Let Them Play MN; Jane Doe 1, both individually and as parent and guardian of Jane Doe 2 and John Moe 3, minors; John Moe 4, as parent and guardian of John Moe 5, a minor; Jane Doe 6; Jane Doe 7, as parent and legal guardian of John Moe 8 and Jane Doe 9, minors, Plaintiffs, v. Governor Tim Walz, in his official capacity; Attorney General Keith Ellison, in his official capacity; Commissioner Jan Malcolm, in her official capacity; Commissioner Tarek Tomes, in his official capacity as designated coordinator of youth sports for the Administration of Governor Tim Walz; Minnesota Department of Health, Defendants.
File No. 21-cv-79 (ECT/DTS)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
February 8, 2021
Cicely R. Miltich and Elizabeth C. Kramer, Office of the Minnesota Attorney General, St. Paul, MN, for Defendants.
OPINION AND ORDER
This case concerns the state of Minnesota‘s decision to require youth athletes to wear face coverings while participating in organized sports activities and to limit spectators at organized youth sports events, both in an effort to limit the spread of COVID-19. Plaintiffs are Let Them Play MN—a non-profit corporation that opposes these restrictions—and several anonymous youth athletes, parents, and coaches. In this lawsuit,
The motion will be denied in all respects. Plaintiffs have not shown that they are likely to succeed on the merits of their constitutional claims, that they would suffer irreparable harm in the absence of an injunction, that the equities and public interest weigh in their favor, or that there is any need for expedited discovery. What Plaintiffs have shown are sincere, reasonable, and good-faith objections to Minnesota‘s policies. Plaintiffs’ primary concern is that, when worn by athletes engaged in high-intensity contact sports such as ice hockey and basketball, face coverings heighten the risk of significant injuries, and the evidence Plaintiffs have submitted to support the validity of this concern is credible. Regardless, for many decades now, our federal Constitution has been understood to give the political branches great latitude to resolve difficult questions concerning social and economic policy. These are just the type of decisions Plaintiffs challenge here: the challenged policies balance the interests of limiting the spread of COVID-19 and its sometimes-lethal consequences with the unquestionably positive benefits of permitting Minnesotans to participate in organized sports. Even if Plaintiffs had the better argument as a matter of policy, the law is clear that the appropriate audience for their argument and objections are Minnesota‘s political branches, not a federal court.
A
As most are now aware, COVID-19 is a disease caused by a virus called SARS-CoV-2. Danila Decl. ¶ 5 [ECF No. 28]. The disease has proven deadly; as of February 2, 2021, Minnesota had seen at least 462,528 confirmed cases of COVID-19 and 6,202 deaths. Id. ¶ 6. The virus is “primarily spread by respiratory droplets carried through the air and released when people talk, breathe or exhale, cough, or sneeze.” Id. ¶ 5. People can spread the virus even if they are “[a]symptomatic” or will “later become sick but are presymptomatic,” and this type of unwitting diffusion accounts for more than 50% of COVID-19 transmissions. Id. The United States Centers for Disease Control and Prevention (“CDC“) therefore recommends that people “maintain social distancing of a[t] least six feet and wear a face covering to reduce the risk of transmission.” Id. ¶ 6.
Based on these undisputed facts about the virus, as well as “published scientific literature,” the Minnesota Department of Health (“MDH“) has concluded that some settings pose greater risks of spread than others. Id. ¶ 13. For example, there is a heightened risk “when multiple persons gather close together for an extended period of time,” particularly in an indoor setting. Id. Activities that “involve higher levels of exertion and exhalation” can also pose problems because they “greatly increase the amount of airborne respiratory aerosol droplets that can carry” the virus. Id. ¶ 20. On the other hand, outdoor settings that allow for social distancing—as well as indoor settings where people wear face coverings and “do no[t] gather or linger“—are less risky. Id. ¶ 14.
