Civil Action No. 2:19cv365-MHT.

YASHICA ROBINSON, M.D., et al., on behalf of themselves, their patients, physicians, clinic administrators, and staff, Plaintiffs, v. STEVEN MARSHALL, in his official capacity as Alabama Attorney General, et al., Defendants.

United States District Court, M.D. Alabama, Northern Division.

April 16, 2020.


The plaintiffs, abortion providers in Alabama, filed this lawsuit in 2019 to challenge an Alabama statute that imposed criminal penalties on abortion providers for nearly all abortions regardless of fetal viability, and thereby effectively banned most pre-viability abortions. That same year the court granted a motion for a preliminary injunction enjoining the law. See Robinson v. Marshall, 415 F.Supp.3d 1053 (M.D. Ala. 2019).

On March 30, 2020, the plaintiffs filed a motion for leave to file a supplemental complaint, along with a new motion for a temporary restraining order and preliminary injunction. See Plaintiffs' Emergency Motion to File a Supplemental Complaint Pursuant to Fed. R. Civ. P. 15(d) (doc. no. 72); Plaintiffs' Emergency Motion for a Temporary Restraining Order and Preliminary Injunction (doc. no. 73). Due to the need to move quickly, the court set oral argument on the motions for the same day. Based upon the oral argument and the plaintiffs' briefing, the court then granted the motion for leave to file the proposed supplemental complaint and ordered the plaintiffs to file it as an amended complaint. See Order Granting Plaintiffs' Motion to File a Supplemental Complaint (doc. no. 78). However, because the defendants had not had a sufficient opportunity to respond to the motion in writing at that point, the court granted them an opportunity to file objections to the order allowing the supplemental complaint and promised to give the supplementation motion full reconsideration upon receipt of the briefing.

This case is now before the court on the defendants' objections to the order granting the motion to supplement the complaint. Upon receiving the written objections, the court gave the motion full reconsideration, but the objections did not change the court's conclusion. However, due to the time-sensitive need to resolve the new motion for a preliminary injunction that was filed along with the motion to supplement the complaint, the court did not have time to issue an opinion and order on the objections until now. The court now memorializes the decision that it made on the objections prior to issuing its 2020 preliminary injunction. See Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1847128, ___ F. Supp. 3d ___ (M.D. Ala. Apr. 12, 2020) (granting 2020 preliminary-injunction motion). For the reasons explained below, the court overrules the objections to the order granting the motion for leave to file a supplemental complaint.

In 2019, the plaintiffs filed this lawsuit to challenge an Alabama statute that would ban the performance of any abortion except to avert death or serious health risk to the patient and would impose criminal liability on abortion providers for violating the ban. See Verified Complaint for Declaratory and Injunctive Relief (doc. no. 1). They contended that the statute violated the substantive-due-process rights of their patients to terminate a pregnancy before viability. The court granted a preliminary injunction enjoining enforcement of the law as to pre-viability abortions. See Robinson v. Marshall, 415 F.Supp.3d 1053 (M.D. Ala. 2019).

The plaintiffs' proposed supplemental complaint added a challenge to a March 2020 order issued by the State Health Officer in response to the COVID-19 pandemic requiring the delay of all medical procedures, including pre-viability abortions, subject to certain exceptions for treatment necessary for emergency medical conditions, serious risk to the patient's health, and ongoing treatment. See Proposed Supplemental Complaint (doc. no. 72-1). The order could be enforced via criminal penalties on abortion providers. See id. at 20 ¶ 56. As in the original complaint, the supplemental complaint challenged the state health order as a violation of the substantive-due-process rights of the plaintiffs' patients to terminate a pregnancy before viability.

Federal Rule of Civil Procedure 15(d) allows a court, "[o]n motion and reasonable notice" and "on just terms, [to] permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." The Rule "is intended to give the court broad discretion in allowing a supplemental pleading." Fed. R. Civ. P. 15(d) advisory committee's note to 1963 amendment.

