2:14-cv-02518 #107

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KAIL MARIE et al.,

Plaintiffs,

v.

Case No. 14-cv-02518-DDC/TJJ

ROBERT MOSER, M.D. et al.,

Defendants.

ORDER

Defendants have filed three motions seeking to postpone proceedings in this case. They

are:

Clerk Hamilton and Clerk Lumbreras’ motion to stay discovery

and “other pretrial activities” (Doc. 94);

Secretary Mosier, Secretary Jordan, Director Kaspar, and Director

Michael’s motion for an extension of time to respond to plaintiffs’

motion for summary judgment (Doc. 93); and

Clerk Hamilton and Clerk Lumbreras’ motion for an extension of

time to respond to plaintiffs’ motion for summary judgment (Doc.

103).

Plaintiffs Darci Jo Bohnenblust, Sarah C. Braun, Michelle L. Brown, Donna DiTrani, Carrie L.

Fowler, Joleen M. Hickman, Kail Marie, Gary A. Mohrman, James E. Peters, and Kerry Wilks

have filed Responses to the defendant State of Kansas officials’ motion for an extension of time

(Doc. 98), the Clerk defendants’ motion to stay discovery (Doc. 104), and the Clerk defendants’

motion for an extension of time (Doc. 105). The Court discusses each motion and rules on them

below.

Case 2:14-cv-02518-DDC-TJJ Document 107 Filed 03/13/15 of 9

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1. Motion to Stay Discovery and Other Pretrial Activities (Doc. 94)

The two Clerk defendants, Mr. Hamilton and Ms. Lumbreras, ask the Court to stay “all

other pretrial activities as to [them], including those specified in the Court’s Scheduling Order.”

Doc. 94 at 1. This includes their duty to respond to plaintiffs’ pending motion for summary

judgment. In effect, this motion, if granted, would stop everything in this case until three

things—or some unspecified combination of them—have happened:

(1) the Court rules on the Clerks’ Motion to Dismiss (Docs. 58-59);

(2) the Tenth Circuit rules on defendants’ appeal of this Court’s

preliminary injunction order (Doc. 29); and/or

(3) the Supreme Court decides DeBoyer v. Snyder1 (a Sixth Circuit

case in which the Court granted a writ of certiorari to decide

whether the Fourteenth Amendment requires states to license a

marriage between two people of the same sex).

Doc. 94 at 2.

The first contingency identified in the Clerks’ motion—a ruling on their pending motions

to dismiss (Docs. 58-59)—does not warrant a stay. Our Court follows the general rule that a

pending motion to dismiss is not a sufficient reason to halt other proceedings in a case. See Wolf

v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994) (refusing the defendant’s request to stay

discovery until the court ruled on its pending motion to dismiss, noting that the “general policy

in this district is not to stay discovery even though dispositive motions are pending”). Most

general rules have exceptions, as does the rule recognized in Wolf. Unfortunately, for the Clerks,

this case presents none of the recognized exceptions.

Our Court deviates from the general rule against a stay when “the case is likely to be

finally concluded as a result of the ruling” on a pending motion to dismiss. Id. The Court has

1 No. 14-571, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015).


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reviewed the pending motions to dismiss. In the Court’s judgment, none of them is likely to

conclude this case.

A second exception to Wolf’s rule applies when “discovery on all issues of the broad

complaint would be wasteful and burdensome.” Id. at 495. This exception was designed to

protect defendants when a motion to dismiss presents a persuasive legal defense that, if adopted

by the Court, would render continued fact development and attendant discovery irrelevant. The

logic of this exception reasons that inertia should not cause such a defendant to win the battle but

lose the war. That is, a defendant likely to prevail fully on its motion to dismiss should not have

to bear the substantial costs and burdens inherent in responding to broad discovery. As the Court

already explained, it does not view the pending motions to dismiss filed here as ones likely to

resolve the entire case. And even if they were, this exception would not fit the circumstances of

this case. Defendants are the ones who have propounded broad-scale discovery.2 Yet they are

now the ones asking the Court to spare them from the burdens of that discovery. Wolf’s

exception does not apply in these circumstances.