The pandemic has inspired significant government responses. On March 13, 2020, the President declared a national emergency and approved major disaster declarations in all fifty states. Miltich Decl., Exs. 5–6 [ECF No. 27-5–6]. That same day, Minnesota Governor Tim Walz declared a “peacetime emergency.”
This case concerns Minnesota‘s pandemic-related restrictions on youth sports. Organized youth sports activities were first halted between March 27 and May 21, 2020, at which point they were permitted to resume with a gradually loosening set of restrictions. Compl. ¶¶ 62, 64–70. By July 1, both indoor and outdoor games and practices were once again allowed, and participants were not required to wear masks while playing. Compl. ¶¶ 70–71; see
On November 18, in response to record numbers of “new COVID-19 cases, hospitalizations and intensive care unit admissions, and deaths[,]” Governor Walz issued Executive Order 20-99, which imposed restrictions on a number of personal and business activities. Miltich Decl., Ex. 9 at 1 (“EO 20-99“) [ECF No. 27-9]. As relevant here, that order generally required “Organized Youth Sports organizations [to] stop all in-person activities—including practices, group workouts, games, and tournaments“—until December 18, 2020. Id. ¶¶ 2, 7(g).2 Two more orders in December slightly modified EO 20-99. The first extended the ban on most in-person youth sports activities through January 3, 2021, while allowing certain “[o]utdoor workouts, practices, training, [and] skill-building” to resume and allowing indoor sports facilities to reopen for individual exercise as long as “face coverings [were] worn by all persons at all times.” Miltich Decl., Ex. 10 ¶¶ 1, 7–8 (“EO 20-103“) [ECF No. 27-10]. The second extended EO 20-103‘s restrictions through January 10, 2021, but allowed public pools to open up for organized youth sports activities. See
Finally, on January 6, Governor Walz issued Executive Order 21-01, which is currently in effect. See Miltich Decl., Ex. 11 (“EO 21-01“) [ECF No. 27-11]. That order
As of January 14, 2021, MDH had posted a 16-page guidance document concerning organized youth and adult sports activities. Miltich Decl., Ex. 15 [ECF No. 27-15]. For purposes of the present motion, Plaintiffs take issue with two components of that guidance. The first is the document‘s elaboration of the face-covering requirement. It provides that face coverings must generally be “worn by all people at all times” and that “[p]eople are not permitted to remove their face coverings during activities that involve a high level of exertion.” Id. at 5–6. People with medical conditions that “make it difficult to tolerate wearing a face covering” are exempt from the requirement. Id. at 6. Athletes may temporarily remove their face coverings during several specified activities: while engaging in “wrestling contact” and gymnastic and cheer routines, during which a mask could present a choking hazard; while in the water for water sports; and while playing outside, where social distancing is possible. Id. at 5. And when a child wears a helmet that
The second restriction that Plaintiffs challenge is the limit on the number of spectators at youth sporting events. For practices, the guidance “strongly discourage[s]” spectators but allows “[u]p to one spectator per participant.” Id. at 7. For games, the guidance urges youth sports organizations to “[s]trongly consider limiting spectators to one to two people per participant,” but it imposes no absolute limit as long as they “comply with the appropriate venue guidance and capacity limits.” Id. at 8.
C
Plaintiff Let Them Play MN is a Minnesota non-profit corporation that “promotes youth participation in athletics and activities.” Compl. ¶¶ 17–18; see Gillman Decl. ¶¶ 1–2 [ECF No. 12]. Together with a group of unnamed youth sports athletes, coaches, and parents, Let Them Play first filed a lawsuit challenging Executive Order 20-99—which included the temporary ban on organized youth sports—in December 2020. See Let Them Play MN v. Walz, No. 20-cv-2505 (JRT/HB) (D. Minn.), ECF No. 1. Plaintiffs moved for
Plaintiffs filed this action three days later. See generally Compl. They claim that, through Minnesota‘s restrictions on youth sports, Defendants—Governor Walz, Attorney General Keith Ellison, the Minnesota Department of Health, Commissioner of Health Jan Malcolm, and Commissioner Tarek Tomes, Governor Walz‘s “designated coordinator of youth sports“—are violating their rights to equal protection, procedural due process, and substantive due process under the
- enforcing Executive Order 21-01 or any other order policy, practice, or procedure that disfavors or discriminates against youth athletes or youth athletics without permission from the Court;
- collecting data or applying public health terms or definitions to support predetermined policy choices that
disfavor young people and youth sports, or any other group preselected and disfavored by Defendants; and - enforcing any MDH or other State agency rule that lacks statutory authorization—including MDH‘s current face covering and spectator rules for youth sports—or that adds to or contradicts an executive order; or, alternatively,
- [enforcing] MDH‘s current face covering and spectator rules.
