Kollenburn et al v. County of Clackamas et al
| Caleb Kollenburn and Lanea Kollenburn |
| County of Clackamas and Clackamas Board of County Commissioners |
| 3:2021cv00049 |
| January 12, 2021 |
| US District Court for the District of Oregon |
| Marco A Hernandez |
| Civil Rights: Other |
| 28 U.S.C. § 1983 |
| None |
Docket Report
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Filing 37
Order from USCA for the 9th Circuit, USCA # 21-35157 re Notice of Appeal - Preliminary Injunction #32 . Appellants' request for leave to file an oversized motion (Docket Entry No. #3 -9) is granted. Appellants' emergency motion (Docket Entry Nos. #3 and #4 ) to stay the district court's February 24, 2021 order pending appeal is denied. See Nken v. Holder, 556 U.S. 418, 434 (2009). The briefing schedule established previously remains in effect (ecp)
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| Filing 36 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300092243, Date Receipt Issued: 03/01/2021, Amount Collected $150.00. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 35 Motion for Extension of Time to file answer or responsive pleading. Filed by All Defendants. (Ciecko, Scott) |
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Filing 34
ORDER: Granting Motion to Expedite/Accelerate #33 .The Court has reviewed Plaintiffs' submissions and continues the temporary restraining order for a period of twenty-five (25) days from the date of this Order on the same terms as previously ordered. Ordered by Judge Marco A. Hernandez. (pk1)
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| Filing 33 Motion to Expedite or Accelerate Stay Pending Appeal (FRCP 62). Expedited Hearing requested. Filed by Caleb Kollenburn, Lanea Kollenburn. (Karp, Adam) |
| USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal - Preliminary Injunction #32 . Case Appealed to 9th Circuit Court of Appeals Case Number 21-35157 assigned. (jtj) |
| Filing 32 Notice of Appeal to the 9th Circuit Filing fee $505 collected; Agency Tracking ID: AORDC-7954587. Filed by All Plaintiffs. (Karp, Adam) |
| Filing 31 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300092187, Date Receipt Issued: 02/23/2021, Amount Collected $150.00. Related Doc 7 Temporary Restraining Order. (lp) |
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Filing 30
OPINION & ORDER: Plaintiffs' Motion for Preliminary Injunction, ECF No. 11, is DENIED. The previously issued Temporary Restraining Order, ECF No. 7, will continue for seven (7) days from the date of this Order to allow Plaintiffs to seek further relief on appeal. At the end of that period, and in the absence of any further orders by this Court or the United States Court of Appeals for the Ninth Circuit, the TRO will be DISSOLVED. Signed on 2/24/2021 by Judge Marco A. Hernandez. (jp)
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| Filing 29 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300092144, Date Receipt Issued: 02/18/2021, Amount Collected $150.00. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 28 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300092142, Date Receipt Issued: 02/18/2021, Amount Collected $150.00. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 27 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300091991, Date Receipt Issued: 02/10/2021, Amount Collected $150. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 26 MINUTES of Proceedings: Hearing held regarding Motion for Preliminary Injunction #11 . The Court took the motion under advisement as of 2/5/2021. Adam P. Karp present as counsel for plaintiff(s). Scott C. Ciecko present as counsel for defendant(s). Court Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) |
| Filing 25 Declaration of Cristine Dahl . Filed by All Plaintiffs. (Related document(s): Reply to Motion #22 .) (Karp, Adam) |
| Filing 24 Declaration of Rebecca J. Huss . Filed by All Plaintiffs. (Related document(s): Reply to Motion #22 .) (Karp, Adam) |
| Filing 23 Declaration of Lanea Kollenburn . Filed by All Plaintiffs. (Related document(s): Reply to Motion #22 .) (Karp, Adam) |
| Filing 22 Reply to Motion for Preliminary Injunction #11 Oral Argument requested. Filed by All Plaintiffs. (Karp, Adam) |
| Filing 21 Acceptance/Acknowledgement of Service of Amended Complaint #15 on All Defendants Filed by All Defendants. (Ciecko, Scott) |
| Filing 20 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300091839, Date Receipt Issued: 01/27/2021, Amount Collected $350.00. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 19 Declaration of Laura Koehler in support of response. Filed by All Defendants. (Related document(s): Response to Motion, #16 .) (Ciecko, Scott) |
| Filing 18 Declaration of Melissa A. Robert in support of response. Filed by All Defendants. (Related document(s): Response to Motion, #16 .) (Ciecko, Scott) |
| Filing 17 Declaration of Scott Ciecko in support of response. Filed by All Defendants. (Related document(s): Response to Motion, #16 .) (Ciecko, Scott) |
| Filing 16 Response to Motion for Preliminary Injunction #11 oral argument requested. Filed by All Defendants. (Attachments: #1 Exhibit 101, #2 Exhibit 102, #3 Exhibit 103, #4 Exhibit 104, #5 Exhibit 105, #6 Exhibit 106) (Ciecko, Scott) |
| Filing 15 Amended Complaint Summons issued as to Defendants. Filed by Caleb Kollenburn, Lanea Kollenburn against All Defendants. (Karp, Adam) |
| Filing 14 Clerk's Notice of Deposit to a Non-interest Bearing Account - Receipt Number: ORX300091715, Date Receipt Issued: 01/19/2021, Amount Collected $350.00. Related Doc 7 Temporary Restraining Order. (lp) |
| Filing 13 Notice re Motion for Preliminary Injunction #11 , Motion for Temporary Restraining Order #5 FRCP 5.1 Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction #11 , Motion for Temporary Restraining Order #5 .) (Karp, Adam) |
| Filing 12 Declaration of Caleb Kollenburn . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction #11 .) (Karp, Adam) |
| Filing 11 Motion for Preliminary Injunction . Oral Argument requested. Filed by All Plaintiffs. (Karp, Adam) |
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Filing 10