This moves the analysis to the second contingency relied on by the Clerks’ motion to

stay. They assert that the Court should stay proceedings in this case until the parties receive “a

ruling by the Tenth Circuit on Defendants’ appeal [No. 14-3246] of [this Court’s] preliminary

injunction, which involves the same issue” purportedly presented by this case. Doc. 94 at 2.

When the Court issued its preliminary injunction on November 4, 2014, it stayed the effective

2 The requests for production defendants have served are emblematic of the scale of the discovery

burden they have chosen to try to impose. For example, defendants’ requests demand that plaintiffs

produce all “emails, letters, certificates, and audio or video recordings” relating to “any instance

[plaintiffs] held themselves out to be married,” see Doc. 99-4 at ¶ 20, all postings that they have made on

all “social media account[s]” during the last five years, see id. at ¶ 22, and any of plaintiffs’

communications with their clergy about same-sex marriage, see id. at ¶ 26. Even if such discovery were

proper, the burden of complying with that discovery falls on plaintiffs, not defendants. It thus provides

no basis for defendants to request a stay of proceedings.


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date of its injunction temporarily so defendants would have time to convince the Tenth Circuit

that the Court erred when it issued that injunction. Doc. 29 at 37-38. Defendants made such an

appeal promptly, filing an emergency motion asking the Circuit to stay the injunction until it

could reach the merits of the case. Judge Lucero and Judge Bacharach held that defendants had

“failed to make the showings necessary to obtain a stay” and so they denied defendants’ motion.

Marie v. Moser, No. 14-3246 (10th Cir. Nov. 7, 2014). Defendants next asked the Supreme

Court to stay the preliminary injunction order. On November 10, 2014, Justice Sotomayor

stayed the preliminary injunction until plaintiffs could respond to defendants’ request. Moser v.

Marie, 135 S. Ct. 511 (Nov. 10, 2014). Two days later, the Supreme Court vacated this short-

term stay, ruling: “The application for stay presented to Justice Sotomayor and by her referred to

the Court is denied. The order heretofore entered by Justice Sotomayor [on November 10] is

vacated.” Moser v. Marie, 135 S. Ct. 511 (Nov. 12, 2014). Finally, defendants asked all the

active judges of the Tenth Circuit to give their appeal an initial hearing. The Circuit denied this

request as well. “No judge in regular active service on the court requested that the court be

polled on the motion for initial hearing en banc.” Marie v. Moser, No. 14-3246, at *2 (10th Cir.

Dec. 2, 2014). To put it simply, defendants are back where they started. They are asking this

Court to do something that neither the Tenth Circuit nor the Supreme Court did. The Court finds

nothing in this history favoring such a stay.

Defendants’ third contingency asserts that the Court should put this case on hold until the

Supreme Court can decide DeBoyer,3 a case in which the Supreme Court granted a writ of

certiorari to decide whether the Fourteenth Amendment requires states to license marriages

between two people of the same sex. Defendants argue that the decision in DeBoyer could alter

3 No. 14-571, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015).


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the rule established in the two Tenth Circuit decisions4 that drove this Court’s preliminary

injunction ruling and, perhaps, nullify the claims plaintiffs assert here. Plaintiffs respond with

two arguments.

First, plaintiffs contend that the licensing claims they assert present “an open-and-shut

case” because the outcome is dictated by binding precedent. Doc. 104 at 2. This response is not

persuasive. It simply ignores the possibility that the Supreme Court might reverse the rule

established in the two governing Tenth Circuit decisions and thus ordain a different outcome

than the one plaintiffs seek.

