Planned Parenthood Minnesota, North Dakota, South Dakota et al v. Daugaard et al

Filing 110

ORDER granting 95 Motion for Attorney Fees; sustaining 97 Objection to Magistrate Judge Order; granting 104 Motion to Dismiss; granting 105 Motion to Withdraw. Signed by U.S. District Judge Karen E. Schreier on 2/28/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PLANNED PARENTHOOD
MINNESOTA, NORTH DAKOTA,
SOUTH DAKOTA, and
CAROL E. BALL, M.D.,
Plaintiffs,
vs.

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.

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CIV. 11-4071-KES

MEMORANDUM OPINION
AND ORDER

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.
BACKGROUND
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

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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

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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.
DISCUSSION
I.

Voluntary Dismissal of Counts 8 and 9
Plaintiffs assert that due to a change in staffing, the facts that they

alleged in their amended complaint materially changed. Because of such
change, plaintiffs argue that counts 8 and 9 should be dismissed without
prejudice. Defendants do not object, but reserve any objections they could raise

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if the claims are brought again at a later date. Intervenors argue that if the
counts are dismissed they must be dismissed with prejudice.
The court will address first whether the motion should be considered as
a voluntary dismissal under Federal Rule of Civil Procedure 41(a), or as a
motion to amend under Federal Rule of Civil Procedure 15.1 Federal Rule of
Civil Procedure 41(a) states that parties may voluntarily dismiss “an action,”
but says nothing about individual claims within an action. See Fed. R. Civ. P.
41(a)(2) (“[A]n action may be dismissed at the plaintiff’s request only by a court
order[.]”). “But while often dubbed a rule 41(a) voluntary dismissal, the
procedure [whereby a court grants plaintiff’s motion to dismiss one count of a
multi-count complaint] is more properly viewed as a Rule 15 amendment to the
complaint.” Gronholz v. Sears, Roebuck & Co., 836 F.2d 515, 518 (Fed. Cir.
1987) (quotations and citations omitted); see also Envtl. Dynamics, Inc. v. Robert
Tyler & Assocs., Inc., 929 F. Supp. 1212, 1227-28 (N.D. Iowa. 1996) (citations
omitted) (“[Plaintiff’s] motions for partial summary judgment ‘dismissing’ some,
but not all, of its claims . . . must be construed as having been brought not
pursuant to Fed. R. Civ. P. 41(a)(2), but pursuant to Fed. R. Civ. P. 15.”). The
court finds that because the request for dismissal pertains only to a specific

1

The Eighth Circuit Court of Appeals has characterized the difference
between Rule 41(a)(2) and Rule 15(a) as “more technical than substantial.”
Wilson v. Crouse-Hinds Co., 556 F.2d 870, 873 (8th Cir. 1977)
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claim and not the entire action, it is more properly viewed as a motion to
amend.
Second, the court will address whether the amendment should be
allowed. After the time period for amending pleadings as a matter of course has
passed, Rule 15 provides that “a party may amend its pleadings only with the
opposing party’s written consent or the court’s leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend
should be granted unless “there are compelling reasons such as undue delay,
bad faith, or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the non-moving party, or
futility of the amendment.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709,
715 (8th Cir. 2008) (quotation and citation omitted). The burden of proving
prejudice lies with the party opposing the motion. Roberson v. Hayti Police
Dep’t, 241 F.3d 992, 995 (8th Cir. 2001).
In this case there is no evidence of undue delay on the part of plaintiffs.
The case has progressed normally throughout the discovery process absent
some minor disagreements by the parties that will be discussed below.
Although this voluntary motion to dismiss was brought approximately seven
months after plaintiffs filed their third amended complaint, the motion was
brought well before the dispositive motions deadline, which is currently set for
May 30, 2013. Docket 94 at 2.

