of the student Plaintiffs in this litigation. Because the students' injuries cannot be calculated in terms of money damages and the students' tenure in the Penn State residence halls is limited in duration, the equities, therefore, decidedly weigh in favor of the students.
Penn State is a public university whose residence halls house over 12,000 students. Because the challenged regulations directly affect the free speech and associational rights of all of those students the public interest is, therefore, decidedly implicated in this case. Penn State's correlative interest in attempting to protect its students from sharp business practices has expressly and consistently been rejected. First, the principle of in loco parentis appears no longer to apply to college students. Bradshaw v. Rawlings, 612 F.2d 135, 139 (3d Cir. 1979) ("College students today are no longer minors; they are regarded as adults in almost every phase of community life."). Second, the public interest in regulating activities within a dormitory room is limited. A college dormitory room is the equivalent of a student's "home away from home," American Future Systems I, 464 F. Supp. at 1262, and students have at least a modicum of expectation of privacy in their dormitory rooms. E.g. Piazzola v. Watkins, 442 F.2d 284, 289-90 (5th Cir. 1971). But see American Future Systems II, 688 F.2d at 915-16. ("We are unwilling to extend the constitutional right of privacy [of a student in his dormitory room] to commercial transactions completely unrelated to fundamental personal rights.")
In sum, the public interest would be served by issuance of an injunction.
D. Scope of Relief.
The Plaintiffs have requested a preliminary injunction directing the Defendants "to permit persons residing in University residence halls to have business invitees and social guests of their choosing come to their assigned room(s) for any lawful purpose, at reasonable times and subject to other health, safety, security, fire, occupancy, and/or visitation regulations, as applied to social guests under present University regulations." In essence, the Plaintiffs request that the Dormitory Solicitation Regulations regarding commercial solicitation in individual students' dormitory rooms be deemed unenforceable as against all students residing in Penn State's residence halls.
As stated previously, a preliminary injunction is only appropriate where the movants have established a reasonable probability of ultimate success on the merits in the litigation. Continental Group v. Amoco Chemical Corp., 614 F.2d at 356-57. The normal function of preliminary injunctive relief is to maintain the status quo and to ensure that the movants suffer no further injury pending a full hearing on the merits. E.g. Triebwasser & Katz v. American Telephone and Telegraph Co., 535 F.2d 1356 (2d Cir. 1973); King v. Saddleback Junior College Dist., 425 F.2d 426 (9th Cir. 1970), cert. denied, 404 U.S. 979, 30 L. Ed. 2d 294, 92 S. Ct. 342 (1971). In order adequately to protect the non-moving party, in no event should preliminary injunctive relief be issued beyond relief to which the movants would be entitled should they ultimately prevail in the litigation.
The Plaintiffs' request for a declaratory judgment is based on the Declaratory Judgment Act, 28 U.S.C. § 2201. Section 2201 provides that "In a case of actual controversy . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration . . ." The "case or controversy" requirement under Section 2201 is no less stringent than in any other federal lawsuit. Altvater v. Freeman, 319 U.S. 359, 87 L. Ed. 1450, 63 S. Ct. 1115 (1943); United States v. West Virginia, 295 U.S. 463, 79 L. Ed. 1546, 55 S. Ct. 789 (1935).
The issue being litigated at this juncture is whether or not Penn State's Dormitory Solicitation Regulations may be enforced to preclude dormitory residents from inviting both commercial sales representatives and other students simultaneously to the student's dormitory room for purposes of a group demonstration and sale. It is quite clear that the Declaratory Judgment Act may not be used to secure a judicial determination of moot questions, Aetna Life Insurance Co. of Hartford v. Haworth, 300 U.S. 227, 81 L. Ed. 617, 57 S. Ct. 461 (1937). With respect to those individual Plaintiffs who are no longer Penn State students or who are no longer residing in Penn State's residence halls, the controversy in this litigation is moot. Those students lack a present legally cognizable interest in the outcome of this lawsuit and there is no likelihood that any "injury" to those students is capable of repetition yet evading review. Weinstein v. Bradford, 423 U.S. 147, 148-49, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975), citing Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975); Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 55 L. Ed. 310, 31 S. Ct. 279 (1911); Winsett v. McGinnes, 617 F.2d 996, 1003 (3d Cir. 1980), cert. denied sub nom. Anderson v. Winsett, 449 U.S. 1093, 66 L. Ed. 2d 822, 101 S. Ct. 891 (1981).
