Reply in Support of Motion to Expedite — Klaassen v. Indiana University

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U.S. District Court for the Northern District of Indiana · No. 1:21-cv-00238-DRL-SLC · Doc. 17 · 2021-06-23 · Docket on CourtListener

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Plaintiffs' reply in support of their motion to expedite in Klaassen v. The Trustees of Indiana University, No. 1:21-cv-00238-DRL-SLC, in the U.S. District Court for the Northern District of Indiana, filed June 23, 2021 as Doc. 17. The plaintiffs challenge IU's COVID-19 vaccine mandate under the Fourteenth Amendment and Indiana's Vaccine Passport Law, Ind. Code § 16-39-11-5. The reply argues that expedited briefing is needed because students must comply by August 15, 2021, and that expedited discovery should be judged under the good cause standard of Orlando v. CFS Bancorp, Inc. rather than Edgenet, Inc. v. Home Depot U.S.A., Inc. It describes requests for IU's decision documents and for student health statistics from IU and the Indiana State Department of Health. The 11-page reply is signed by James Bopp, Jr. of The Bopp Law Firm as counsel for plaintiffs.

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United States District Court
Northern District of Indiana
Ryan Klaassen, Jaime Carini, D.J.B., by and
though his next friend and father, Daniel G.
Baumgartner, Ashlee Morris, Seth Crowder,
Macey Policka, Margaret Roth, and Natalie
Sperazza,
Plaintiffs,
v.
The Trustees of Indiana University, 
Defendant.
Civ. No. 1:21-cv-238-DRL-SLC
Reply in Support of Plaintiffs’ 
Motion to Expedite
Reply in Support of Plaintiffs’ Motion to Expedite
On June 21, 2021, Plaintiffs Ryan Klaassen, Jaime Carini, D.J.B., by and through his next
friend and father, Daniel G. Baumgartner, Ashlee Morris, Seth Crowder, Macey Policka,
Margaret Roth, and Natalie Sperazza filed a Motion to Expedite. On June 22, 2021, Defendant
filed its Response. Plaintiffs now timely reply. 
For the reasons herein, expedition of the case and expedited discovery is warranted and
necessary. 
I. Facts
This case is about Indiana University (“IU”) mandating that students receive the COVID
vaccine, placing extra requirements on students who receive a religious or medical exemption to
IU’s Mandate, and requiring students to report their vaccination status, in violation of Plaintiffs’
Fourteenth Amendment rights and Indiana’s Vaccine Passport Law (Ind. Code § 16-39-11-5).
On May 21, 2021, IU announced that there would be a requirement to receive a COVID-19
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(“COVID”) vaccine for the fall 2021 semester (“IU’s Mandate”). Compl., ECF 1, ¶ 17.
In order to comply with IU’s Mandate, students must receive one of the available COVID
vaccines by either August 15 or when they return to campus after August 1, whichever is earlier.
Id. at ¶ 19. IU has further suggested that students receive their first dose by July 1, 2021, in order
to comply with IU’s Mandate. Id. at ¶ 20. If they do not, students will have their class registration
canceled, their university-issued IDs, known as “Crimson Cards,” terminated, and will be
restricted from any on-campus activity. Id. at ¶ 21. 
A very limited number of exemptions are available; however, all students who are granted an
exemption must participate in mitigation testing twice a week, a mandatory quarantine if exposed
to someone who tests positive for COVID, wear mandatory face masks in public spaces, and a
mandatory return to their home address if the campus has a serious outbreak of the virus (“Extra
Requirements”). Id. at ¶ 29. There are no exemptions from these Extra Requirements. Id. at ¶¶
30-32. If a person with an exemption is found not wearing a face mask or does not participate in
the mitigation testing, they face “disciplinary action up to and including dismissal or termination
from the university.” Id. at ¶¶ 32.
Students are also required to use “IU’s COVID-19 vaccine report form to attest that they are
vaccinated and report all doses of [the] vaccine. Id. at ¶ 33. IU suggests that this be done after
each dose. Id.
Defendant did not provide students or the general public with information regarding how it
came to its decision to adopt and implement IU’s Mandate, particularly in light of the fact that
COVID is being brought under control, and all other federal, state, and local governments are
lifting their restrictions. Id. at ¶¶ 69-94.