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There is no evidence that plaintiffs are moving to dismiss counts 8 and 9
because of bad faith. The 72-hour requirement imposed a waiting period of 72
hours from the time a woman engages in the required initial consultation with
a physician until she may proceed with an abortion with the same physician
who conducted her initial consultation. As alleged in the third amended
complaint, plaintiffs claimed that such a wait imposed an undue burden on
women’s reproductive rights and violated their right to equal protection of the
laws.
Plaintiffs explain that its factual circumstances have changed. At the
time of filing, plaintiffs alleged that the waiting period would prove to be much
longer than 72 hours because the physician who traveled from out of state to
conduct abortion services could not come to Sioux Falls, South Dakota,
regularly and could not see a woman for the second time soon or immediately
after the 72-hour wait lapsed. The effect was that the wait period would be
closer to a week or up to a month between visits. Plaintiffs state that it now
employs a physician whose schedule allows the waiting period between initial
consultation and providing of abortion services to be closer to the 72-hour
waiting period mandated by the statute. Thus, the facts underlying the
amended complaint are no longer true and the same degree of constitutional

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violations are not present.2 There is no appearance of bad faith, and this
rationale also amounts to good cause for any delay in bringing the motion to
dismiss or amend because the change in circumstances did not exist until
recently.
Finally, the amendment would not be futile because it would result in the
dismissal or removal of counts. For these reasons, and because the court
should freely grant leave to amend, plaintiffs’ motion to amend its complaint to
dismiss counts 8 and 9 is granted under Federal Rule of Civil Procedure 15.3
Intervenors argue that if the court grants dismissal it must be with
prejudice. The court finds, however, that there is no support for the conclusion

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Plaintiffs note that they still maintain that the 72-hour requirement
imposes an undue burden on women’s reproductive rights even if the staff can
conduct dual visits close to the 72-hour wait period. Plaintiffs claim, however,
that this issue is not compatible with the litigation schedule for litigating the
pregnancy help center mandate and they wish to create the clearest factual
record in front of this court in light of the prior litigation in the case of Planned
Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc).
3

Although the court analyzed this motion as being brought under
Federal Rule of Civil Procedure 15, the court also finds that it would have
reached the same result had it considered and weighed the factors under
Federal Rule of Civil Procedure 41(a)(2). See Paulucci v. City of Duluth, 826 F.2d
780, 783 (8th Cir. 1987) (considering the following factors: “(1) the defendant’s
effort and the expense involved in preparing for trial, (2) excessive delay and
lack of diligence on the part of the plaintiff in prosecuting the action, (3)
insufficient explanation of the need to take a dismissal, and (4) the fact that a
motion for summary judgment has been filed by the defendant[,]” (5) “emotional
and psychological trauma associated with the experience of defending another
lawsuit,” (6) “the prejudice resulting from uncertainty over title to land,” and (7)
“the absence of a justification for the proposed dismissal.”).
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that dismissal should be with prejudice or that conditions should be imposed
upon dismissal at this time, when the court is granting a motion to amend the
complaint. Defendants and intervenors are free to raise the issues of res
judicata, claim preclusion, prejudice, or payment of costs or attorney’s fees due
to duplication of efforts if and when those issues become relevant upon the
filing of a new cause of action.
II.

Attorneys’ Fees
Plaintiffs claim that they are entitled to attorneys’ fees on the issue of the

2011 Act’s version of the risk factors and coercion provisions because the court
granted its motion for a preliminary injunction and then the South Dakota
Legislature amended the portions of the Act that the court enjoined. Following
the Eighth Circuit Court of Appeals’ recent decision in Rogers Group, Inc. v. City
of Fayetteville, Arkansas, 683 F.3d 903 (8th Cir. 2012), plaintiffs claim they are
a “prevailing party” who is entitled to attorneys’ fees at this stage of the
litigation under 42 U.S.C. § 1988. Defendants argue that plaintiffs’ motion fails
because: (1) it was procedurally deficient as to timing; (2) plaintiffs did not
include valuation information; and (3) fees should be assessed at the end of the
litigation as per the normal litigation.
Plaintiffs originally brought their constitutional challenge to the Act
under 42 U.S.C. § 1983. This court entered a preliminary injunction after
determining that plaintiffs had a substantial likelihood of success on the merits

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on four sections of the Act, two of which are at issue here, referred to as the
risk factors and coercion requirements. Under these two sections, doctors were
required to conduct a comprehensive database search for articles alleged to be
associated with abortion risk factors and conduct a specific type of screening to
check for influences of coercion. The court concluded after a detailed analysis
that these provisions would likely be found unconstitutional and preliminarily
enjoined their enforcement.
In March of 2012, the South Dakota Legislature enacted the Amended
Act, which substantially altered the provisions related to disclosure of risk
factors and screening for coercion. The Amended Act removed the portions of
the Act that the court found likely to be held unconstitutional. The Amended
Act took effect on July 1, 2012. Plaintiffs’ claim the Amended Act mooted their
challenges to the risk factors and coercion provisions of the 2011 Act. The
parties then executed a stipulation that the court approved, which dissolved
the preliminary injunction as to the risk factors and coercion provisions. The
only enjoined portions of the Act that remained relate to the pregnancy help
center mandate and the 72-hour requirement. No formal judgment was issued
because litigation is ongoing.
In Rogers Group, the Eighth Circuit determined that a plaintiff was a
“prevailing party” when a district court found that the plaintiff was likely to
succeed on the merits and granted a preliminary injunction to enjoin the