Second, plaintiffs invoke the Supreme Court’s ruling in Strange v. Searcy, 135 S. Ct. 940

(2015). In that case, Alabama’s Attorney General asked the Supreme Court “to stay a federal

injunction preventing him from enforcing several provisions of Alabama law defining marriage

as a legal union of one man and one woman” until the Supreme Court could decide the DeBoyer

appeal. Id. at 940 (Thomas, J., dissenting). In effect, Alabama asked the Supreme Court to do in

that case what the Clerks ask this Court to do here—put the challenge to a state’s same-sex

marriage laws on hold until the Supreme Court decides the issue. While Justice Thomas and

Justice Scalia would have granted Alabama the stay it requested, the Court as a whole refused to

do so.

The Court views this ruling in Strange as guidance, albeit of the indirect variety, on how

it should proceed here. Given the outcome there, it makes no sense to conclude that this Court

should stop the parties here from doing the work necessary to position the claims in this case for

a final merits decision. This lesson seems especially apt in a case where state officials have

manifested their resolve to litigate—as is their right—every conceivable barrier to an outcome

4 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.), cert denied, 135 S. Ct. 265 (2014) and Bishop v.

Smith, 760 F.3d 1070 (10th Cir.), cert denied, 135 S. Ct. 271 (2014).


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that might nullify Kansas’ same-sex marriage laws. In sum, defendants have not shown that a

stay is appropriate. The Court thus denies Clerk Hamilton and Clerk Lumbreras’ motion to stay

discovery and all other pretrial activities (Doc. 94).

2. The State Officials’ Motion for Extension of Time To Respond to Plaintiffs’

Motion for Summary Judgment (Doc. 93)

The four State of Kansas officials who are defendants5 ask the Court to grant them more

time to respond to plaintiffs’ motion for summary judgment. They assert that they need

responses to the discovery they have propounded to plaintiffs and, possibly, time to depose

plaintiffs (Doc. 93 at 1-2). Plaintiffs oppose the motion, arguing that it does not comply with the

requirements of Fed. R. Civ. P. 56 and that delay alone is no reason to postpone summary

judgment briefing. The Court agrees with plaintiffs.

Our civil procedure rules do permit a party who makes the requisite showing to postpone

the obligation to respond to a summary judgment motion. They even specify how to request

such an extension. Namely, a party seeking more time to respond to such a motion must “show[]

by affidavit or declaration” that it “cannot present facts essential to justify its opposition” to the

motion. Fed. R. Civ. P. 56(d).

Initially, the four defendants seeking more time failed to satisfy this threshold procedural

requirement. They submitted no affidavit or declaration with their motion, as the rule requires.

See Doc. 93. As plaintiffs point out, an affidavit or declaration is not just a technicality. It is in

the rule to ensure that the extension is sought in good faith and to permit an assessment of the

specific merits of the non-movant’s position. Comm. For First Amendment v. Campbell, 962

F.2d 1517, 1522 (10th Cir. 1992). But after plaintiffs pointed out this omission in their Response

5 Secretary Moser, Kansas Department of Health and Environment; Secretary Jordan, Kansas

Department of Revenue; Director Kaspar, Kansas Department of Renue’s Division of Vehicles; and

Director Michael, State Employee Health Plan.


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to the motion (Doc. 98), defendants’ counsel submitted the missing declaration—albeit an

unsigned one—with defendants’ Reply (Doc. 99-1).

The real problem with defendants’ motion is not procedural but substantive. The reasons

it relies on are insufficient to justify the request for more time. Their argument asserts that “the

original four plaintiffs have already placed their own credibility in issue, by refusing to take

advantage of the preliminary injunction that they alleged was made necessary by the irreparable

harms they would suffer if they were not immediately allowed to marry in Kansas.” Doc. 93 at

4. Defendants also argue, “We have other plaintiffs who claim to have had interactions with

unnamed state officials concerning their income taxes, or health insurance or driver licenses.”

Id. These assertions fall far short of what Rule 56 requires.