Mot. to Expedite Reply
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Plaintiffs include students (all of whom plan to attend IU this fall1) who object to IU’s
Mandate. Plaintiffs fall into three classes: (1) Plaintiffs who object generally to the Mandate and
Extra Requirements, (2) Plaintiffs who have been granted a religious exemption, but have a
religious objection to the Extra Requirements, and (3) Plaintiffs who should qualify for a medical
exemption but are unable to, given the extremely limited criteria. 
II. Expedited briefing is warranted.
Plaintiffs have requested expedited briefing, given that all students are required to comply
with IU’s Mandate by August 15, 2021, or August 1, 2021, if they return to campus early. This
tight time-line imposed by Defendant, makes the timing of this case of the upmost importance. 
Defendant suggests that briefing can be concluded by July 13, 2021, under the local rules,
and argue that this is sufficient. Defs. Mot. to Exped. Resp., ECF 15, p. 3. However, Plaintiffs
have sought expedition in order to give this Court reasonable time to review briefing, have a
hearing, and issue a decision before Plaintiffs are further harmed. Defendant’s suggested time-
line gives this Court virtually no time to issue a decision prior to the deadline of IU’s Mandate. 
It appears that Defendant would rather delay briefing for its administrative convenience,
rather than allow this Court the maximum amount of time to reach its decision. With “1,300+
attorneys, consultants and professionals”2 at their firm, Defendant’s counsel should be able to
comply with an expedited time-line.   
1 Defendant says Plaintiff Carini “is not enrolled for the fall 2021 semester.” Defs. Mot.
to Exped. Resp., ECF 15, p. 2, fn 2. Miss Carini is an IU student, she has simply not yet
registered for her fall classes. IU charges a fee for any changes to students’ class schedules. So as
a standard practice, Miss Carini waits until August to register for her classes, when she can be
sure of which classes she intends to take and can avoid any such fees. Miss Carini has secured
three fellowships for this year and will be continuing her education at IU.
2 See, Faegre Drinker, Professionals, https://www.faegredrinker.com/en/professionals?.
Mot. to Expedite Reply
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Moreover, the tight time-line is due to IU’s delay in announcing it’s Mandate. While the
pandemic has been going on since March 2020,3 Defendant waited until the end of May to
announce IU’s Mandate, giving students just over a month to comply with their “suggestion” that
students receive their first dose by July 1, 2021, and less than three months to comply with the
Vaccine requirement generally. This rushed time-line is not the fault of Plaintiffs, who are simply
students defending their rights and their health. The rushed time-line was caused by Defendant
who chose to announce IU’s Mandate at the last possible minute, thereby giving students
virtually no time to challenge it. Plaintiffs should not be punished by Defendant’s delay.
As a result, Plaintiffs have sought an expedited time-line in order to vindicate their rights
before IU’s deadline. 
III. Expedited discovery is warranted.
As a preliminary matter, Defendant argues that discovery is unnecessary because resolution
of the case turns on purely legal issues. Defs. Mot. to Exped. Resp., ECF 15, p. 5. Plaintiffs have
never said that the facts are not relevant to the case. While Plaintiffs think that the issues to be
decided are questions of law, this does not mean that the facts are irrelevant. Instead, Plaintiffs
argue that none of the relevant material facts are or will be in dispute. Indeed, Plaintiffs seek
discovery to provide to the Court all relevant facts so that the Court may review those facts and
use them as the basis to apply the law.
Expedited discovery is even more relevant here where Plaintiffs’ Motion for Preliminary
Injunction essentially decides the case. Without the preliminary injunction, Plaintiffs will either
3 Plaintiffs’ argue that the pandemic is virtually over and evidence suggests this is true.
See Compl., ECF 1, ¶¶ 111-148.
Mot. to Expedite Reply
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be expelled, forced to take a vaccine they are opposed to, or have to comply with onerous Extra
Requirements. All this harm will occur no later than August 15, 2021. This is irreparable harm. 
Accordingly, both Plaintiffs and this Court immediately need the material facts relevant to
IU’s Mandate, including but not limited to their reasons for adopting and implementing the
mandate and to see if there was a sufficient justification for doing so. Plaintiffs’ discovery
requests are both relevant and necessary. 