ORDER by Judge Marco A. Hernandez. The Court adopts the parties' proposed Preliminary Injunction briefing schedule as follows: Preliminary Injunction Motion to be filed by 1/20/2021. Response is due by 1/27/2021. Reply is due by 2/1/2021. A Preliminary Injunction Hearing is set for 2/5/2021 at 10:00AM in Portland by video conference before Judge Marco A. Hernandez. The Court further Grants Plaintiff's unopposed request to reduce the daily bond amount required per Amended Order 7 from $50 a day to $29 a day, which will be retroactive from January 13, 2021 through the date of the Preliminary Injunction Hearing. Ordered by Judge Marco A. Hernandez. (jp)
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Filing 9
ORDER: Due to the Clerk's Office restriction regarding receipt of money due to the pandemic, the $50 daily bond required pursuant to the Amended Order 7 , shall be paid in weekly installments by check mailed to the Clerk's Office. Ordered by Judge Marco A. Hernandez. (jp)
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| Filing 8 Summons Issued Electronically as to County of Clackamas, and Clackamas Board of County Commissioners. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (sss) |
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Filing 7
AMENDED ORDER by Judge Marco A. Hernandez: In deciding whether to grant a motion for a TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit utilizes the "serious questions" test. All for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, " 'serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met. Id. at 1132.The Court finds that Plaintiffs have presented "serious questions going to the merits" on at least some of the claims presented in their complaint. Importantly, Plaintiffs have shown significant, irreparable harmthe euthanasia of Plaintiffs' dog and emotional support animal. The Court also finds that the balance of hardships tips in favor of Plaintiffs. While the County has housed the dog for six-months, euthanizing the dog would be irreversible and limit Plaintiffs' remedies. Clackamas County can reasonably house the dog for a short while longer while the Court resolves Plaintiffs' forthcoming Motion for a Preliminary Injunction. Finally, the Court finds that issuing a TRO is in the public interest. The public has an interest in ensuring the safety of children, but also in ensuring that the process used by Defendants to deem animals dangerous and order their euthanasia is lawful and does not violate the rights of persons with disabilities. Accordingly, the Court GRANTS Plaintiff's Motion for a Temporary Restraining Order 5. Clackamas County is RESTRAINED and ENJOINED from euthanizing or causing to be euthanized Lladk, an approximately four-year-old Alaskan Malamute canine owned by Plaintiffs, until further order of the Court. This restraining order will remain in effect until the conclusion of the preliminary injunction hearing to be set at a later date. The Court DIRECTS Plaintiffs to post a $50 bond with the Clerk of Court for deposit in the Treasury Registry Fund per LR 67-1(b) no later than 4:30 p.m. on January 13, 2021, and on everyday thereafter as long as this Temporary Restraining Order is in place. The Court DIRECTS the parties to confer and submit a joint proposed briefing schedule and times for a hearing on the Preliminary Injunction by January 14, 2021. (eo)
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Filing 6
ORDER: In deciding whether to grant a motion for a TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit utilizes the "serious questions" test. All for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, " 'serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met. Id. at 1132.The Court finds that Plaintiffs have presented "serious questions going to the merits" on at least some of the claims presented in their complaint. Importantly, Plaintiffs have shown significant, irreparable harmthe euthanasia of Plaintiffs' dog and emotional support animal. The Court also finds that the balance of hardships tips in favor of Plaintiffs. While the County has housed the dog for six-months, euthanizing the dog would be irreversible and limit Plaintiffs' remedies. Clackamas County can reasonably house the dog for a short while longer while the Court resolves Plaintiffs' forthcoming Motion for a Preliminary Injunction. Finally, the Court finds that issuing a TRO is in the public interest. The public has an interest in ensuring the safety of children, but also in ensuring that the process used by Defendants to deem animals dangerous and order their euthanasia is lawful and does not violate the rights of persons with disabilities. Accordingly, the Court GRANTS Plaintiff's Motion for a Temporary Restraining Order #5 . Clackamas County is RESTRAINED and ENJOINED from euthanizing or causing to be euthanized Lladk, an approximately four-year-old Alaskan Malamute canine owned by Plaintiffs, until further order of the Court. This restraining order will remain in effect until the conclusion of the preliminary injunction hearing to be set at a later date. The Court DIRECTS Plaintiffs to post a $50 bond with the Clerk of Court no later than 4:30 p.m. on January 13, 2021, and on everyday thereafter as long as this Temporary Restraining Order is in place. The Court DIRECTS the parties to confer and submit a joint proposed briefing schedule and times for a hearing on the Preliminary Injunction by January 14, 2021. Ordered by Judge Marco A. Hernandez. (jp)
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| Filing 5 Motion for Temporary Restraining Order . Expedited Hearing requested. Filed by All Plaintiffs. (Attachments: #1 Proposed Order) (Karp, Adam) |
| Filing 4 Declaration of Lanea Kollenburn . Filed by Lanea Kollenburn. (Karp, Adam) |
| Filing 3 Proposed Summons Filed by Caleb Kollenburn, Lanea Kollenburn. (Karp, Adam) |
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Filing 2
Notice of Case Assignment to Judge Marco A. Hernandez and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 5/12/2021. Joint Alternate Dispute Resolution Report is due by 6/11/2021. Pretrial Order is due by 6/11/2021. Ordered by Judge Marco A. Hernandez. (sss)
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| Filing 1 Complaint. Filing fee in the amount of $402 collected. Agency Tracking ID: AORDC-7762212 Jury Trial Requested: No. Filed by Lanea Kollenburn against All Defendants (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons). (Karp, Adam) |
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