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enforcement of an ordinance even though the governing body later voluntarily
changed its ordinance to remove the potentially unconstitutional language. Id.
at 910-11. The Eighth Circuit noted that three core principles must be
considered when determining whether a party is a prevailing party in a feeshifting statute following the issuance of a preliminary injunction.4
First, a claimant must show that the legal relationship between the
parties was altered due to a court-ordered change. Id. at 910. The court found
in Rogers Group that the relationship between the parties was altered because
the court’s preliminary injunction prevented the city from enforcing its
ordinance as it had planned to do. Id. In granting the preliminary injunction,
the district court engaged in a thorough analysis of the law and facts and
concluded that Rogers Group was likely to succeed on the merits. Id. at 910-

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The Eighth Circuit quoted a D.C. Circuit opinion when articulating the
following three factors:
First, in order to be a prevailing party, a claimant must show that
there has been a court-ordered change in the legal relationship
between the plaintiff and the defendant.
Second, a prevailing party is a party in whose favor a judgment is
rendered, regardless of the amount of damages awarded.
Third, a claimant is not a prevailing party merely by virtue of
having acquired a judicial pronouncement unaccompanied by
judicial relief.
Rogers Group, 683 F.3d at 910 (quoting Select Milk Producers, Inc. v. Johanns,
400 F.3d 939, 947 (D.C. Cir. 2005)) (internal citations omitted).
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11. This was not an order that merely maintained the status quo. Id. at 910.
Second, the court found that the district court’s preliminary injunction was a
“judgment” because defendant could appeal the decision and actually did so.
Id. at 911. And third, the court concluded that there was no doubt that the
plaintiff received judicial relief because the redress or benefit that plaintiff
sought in seeking the preliminary injunction was received. Id. The court
observed that the city engaged in voluntary cessation only after a judicially
sanctioned change in the legal relationship of the parties occurred. Id.
Plaintiffs in this case are in the same or substantially similar procedural
posture as the plaintiff in Rogers Group. Plaintiffs were successful on their
request for a preliminary injunction, and the court found they were likely to
succeed on their constitutional challenge to the risk factors and coercion
portions of the Act. The court issued a preliminary injunction that prevented
defendants from enforcing four provisions within the Act. This conduct
amounted to a court-ordered change in the legal relationship between
defendants and plaintiffs because it blocked the enforcement of the state law
that was to take effect on July 1, 2011. In granting the preliminary injunction,
the district court engaged in a thorough analysis of the probability that
plaintiffs would likely succeed on the merits of their claims. Id. at 910.
Second, the preliminary injunction was a judgment because it could have
been appealed by defendants. Id. at 911. Third, plaintiffs asked this court for

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redress in the form of an injunction that prevented portions of the Act from
taking effect, and the court granted that relief. See id. (discussing the third
principle and concluding that the district court gave the plaintiff “the precise
relief that [it] had requested.”). The State acted to moot the case through
voluntary cessation only after there was a judicially sanctioned change in the
legal relationship of the parties, which was imposed by the court’s preliminary
injunction order. For these reasons, plaintiffs are a prevailing party on this
portion of the case and entitled to attorneys’ fees as costs.5
Defendants claim, however, that plaintiffs’ motion must fail because it is
untimely and substantively deficient under both the Federal Rules of Civil
Procedure and District of South Dakota Local Rules. Defendants contend that
the motion is substantively deficient because plaintiffs failed to include a
reasonable estimate of its fees with the motion. Federal Rule of Civil Procedure
54(d)(2)(B)(iii) requires that motions for attorney’s fees must “state the amount
sought or provide a fair estimate of it.” District of South Dakota Local Rule
54.1C also requires that a party moving for attorney’s fees “attach to the
motion an affidavit setting out the time reasonably spent in the litigation[.]”

