Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, No. 13-4178 Plaintiffs-Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah, Defendants-Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County. Defendant. DEFENDANTS-APPELLANTS MOTION TO EXTEND TIME TO FILE REPLY BRIEF

Docket Reference Number: [10155340]

Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 2

Defendants-Appellants Gary R. Herbert, in his official capacity as Governor of Utah, and Sean D. Reyes, in his official capacity as Attorney General of Utah (collectively State Defendants), request an additional 3 days to file their reply brief. See 10th Cir. R. 27.4. The extra time is necessary to allow State Defendants a reasonable and fair opportunity to respond to the numerous amici curiae briefsover 600 pages in allthat have been filed in support of the Plaintiffs. Plaintiffs do not oppose the requested extension. BACKGROUND In part because of the importance of the issues on appeal and the need to adequately brief them, the State Defendants previously received a 7-day extension to file their opening brief. And they received a 7-day extension to file their reply brief based on the length of Plaintiffs response brief and the need to review and respond to the amicus briefs that were then scheduled to be filed in support of the Plaintiffs on the same day that the State Defendants reply brief was due. Ultimately, 26 amicus briefs supporting the Plaintiffs were filed by March 4, 2014 totaling well over 600 pages. Some of those briefs raise new arguments or significantly amplify Plaintiffs assertions in a way that merits a 1

Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 3

response from State Defendants. State Defendants reply is currently due on March 11, 2014. GROUNDS TO EXTEND TIME TO FILE REPLY BRIEF State Defendants need an additional 3 days to file their reply brief. 10th Cir. R. 27.4 (motion must establish that it will not be possible to file the brief on time, even if the party exercises due diligence and gives priority to preparing the brief).1 State Defendants are giving highest priority, and are diligently working, to finish their reply brief on time. But it has proven to be nearly impossible to timely review and reply to (a) Plaintiffs overlength brief and (b) 26 amicus briefs, collectively accounting for more than 600 pages. State Defendants require only 3 extra days to allow sufficient time to adequately respond to the arguments of amici in the manner that will be most helpful to the Court. Given the important social and legal issues at stake, and the need for all of the arguments to be fully addressed, a 3-day extension is

Courts order setting the current briefing schedule did not announce any other standard governing requests for extension of time. State Defendants therefore refer to 10th Cir. R. 27.4. But the reasons State Defendants explain for the requested extension would also satisfy the extraordinary circumstances standard the Court applied to any extensions of the briefing schedule set forth in its December 30, 2013 order.
1

The

Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 4

justified. In addition, a 3-day extension for the reply brief will not affect the April 10, 2014 oral argument date and will still give the Court essentially 4 full weeks (27 days) to review the reply brief before oral argument. CONCLUSION For the foregoing reasons, State Defendants respectfully request an additional 3 days to file their reply brief. Respectfully submitted, s/ Gene Schaerr_____________ GENE SCHAERR Special Assistant Utah Attorney General BRIAN L. TARBET Chief Deputy Utah Attorney General STANFORD E. PURSER PHILIP S. LOTT Assistant Utah Attorneys General P.O. Box 140856 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 (phone) gschaerr@gmail.com

Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 5

ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing motion required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the document filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses. s/ Gene Schaerr_____________

Appellate Case: 13-4178

Document: 01019213439

Date Filed: 03/06/2014

Page: 6

CERTIFICATE OF SERVICE I hereby certify that on the 6th of March, 2014, a true, correct and complete copy of the foregoing Defendants-Appellants Motion to Extend Time to File Reply Brief was filed with the Court and served on the following via the Courts ECF system: Peggy A. Tomsic tomsic@mgplaw.com James E. Magleby magleby@mgplaw.com Jennifer Fraser Parrish parrish@mgplaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell dcodell@nclrights.org National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness rchamness@slco.org Darcy M. Goddard dgoddard@slco.org Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 s/ Gene Schaerr_____________