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People For Ethical Treatment of Animals, Inc. v. Wildlife In Need And Wildlife In Deed, Inc.

United States District Court, S.D. Indiana, New Albany Division

July 25, 2019

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff,
v.
WILDLIFE IN NEED AND WILDLIFE IN DEED, INC., TIMOTHY L. STARK, MELISA D. STARK, Defendants. MELISA D. STARK, TIMOTHY L. STARK, WILDLIFE IN NEED AND WILDLIFE IN DEED, INC., Counter Claimants,
v.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Counter Defendant.

          ENTRY ON PLAINTIFF'S MOTIONS RELATED TO EVIDENCE PRESERVATION

          RICHARD L. YOUNG, JUDGE

         This case concerns the treatment of certain animals under the Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq. (“ESA”). People for the Ethical Treatment of Animals, Inc. (“PETA”) allege Melisa Stark, Tim Stark, and Wildlife in Need and Wildlife in Deed, Inc. (“Defendants”) have violated the ESA's prohibition against harassing, harming, and wounding endangered animals.

         This Entry addresses several recent motions related to the preservation of tigers, lions, and hybrids (“Big Cats”) within Defendants' possession. In these motions, PETA argues Defendants have violated the court's preliminary injunction and the agreed upon preservation order by transferring title of the Big Cats to Jeff Lowe, a nonparty. Defendants argue neither order prevents them from transferring ownership and possession of the animals. As will be explained below, the preservation order requires Defendants to keep the Big Cats at WIN; the preliminary injunction forbids declawing and using the Big Cat Cubs in public encounters; and Mr. Lowe is subject to both orders. However, the court will deny PETA's request for sanctions and contempt at this time.

         I. Background

         Wildlife in Need and Wildlife in Deed, Inc. (“WIN”) owns and exhibits exotic animals at its facility in Charlestown, Indiana. (See Filing No. 89, Order Granting Preliminary Injunction at 2 - 3). The Starks operate WIN together, though Mr. Stark does most of the heavy lifting: he oversees the day-to-day operations, manages the animal care, acts as the primary caregiver for the animals, and supervises volunteers. (Id. at 3). Mrs. Stark assists Mr. Stark with all of those tasks. (Id.). According to the Starks, WIN is a nonprofit organization dedicated to the rehabilitation and release of endangered species. (Filing No. 205-10, WIN Webpage). PETA sees things differently. According to PETA, WIN is an unaccredited roadside zoo that exhibits exotic animals for financial gain. (See Filing No. 1, Complaint ¶ 25). This lawsuit seeks to end Defendants' purported unlawful practices under the ESA. (See id.).

         The court entered two separate orders early in the case to preserve the status quo throughout this litigation. First, on September 18, 2017, the court issued an agreed-upon preservation order (the “Preservation Order”). That order required Defendants to “preserve all tangible and documentary evidence relating to (and including) the tigers, lions, and hybrids thereof in [Defendants'] possession, custody, and control.” See People for the Ethical Treatment of Animals, Inc. v. Wildlife in Need and Wildlife in Deed, Inc. et. al, No. 4:17-mc-00003-RLY-DML (S.D. Ind. 2017) (Filing No. 27). Second, on February 12, 2018, the court issued a preliminary injunction. (See Preliminary Injunction Order). The injunction restrained Defendants from declawing any Big Cats, using Big Cat Cubs in public encounters, and prematurely separating Big Cat Cubs from their mother during the pendency of this action. (Id. at 17 - 18).

         Recent events have led to a dispute over those two orders. In February of 2019, a news station in Oklahoma revealed that Mr. Stark and Jeff Lowe planned to open a new zoo in Thackerville, Oklahoma called Red River Safari. (Filing No. 204-4, News Article). Mr. Lowe is the principal owner of Greater Wynnewood Exotic Animal Park, LLC, another zoo facility in Oklahoma.[1] (Filing No. 204-5, Deposition of Jeff Lowe at 101:5 - 8); see also Big Cat Rescue Corp. v. G.W. Exotic Animal Memorial Foundation, No. 14-377-M, 2017 WL 3944291 at *4 (W.D. Okla. Sep. 7, 2017). Red River Safari confirmed this collaboration in a Facebook post:

Okay folks, its [sic] time to announce the collaboration of the decade. Tim Stark and the Lowe family have joined forces! This multi-state partnership will own and operate two of the largest private zoos in the United States.
This collaboration will combine not only the largest animal inventories in private hands, but also joins two of the most proactive zookeepers in the county to defend private animal ownership.

