UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kyle Fellers, et al.

v. Case No. 24-cv-311-SM-AJ Opinion No.

Marcy Kelley, et al.

O R D E R

At the hearing on plaintiffs’ motion for a temporary

restraining order, held on October 8, the court scheduled a

hearing for November 21 and 22, 2024, on the preliminary and

permanent injunctive relief plaintiffs sought in their initial

complaint and motion, documents 1 and 14. After the October 8

hearing, plaintiffs filed an expedited motion to set hearing-

related deadlines for the November 21-22 hearing, which the

court granted in part. Doc. no. 47. The court limited the

November 21-22 hearing to the preliminary injunctive relief that

plaintiffs sought in their motion, document no. 14.

The limitation on the November 21-22 hearing was imposed

because plaintiffs filed an amended complaint on October 22,

2024, document no. 35, that significantly broadened the scope of

their claims and to avoid infringing on defendants’ right to a

jury trial on plaintiffs’ compensatory damages claim.

Since then, plaintiffs filed an assented-to motion to file

a second amended complaint, which omits their claim for compensatory damages but otherwise retains the claims in the

first amended complaint. Doc. nos. 35 & 48. Defendants filed

motions in limine, and plaintiffs move to treat the November 21-

22 hearing as a bench trial on the merits of their claims. The

motions are addressed as follows.

A. Assented-to Motion to File Second Amended Complaint

Plaintiffs move, with assent from defendants, to amend

their first amended complaint to omit the claim for compensatory

damages. In the absence of a claim for compensatory damages,

there is no issue for a jury. The assented-to motion is

granted. Plaintiffs shall file the second amended complaint

that is now docketed as document no. 48-1 as a separate

document.

B. Motion to Hear Plaintiffs’ Claims on the Merits

The court initially intended to hear plaintiffs’ claims for

injunctive and declaratory relief in the original complaint,

document no. 1, and the motion for injunctive relief, document

no. 14, together, on the merits, at the November 21-22 hearing.

In response to plaintiffs’ “expedited” motion for hearing

deadlines, defendants noted that plaintiffs’ damages claim

entitled them to a jury trial, which might be compromised if

factual findings were made related to issuance of a permanent

2 injunction. Doc. no. 36. Plaintiffs’ second amended complaint,

which omits the claim for compensatory damages but includes

claims that were not pleaded in the original complaint and that

broaden the scope of the relief requested, sets a different

stage. Plaintiffs now ask the court to hear and decide all of

their claims on the merits, including the new claims, at the

November 21-22 hearing.

Plaintiffs add three new claims, and pages of additional

allegations in the second amended complaint. 1 In the original

complaint, plaintiffs alleged viewpoint discrimination in

violation of the First Amendment and a conspiracy to violate

plaintiffs’ First Amendment rights. In the amended complaint,

plaintiffs add a claim that, as applied to them, the school’s

policies are unreasonable restrictions in violation of the First

and Fourteenth Amendments; a claim that defendants retaliated

against them in violation of the First and Fourteenth

Amendments; and a claim that the defendants’ regulations are

facially overbroad in violation of the First and Fourteenth

Amendments. Doc. no. 48-1. Plaintiffs omit their claim for

compensatory damages and now seek only nominal damages and an

award of attorneys’ fees and costs of suit.

1 The complaint has grown from 27 pages to 40 pages.

3 Because the motion for injunctive relief, document no. 14,

focused on plaintiffs’ restrictions with respect to the girls’

soccer season, that injunctive relief may well be moot, which is

why the court directed the parties to address that issue at the

hearing. The new claims and added scope of the second amended

complaint will require different and additional preparation to

address the new issues. For these reasons, the November 21-22

hearing will not afford sufficient time for the preparation that

is necessary for a bench trial on the merits of the second

amended complaint.

Therefore, the November 21-22 hearing remains limited to

the injunctive relief sought by plaintiffs in their motion. Doc.

no. 14. The parties shall address the issue of mootness first,

with plaintiffs’ arguing first, followed by defendants’ counsel.

If the court concludes that the relief sought in the motion

(doc. no. 14) is not moot, the hearing on the plaintiffs’ motion

for injunctive relief, document no. 14, will proceed.

Plaintiffs’ expedited motion (document no. 49) is denied.

C. Defendants’ Motions in Limine

In their motions in limine, defendants ask that they be

permitted to present evidence first at the November 21-22

hearing because of their burden on the First Amendment issues.

They also move to have the court take judicial notice of certain

4 factual findings made in Tirrell v. Edelblut,

(D.N.H. Sept. 10, 2024). 2 Before plaintiffs filed the second

amended complaint, defendants also moved to preserve their right

to a jury trial on the claim for compensatory damages, document

no. 46, but that motion is now moot.

To date, plaintiffs do not object to defendants’ proposed

order of proof at the hearing. Defendants will proceed first on

the First Amendment issues if the hearing continues to

plaintiffs’ request for a preliminary injunction. Plaintiffs do

object to judicial notice of factual findings made by the court

in Tirrell v. Edelblut.

In Tirrell v. Edelblut, the court granted a preliminary

injunction in favor of plaintiffs to enjoin enforcement of a New

Hampshire statute “prohibiting transgender girls (i.e., people

who were born biologically male but who identify as female) from

participating in girls’ sports.” Tirrell,

, at

*1. Defendants in this case ask that the court take judicial

notice of 21 findings that the court made in Tirrell:

a. The phrase “gender identity” is an accepted medical term for a person’s innate sense of gender.

