Case 2:11-cv-00652-CW-BCW Document 61 Filed 06/29/12 Page 1 of 7

Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 jturley@law.gwu.edu Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 adam.alba@gmail.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

) KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; MARK SHURTLEFF, in his official capacity as Attorney General of Utah; JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendants. Civil No. 2:11-cv-00652-CW ) ) ) ) ) ) ) ) Judge Waddoups MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS CROSS MOTION FOR SUMMARY JUDGMENT AND MOTION TO STAY SUMMARY JUDGMENT

PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS CROSS MOTION FOR SUMMARY JUDGMENT AND MOTION TO STAY SUMMARY JUDGMENT

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INTRODUCTION Pursuant to the Courts order of May 10, 2012, the Plaintiffs Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan (hereinafter the Brown family or the Browns) have filed a Motion for Summary Judgment and, on this date, a response to the dispositive motion filed by Defendant Buhman. Shortly before the end of the business day, however, Defendant Buhman filed a Cross Motion For Summary Judgment and a Motion To Stay Summary Judgment. The Defendants motions filed today violate the agreement reached by the parties, the schedule jointly sought by the parties, and, most importantly, this Courts order. These motions should be stricken as violating of this Courts standing order and in the interests of a fair and efficient adjudication in this case. In the alternative, the Court could deny these motions sua sponte as violative of the Court's prior order. BACKGROUND This motion is based on the following facts in this case: 1. 2. This action was filed on July 13, 2011. Defendants were required to file an answer by August 5, 2012, as required under

the federal rules and expressly stated in the summons to Defendants. 3. On August 2, 2011, the Defendants asked for an extension to answer the

Complaint. Despite the willingness of the Plaintiffs to allow an extension for an answer until August 25, 2011, Defendants did not file a motion and allowed the time to expire. 4. On August 29, 2011, Defendants again contacted the Plaintiffs and asked for an

extension. Plaintiffs stated that before they would agree to such an extension they needed to confirm whether a motion had been filed before the period expired for an answer. No motion was filed and no response was given to the inquiry.
2

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5.

On September 2, 2011one month past the original date for filing an answer

Defendant filed not an answer but a Motion To Dismiss for Lack of Standing. 6. On February 3, 2012, this Court ruled that the Brown family had standing to

challenge the law. Brown v. Herbert, 2:11-CV-0652-CW, 2012 WL 380110 (D. Utah Feb. 3, 2012). 7. On March 20, 2012, Defense Counsel Jerry Jensen responded to inquiries from

Plaintiffs Counsel Professor Jonathan Turley seeking to establish a pre-trial schedule. Mr. Jensen indicated that he wanted to stay discovery and instead have the parties file dispositive motions. 8. On March 30, 2012, Professor Turley agreed to the proposal but asked for a filing

date of April 23, 2012 for cross motions, which would have allowed a filing three months after the Courts ruling and scheduling order. 9. On April 3, 2012, Mr. Jensen stated that he needed more time and, after repeated

efforts to confirm a schedule with Defendant, Plaintiffs agreed to a schedule for dispositive motions to be filed on May 31. 10. On May 3, 2012, Defendant Buhman agreed to the following statement to the

Court (emphasis added): Soon after the prior order scheduling a pre-trial hearing, Plaintiffs Counsel contacted opposing lead counsel to suggest a joint motion on pre-trial scheduling and discovery. Defense counsel indicated a desire to postpone discovery in favor of a summary judgment motion based on the pleadings. Plaintiffs consent to such a schedule and reserve the right to also file a motion for summary judgment. Given the intended filing of a motion for summary judgment (or cross motions for summary judgment), the parties believe that the May hearing is an unnecessary expenditure of the Courts time as well as an unnecessary cost for the parties, including out-of-town counsel. Obviously, once these threshold motions are resolved, the parties and the Court would be in a better position to judge the need for discovery and any outstanding pre-trial issues.