The only student Plaintiffs who have a "live" controversy are those named student plaintiffs who are presently residing in Penn State's residence halls and who desire to serve as host or hostess for a group demonstration and solicitation. Kevin Graves is the only such named student plaintiff who has standing to sue and there is some doubt that he wishes to host one of the demonstrations although he obviously is serious about asserting his right to do so.
On the first day of the preliminary injunction hearing, December 2, 1982, Plaintiffs filed an oral application for Marc Bogutz, a Penn State student who resides in a fraternity house, and Kathryn Johnson, a freshman Penn State student who resides in a Penn State dormitory, to be allowed to intervene as Plaintiffs. Because there was objection to the request and because the Defendants were caught by surprise, the Court declined to grant the motion. Plaintiffs were directed to file a formal written motion with a modest supporting brief if they desired to pursue the matter. On December 14, 1982, Plaintiffs filed a motion and memorandum of law to join Kathryn Johnson as an additional Plaintiff. The motion is not yet ripe for disposition by the Court and, therefore, will not be acted upon at this time. Apparently recognizing that Marc Bogutz had no standing, Plaintiffs have not filed a motion that he be added as a party Plaintiff.
This lawsuit was not brought as a class action, and there is no request pursuant to Rule 23 for certification of a class of student Plaintiffs residing in Penn State's residence halls. Because there is no student plaintiff class, relief to any person or group of persons beyond those who have actual standing would be improper. Cf. Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974).
For the foregoing reasons, absent class certification or a request for such certification, Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir.), cert. denied, sub nom. Glen Alden Corp. v. Kahan, 398 U.S. 950, 26 L. Ed. 2d 290, 90 S. Ct. 1870 (1970), injunctive relief will be granted only with respect to Kevin Graves.
IV. Conclusions of Law.
1. Kevin Graves, the only named Plaintiff who resides in Penn State's residence halls, is the only Plaintiff who has standing to request preliminary injunctive relief.
2. Kevin Graves would be irreparably harmed if a preliminary injunction is not issued.
3. Kevin Graves has a reasonable probability of succeedings on the merits in this litigation.
4. The "equities" weigh heavily in favor of granting preliminary injunctive relief in favor of Kevin Graves.
5. The public interest will be served by granting preliminary injunctive relief to Kevin Graves.
An appropriate order will be entered.
1. The motion of the Plaintiffs for leave to present additional relevant information to the Court is denied.
2. The motion of the Plaintiffs to file supplemental findings of fact is granted.
3. The motion of the Plaintiffs for a preliminary injunction is granted in part and denied in part.
4. The motion of Kevin Graves for a preliminary injunction is granted.
5. The request of all other Plaintiffs for preliminary injunctive relief is denied.
6. Pending final hearing or further order of this Court, Defendants John W. Oswald, M. Lee Upcraft, the Board of Trustees of the Pennsylvania State University, Pennsylvania State University, and its employees and agents, are hereby enjoined from enforcing Paragraph 3 of the "Regulations for the Solicitation of Money or the Sale or Solicitation of Sale of Products or Services in University Residence Halls," promulgated November 19, 1982, with respect to Kevin Graves, the only named individual student Plaintiff who resides in Penn State's residence halls.
7. This case is hereby placed on the Williamsport July 1983 trial list for disposition on the merits.
8. A settlement conference will be held in this case in Williamsport on Wednesday, June 1, 1983, at a time to be announced.
9. All discovery in this case shall be completed on or before June 15, 1983.
10. A final pre-trial conference will be held in this case in Williamsport on Tuesday, July 5, 1983.
11. Juries will be drawn in Williamsport on Wednesday, July 6, 1983 for those cases on the July 1983 list to be tried by a jury.
AND NOW, this 10th day of January, 1983, it is hereby ORDERED that Plaintiffs' Motion to Amend Opinion dated December 21, 1982 is GRANTED.
The Opinion of this Court dated December 21, 1982 is hereby AMENDED as follows:
At page 28 of the Opinion, line 19, the word "effective" is amended to read "ineffective".
BY THE COURT:
Muir, District Judge.
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