Courts take a liberal approach to motions to supplement complaints under Rule 15(d). See, e.g., U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (1st Cir. 2015), cert. denied, 136 S.Ct. 2517 (2016). See also Harris v. Garner, 216 F.3d 970, 984 (11th Cir. 2000) (noting "the liberal allowance of amendments or supplements to ... pleading under Rule 15"). As this court previously explained, "[t]his liberality is reminiscent of the way in which courts have treated requests to amend under Rule 15(a)'s leave `freely give[n]' standard." W. Alabama Women's Ctr. v. Miller, 318 F.R.D. 143, 148 (M.D. Ala. 2016) (quoting Gadbois, 809 F.3d at 7 (citations omitted)). "As Judge Haynsworth famously put it, `a supplemental pleading ... is a useful device, enabling a court to award complete relief, or more nearly complete relief, in one action, and to avoid the cost, delay, and waste of separate actions which must be separately tried and prosecuted. So useful they are and of such service in the efficient administration of justice that they ought to be allowed as of course, unless some particular reason for disallowing them appears....'" Id. (quoting New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 28-29 (4th Cir. 1963), cert. denied, 376 U.S. 963 (1964)).

Nevertheless, there are limits on a court's discretion. In addition to the requirement that supplementation must be based on a "transaction, occurrence, or event that happened after the date of the pleading to be supplemented," Fed. R. Civ. P. 15(d) (emphasis added), the supplementation must have "some relation" to what is sought to be supplemented. Rowe v. U.S. Fid. & Guar. Co., 421 F.2d 937, 943 (4th Cir. 1970).

In deciding whether to allow a supplemental pleading, courts must "weigh the totality of circumstances." Gadbois, 809 F.3d at 7. Courts should consider factors such as whether the supplementation would be futile, whether the opposing party would be prejudiced, whether there has been unreasonable delay in moving to supplement, and whether supplementation would facilitate efficient resolution of the claims. See Gadbois, 809 F.3d at 7. See also 6A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1504 (3d ed.) (explaining that supplemental pleadings should be "freely granted when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action"). Where the claims in the original and supplemental complaints have the same "focal points" or objectives, supplementation may be appropriate. Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (finding no abuse of discretion where, in lawsuit with existing consent decree, district court allowed supplemental complaint to address newly enacted law where "the `focal points' of both complaints [were] the same: ensuring all ballots, but particularly provisional and absentee ballots, ... are not unfairly excluded and left uncounted due to illegal voter identification rules."); see also Keith v. Volpe, 858 F.2d 467, 474-476 (9th Cir. 1988) (finding no abuse of discretion where district court allowed filing of supplemental complaint to add new claims to case with existing consent decree because the original and new case shared the same focus).

Here, applying these principles and guidelines, the court found that allowing the plaintiffs to supplement their complaint was appropriate in the totality of the circumstances. First, there is clearly "some relation" between the original complaint and the supplemental one. Rowe, 421 F.2d at 943. While there are differences between the new and supplemental claims, there is also significant overlap in the claims and legal analysis required between the original complaint and the supplemental complaint: Both complaints challenge restrictions on pre-viability abortion under the substantive due-process analysis of Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992), and related cases. Both the original complaint and the supplemental complaint challenge restrictions that may prohibit abortion with only limited exceptions for necessary medical treatment and that may result in the imposition of criminal liability upon abortion providers. In other words, they have the same "focal points." Ne. Ohio Coal. for the Homeless, 837 F.3d at 625. Of course, in the supplemental complaint, the defendants raise distinct state interests to justify the challenged order, and the state health order is time-limited. However, the court must still engage in similar legal analysis to determine the constitutionality of the challenged order. While the defendants contend that Casey's substantive-due-process analysis is irrelevant to the plaintiffs' challenge to the state health order, the court disagrees. For under Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which the defendants contend controls, the court still must assess whether the state health order violates a fundamental right—a question that calls for analysis under Casey. See id. at 31 (noting that, in the face of "a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution" (citations omitted)). As this court has already become quite familiar with the substantive-due-process analysis through its issuance of the 2019 preliminary injunction, it is efficient for this court to handle the new claim raised in the supplemental complaint as well.

The defendants argue supplementation should be denied because the plaintiffs seek to add new parties. As an initial matter, the Supreme Court has explained: "Rule 15(d) of the Federal Rules of Civil Procedure plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice." Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 227 (1964). Thus, the mere addition of new parties would not render supplemental pleadings improper.