Pl.‘s Mot. at 1–2 [ECF No. 10]. Second, Plaintiffs seek an order authorizing them to take expedited discovery, which would include up to ten document requests, ten interrogatories, and two four-hour depositions of Defendants. Id. at 2.
II
Before considering the merits of Plaintiffs’ motion, it is worth pausing to note two jurisdictional questions. The first is which Defendants, if any, Plaintiffs may sue. The
There is, however, a second
III
Now move to the merits of Plaintiffs’ motion. A preliminary injunction is an “extraordinary remedy.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted); Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The Eighth Circuit‘s familiar Dataphase decision describes the list of considerations applied to decide
A
“While no single factor is determinative, the probability of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (internal quotation marks and citations omitted). Although this factor uses the term “probability,” the movant need not show a greater than fifty percent likelihood of success. Dwyer, 294 F. Supp. 3d at 807. And the movant “need only show likelihood of success on the merits on a single cause of action, not every action it asserts[.]” Id. “[T]he absence of a likelihood of success on the merits strongly suggests that preliminary injunctive relief should be denied.” CDI Energy Servs., Inc. v. W. River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009).
Before addressing Plaintiffs’ constitutional claims, it is necessary to say a word about the “lens through which to view [those] claims,” Heights Apartments, LLC v. Walz,
Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety.
Id. at 31. Many courts have concluded that Jacobson provides the standard for reviewing all constitutional claims that arise during a public-health crisis. See, e.g., In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020), vacated on other grounds sub nom. Planned Parenthood v. Abbott, ___ S. Ct. ___, No. 20-305, 2021 WL 231539 (U.S. Jan. 25, 2021); Lewis v. Walz, ___ F. Supp. 3d ___, No. 20-cv-1212 (DWF/HB), 2020 WL 5820549, at *4 (D. Minn. Sept. 30, 2020). Indeed, early on in the COVID-19 pandemic, the Eighth Circuit endorsed this approach, concluding that Jacobson established a “two-part framework” that governs “in the context of a public-health crisis“: a state “may implement measures that infringe on constitutional rights” unless those measures (1) have “no real and substantial relation” to public health, safety or morals or (2) are, “beyond all question, a plain, palpable invasion of rights secured by the fundamental law[.]” In re Rutledge, 956 F.3d 1018, 1027–28 (8th Cir. 2020) (quoting Jacobson, 197 U.S. at 31). In Rutledge, the Eighth Circuit held that,
The Supreme Court cast doubt on Jacobson‘s significance in November 2020 when it decided Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). The Court applied strict scrutiny in that case to evaluate the plaintiffs’ claims that state COVID-19-related restrictions on attendance at religious services violated their rights under the Free Exercise Clause of the
For purposes of this case, it is not necessary to decide between Jacobson and the “ordinary constitutional analysis.” Heights Apartments, 2020 WL 7828818, at *11. First, as discussed below, the rational-basis standard likely governs Plaintiffs’ equal-protection claims. It is far from clear that the Court in Jacobson did anything other than apply rational-basis review, particularly when one considers that the decision “pre-dated the modern tiers of scrutiny” applicable to such claims. Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring). Second, if
1
Start with the equal-protection claims. “The Equal Protection Clause of the
a
To succeed at the first step, Plaintiffs must show that they are similarly situated to another, more favorably treated group “in all relevant respects.” Carter v. Arkansas, 392 F.3d 965, 969 (8th Cir. 2004) (quoting Bills v. Dahm, 32 F.3d 333, 335 (8th Cir. 1994)); see Satanic Temple v. City of Belle Plaine, 475 F. Supp. 3d 950, 962 (D. Minn. 2020). A court must typically “look to the end or purpose of the legislation in order to determine whether persons are similarly situated in terms of that governmental system.” Gilmore v. Cnty. of Douglas, 406 F.3d 935, 938 (8th Cir. 2005) (quoting R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law: Substance and Procedure § 18.2 (3d ed. 1999)). Plaintiffs argue that youth sports have been treated less favorably than “adult sports and other non-sport activities.” Pls.’ Mem. at 39. Defendants respond that organized youth sports differ from those other groups in relevant respects. Defs.’ Mem. at 16–18.
