2:14-cv-02518 #103

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KAIL MARIE and MICHELLE L. BROWN, ) and KERRY WILKS, Ph.D., and DONNA ) DITRANI, JAMES E. PETERS and GARY A. ) MOHRMAN; CARRIE L. FOWLER and ) SARAH C. BRAUN; and DARCI JO ) BOHNENBLUST and JOLEEN M. ) HICKMAN, ) Plaintiffs, ) Case No. 14-CV-2518-DDC-TJJ v. ) ) ROBERT MOSER, M.D., in his official capacity ) as Secretary of the Kansas Department of ) Health and Environment and ) DOUGLAS A. HAMILTON, in his official ) Capacity as Clerk of the District Court for the 7th ) Judicial District (Douglas county), and ) BERNIE LUMBRERAS, in her official capacity ) as Clerk of the District Court for the 18th ) Judicial District (Sedgwick County), ) NICK JORDAN, in his official capacity as ) Secretary of the Kansas Department of Revenue, ) LISA KASPAR, in her official capacity as Director ) of the Kansas Department of Revenue’s Division ) of Vehicles, and MIKE MICHAEL, in his official ) capacity as Director of the State Employee ) Health Plan, ) Defendants. ) ______________________________________________ )

DEFENDANT HAMILTON AND LUMBRERAS’ MOTION FOR EXTENSION OF

TIME REGARDING PLAINTIFFS’ MOTION FOR SUMMARYJUDGMENT WITH MEMORANDUM IN SUPPORT INCORPORATED

Nature of the Matter Before the Court

And Statement of Facts

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Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 of 6

The Amended Complaint (Doc. 52) involves ten (10) different plaintiffs, six (6) different

defendants, and several different types of claims, implicating different facts, issues, law and

defenses.

On December 10, 2014, Defendants Hamilton and Lumbreras filed a motion to dismiss

the Amended Complaint, asserting defenses of immunity and lack of jurisdiction, especially

given the absence of any pending case or controversy. (Doc. 58-59). On December 10, 2014,

Defendant Moser also moved to dismiss the Amended Complaint (Doc. 57). Defendants Kaspar,

Jordan and Michael have also moved to dismiss the Amended Complaint. (Doc. 79). All of these

motions are pending for decision by this Court.

On February 13, 2015, prior to Defendants’ motions to dismiss having been ruled upon,

prior to the scheduled scheduling conference or any order being entered, prior to Answers to the

Amended Complaint having been filed by Defendants Jordan, Kaspar or Michael and prior to

Defendants having had any opportunity to conduct discovery, Plaintiffs filed their motion for

summary judgment (Doc. 85-86) as to all claims and all defendants. The motion seeks a second

preliminary injunction against Hamilton and Lumbreras (Doc. 85); the first preliminary

injunction is on appeal to the Tenth Circuit, Appeal No. 14-3246, and is in the process of being

briefed there.

The Declarations attached to the summary judgment motion seeking a second preliminary

injunction against Hamilton and Lumbreras acknowledge there is no case or controversy within

the limited Article III jurisdiction of this Court between the original Plaintiffs and Hamilton and

Lumbreras as Plaintiffs acknowledge that they have no intention of seeking a marriage license

from Hamilton or Lumbreras (or ostensibly any other Clerk or Judge) “until after the case has

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been fully litigated to final judgment and any appeals exhausted.” Second Declaration of Kail

Marie (Doc. 86-6), at ¶ 7; Second Declaration of Michelle Brown (86-7), at ¶ 6; Declaration of

Kerry Wilks (Doc. 86-8), at ¶ 6; Declaration of Donna DiTrani (86-9), at ¶ 6. Plaintiffs’ motion

also acknowledges that new Administrative Orders have been entered by the Chief Judges in

both the 7th and 18th Judicial Districts directing the clerks to issue same-sex marriage licenses.

(Doc. 86, p.6, ¶ 20).

On February 27, 2015, in accordance with the directions of the U.S. Magistrate Judge at

Scheduling Conference, Clerks Hamilton and Lumbreras filed a motion for stay of discovery and

other pretrial activities (Docs. 94-95), including a request to stay the due date for these

Defendants’ response to Plaintiffs’ summary judgment motion (Docs. 85-86). This Court has not

yet had an opportunity to rule on Defendants’ motion for stay. As per local rule, a response to

Plaintiffs’ summary judgment motion is generally due on or before March 6, 2015. Out of an

abundance of caution and in deference to the Court and its local rules, including D. Kan. 7.4, and

because the motion for stay may not appear in the Court’s electronic filing system as linked to

the pending summary judgment motion, Defendants Hamilton and Lumbreras submit this motion

requesting an extension of time or continuance for any response to Plaintiff’s summary judgment

motion, pending this Court’s opportunity to consider Defendants’ pending motions for stay and

to dismiss.