(Filing No. 204-1, February 19, 2019 Facebook Post). Red River Safari also advertised several employment positions available to begin during the summer. (Filing No. 204-6, Instagram post seeking an attorney); (Filing No. 204-7, Instagram post seeking a “Veterinary Technologist”).

         Mr. Stark initially deflected questions related to Red River Safari in his deposition. (E.g. Filing No. 203-1, Deposition of Tim Stark at 22:12 - 17 (“So I'll tell you straight up right now, Red River Safari, I'm not going to ask -- answer questions about it. It's none of your damn business, and it's just that simple. It does not exist. . . .”). However, he admitted that he has already transferred some of his animals to Oklahoma to help Mr. Lowe, (Id. at 24:22 - 25:6), he has traveled to Oklahoma to help excavate the Red River Safari property, (Id. at 28:1 - 11), and he has discussed transferring the Big Cats with Mr. Lowe. (Id. at 34:11 - 17). Mrs. Stark denied knowing any information concerning Red River Safari. (Filing No. 203-2, Deposition of Melissa Stark at 53:7 - 15).

         Based on the social media posts and the Starks' responses, PETA filed a Motion to Clarify the Preliminary Injunction and Evidence Preservation Orders on April 30, 2019. (Filing No. 201). Soon after PETA filed that motion, Mr. Stark transferred ownership of the Big Cats to Mr. Lowe. (Filing No. 229-1, Transfer Documents). This prompted PETA to file an Emergency Motion for a Preservation Order (Filing No. 216), a Motion for Sanctions (Filing No. 218), a Motion for Contempt (Filing No. 219), a Motion for Order Regarding Ownership of Big Cats (Filing No. 220), and a Motion for Order to Show Cause as to Jeff Lowe (Filing No. 221)-all on May 22, 2019. PETA filed a supplemental motion, designating more evidence, on June 12, 2019. (Filing No. 235).

         II. Discussion

         The crux of PETA's motions are that Defendants and Mr. Lowe conspired to transfer the Big Cats to Oklahoma in violation of the Preservation Order and Preliminary Injunction. PETA seeks emergency injunctive relief as well as contempt and sanctions for Defendants' actions. They also seek an order prohibiting Mr. Lowe from disposing of the Big Cats during this litigation. Defendants argue that neither order prevents them from transferring the Big Cats.[2]

         A. The Preservation Order Prevents Defendants from Transferring the Big Cats

          The court's Preservation Order requires Defendants to “preserve all tangible and documentary evidence relating to (and including) the tigers, lions, and hybrids thereof in [their] possession, custody, and control.” (Preservation Order at 1) (emphasis added).

         The plain language within the parenthesis brings the Big Cats within the scope of the order, and so Defendants are required to preserve the Big Cats throughout this litigation. See Black's Law Dictionary (11th ed. 2019) (defining “include” as “[t]o contain as a part of something”). This means that Defendants must protect and maintain the Big Cats in their current state absent a court order that says otherwise. See Merriam-Webster's Collegiate Dictionary (11th ed. 2006) (defining “preserve” as “protect” and “maintain”). This also means that Defendants or any party acting in concert with Defendants must not transfer, move, or relocate any Big Cat before this litigation comes to an end. See Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008) (noting courts can issue sanctions when a party violates the duty to preserve evidence where it knows litigation was imminent).

         Defendants argue that the Big Cats are not “tangible” evidence. But they are “tangible” because they are capable of being touched. Merriam-Webster's Collegiate Dictionary (11th ed. 2006) (defining “tangible” as “capable of being perceived especially by sense of touch”). Moreover, the purpose of the preservation order was to preserve the animals-themselves. It makes little sense to conclude otherwise especially since this case is about the alleged harm suffered by the Big Cats. Accordingly, Defendants shall abide by the Preservation Order.

         B. The Preliminary Injunction Prevents Defendants from Declawing and Using any ...


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