United States District Court, D. Minnesota
Christy L. Hall, Jill R. Gaulding, and Lisa C. Stratton,
Gender Justice, Minnesota Women's Building, Katherine S.
Barrett Wiik and Lindsey Wheeler Lee, Robins Kaplan LLP, for
Jessica M. Marsh, Sara Gullickson McGrane, and Scott D.
Blake, Felhaber Larson, for Defendant Fairview Health
Services d/b/a Fairview Southdale Hospital.
W. Strathman, Emergency Physicians P.A., Jessica L. Roe and
Shannon N.L. Cooper, Roe Law Group, PLLP, for Defendant
Emergency Physicians, P.A.
RICHARD NELSON, United States District Judge
the Court is Plaintiff's letter request that the Court
entertain motions to file amicus briefs on summary judgment
in this matter, along with a proposed procedure for doing so.
(Pl.'s Letter [Doc. No. 120].) Defendant Fairview Health
Services (“Fairview”) opposes Plaintiff's
request. (Def. Fairview's Letter [Doc. No. 121].)
hearing date is scheduled for January 13, 2017 regarding the
consideration of summary judgment and Daubert
motions in this matter. Plaintiff requests that the Court
also entertain any motions for leave to file amicus briefs,
along with a copy of the proposed brief, concerning the
summary judgment motions at the January 13 hearing.
(Pl.'s Letter at 2.) In opposition to Plaintiff's
request, Fairview argues that Defendants may be disadvantaged
by a lack of access to Plaintiff's medical records, as
“Defendants cannot release [Plaintiff's] PHI
without his permission, ” and “Plaintiff controls
who may receive information, Plaintiff can selectively limit
what information can be released, and Plaintiff can control
the timing of disclosures.” (Def. Fairview's Letter
at 3.) Plaintiff, however, anticipates that potential amici
“would likely address legal or more general transgender
healthcare issues that would not require access to
Plaintiff's medical records.” (Pl.'s Letter at
2.) Moreover, to the extent that issues arise concerning
access to medical records, Plaintiff asserts that the parties
can consider individual requests for access as they arise,
but that confidentiality issues should not be a barrier to
permitting requests for amicus briefs generally.
the parties were unable to agree about any possible
submission of motions to file amicus briefing, or the
procedures for doing so, they sought the Court's
guidance, particularly as to the procedure for presenting the
matter to the Court. Plaintiff proposes that the Court follow
the procedure set forth for the filing of appellate amicus
filings in Federal Rule of Appellate Procedure 29.
(Id. at 2.) Fairview argues that the factors for
consideration of amicus briefing are not present here and the
Court should therefore decline Plaintiff's request. (Def.
Fairview's Letter at 3-4.) Alternatively, Fairview
suggests that the Court resolve the issue later, after the
parties have filed their own briefs. (Id. at 4.)
amicus briefs may be filed is a matter left to the
court's discretion. See Mausolf v. Babbitt, 158
F.R.D. 143, 148 (D. Minn.1994), rev'd on other
grounds, 85 F.3d 1295 (8th Cir. 1996) (“The amicus
privilege rests in the discretion of the court which may
grant or refuse leave according as it deems the proffered
information timely, useful, or otherwise.” (internal
quotations omitted)). Since issues of first impression are
involved here, such filings may be particularly helpful. But
the Court is also mindful of concerns raised by Fairview
involving access to medical information, should such issues
arise. Without deciding at this time whether the Court will
grant the actual motions of potential amicus curiae or
consider amicus briefs, the Court nevertheless permits
potential amicus curiae to seek leave to file briefing,
consistent with the guidance of Federal Rule of Appellate
Procedure 29. Under this procedure, the briefing may be
considered by the Court at the same time that the Court
considers the parties' motions, should the Court formally
grant any amicus movant permission to file its proposed
rule indicates, along with its motion for leave to file, the
amicus movant must file its proposed amicus brief and also
indicate its interest in the matter, explain why an amicus
brief is desirable, and explain why the matters asserted are
relevant to the disposition of the case. See Fed. R.
App. P. 29(b). Also, following the guidance of Appellate Rule
29, except by the Court's permission, the length of any
amicus briefing may be no more than one-half the maximum
length authorized by this Court's Local Rules for a
party's principal brief. See Fed. R. App. P.
29(d); D. Minn. L.R. 7.1(f)(1). While Plaintiff requests that
the filing deadline fall no later than 7 days after the brief
of the party being supported is filed, (Pl.'s Letter at
2), the Court instead will require that any proposed amicus
brief and the motion for filing be filed consistent with the
deadline of the party being supported (i.e., due on the same
day that the brief of the supporting party is filed).
See D. Minn. L.R. 7.1(c). Except by the Court's
permission, amicus curiae may not file a reply brief, nor may
it participate in oral argument without the permission of the
Court. See Fed. R. App. P. 29(f)-(g). In all other
respects, any movant for amicus curiae shall comply with the
requirements of Appellate Rule 29, including Rule 29(c),
substituting any references to certain filing requirements in
the Federal Rules of Appellate Procedure concerning the form
of reproduction, etc., with the corollary rules in the Local
Rules of this Court. THEREFORE, IT IS HEREBY ORDERED THAT:
Court GRANTS, as modified, Plaintiff's Letter Request
[Doc. No. 120] concerning guidance on the procedures by which
potential amicus curiae may ...