Plaintiffs’ request for expedited discovery should be considered under the “good cause” or
“reasonableness” standard used in this district, and a “pending request for a preliminary
injunction is a typical ground that satisfies a good cause standard.” See Orlando v. CFS
Bancorp, Inc., No. 2:13-CV-261 JD, 2013 WL 12329547, at *1, *2 (N.D. Ind. Oct. 10, 2013)
(emphasis added). Defendant urges this Court to use the “more stringent” standard adopted in
Edgenet, Inc. v. Home Depot U.S.A., Inc., which “mirrors the standard required for obtaining a
preliminary injunction.” 259 F.R.D. 385, 386 (E.D. Wis. 2009). The Edgenet Court noted that
courts are split on the issue of which standard to apply to a motion to expedite. But the proce-
dural posture relevant in Edgenet is distinguishable from Orlando and shows why Orlando is the
proper standard to use here. 
Edgenet had not sought a preliminary injunction or a temporary restraining order against
Home Depot and also had agreed to an extension of time for the defendants to file an answer to
the complaint. Id. at 387. In Orlando, the moving party had filed for a preliminary injunction and
a motion for expedited proceedings and discovery. Orlando, 2013 WL 12329547, at *1. The
factors used to determine whether expedited discovery is warranted under the Orlando standard
include:
Mot. to Expedite Reply
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(1) whether a preliminary injunction is pending; 
(2) the breadth of the discovery requests; 
(3) the purpose for requesting the expedited discovery; 
(4) the burden on the defendants to comply with the requests; and 
(5) how far in advance of the typical discovery process the request was made.
Id. As the Orlando Court noted, “the reasonableness standard [typically] allows expedited
discovery when the need for the expedited discovery outweighs the prejudice to the responding
party, based upon the entirety of the record and reasonableness of the request in light of the
surrounding circumstances.” Id. (citing Share Corp. v. Momar, Inc., No. 10-CV-109, 2010 WL
724321, at *2 (E.D. Wis. Feb. 26, 2010)).
Under the totality of the circumstances, this Court should grant Plaintiffs’ Motion to
Expedite. Of primary importance when considering whether “good cause” has been shown is
whether the moving party has sought a preliminary injunction. When the moving party has done
so, as Plaintiffs have here, that typically satisfies the good cause standard.  In this way, the
Plaintiffs’ case is much closer to Orlando than to Edgenet. Here, Plaintiffs have simultaneously
asked for expedited briefing and concurrently filed a Motion for Preliminary Injunction (ECF. 7,
8-1). And of course, Plaintiffs have not agreed to any extension in answering the complaint. The
tailored breadth of the discovery requesting material facts, the critical purpose of the requests in
light of the importance of the rights at issue, the minimal burden on Defendant in complying, and
the tight time-line necessitated by IU’s Mandate all justify expedited discovery under the “good
cause” standard. Even if Plaintiffs are required to show the Edgenet factors, which the Seventh
Circuit does not require here, Plaintiffs have done so.
Irreparable Harm: Plaintiffs have shown that they have irreparable harm. Plaintiffs will be
forced to have an Emergency Use Authorization vaccine they do not want injected into their
Mot. to Expedite Reply
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bodies or will suffer the “strong consequence” of virtual expulsion from IU. PI Mem., ECF 8-1,
pp. 36-37. Likewise, Plaintiffs who choose to get the vaccine, but who do not complete IU’s
vaccination form will also suffer these severe consequences because IU will not consider them
vaccinated or exempt if they do not complete this form. Id. at 37. Plaintiffs have irreparable
harm. 
Probability of Success on the Merits: Plaintiffs have shown that they are likely to succeed on
the merits. Id. at 20-36. While public health, under certain circumstances, can be considered a
compelling state interest, that situation is not present now with college students, and IU has not
narrowly tailored its Mandate using the least restrictive means available, so it fails strict scrutiny,
which is the proper constitutional standard this Court should use. In the alternative, IU’s Mandate
also fails under either Jacobson’s exception or modern rational basis scrutiny. Therefore, IU’s
Mandate is unconstitutional under the Fourteenth Amendment.
Likewise, Plaintiffs will likely succeed on the merits of their state claim that IU’s Mandate
violates the Vaccine Passport Law. If a student doesn’t provide IU with his or her COVID
immunization status, IU virtually expels that student. Virtual expulsion from school for refusing
to document COVID immunization status is a “negative consequence” that directly violates the
Vaccine Passport Law.