ARGUMENTS AND AUTHORITIES

As per D. Kan. 6.1(a), Defendants Hamilton and Lumbreras submit that: (1) Doug

Bonney, ACLU attorney, has indicated he is generally opposed to extensions of time to respond

to the ACLU’s summary judgment motion; (2) under local rule, the response to Plaintiff’s

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summary judgment motion is due March 6, 2015; and (3) no prior extensions of this deadline

have been requested by these Defendants or granted by this Court.

As per D. Kan. 6.1(a), the cause for the requested extension or continuance is set forth in

Defendant Hamilton and Lumbreras’ motion to stay and supporting memorandum, incorporated

by reference herein (Docs. 94-95), which includes and references Defendants’ motion to dismiss

raising immunity and jurisdictional issues (Doc. 58-59). If this Court lacks jurisdiction, it cannot

consider summary judgment, but rather, must dismiss the action. C. Wright, A. Miller, M. Kane,

R. Marcus, A. Steinman, 10A Federal Practice and Procedure § 2713 (3d ed.), n.50 (annotating

cases). The jurisdictional issue must be decided first. Id. (citing Miller v. National Maritime

Union, 275 F. Supp. 890, 810 (D. Pa. 1967) (“Because there appears no basis for jurisdiction of

this court over the present controversy, however, we do not reach this question [whether

summary judgment should be entered], but must dismiss the complaint . . . Dismissal, rather than

the granting of defendants’ motion for summary judgment, is the proper disposition where this

court lacks jurisdiction to decide on whether defendants would be ‘entitled to a judgment as a

matter of law.’”).

In addition, these Defendants adopt and incorporate by reference the arguments,

authorities and filings of Defendants Mosier, Kaspar, Jordan and Michael, including those under

Fed. R. Civ. P. 56(d) (Docs. 93, 99, 99-1, 99-2, 99-3, 99-4). Plaintiffs are in exclusive

possession of certain facts, which Defendants are attempting to discover in accordance with this

Court’s directions to date; in fairness and in accordance with this Court’s previous indications,

and to develop a complete and full factual record, Defendants should be given the opportunity

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for reasonable discovery in this matter. C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman,

10B Federal Practice and Procedure § 2741 (3d ed.).

Summary judgment motions have been termed a “drastic” or “extreme” remedy, “only

cautiously invoked.” C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman, 10A Federal

Practice and Procedure § 2712 (3d ed.) (annotating cases at notes 31-33). Courts have been

particularly cautious about summary judgment in cases involving important public issues. Id., at

§ 2732 (“[c]ases involving major constitutional or civil rights acts questions also frequently are

not very suitable for summary judgment;” citing § 2732.2; see § 2732.2, n.2, citing the need for a

fuller record for disposition of such cases). The Court has considerable discretion in dealing

with such motions as serves the needs of justice in a particular case, including deferring or

reserving ruling where additional pleadings or additional development of an adequate factual

record would be beneficial, particularly on appeal, to facilitate orderly case processes or to avoid

piecemeal disposition of a matter. See Id., at § 2728 (citing cases, including Askew v. Hargrave,

401 U.S. 476, 478-79 (1971) (in reversing and remanding a district court’s order granting

summary judgment to the plaintiffs on an equal protection claim, which was decided on the

pleadings and an affidavit, a basis the Court found “inadequate,” noting that full development of

the factual record should be required: “[s]ince the manner in which the program operates may be

critical in the decision of the equal protection claim, that claim should not be decided without

fully developing the factual record at hearing.”).

For the reasons stated herein and for the reasons stated in Defendants’ Motion to Stay and

Supporting Memorandum (Doc. 94-95), and, in the alternative, for the reasons offered in support

of an extension or continuance by Defendants Mosier, Kaspar, Jordan and Michael, Defendants

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request an extension of time or continuance to respond until after this Court’s opportunity to rule

upon Defendants’ Motion for Stay (Docs. 94-95) and Defendants’ Motion to Dismiss (Docs. 58-

59), and for such other and further relief as this Court deems just and proper.

Respectfully submitted,

OFFICE OF ATTORNEY GENERAL DEREK SCHMIDT s/ M.J. Willoughby M.J. Willoughby # 14059 Assistant Attorney General Memorial Bldg., 2nd Floor 120 SW 10th Avenue Topeka, Kansas 66612-1597 Tel: (785) 296-2215 Fax: (785) 291-3767 Email: [email protected] Attorney for Defendants Hamilton and Lumbreras

CERTIFICATE OF SERVICE

This is to certify that on this 6th day of March, 2015, a true and correct copy of the above and foregoing was served by electronic means upon Plaintiffs’ counsel of record, Stephen Douglas Bonney, ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Samantha Wenger, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111, [email protected], [email protected], [email protected] and Joshua A. Block, American Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004, [email protected], and Steve R. Fabert, Assistant Attorney General, 120 SW 10th, Topeka, KS 66612, Attorney for Defendants Mosier, Kaspar, Jordan and Michael. s/M.J. Willoughby M.J. Willoughby, Assistant Attorney General

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mailto:[email protected]

mailto:Mark.johnson@dentons

mailto:[email protected]

2:14-cv-02518 #103

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