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Defendants do not assert that Rogers Group does not apply or otherwise
attempt to distinguish it from this case. Instead, defendants argue that they
realize this court is bound to apply Rogers Group as Eighth Circuit precedent,
but submit “that Rogers is incorrectly decided.” Docket 100 at 8 n.3. This court
cannot overrule Rogers Group, but instead must follow it as binding precedent.
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Federal Rule of Civil Procedure 54(d)(2)(C), however, allows the court to
“decide issues of liability for fees before receiving submissions on the value of
services.” Because of the unusual procedural posture of this case, the court
finds that bifurcation of the liability issue from the valuation issue is
appropriate under the circumstances. Denial of consideration of a motion for
attorney’s fees would be too harsh a result when defendants will have a full
opportunity to contest the amount and reasonableness of attorney’s fees in its
adversary submissions to the valuation statement.
Alternatively, defendants contend that the motion for attorneys’ fees was
untimely filed. Federal Rule of Civil Procedure 54 requires that motions for
attorney’s fees “be filed no later than 14 days after the entry of judgment.” Fed.
R. Civ. P. 54(d)(2)(i). District of South Dakota Local Rules provide an extension
from 14 days “to no later than 28 calendar days after the entry of judgment
absent a showing of good cause.” D.S.D. Civ. LR 54.1C.
Although there was an order issued granting plaintiffs’ request for
preliminary relief that stated that plaintiffs were likely to succeed on their
constitutional challenges to portions of the Act, under the Rogers Group
analysis plaintiffs did not become a “prevailing party” until after the South
Dakota Legislature enacted the Amended Act and it went into effect.
Meanwhile, the litigation on the other issues continues and a final judgment
has not been issued. The traditional judgment needed for a triggering event for

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filing a motion for attorney’s fees has not occurred. Therefore, plaintiffs’ motion
is timely or good cause exists for any delay in filing the motion for attorneys’
fees.
Finally, defendants argue that it would be unreasonable to determine
attorneys’ fees in the middle of the case when plaintiffs’ overall likelihood of
success is uncertain and these attorneys’ fees could be de minimis when
considering the entire litigation. Defendants also claim that interim attorney’s
fees are the exception not the rule.6
The court has already concluded that based on Rogers Group, an award
of attorneys’ fees is appropriate in the procedural posture like exists here. Even
if plaintiffs may not succeed on the overall merits of their claims at the end of
this case, they have established that they are entitled to interim attorneys’ fees
now (the extent of which will be determined following valuation submissions)
based on their success on the preliminary injunction and the Amended Act
taking effect. Any argument as to the reasonableness of fees or plaintiffs’ ability
to separate fees for successful versus unsuccessful claims is premature. Once
plaintiffs have filed their valuation submission, defendants will be able to
present adversary submissions and argument pursuant to Federal Rule of Civil
Procedure 54(d)(2)(C).

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Defendants’ other arguments against granting attorneys’ fees discuss
the reasonableness of a potential award, the amount, or other issues that are
unrelated to liability.
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III.

Objections to the Magistrate Judge’s Order
Plaintiffs object to the magistrate judge’s order on the handling of

discovery.7 Plaintiffs initially objected to the discovery order on two different
grounds, but now only one objection remains. After the parties met and
conferred, they reached an agreement over a large part of the discovery
between plaintiffs, defendants, and intervenors. The parties disagreed,
however, on whether the intervenors would have an independent right to
depose five factual witnesses. The magistrate judge determined that the
intervenors would be allowed to take five depositions in addition to the five fact
depositions that defendants were allowed. Docket 96 at 5. Plaintiffs now argue
that this conclusion was clearly erroneous.
A district court will not overrule a magistrate judge’s order on a
nondispositive pretrial matter, such as discovery, unless the ruling was “clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. §
636(b)(1)(A); Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007).
The district court’s standard of review on an appeal of a magistrate judge’s
order on a nondispositive issue is deferential. Reko v. Creative Promotions, Inc.,