. b. Everyone has a gender identity, and it may or may not align with their biological sex or anatomy. Id. at *2-3.

2Tirrell v. Edelblut, No. 24-cv-251-LM-TSM, ––– F.Supp.3d – –––, ––––,

, at *6–7 (D.N.H. Sept. 10, 2024).

5 c. A transgender girl is a person who was born with a male anatomy but whose gender identity is female. Id. at *3. d. Transgender people experience a medical condition known as gender dysphoria. Id. e. The condition is recognized in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”). Id. f. Gender dysphoria results from a lack of alignment between one’s birth sex and gender identity.

. g. Gender dysphoria is highly treatable, but if left untreated, it may result in anxiety or depression, eating disorders, substance abuse, and even suicide.

h. Under prevailing standards, treatment for gender dysphoria generally involves some combination of (1) a social transition in which the person adopts a new name, pronouns, appearance, and clothing, and (2) medical or surgical interventions that allow the patient to live more consistently with their gender identity.

i. Social acceptance of one’s gender identity is critical to the successful treatment of gender dysphoria.

. j. Parker Tirrell is a fifteen-year-old transgender girl and sophomore at Plymouth Regional High School. Id. at *4. k. Parker Tirrell has been diagnosed with gender dysphoria. Id. at *5. l. Parker’s treatment for gender dysphoria is to socially transition and live as a girl. Id. m. This includes participating in girls’ sports and using girls’ facilities at school. Id. n. In ninth grade, Parker played on the girls’ soccer team at Plymouth Regional High School.

. o. Most of Parker’s friends are her teammates, and they have given Parker an important source of acceptance, belonging, and emotional support.

p. Playing on a boys’ soccer team is not a realistic option for Parker.

q. Parker’s health care providers have prescribed treatment requiring her to live and participate in the world as a girl.

6 r. Playing on a boys’ soccer team would likely have adverse impacts on Parker’s mental health and would exacerbate symptoms of gender dysphoria.

s. On July 19, 2024, New Hampshire enacted House Bill 1205 [hereinafter “HB 1205” or “the Act”].

(citing 2024 N.H. Laws Ch. 228 and RSA 193:41-:42). t. The Act requires for public schools or private schools whose students or teams compete against a public school, that “[a]thletic teams or sports designated for females, women, or girls, shall not be open to students of the male sex.”

u. On September 10, 2024, the New Hampshire federal district court granted Parker Tirrell a preliminary injunction against the Commissioner of the New Hampshire Department of Education and other state actors from enforcing HB 1205 because Parker Tirrell is likely to show that the Act violates her constitutional right to equal protection under the law.

.

Doc. no. 39, at 2-4. Plaintiffs object to judicial notice of

the requested findings except s, t, and u.

The court may take judicial notice of an adjudicative fact

that is not subject to a reasonable dispute when the fact is

“generally known within the trial court’s territorial

jurisdiction” or when the fact “can be accurately and readily

determined from sources whose accuracy cannot be reasonably

questioned.” Fed. R. Evid. 201(b); Ortiz v. Sig Sauer,

(D.N.H. 2022). Generally, courts may not take

judicial notice of findings of fact contained in another court’s

order. Grayson v. Warden,

(11th Cir. 2017);

Cruz-Acevedo v. Toledo-Davila,

, 211 n.6

(D.P.R. 2009); 21B Fed. Prac. & Proc. Evid. § 5106.4 (2d ed.).

7 Courts “may take judicial notice of findings of fact from

another court proceeding only if, among other requirements, the

fact is not subject to reasonable dispute.” Daniel v. Cook

County,

(7th Cir. 2016).

Defendants make no argument that the court’s findings for

purposes of a preliminary injunction in Tirrell meet the

requirements of Rule 201. In particular, defendants have not

shown that those findings are undisputed or are entitled to

judicial notice despite the general rule against giving judicial

notice to factual findings in another court proceeding. As

such, defendants have not carried their burden to support their

motion.

The court will not give judicial notice to the factual

findings in the court’s order granting a preliminary injunction

in Tirrell. Because plaintiffs do not dispute the factual

findings listed at s, t, and u, defendants may rely on those

facts for purposes of opposing plaintiffs’ motion for a

preliminary injunction, document no. 14, at the November 21-22

hearing.

Conclusion

For the foregoing reasons, the court grants plaintiffs’

motion to file a second amended complaint (doc. no. 48), and

plaintiffs shall file the second amended complaint (doc. no. 48-

8 1) as a separate document within three days from the date of

this order. The court denies plaintiffs’ expedited motion

to hold a bench trial on the merits (document no. 49).

The court denies defendants’ motion to preserve their right

to a jury (document no. 46) as moot. The court grants

defendants’ motion to present their evidence first (document no.

38), as provided in this order, if necessary. The court denies

defendants’ motion to take judicial notice of facts found in

Tirrell v. Edelblut (document no. 39).

At the conclusion of the motion hearing on November 21-22,

the court will consult with counsel to set a pretrial schedule,

including a date for a bench trial. See Rule 16.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

November 13, 2024

cc: Counsel of Record

9