Case 2:14-cv-02518-DDC-TJJ Document 95 Filed 02/27/15 Page 1 of 10

IN THE UNITED STATED 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,
v.

)
)
)
)
)
)
(
) Case No. 14-CV-2518-DDC-TJJ
)
)
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
)
th
as Clerk of the District Court for the 18
)
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 Revenues Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
)
Health Plan,
)
Defendants.
)
_________________________________________)

MEMORANDUM IN SUPPORT OF MOTION

TO STAY DISCOVERY AND OTHER PRETRIAL ACTIVITIES
Pursuant to Local Rule 7.1, Douglas A. Hamilton and Bernie Lumbreras, Clerks of the
District Court for the 7th and 18th Judicial Districts of Kansas respectively, submit this
memorandum in support of its motion for an Order staying discovery and other pretrial activities
including those specified in the Courts Scheduling Order (Doc. 91), as well as a response to
1

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Plaintiffs summary judgment motion (Docs. 85-86), as to the Clerks:

(1) pending a ruling on the Defendants Motion to Dismiss the Amended Complaint
(Docs. 58-59), filed December 10, 2014, arguing that this Court lacks jurisdiction
over these defendants and lacks subject matter jurisdiction over this action;
(2) pending the Tenth Circuits opportunity to address Defendants pending appeal of the
preliminary injunction, no. 14-3246, the same issue presented here on Plaintiffs
summary judgment motion1 and over which the Circuit now has jurisdiction; and
(3) pending the United States Supreme Courts opportunity to consider and rule upon the
case of DeBoer v. Snyder, upon which certiorari was accepted on or about January
16, 2015, and in which the following question is presented to the Court for decision:
Does the Fourteenth Amendment require a state to license a marriage between two
people of the same sex? No. 14-571, 83 U.S. L.W. 3315, 2015 WL 213650 (U.S.
Jan. 16, 2015).
Nature of the Case and Statement of Facts
The original four plaintiffs, Kail Marie, Michelle L. Brown, Kerry Wilks and Donna
DiTrani filed their Complaint (Doc. 1) against the Douglas County and Sedgwick County
District Court Clerks and the then-Secretary of Health and Environment on October 10, 2014,
seeking declaratory and injunctive relief. Upon Plaintiffs request, the matter was expedited and
set for hearing on their request for preliminary injunction on October 31, 2014, prior to any
responsive pleadings being filed. In their filings seeking the extraordinary remedy of
preliminary injunctive relief, Plaintiffs Marie, Brown, Wilks and DiTrani represented to the
Court under oath that they wanted to marry, and were only being prevented from doing so by the

Doc. 86, at p.21, (2).

Case 2:14-cv-02518-DDC-TJJ Document 95 Filed 02/27/15 Page 3 of 10

actions of the Clerks.2 Plaintiffs represented to the Court that this was an urgent matter requiring
expedited relief, arguing that [t]here is no question that Plaintiffs suffer irreparable harm every
day that Kansass unconstitutional marriage bans remain in force, citing unquestionable
irreparable harm suffered by Plaintiffs due to Defendants refusal to allow Plaintiffs to enjoy the
fundamental right to marry their partnersstigmatizes and demeans them, causes them anxiety
and stress, and harms dignity as individuals and as couples.3 Plaintiffs argued to the Court that
the matter was a foregone conclusion,4 given the Circuits opinions on the matter, which
predated the Sixth Circuits decision in DeBoer or the recent U.S. Supreme Courts January
recent acceptance of certiorari. ACLU Attorney Doug Bonney told the Court that all Plaintiffs
were seeking was a marriage license from the Defendant Clerks, not marriage recognition. 5
Given Plaintiffs representations and relying upon this Circuits decisions, this Court
granted the requested preliminary injunction on November 4, 2014 but stayed its decision for a
very short time, until November 11, 2014.6 On November 5, 2014, Defendants appealed the
preliminary injunction and that matter is pending before the Tenth Circuit for decision.7 On
November 18, 2014, the Kansas Supreme Court lifted its stay on same-sex marriage licenses in
Johnson County, Kansas.8
On November 26, 2014, Plaintiffs filed a first amended complaint which included exactly
the same allegations as the initial complaint, the last dated allegation being as to October 9,
2014, as to Defendants Hamilton, Lumbreras and Mosier, allegations that were not true as of
November 26, 2014, and also adding new plaintiffs with additional claims against new
2

Doc. 4, Doc. 4-1, at 3; Doc. 4-2, at 3; Doc. 4-3, at 3, Doc. 4-4, at 3.

