Nkemakolam et al v. St. John's Military School et al

Filing 434

MEMORANDUM AND ORDER denying 430 Motion for Leave to File Under Seal. Signed by District Judge John W. Lungstrum on 03/25/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

YOLANDA NKEMAKOLAM,
as Parent and Next Friend of K.N., et al.,

)
)
)
Plaintiffs,
)
)
v.
)
)
ST. JOHN’S MILITARY SCHOOL,
)
)
Defendant.
)
)
_______________________________________)

Case No. 12-2132-JWL

MEMORANDUM AND ORDER
This matter is presently before the Court on plaintiffs’ motion for leave to file
under seal their motion for approval of a settlement with the minor plaintiffs (Doc. #
430). For the reasons set forth below, the motion is denied.
The Tenth Circuit has discussed the burden that would apply to a party seeking
to seal judicial records, as follows:
Courts have long recognized a common-law right of access to
judicial records. This right, however, is not absolute. The presumption of
access can be rebutted if countervailing interests heavily outweigh the
public interests in access. The party seeking to overcome the presumption
bears the burden of showing some significant interest that outweighs the
presumption.
See Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citations and internal
quotations omitted). Judge Crow of this district has expanded on that burden:

This common-law right derives from the public’s interest in understanding
disputes that are presented to a public forum for resolution and is intended
to assure that the courts are fairly run and judges are honest. The court
looks to the relevant circumstances in deciding whether the parties’
asserted interests are significant and outweigh the public’s presumed right
of access. That a party’s request to seal is unopposed or that it refers to
material protected from disclosure by a protective order is not, in itself,
sufficient basis for this Court to seal. The moving party still must
establish a harm sufficient to overcome the public’s right of access to
judicial records. Documents should be sealed only on the basis of
articulable facts known to the court, not on the basis of unsupported
hypothesis or conjecture. Specifically, the party must come forward with
evidence as to the nature of the public or private harm that would result if
it were so filed. A moving party must submit particular and specific facts,
and not merely stereotyped and conclusory statements.
See Stormont-Vail Healthcare, Inc. v. BioMedix Vascular Solutions, Inc., 2012 WL
884926, at *1 (D. Kan. Mar. 14, 2012) (citations and internal quotations omitted).
This Court applied these standards to a request to unseal settlement documents
in Barnwell v. Corrections Corporation of America, No. 08-2151-JWL (D. Kan. Aug.
27, 2009) (slip. op.). In that case, the Court followed the numerous courts that have held
that the mere fact that parties have negotiated a “confidential” settlement is not sufficient
to outweigh the strong presumption of public access to judicial records. See id., slip. op.
at 4-5 (citing cases). The Court also noted that, in the absence of an objection, it has
typically honored the negotiated terms of a settlement agreement containing a
confidentiality provision “because it recognizes that the parties are not gratuitously
seeking court approval of their settlement but are required to do so and, but for that
requirement, the agreement would not be maintained in the court’s files.” See id., slip.
op. at 3. The Court further noted that, once a third party has come forward, the Court
2

would then have the opportunity to assess fully the merits of sealing the agreement, as
it did in that case. See id., slip. op. at 4.
In the present case, the Court concludes that the merits of the propriety of sealing
any settlement documents should be addressed at this juncture, in light of the fact that
the public (through the media) has already demonstrated a keen interest in this litigation
and the resolution reached by the parties. In the instant motion, plaintiffs have stated
that the parties “desire that the privacy of the documents be protected,” but they have not
addressed the standards for restricting public access to judicial records and thus have
failed to make the necessary showing for sealing of the proposed motion and
attachments. Accordingly, the Court denies plaintiffs’ motion for leave.1

IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs’ motion for
leave to file under seal (Doc. # 430) is denied.

IT IS SO ORDERED.

Dated this 25th day of March, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

1

The parties would also need to make a sufficient showing to support any request
that a public hearing in this case be closed.
3