Defendants have the better argument. First, the record does not support Plaintiffs’ assertion that EO 21-01 and MDH‘s related guidance treat youth sports less favorably than “adult sports” across the board. On the contrary, EO 21-01 subjects “Organized Adult Sports” to the same restrictions as organized youth sports; organizations and facilities must implement a “COVID-19 Preparedness Plan,” and participants must generally wear face coverings at all times.
When Plaintiffs argue that EO 21-01 treats “adult sports” more favorably, they seem to refer to the fact that the order exempts “[p]rofessional sports” and “[c]ollegiate sports” from the requirements that generally apply to “Organized Adult Sports.”
The result is the same for the “other non-sport activities” that Plaintiffs’ argue are treated more favorably than youth sports. First of all, Plaintiffs do not identify what these activities are. But even setting that aside, there is no reason to believe that the other activities are similarly situated to youth sports. That‘s because sports, by their nature, almost always involve behaviors and settings that increase the risk of spreading COVID-19—namely, multiple persons gathering closely, combined with “higher levels of exertion and exhalation.” Danila Decl. ¶ 20. Any non-sport activity that did not share these crucial characteristics would differ from youth sports in relevant respects.
b
If youth sports were similarly situated to professional and collegiate sports, the next step would be to decide the applicable degree of scrutiny with which to examine
Plaintiffs argue that heightened scrutiny is warranted because this case implicates fundamental rights. See Pls.’ Mem. at 32–34.6 The problem is that Plaintiffs have not identified with any specificity what fundamental right they believe is at play here. “A fundamental right is one which is, ‘objectively, deeply rooted in this Nation‘s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.‘” Gallagher, 699 F.3d at 1017 (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). Plaintiffs refer at one point to a “right to engage in activities necessary for their physical and mental health,” Pls.’ Mem. at 32, but more frequently they use broad phrases like “basic liberty interests,” id. at 33. Similarly, at the hearing on this motion, Plaintiffs’ counsel suggested that Plaintiffs are asserting a general right to protection from harmful government action. Given the nature of the facts and legal arguments in this case, however, Plaintiffs really seem to be asserting a more specific right: the right to participate, without restriction, in organized youth sports.
Plaintiffs provide no authority suggesting that such a right (in the relevant constitutional sense) exists. They rely principally on Ramos v. Town of Vernon, in which
c
In the absence of a suspect classification or a fundamental right, the rational-basis standard applies. Under that standard, a challenged state law will be upheld as long as it is “rationally related to a legitimate government interest.” Gallagher, 699 F.3d at 1019. Plaintiffs do not seem to dispute that Minnesota has a legitimate interest in controlling the
Rational-basis review sets a low bar. The challenged law is presumptively valid, and a plaintiff can only overcome that presumption by showing that no “reasonably conceivable state of facts” could support the law. F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313–15 (1993). A challenged law may survive even if it is both overinclusive and underinclusive in advancing the asserted interest, see Gallagher, 699 F.3d at 1019 (citing Vance v. Bradley, 440 U.S. 93, 108 (1979)), and even if it is based on “rational speculation unsupported by evidence or empirical data,” Beach Commc‘ns, 508 U.S. at 315. Moreover, the state decisionmakers’ “subjective motives” for imposing the challenged restrictions are “irrelevant for constitutional purposes.” Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 241 (8th Cir. 1994) (citations omitted). In other words, under these long-settled principles, it doesn‘t matter whether Plaintiffs have the better policy argument. The question isn‘t whether the state has made the best decision. The question the law requires us to answer is whether the challenged policies have some rational basis.