Connection between discovery sought and irreparable harm: The discovery sought is
significantly related to avoidance of Plaintiffs’ irreparable harm. First, Plaintiffs seek documents
that explain how and why IU came to it’s decision to mandate all students, staff, and faculty
receive a COVID vaccination before the fall 2021 semester.4 The importance of these documents
4 This was first requested of Defendant through a public records request on May 27, 2021,
Mot. to Expedite Reply
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cannot be understated, as they are relevant to explaining how and why IU decided to mandate
vaccinations. Critically, these documents will explain how a public university, an arm of the
state, decided on a final action that irreparably harms Plaintiffs’ Fourteenth Amendment rights.
This Court is asked to evaluate the justifications for IU’s Mandate and the best source for those
justifications are the very documents that lead to IU’s decision, which are the documents
Plaintiffs have requested and IU wants to keep secret. 
Plaintiffs also seek documents regarding the statistics and data on the effects that COVID
and its vaccines have had on the student population and other data compilations reflecting health
and safety issues that affect IU students.5 It is important to note that Plaintiffs are not seeking all
documents related to COVID or the other health and safety issues. Plaintiffs are only seeking
documents that accumulate the statistics for these categories. The importance of this second
request is to reveal the context and scope of impact the COVID virus has had on the IU student
body in comparison with other common student health issues. This is important to establish the
context surrounding IU’s vaccination mandate.
Finally, Plaintiffs seek from the Indiana State Department of Health (“ISDH”) similar
statistics and data as requested from IU. ISDH collects and maintains Annual Summary Reports
from each state educational institution. As above, Plaintiffs are not seeking all documents related
to COVID or the other health and safety issues. Instead, Plaintiffs only seek documents that
accumulate the statistics for these categories. The relevance of this request is to reveal the
so Defendant has been aware of such request for almost a month. 
5 This was first requested of Defendant through a public records request on June 1, 2021,
so Defendant has been aware of such request for more than three weeks. 
Mot. to Expedite Reply
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context and scope of impact the COVID virus has had on the IU student body in comparison with
other common student health issues.
Balancing of burdens: Plaintiffs’ burdens are significant violations of their constitutional
rights, which the discovery requested will help show. On the other hand, Defendant’s burden is
minimal, if there is any burden at all. Defendant has had Plaintiffs’ document requests for several
weeks and should have already been collecting said documents to comply with their public
records request. So there is no reason that Defendant should be unable to comply with an
expedited time-line. There is no other harm to Defendant. 
Moreover, while Defendant attempts to categorize Plaintiffs’ request as voluminous and
exhaustive, Plaintiffs only seek documents related to the decision to implement IU’s Mandate
and documents that accumulate the statistics for the requested categories. 
As shown, Plaintiffs’ discovery requests are reasonable, relevant, and necessary. All material
facts must be presented to the Court, so that the Court may make an informed application of the
law to the facts and so Plaintiffs’ constitutional rights may be vindicated prior to August 15,
2021.  
Conclusion
For the reasons herein, expedited briefing and expedited discovery is both warranted and
necessary. 
Mot. to Expedite Reply
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Dated: June 23, 2021
Respectfully Submitted, 
/s/ James Bopp, Jr.
James Bopp, Jr., Ind. Bar No. 2838-84
Richard E. Coleson, Ind. Bar No. 11527-70
Courtney Milbank, Ind. Bar No. 32178-29
Melena S. Siebert, Ind. Bar No. 35061-15
THE BOPP LAW FIRM
1 South 6th Street
Terre Haute, Indiana 47807
Telephone: (812) 232-2434
Facsimile: (812) 235-3685
jboppjr@aol.com
rcoleson@bopplaw.com
cmilbank@bopplaw.com
msiebert@bopplaw.com
Counsel for Plaintiffs
Mot. to Expedite Reply
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Certificate of Service
I hereby certify that a copy of the foregoing document was served on the following counsel
of record in this matter on June 23, 2021, via the Court’s electronic filing system.
Anne K. Ricchiuto – anne.ricchiuto@faegredrinker.com
Stephanie Gutwein – stephanie.gutwein@faegredrinker.com
/s/ James Bopp, Jr.                              
Mot. to Expedite Reply
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