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The first objection was to the magistrate judge’s conclusion that
intervenors will be allowed to participate in discovery on the topic of the 72hour wait period. Plaintiffs withdrew this portion of the objection once they
moved to dismiss counts 8 and 9, which refer to the 72-hour wait period issue.
Docket 105. Because the court has already decided that it will grant plaintiffs’
motion to amend its complaint to voluntarily dismiss these counts, plaintiffs’
motion to withdraw this portion of their objection is granted.
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70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). A finding is clearly erroneous in
this instance when “ ‘although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’ ” Id. (quoting Chakales v. Comm’r of Internal Rev.,
79 F.3d 726, 728 (8th Cir. 1996)).
The court finds that the magistrate judge’s conclusion that intervenors
are entitled to five factual depositions in addition to the five depositions
designated by defendants is clearly erroneous. In this court’s order granting
intervention, the court found “that reasonable restrictions on applicants’
involvement in this action” was necessary and that the restrictions pertained to
both form and scope. Docket 54 at 19. The court specifically noted that the
intervenors’ interests were only invoked with the pregnancy help center
mandate and that “[t]he State can adequately represent applicants’ interest in
any other area that does not relate to the pregnancy help center mandate.” Id.
The court also found that defendants and intervenors must confer and file joint
documents when they take the same position on an issue and that the
intervenors were “restricted from initiating unilateral, independent discovery
and must obtain permission from the magistrate judge or the district court
before engaging in independent discovery.” Id. at 20. The court did state that
the magistrate judge would “establish more precise boundaries of [intervenors’]
participation.” Id.

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The discovery order established that “[t]here will be a maximum of five
depositions for each party[.]” Docket 70. The parties argue about whether
intervenors are a “party” to the suit and as a result entitled to five separate
depositions. In his discovery order, the magistrate judge assessed this court’s
intervention order and discussed the general principles behind discovery and
litigation. The magistrate judge concluded that each party is entitled to
establish the facts they need to prevail by conducting discovery from five fact
witnesses and that because there may be some necessary overlap, defendants,
plaintiffs, and intervenors are all allowed to take their own depositions.
While the magistrate judge had leeway to establish further parameters of
the parties’ discovery here, the magistrate judge failed to remain mindful of the
conditions that were established by the district court in the order granting
intervention “considering the history and complexity of this case.” Docket 54 at
20. The magistrate judge reached his conclusion based on discovery in
common litigation situations. This case is not common, and the court
expressed as much in the carefully tailored limits on intervenors’ participation
in discovery. Unlike a common civil case where multiple defendants are each
concerned about the extent of their own personal liability and their interests
may conflict with codefendants, here the only issue is whether the statute is
constitutional. Intervenors do not have any personal liability to be concerned
about that is inconsistent with defendants’ interests. The magistrate judge’s

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choice to afford intervenors five independent factual depositions was clearly
erroneous in light of the court’s intervention order.
Defendants and intervenors should consult one another and reach
agreement as best they can on the five fact witnesses to be deposed. If
defendants and intervenors are unable to reach agreement on the five joint fact
witnesses and can show good cause, intervenors may move the court for
permission to exceed the five joint fact witnesses.
CONCLUSION
Plaintiffs are given leave to amend their complaint, which effectively will
dismiss counts 8 and 9 of the third amended complaint without prejudice,
because they have established that the factual situation supporting those
claims has substantially changed since filing this cause of action. Plaintiffs also
have shown that attorneys’ fees are appropriate because they were a “prevailing
party” on the risk factors and coercion requirements of the Act. Because the
court is dismissing counts 8 and 9, plaintiffs’ objection to the magistrate
judge’s order related to those claims is moot, and their motion to withdraw it is
granted. Finally, plaintiffs’ objection to the magistrate judge’s discovery order
as it applies to intervenors’ independent depositions is sustained. Accordingly,
it is
ORDERED that plaintiffs’ motion to amend its complaint to dismiss
counts 8 and 9 of the third amended complaint (Docket 104) is granted.

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Plaintiffs will file their fourth amended complaint by April 1, 2013, and the
portion of the preliminary injunction relating to the 72-hour wait will dissolve
upon the filing of the fourth amended complaint.
IT IS FURTHER ORDERED that plaintiffs’ motion to withdraw a portion
of its objection to the magistrate judge’s order (Docket 105) is granted.
IT IS FURTHER ORDERED that plaintiffs’ motion for attorneys’ fees
(Docket 95) is granted. Plaintiffs are to file their valuation submissions for
attorneys’ fees by March 28, 2013.
IT IS FURTHER ORDERED that plaintiffs’ remaining objection to the
magistrate judge’s order on discovery (Docket 97) is sustained.
Dated February 28, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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