Under this standard, Plaintiffs have not shown that Minnesota‘s face-covering and spectator requirements likely violate the Equal Protection Clause. In the preamble to EO
[S]ome settings continue to pose more risks than others. Indoor activities pose higher risks than outdoor activities. Strenuous activities resulting in increased respiration pose higher risk than sedentary activities. Unpredictable settings are riskier than more predictable and controlled settings. Settings conducive to prolonged contact provide more opportunity for transmission than settings featuring more transitory interactions.
Id. Based on the whole record in this case, it is perfectly reasonable to conclude that youth sports—which often involve sustained close contact, physical exertion, and large groups of spectators—would pose a risk of transmission. According to Defendants’ evidence, sports have been associated with multiple COVID-19 outbreaks throughout the country. Danila Decl. ¶¶ 21–22, Exs. 1–5 [ECF Nos. 28-1 through 28-5]. In Minnesota, MDH has “traced at least 334 outbreaks and 10,207 positive COVID-19 cases to sports activities” and found that “[s]ports-related cases are more than twice as prevalent among high school-age children as any other age group[.]”7 Id. ¶ 23. It is also reasonable to conclude that the
To be sure, Plaintiffs present another side of the story with their evidence. They have submitted affidavits from multiple individual physicians opining that it is not safe for sports typically involve “frequent in-person interactions with a recurring group of the same people,” which makes it “much more likely that two positive COVID-19 tests are related” as compared to other settings. Danila Decl. ¶ 19.
2
Now turn to Plaintiffs’ claim that Defendants violated their right to procedural due process. To succeed on this claim, Plaintiffs must show two things: “(1) the existence of a constitutionally protected liberty or property interest; and (2) that [Defendants] deprived [them] of that interest without constitutionally adequate process.” Raymond v. Bd. of Regents of Univ. of Minn., 140 F. Supp. 3d 807, 815 (D. Minn. 2015) (citations omitted). Plaintiffs essentially argue that it violates due process for Governor Walz to require them to follow the guidance released on MDH‘s website because that guidance exceeds MDH‘s statutory authority and is being continually updated without following statutory rulemaking procedures. See Pls.’ Mem. at 34-38.