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Accordingly, the parties jointly request that the Court order this pre-trial schedule for dispositive motions to be filed before or by May 31, 2012 with responsive memorandum due before or by June 29, 2012 and any reply memorandum due before or by July 16, 2012. 11. On May 10, 2012, the Magistrate Judge Evelyn J. Furse granted the motion and

ordered as follows: Motion deadline is 5/31/12, responsive memo due 6/29/12 and reply due 7/16/12. 12. On May 31, 2012, Plaintiffs filed their Motion for Summary Judgment. Rather

than file a Motion for Summary Judgment, Defendants elected to file a Motion to Dismiss for Mootness. 13. On June 14, 2012, Mr. Jensen contacted Professor Turley and asked if the

Plaintiffs would agree to stay further argument on their Motion for Summary Judgment. Professor Turley demurred and stated that such a change contradicted the very essence of the joint agreement, as well as the Courts order. 14. No motion was filed with the Court and, on June 29, 2012 (the day for the filing

of responsive briefing to the two dispositive motions), Defendant Buhman filed a Cross Motion for Summary Judgment and a Motion to Stay Summary Judgment shortly before the end of the business day. ARGUMENT This litigation has now been delayed for almost a year by out-of-time filings, delays in conferral, and successive motions to dismiss. The court-ordered schedule in this case was relied upon by Plaintiffs in the litigation schedule for their own counsel. This included overcoming a difficult conflict with a brief due on the same day before the United States Court of Appeals for the District of Columbia in Adams v. United States, (D.C. Cir.) (12-5026) as well as other

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conflicting case schedules. Despite these conflicts, counsel rearranged schedules and resources so as not to violate the Court order. Court orders must have meaning and reliability for litigation to work fairly and efficiently. The decision not to file the Defendants Motion for Summary Judgment on May 31, 2012 and then not to file his Responsive Memorandum in Opposition to Summary Judgment on June 29, 2012 was taken in open disregard of the Courts order. Even after Plaintiffs delayed the date for the filing of dispositive motions to accommodate the Defendant for almost two months, these motions would further delay the case and unfairly halt consideration of the Plaintiffs Motion for Summary Judgment. There is no reason why the Court cannot consider the dispositive motions of both parties, as agreed to by the parties and ordered by the Court. This would allow the Court the full range of options in deciding the merits of this case. More importantly, the decision to wait to the last day to file these motions warrants an order to strike.1 The Court has pending dispositive motions from each party, as contemplated in its order. The Defendant will have the opportunity to file a reply memorandum on July 12, 2012. The Courts order should not be constructively vacated by a party in this fashion; the motions of Mr. Buhman should be struck from the record. CONCLUSION In light of the foregoing, the Plaintiffs respectfully request an order striking the Defendants Cross Motion For Summary Judgment and Motion To Stay Summary Judgment.

Depending on how the Court rules on the two dispositive motions from the parties, the Defendant could later seek to file his own Motion for Summary Judgment. However, Mr. Buhman should not be able to unilaterally force a de facto vacating of a court order to the detriment of the other party.

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Respectfully submitted, /s/ Jonathan Turley_____ Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 jturley@law.gwu.edu Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 adam.alba@gmail.com Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing Motion and Memorandum of Points and Authorities for Summary Judgment was served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Jerrold S. Jensen (#1678) Thom D. Roberts (#2773) Assistant Attorneys General Attorneys For Defendants 160 East 300 South, 5th Floor P.O. Box 140857 Salt Lake City, Utah 84114-0857 Telephone: (801) 366-0353 jerroldjensen@utah.gov thomroberts@utah.gov Ryan B. Parker (#11742) Department of Justice, Civil Division 20 Massachusetts Ave NW Washington, D.C. 20530 Telephone: (202)514-4336 ryan.parker@usdoj.gov DATE: June 29, 2012 /s/ Jonathan Turley_____ Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 jturley@law.gwu.edu Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 adam.alba@gmail.com Attorneys for Plaintiffs