The rule requires the party asking for more time to show that an extension is necessary

for it to “present facts essential to justify [their] opposition.” Rule 56(d). Our Court’s cases

have applied this rule to require a showing “how additional time will enable [the non-movants]

to rebut the movant’s allegations of no genuine issue of fact.” Sprint Commc’ns Co. v. Vonage

Holdings Corp., 500 F. Supp. 2d 1290, 1334 (D. Kan. 2007). While defendants’ papers talk

much about the things that they do not know, they never connect their purported uncertainties

and a genuine issue of fact that affects a material aspect of plaintiffs’ summary judgment motion.

Defendants have failed to make the showing required by Rule 56. The Court thus denies

their motion (Doc. 93).

3. Clerk Hamilton and Clerk Lumbreras’ Motion for Extension of Time on

Plaintiffs’ Motion for Summary Judgment (Doc. 103)

This motion seeks an extension of time to respond until the Court has “rule[d] upon

Defendants’ Motion for Stay (Docs. 94-95) and Defendants’ Motion to Dismiss (Docs. 58-59.”

Doc. 103 at 6. This Order denies the former—the motion for a stay—and thus obviates this


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aspect of the Clerk’s motion. As a result, the Court addresses only the second contingency

referenced by the motion—the motion to dismiss.

The unspoken premise of the Clerks’ motion is that a party should not have to respond to

a summary judgment motion until the Court has ruled on a pending motion to dismiss.

Defendants’ premise is inconsistent, implicitly, with the rule in Wolf v. United States, discussed

above. Rule 56 itself refutes this idea too. Absent a contrary local rule or order, any party is free

to file for summary judgment “at any time until 30 days after the close of all discovery.” Fed. R.

Civ. P. 56(b). This approach is consistent with the guiding principle of the rules, which instructs

federal courts to apply the rules to “secure just, speedy, and inexpensive” outcomes in every

case. Fed. R. Civ. P. 1. A motion to dismiss does not displace other available procedures

designed to secure an efficient determination of suits.

The Clerks’ motion does not make the showing required by Rule 56(d) and the Court thus

denies it.

4. Extension Granted on the Court’s Motion

Though the defendants have failed to make a showing that would justify the various relief

that their motions seek, it is not uncommon for parties opposing summary judgment to receive

extensions of time (so long as the extensions do not jeopardize a trial date). Consistent with this

approach, the Court has decided, on its own motion, to give defendants more time to respond to

plaintiffs’ summary judgment motion. Such responses are now due on April 13, 2015, 30 days

after entry of this Order. This deadline will provide defendants with 60 days to respond to

plaintiffs’ summary judgment motion—nearly three times the amount normally permitted by our

local rule. See D. Kan. R. 6.1(d)(2). This extension will give defendants adequate time to

discover any facts they genuinely need to respond to the plaintiffs’ summary judgment motion

and to submit their briefs.


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To encourage efficient handling of the summary judgment process, the Court also orders

defendants to file one consolidated brief responding to plaintiffs’ summary judgment arguments.

To accommodate the two groups of defendants, the Court enlarges the page limit for the

argument and authorities section of this consolidated brief to 45 pages under the authority

conferred by D. Kan. R. 7.1(e).

IT IS THEREFORE ORDERED BY THE COURT THAT Secretary Mosier,

Secretary Jordan, Director Kaspar, and Director Michael’s motion for an extension of time to

respond to plaintiffs’ motion for summary judgment (Doc. 93) is denied. Clerk Hamilton and

Clerk Lumbreras’ motion to stay discovery and “other pretrial activities” (Doc. 94) is also

denied. Finally, Clerk Hamilton and Clerk Lumbreras’ motion for an extension of time to

respond to plaintiffs’ motion for summary judgment (Doc. 103) is denied.

The Court, on its own motion, extends defendants’ deadline to respond to plaintiffs’

summary judgment motion until Monday, April 13, 2015. The Court further orders that

defendants consolidate their response briefs and comply with the page limits set forth in this

Order.

IT IS SO ORDERED.

Dated this 13th day of March, 2015, at Topeka, Kansas.

s/ Daniel D. Crabtree

Daniel D. Crabtree

United States District Judge


2:14-cv-02518 #107

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