Plaintiffs are not likely to succeed on their procedural-due-process claim. First, just as Plaintiffs do not identify a fundamental right for purposes of their equal-protection and substantive-due-process claims, they have not identified a protected liberty or property interest here. “Protected liberty interests ‘may arise from two sources—the Due Process Clause itself and the laws of the States.‘” Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (quoting Kentucky Dep‘t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
Second, if Plaintiffs had identified a constitutionally protected interest, they have not shown that they were likely deprived of that interest without adequate process. All of Plaintiffs’ arguments are focused on the propriety of Minnesota‘s face-covering requirements and spectator rules under Minnesota state law. See Pls.’ Mem. at 34-38. But violations of state law, standing alone, do not ordinarily give rise to a federal due-process violation. See Holloway v. Reeves, 277 F.3d 1035, 1038 (8th Cir. 2002). What Plaintiffs seek, in practical effect, is an injunction forcing state officials to comply with state law. As noted above, the
There is also another, more fundamental flaw in Plaintiffs’ due-process claim. The Due Process Clause‘s classic procedural guarantees of notice and an opportunity to be heard only come into play “when the government makes an individualized determination, not when the government commits a legislative act equally affecting all those similarly situated.” Foster v. Hughes, 979 F.2d 130, 132 (8th Cir. 1992) (citations omitted). The idea behind this rule is that “the rights of an individual affected by a law of general applicability ‘are protected in the only way that they can be in a complex society, by [the affected individual‘s] power, immediate or remote, over those who make the rule.‘” Hartman v. Acton, ___ F. Supp. 3d ___, No. 2:20-CV-1952, 2020 WL 1932896, at *8 (S.D. Ohio Apr. 21, 2020) (quoting Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915)). It does not matter whether the government actor in question is formally a part of the legislative or executive branch; what matters is whether the action taken was “legislative”—i.e., whether it produced generally applicable “policy-type rules or standards”—or whether it was “adjudicative”—i.e., whether it “adjudicate[d] disputed facts in particular cases.” United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 245 (1973) (acknowledging that an administrative agency can engage in either type of action). This basic distinction between legislative and adjudicative acts dates back more than a century. See Bi-Metallic Inv. Co., 239 U.S. at 445; Londoner v. Denver, 210 U.S. 373 (1908); 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure § 17.8(c) (May 2020 Update).
Plaintiffs do not argue that Minnesota‘s face-covering requirements and spectator limits are anything other than legislative in character. Indeed, Plaintiffs and Defendants conceded at the hearing that the restrictions are generally applicable. So, as long as Defendants make the policies available to the public, as they undisputedly have done, no more process is required. See, e.g., Bimber‘s Delwood, Inc. v. James, ___ F. Supp. 3d ___, No. 20-CV-1043S, 2020 WL 6158612, at *14–15 (W.D.N.Y. Oct. 21, 2020); Six v. Newsom, 462 F. Supp. 3d 1060, 1073 (C.D. Cal. 2020); Hernandez v. Grisham, ___ F. Supp. 3d ___, No. CIV 20-0942 JB/GBW, 2020 WL 7481741, at *52 (D.N.M. Dec. 18, 2020); Hartman, 2020 WL 1932896, at *7–8; Hund v. Cuomo, ___ F. Supp. 3d ___, No. 20-cv-1176 (JLS), 2020 WL 6699524, at *11 (W.D.N.Y. Nov. 13, 2020). For all these reasons, Plaintiffs are not likely to succeed on the merits of their claims, which “strongly suggests” that their motion should be denied. CDI Energy Servs., Inc., 567 F.3d at 402.
B
The second Dataphase factor is irreparable harm, which “occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Gen. Motors Corp. v. Harry Brown‘s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). The harm must be “likely in the absence of an injunction,” Winter, 555 U.S. at 22, “great[,] and of such imminence that there is a clear and present need for equitable relief,” Iowa Utils. Bd. v. FCC, 109 F.3d 418, 425 (8th Cir. 1996). A plaintiff must show more than a future risk of irreparable harm; “[t]here must be a clear showing of
Plaintiffs’ only argument on this point is that their likelihood of success on the merits of their constitutional claims establishes irreparable harm. Pl.‘s Mem. at 40 (citing Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc)). There are three problems with this argument. First, Plaintiffs have not shown a likelihood of success on the merits of their claims. See Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015). Second, all of the cases Plaintiffs cite for this theory of irreparable harm involved likely
If Plaintiffs had made an independent argument for irreparable harm, they would have faced a difficult burden. Irreparable harm must be both imminent and attributable to the defendant‘s conduct. See Iowa Utils. Bd., 109 F.3d at 425; Gen. Motors Corp., 590 F. Supp. 2d at 1137. As noted above, Plaintiffs have presented evidence that wearing face coverings may cause some youth athletes to suffer physical injuries. But that generalized risk does not show that the specific Plaintiffs in this case are likely to suffer immediate injuries in the absence of an injunction and that those injuries would be attributable to Defendants’ face-covering requirements, as opposed to some other risk inherent in playing youth sports. Moreover, it is not clear on this record that an injunction against Defendants would eliminate whatever increased risk of injury flows from wearing face coverings. That‘s because such an order would not prevent private sports facilities from imposing and enforcing their own face-covering requirements.10 See Shelton v. City of Springfield, No. 6:20-cv-3258-MDH, 2020 WL 6503407, at *3 (W.D. Mo. Sept. 2, 2020) (denying a request for a temporary restraining order against a mask ordinance in part because such an order “would not prevent business[es] and churches from adopting their own facial covering requirements”). In short, Plaintiffs have not shown that they will suffer irreparable harm in the absence of the requested relief.
