and witnesses, and (iii)
consolidation would avoid the risk of inefficient or
inconsistent rulings.” (Dkt. No. 3, at 2). United
States District Court Judge Billy Roy Wilson granted
plaintiffs' motion and transferred the present matter
(Dkt. No. 14).
Defendants
filed an “expedited motion to reconsider ex
parte consolidation order.” (Dkt. No. 22). In
support of their motion, defendants argued that “it is
clear that the claims in this case and Jegley have
nothing to do with one another.” (Dkt. No. 23, at 1).
Defendants also argued that “the usefulness of
Jegley's discovery in this case is called into
question by PPAEO's own representations to the Court in
seeking dismissal of Jegley without
prejudice.” (Id., at 4). This Court concluded
that, since the evidence and issues raised in this case and
Jegley significantly overlap, it would not
reconsider the transfer (Dkt. No. 26, at 5).
At the
July 22, 2019, hearing, defendants took the position that the
entire record in Jegley is relevant to this case and
moved to submit that record in its entirety as an exhibit at
the hearing, arguing that plaintiffs' prior
“misrepresentations” in Jegley call into
question plaintiffs' credibility. Plaintiffs retorted
that consolidation of this case and Jegley, by
itself, does not support incorporation of
Jegley's entire record into this case, and
plaintiffs also pointed out that defendants did not reference
exactly which parts of the Jegley record they wished
to be considered.
Finally,
in defendants' latest motion for expedited
preliminary-injunction-proceeding discovery, defendants state
that, if the Court does not allow expedited discovery in this
case, the parties intend to conduct discovery in
Jegley (Dkt. No. 86, at 3). In support of this
argument, defendants dropped a footnote in which they argue
that, if the Court were to adopt the voluntary dismissal to
which they are unopposed in that case, then the factual
findings in Jegley “would be rendered null
upon dismissal.” (Id., n.3 (citing In re
Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d
213, 219 (8th Cir. 1977)). Defendants also assert that
“it does not appear that the Court will grant that
motion . . . given its reliance upon numerous factual
findings in [Jegley] . . . .” (Id.).
II.
Discussion
The
Court declines to wholesale incorporate the record from
Jegley into this case. First, the Court's
temporary restraining order in this case does not
specifically rely upon record evidence from Jegley
(Dkt. No. 83). While this Court's latest temporary
restraining order cites language from its second preliminary
injunction order in Jegley, nowhere does the
temporary restraining order incorporate any factual findings
from Jegley. Instead, in the temporary restraining
order, this Court quoted language from Jegley to
describe the outcome and procedural disposition of that case
(Id., at 125-26). Specifically, this Court noted
that the current “floor of care” in Arkansas
differs since Section 1504(d) of Arkansas Act 577 imposes a
“contracted physician” requirement upon
medication abortions but not surgical ones (Id., at
126). This Court's conclusion is a straightforward
description of governing statutory law in Arkansas, not a
“reliance on numerous factual findings” from
Jegley. Curiously, despite making this claim,
defendants cite no specific factual findings from this
Court's Order in the current case that are or depend on a
factual finding from Jegley.
Second,
defendants have cited no authority to support their position
that the transfer from Judge Wilson to this Court
automatically incorporates the records from both cases into
one another. As the Court noted in its Order denying
reconsideration of that transfer, the transfer was proper
either as a related case designation or as a consolidation
under Rule 42 of the Federal Rules of Civil Procedure. The
Eighth Circuit Court of Appeals has held that “each
suit retains its individual nature” when “[the
consolidation is] an arrangement for joint proceedings and
hearings, for convenience . . . .” Tri-State
Hotels, Inc. v. F.D.I.C., 79 F.3d 707, 711 (8th Cir.
1996) (alterations in original) (quoting Mendel v. Prod.
Credit Ass'n of the Midlands, 862 F.2d 180, 182 (8th
Cir. 1988)) (holding that, where consolidation had occurred,
lack of finality in one case did not preclude an appeal in
the other since the two cases had not been “formally
merged for all purposes”). To the extent this case and
Jegley have been consolidated under Rule 42, the
Court has not “formally merged” these cases for
all purposes. Id. Thus, this Court determines at
this stage of the proceeding that the record from
Jegley is not automatically incorporated into this
case.
Finally,
the Court addresses defendants' argument that this Court
should not dismiss Jegley because the Court relied
upon factual findings in Jegley and because
dismissal of Jegley would render the findings in
that case a “nullity.” In the first instance, the
case cited by defendants, In re Piper Aircraft, is
inapposite. There, two cases were consolidated, and in one of
those cases a Southern District of Florida district court
denied class certification. 551 F.2d at 216 n.5. That case
was then voluntarily dismissed. Id. at 216. A
district court in the Western District of Missouri then
considered the question of class certification and held that
the Florida district court's decision was conclusive.
Id. at 219. The Eighth Circuit reversed, holding
that the Florida decision had no collateral effect because
“[t]he effect of a voluntary dismissal without
prejudice is to render the proceedings as a nullity and leave
the parties as if the action had never been brought.”
Id. (citations omitted). Further, as discussed
above, nothing in this Court's latest temporary
restraining order suggests that the Court's holding was
compelled by any holding or factual finding in
Jegley. Thus, to the extent Jegley might be
rendered a “nullity” if the Court adopts the
pending unopposed motion to dismiss in that case, the Court
disagrees that its rationale for the temporary restraining
order in the current case will be undermined.
With
all of that said, the Court does not foreclose the
possibility of incorporating specific parts of the
Jegley record into this case at this stage of the
proceedings. However, the Court is not obligated to hunt
through the record to find evidence that supports either
sides' positions. Stuckey, 255 F.3d at 531
(citing Dunkel, 927 F.2d at 956). Therefore,
defendants if they wish, or plaintiffs if they wish, must
point to specific segments of the record in Jegley
that they believe should be incorporated here and considered
by the Court as relevant to the arguments the parties are
making in this case.
Further,
the Court at this point in the litigation takes no position
on whether to merge these two cases for all purposes at some
point in the litigation, see Tri-State Hotels, Inc.,
79 F.3d at 711, but the Court will not do so without first
receiving briefing from all parties on the issue. The Court
also notes that neither party has withdrawn its support for
the motion to dismiss pending in Jegley. At this
stage, the Court focuses the parties' attention on
designating portions of the record in Jegley for
this Court to consider, if they choose to do so, and
addressing the merits of the plaintiffs' motion for
preliminary injunction currently pending before the Court.
The
Court has under advisement defendants' motion for
expedited preliminary-injunction-proceeding discovery (Dkt.
No. 86) and will ...