In any case, as a practical matter, there is no reason to believe that the naming in the supplemental complaint of `new' defendants will undermine the goal of efficient resolution. Indeed, the `new' defendants named in the supplemental complaint are not really new. Both the original complaint and the proposed supplemental complaint named the same defendants: the Attorney General, the State Health Officer, the district attorneys of the counties where the plaintiff clinics are located, the Chairman of the Alabama Board of Medical Examiners, and the Chairman of the Medical Licensure Commission of Alabama, all of whom, the plaintiffs contend, have the authority to enforce the challenged statute and order against them. Early in the case, the plaintiffs voluntarily dismissed without prejudice all of the defendants except the Attorney General. See Dismissal Orders (doc. nos. 44, 49). Importantly, however, the plaintiffs did so not because the defendants were improper parties but instead to streamline the case, based on these defendants' agreement to be bound by any relief ordered by the court against the Attorney General. See, e.g., Joint Motion to Dismiss Defendant Harris (doc. no. 24). In other words, the other defendants chose to leave the defense of the litigation to the Attorney General. Of course, the defendant State Health Officer will play a more substantial role in the next phase of the litigation because he issued the state health order at issue in the supplemental complaint. Nevertheless, there is no reason to think that the re-addition of him or the other defendants to the case will unduly complicate the case.* Moreover, the fact that the parties are essentially the same weighs in favor of allowing supplementation.

In addition, "one of the primary goals of Rule 15(d) is to aid in the complete resolution of disputes between parties." W. Alabama Women's Ctr., 318 F.R.D. at 150 (citing New Amsterdam, 323 F.2d at 28 (explaining that supplemental pleading "enabl[es] a court to award complete relief, or more nearly complete relief, in one action, and to avoid the cost, delay and waste of separate actions which must be separately tried and prosecuted"). Here, the plaintiffs' original complaint sought to remove a legal barrier to the provision of pre-viability abortions to their patients, and the court preliminarily granted such relief. The state health order that the plaintiffs challenge with the supplemental complaint has created a new dispute between the parties; furthermore, the state health order undercuts the relief the plaintiffs sought and that the court previously granted in this case, because it again prevents the plaintiffs from providing, and leaves them potentially subject to criminal liability for performing, most pre-viability abortions. Cf. Ne. Ohio Coal. for the Homeless, 837 F.3d at 625 (allowing supplemental complaint to challenge new election law that affected the terms of consent decree entered on claims in original complaint). Supplementation will allow the court to resolve completely the disputes between the parties.

Finally, there is no evidence that supplementation was unreasonably delayed or that it would unduly prejudice the defendants. See Gadbois, 809 F.3d at 7. The plaintiffs filed their motion to supplement three days after the state health order was issued. And, while the original complaint has been pending since May 2019, the case is still at a stage at which another claim could be added without inconvenience to the parties. Since the court issued its first preliminary injunction in October 2019, the case has not progressed. No scheduling order has yet been issued, and the court has under advisement the issue of whether to allow discovery in the case. See Order (doc. no. 62) (setting issue of discovery for briefing and submission). Accordingly, the defendants will face no undue prejudice from defending the plaintiffs' supplemental claims in this case as opposed to a new one.

In conclusion, because of the relation between the original complaint and the supplemental one, because supplementation has not been delayed and will not unfairly prejudice the defendants, and because of the current posture of this litigation, the court concludes that allowing supplementation would promote the efficient administration of justice and that the benefit of allowing supplementation outweighs any disadvantage that might arise.


Accordingly, it is ORDERED that the defendants' objections (doc. no. 86) to the court's order granting plaintiffs' motion to file a supplemental complaint are overruled.

A copy of this checklist is available at the website for the USCA, 11th Circuit at Effective on December 1, 2013, the fee to file an appeal is $505.00


1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders: i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986); ii. Orders appointing receivers or refusing to wind up receiverships; and iii. Orders determining the rights and liabilities of parties in admiralty cases. (d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening. (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).


* Counsel for the other defendants have received notice of the supplemental complaint through the court's CM/ECF filing system, but have not filed anything to date.


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