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

Filing 297

ORDER denying 280 Motion to Strike; Plaintiff's response to 204 Joint MOTION to Dissolve is due on or before 06/01/2021. Signed by U.S. District Judge Karen E. Schreier on 03/03/2021. (SAC)

Case 4:11-cv-04071-KES Document 297 Filed 03/03/21 Page 1 of 5 PageID #: 5734

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

PLANNED PARENTHOOD MINNESOTA,
NORTH DAKOTA, SOUTH DAKOTA and
CAROL E. BALL, M.D.;

4:11-CV-04071-KES

Plaintiffs,
ORDER DENYING MOTION TO
STRIKE AND GRANTING ADDITIONAL
TIME TO RESPOND

vs.
KRISTI NOEM, Governor, JASON
RAVNSBORG, Attorney General, KIM
MALSAM-RYSDON, Secretary of Health,
Department of Health, and JEFFREY A.
MURRAY, M.D., President of 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,

Intervenor Defendants.

Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota
and Carol E. Ball, M.D., move to strike defendants’, Kristi Noem, Governor,
Jason Ravnsborg, Attorney General, Kim Malsam-Rysdon, Secretary of Health,
Department of Health, and Jeffrey A. Murray, M.D., President of Board of

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Medical and Osteopathic Examiners, in their Official Capacities, and
intervenors’, Alpha Center and Black Hills Crisis Pregnancy Center, motion to
dissolve what remains of the preliminary injunction and all associated
affidavits (Dockets 204-277) for failure to comply with the District of South
Dakota’s Local Rules. Docket 280. In the alternative, plaintiffs request 180
days from the date of their motion to file a response. Defendants and
intervenors oppose the motion to strike and motion to extend time to file
plaintiffs’ response. Docket 284. For the following reasons, the court denies the
motion to strike and grants an extension of time to respond of 90 days from the
date of this order.
I.

Motion to Strike
The local rules require that briefs and attachments, other than

documentary evidence attached in compliance with LR 56.1(A), not exceed 25
pages or 12,000 words unless the filing party obtains prior approval of the
court. D.S.D. Civ. LR 7.1(B)(1). Any brief exceeding 25 pages must include a
certificate by the attorney stating that the brief complies with the 12,000-word
limit. Id.
Here, intervenors and defendants filed a joint motion to dissolve what
remains of the preliminary injunction. Docket 204. Intervenors filed a 55-page
brief in support of the motion. Docket 205. An attorney for intervenors certified
that the brief contained11,953 words. 1 Docket 205 at 55. Intervenors filed 67
Defendants and intervenors employed creative tactics to keep their brief
under 12,000 words. This included the removal of all spaces from their
citations to the record. See Docket 205 at 20 (using the citation
1

2

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affidavits containing declarations and depositions from physicians, experts,
intervenors’ counsel, Harold J. Cassidy, and women who are affected by the
preliminary injunction. See Dockets 206-270, 288, 295, 296. Defendants
separately filed a 36-page brief in support of the motion to dissolve. Docket
271. An attorney for defendants certified that the brief contained 11,994 words.
Id. at 36. Here, each brief’s length complies with the local rules. While
intervenors submitted a large volume of documents, the affidavits and
declarations, as documentary evidence, do not count under the word limit
imposed by LR 7.1(B)(1). Thus, the court denies the motion to strike because
the briefs comply with the local rules.
Even if the briefs and affidavits did not comply with the local rules,
striking the offending filings would not be the appropriate remedy. See, e.g.,
Thompson v. United States, 2017 WL 1164363 at *2 (D.S.D. Mar. 28, 2017)
(denying motion to quash based on non-compliance with local rules’ page
limit); Baranski v. United States, 2015 WL 7720557 at *1-2 (E.D. Mo. Nov. 30,
2015) (declining to strike memorandum that exceeded page limits); Albert v.
Larson, 2005 WL 3542872 at *9 (D. Minn. Dec. 21, 2005) (denying motion to
strike opposition that exceeded page limits). Thus, the court denies plaintiffs’
motion to strike defendants’ and intervenors’ motion to dissolve and
accompanying documents.

“Cassidy3Ex51,D’Ascoli,46:25-47:22;Cassidy3Ex52,Ball1,” which is considered
a single word in word-counting software).
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II.

Motion for Extension of Time
In the alternative, plaintiffs ask for 180 days from the filing of their

motion to strike to respond to the motion to dissolve. Docket 281 at 10.
Intervenors filed nearly 2,400 pages of affidavits and declarations that must be
reviewed and responded to by plaintiffs. Dockets 206-277. Defendants and
intervenors assert that the evidence and arguments on which plaintiffs rely are
identical to their arguments at the preliminary injunction stage and that
“[p]laintiffs already have their work essentially finished.” Docket 284 at 16. But
plaintiffs must be afforded adequate time to review the newly filed affidavits
and declarations and prepare responsive testimony where appropriate.
Further, defendants’ and intervenors’ claims of the urgency of the motion
to dissolve are not persuasive. Two of the declarations filed in support of their
motions, the First and Third Declarations of Harold Cassidy, were dated March
2020, 10 months before the motion to dissolve was filed, suggesting that the
motion has been in the works for some time. See Dockets 266, 267. And the
statutory amendments giving rise to defendants’ and intervenors’ motion was
enacted in 2018. See Docket 191 ¶ 1. This cuts against defendants’ and
intervenors’ claim that the motion must be resolved with extraordinary haste.
See Docket 284 at 15-16. Thus, intervenors’ and plaintiffs’ argument that an
expedited timeline is justified here fails, and an extension of time is appropriate
to allow plaintiffs to review and respond to the extensive affidavits filed by
defendants and intervenors.

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CONCLUSION
Defendants’ and intervenors’ motion to dissolve what remains of the
preliminary injunction complied with the local rules’ page limit. Further, even
had they exceeded the page limit, striking the pleadings is not an appropriate
remedy here. The volume of documents that intervenors and defendants filed
merits additional time for response. The court grants a 90-day extension of
time from the date of this order for plaintiffs to file a response to the motion to
dissolve. Thus, it is
ORDERED that plaintiffs’ motion to strike (Docket 280) is denied. It is
further
ORDERED that plaintiffs must file their response to the motion to
dissolve (Docket 204) on or before June 1, 2021.
DATED March 3, 2021.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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