National Abortion Federation v. Center for Medical Progress ( 2022 )

NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
AUG 19 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NATIONAL ABORTION FEDERATION, No. 21-15953
Plaintiff-Appellee, D.C. No. 3:15-cv-03522-WHO
v.
MEMORANDUM*
CENTER FOR MEDICAL PROGRESS;
BIOMAX PROCUREMENT SERVICES,
LLC; DAVID DALEIDEN, AKA Robert
Daoud Sarkis,
Defendants-Appellants,
and
TROY NEWMAN,
Defendant.
NATIONAL ABORTION FEDERATION, No. 21-15955
Plaintiff-Appellee, D.C. No. 3:15-cv-03522-WHO
v.
STEVEN COOLEY; BRENTFORD J.
FERREIRA,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellants,
CENTER FOR MEDICAL PROGRESS;
BIOMAX PROCUREMENT SERVICES,
LLC; DAVID DALEIDEN, AKA Robert
Daoud Sarkis; TROY NEWMAN,
Defendants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted August 9, 2022
Anchorage, Alaska
Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.
The Center for Medical Progress (“CMP”), Biomax Procurement Services,
LLC (“Biomax”), and David Daleiden (aka “Robert Sarkis”) (collectively
“Defendants”) appeal from the district court’s final judgment granting summary
judgment to the National Abortion Federation (“NAF”) and entering a permanent
injunction in favor of NAF. CMP and Daleiden, along with appellants Steven
Cooley and Brentford J. Ferreira, who represent Daleiden in a related state criminal
case, also appeal from the district court’s orders holding them in civil contempt for
violation of the preliminary injunction and setting the civil contempt sanctions
amount. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties
2
are familiar with the factual and procedural history of the case, we need not
recount it here. We affirm.1
1. There is subject matter jurisdiction over NAF’s state law claims under
28 U.S.C. § 1332. A prior panel has already considered and rejected Appellants’
argument that NAF lacks complete diversity. Nat’l Abortion Fed’n v. Ctr. for
Med. Progress, 793 F. App’x 482, 484 n.1 (9th Cir. 2019) (noting that it had
“considered the issue and conclude[d] that diversity jurisdiction properly existed”).
This determination is the law of the case. See Hanna Boys Ctr. v. Miller, 853 F.2d
682, 686 (9th Cir. 1988).
2. NAF’s breach of contract claim is not barred by claim preclusion
because NAF is not in privity with the plaintiffs in Planned Parenthood Fed’n of
Am., Inc. v. Ctr. for Med. Progress, 214 F. Supp. 3d 808 (N.D. Cal.
2016), aff’d, 890 F.3d 828 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir.
2018), and aff’d, 735 F. App’x 241 (9th Cir. 2018), for purposes of res judicata. 2
See United States v. Schimmels (In re Schimmels), 127 F.3d 875, 881 (9th Cir.
1997).
1
Defendants’ motion to supplement the record and motion for judicial notice
are granted (Case No. 21-15953, Docket No. 21).
2
By failing to specifically and distinctly argue that the district court
incorrectly applied issue preclusion, Defendants forfeited this argument. See
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
3
3. The district court did not err in entering a permanent injunction in
favor of NAF.3
a. The Supreme Court has held that First Amendment rights may
be waived upon clear and convincing evidence that the waiver is knowing,
voluntary, and intelligent. See Janus v. Am. Fed’n of State, Cnty., & Mun.
Emps. Council 31, 138 S. Ct. 2448, 2486 (2018); see also Leonard v. Clark,
12 F.3d 885, 889–90 (9th Cir. 1993), as amended (Mar. 8, 1994).
Defendants knowingly, voluntarily, and intelligently waived any First
Amendment rights in disclosing the information they obtained at the NAF
conferences by signing the agreements with NAF. Daleiden voluntarily
signed the agreements, and testified that he was familiar with the contents.
The agreements unambiguously prohibited him from making records,
disclosing recordings, and from disclosing any information he received from
NAF. His waiver of First Amendment rights was demonstrated by clear and
convincing evidence.
3
Defendants forfeited any argument that the district court abused its
discretion in entering an unjustified permanent injunction in favor of NAF. “We
will not manufacture arguments for an appellant, and a bare assertion does not
preserve a claim, particularly when, as here, a host of other issues are presented for
review.” Greenwood, 28 F.3d at 977.
4
b. The permanent injunction does not interfere with Daleiden’s
Sixth Amendment rights. The district court repeatedly stated that the federal
court would not interfere with the state court’s determinations regarding
what information will become publicly available or disclosed in connection
with the criminal proceedings.
c. Daleiden’s breach of contract claim and the resulting permanent
injunction are not preempted by the Copyright Act. See Grosso v. Miramax
Film Corp., 383 F.3d 965, 968 (9th Cir. 2004), amended on denial of reh’g,
400 F.3d 658 (9th Cir. 2005). The injunction does not conflict with any part
of the statute.
4. The district court did not abuse its discretion by denying Defendants’
motion to disqualify the district judge. Defendants failed to demonstrate that a
reasonable person would believe that the district judge’s impartiality could be
questioned. See United States v. Hernandez, 109 F.3d 1450, 1453–54 (9th Cir.
1997) (per curiam) (setting forth standard of review and discussing standard for
recusal under 28 U.S.C. §§ 144 and 455).
5. The district court did not abuse its discretion by holding Daleiden and
CMP in contempt of the preliminary injunction. To do so, a court must find “by
clear and convincing evidence that the contemnors violated a specific and definite
5
order of the court.” FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999)
(citation omitted). The district court did not err in finding that Daleiden created a
video containing the enjoined footage and uploaded that video to CMP’s YouTube
channel.
6. The district court did not err in holding Cooley and Ferreira in
contempt.
a. Cooley and Ferreira were bound by the preliminary injunction,
as Daleiden’s attorneys, agents, and as parties in active concert or
participation with Daleiden. Fed. R. Civ. P. 65(d)(2)(A)–(C).
b. Cooley and Ferreira received adequate notice. See Lasar v.
Ford Motor Co., 399 F.3d 1101, 1110 (9th Cir. 2005). They were apprised
of the possibility of civil sanctions in late May, and the contempt hearing
was held in mid-July. They had approximately six weeks to prepare. Shortly
before the hearing, they were informed that the district judge was only
considering civil sanctions.
c. Cooley and Ferreira were subject to civil sanctions—not
criminal ones. A prior panel determined that the contempt sanctions entered
against Cooley and Ferreira were civil contempt sanctions, and that
determination is the law of the case. Nat’l Abortion Fed’n v. Ctr. for Med.
6
Progress, 926 F.3d 534, 538 (9th Cir. 2019). Thus, they were not entitled to
procedural safeguards beyond notice and an opportunity to be heard. Int’l
Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994).
d. Younger abstention is not applicable to this case. The district
court’s contempt order has neither the actual nor the practical effect of
enjoining the state court prosecution of Daleiden. See ReadyLink
Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir.
2014); Gilbertson v. Albright, 381 F.3d 965, 977–78 (9th Cir. 2004) (en
banc).
e. Cooley and Ferreira do not fall within the “narrow
circumstances” that would permit them to contest the legality of the
underlying injunction by disobeying it. Irwin v. Mascott, 370 F.3d 924, 931
(9th Cir. 2004).
f. The district court did not err in concluding that Cooley and
Ferreira did not have an objectively reasonable basis for believing that the
injunction did not apply to them. See Taggart v. Lorenzen, 139 S. Ct. 1795,
1801–02 (2019).
AFFIRMED
7