C
The last two factors to consider are the balance of the relative harms and the public interest. For practical purposes, these factors “merge” when a plaintiff seeks injunctive relief against the government. Nken v. Holder, 556 U.S. 418, 435 (2009); see Angelica C. v. Immigr. & Customs Enf‘t, No. 20-cv-913 (NEB/ECW), 2020 WL 3441461, at *17 (D. Minn. June 5, 2020), report and recommendation adopted, 2020 WL 3429945 (D. Minn. June 23, 2020). Once again, Plaintiffs argue only that their likelihood of success on the merits establishes that the equities and the public interest weigh in their favor. Pls.’ Mem. at 40–41. Defendants, for their part, argue that the requested injunction “would deal a major blow to Minnesota‘s efforts to stem the spread of COVID-19.” Defs.’ Mem. at 35.
Plaintiffs have not shown that the equities or the public interest favor the injunction they seek. As discussed above, Plaintiffs rely only on cases involving the
IV
Finally, along with their request for a preliminary injunction, Plaintiffs seek permission to conduct expedited discovery. Specifically, Plaintiffs would like to serve up to ten document requests and ten interrogatories on Defendants and schedule two four-hour depositions of Defendants. ECF No. 10 at 2. In their brief, Plaintiffs argue that “[t]he freedom of Minnesota kids to move, be active, and improve their mental health free from unlawful and discriminatory intrusion warrants expedited discovery,” Pls.’ Mem. at 42, but they do not say what information they seek. Defendants respond that Plaintiffs have not shown good cause for expedited discovery and that their requests would be unduly burdensome. Defs.’ Mem. at 41–44.
In this case, there is no need to consider the potential prejudice to Defendants, because Plaintiffs have not shown that there is any need for expedited discovery. First, although Plaintiffs combined their request for expedited discovery with their request for a preliminary injunction, they have not shown that the two are related. A common reason to grant expedited discovery is to ensure that the record is adequately developed in advance
Second, Plaintiffs’ discovery requests are extremely broad. The purpose of expedited discovery is to allow a party to obtain specific, limited, and identifiable pieces of information, particularly when there is some risk of spoliation or when the suit cannot reasonably proceed without the information. See, e.g., Council on Am.-Islamic Relations—Minn. v. Atlas Aegis, LLC, No. 20-cv-2195 (NEB/BRT), 2020 WL 6336707, at *6 (D. Minn. Oct. 29, 2020) (granting expedited discovery to allow plaintiffs to obtain names and contact information for ten John Doe defendants); see also 8A Richard L. Marcus, Federal Practice and Procedure § 2046.1 n.10 (3d ed. Oct. 2020 Update) (collecting cases). There is no apparent risk of spoliation here. Plaintiffs have made no attempt to limit the scope of topics to be explored in their proposed discovery. And they have not said which specific Defendants they seek to depose. Without guardrails like these, expedited discovery in this case would undoubtedly exceed its intended scope.
Finally, without any indication of what the Plaintiffs hope to discover, it is impossible to evaluate their purpose in seeking discovery. Instead, given the broad and open-ended nature of the Plaintiffs’ requests, the most natural conclusion is that they
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT Plaintiffs’ Motion for Preliminary Injunction and Expedited Discovery [ECF No. 10] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 8, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court