Doc. 4, at 7.
4
Doc. 4, at 6.
5
Transcript of Hearing, at 13:8-14; 49:15-23; 50:2 ([plaintiffs] want to be married; 50:6; 16-18; 56:15-17)
6
Doc. 29.
7
Doc. 30; Doc. 32 (referencing appellate case number 14-3246).
8
State ex rel. Schmidt v. Moriarty, No. 112,590 (Kan., Nov. 18, 2014) (previously provided to the Court)
3

Case 2:14-cv-02518-DDC-TJJ Document 95 Filed 02/27/15 Page 4 of 10

defendants.9 On December 10, 2014, Hamilton and Lumbreras timely filed a motion to
dismiss,10 arguing Eleventh Amendment and sovereign immunity as well as this Courts lack of
Article III jurisdiction given the absence of a present case or controversy, pointing out the ready
availability of marriage licenses in both Douglas and Sedgwick County as well as Johnson, and
pointing out that if Plaintiffs werent married, it was because they were choosing not to be.
Defendants motion to dismiss has not yet been ruled upon by the Court.
On January 16, 2015, the United States Supreme Court accepted certiorari in DeBoer v.
Snyder, including the following question: Does the Fourteenth Amendment require a state to
license a marriage between two people of the same sex? No. 14-571, 83 U.S. L.W. 3315, 2015
WL 213650 (U.S. Jan. 16, 2015).
On February 13, 2015, Plaintiffs filed a summary judgment motion, again seeking a
preliminary injunction enjoining Defendants Hamilton and Lumbreras from enforcing Article 15,
Section 16 of the Kansas Constitution and K.S.A. 23-2501 and 23-2508 and requiring Hamilton
and Lumbreras to permit issuance of marriage licenses to same-sex couples.11 Plaintiffs request
a preliminary injunction although they have already received one and the facts as now
acknowledged in their summary judgment motion do not require such relief as no licenses are
being denied by Hamilton or Lumbreras. Further in their declarations filed in support of their
summary judgment motion, Plaintiffs admit that they are voluntarily choosing not to get married
until the case is finally decided and all appeals exhausted, acknowledging the absence of a
present case or controversy as to their present claims against the Clerks.12 The summary
judgment motion filed by Plaintiffs also acknowledges that marriage licenses are being issued to

Doc. 52.
Doc. 58-59.
11
Doc. 86, at 21-22, (1), (2)(b).
12
Declarations of Marie, Brown, Wilks and DiTrani (Docs. 86-6, 86-7, 86-8, 86-9); Doc. 86, at p.7, 21.
10

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all qualified applicants in Douglas and Sedgwick Counties without regard to the sex of the
applicant.13 As to the licensing claim against Clerks Hamilton and Lumbreras, this matter is
obviously and admittedly moot.
Notwithstanding the mootness of Plaintiffs claims against the Clerks, including the
pending summary judgment motion, the transfer of jurisdiction to the Tenth Circuit of the issue
of the propriety of the preliminary injunction, and the pendency of the U.S. Supreme Courts
review in DeBoer v. Snyder which will resolve the licensing issue as to the Clerks, Plaintiffs
press on and obtained a Scheduling Order granting discovery and other activities as to all
Plaintiffs and all Defendants.14 At the Scheduling Conference, counsel was advised that a
Motion was required in order to address whether a stay was appropriate in this case -- hence this
filing.
QUESTION PRESENTED
Should discovery and other pretrial activities be stayed as to Clerks Douglas Hamilton
and Bernie Lumbreras, given the pendency of the Clerks Motion to Dismiss the Amended
Complaint, the pendency of the Clerks Tenth Circuit appeal of the preliminary injunction (the
same issue on which Plaintiffs again seeks relief through summary judgment), and the pendency
of the Supreme Courts review in DeBoer v. Snyder, which will in all probability definitively
resolve the licensing issue?
ARGUMENTS AND AUTHORITIES
The Court Has the Ability to Tailor Pretrial Activities to the Case

The Court has great flexibility in determining the time, manner and scope of discovery
13
14

Doc. 86, at 6, 20.

Doc. 91.

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and other pretrial activities. Such flexibility allows the Court to tailor activities to the needs of a
particular case. The Court has the authority to tailor the discovery schedule to specifically fit the
needs of a particular case.15 This is all under the general purview and mandate of Fed. R. Civ. P.
1, that the rules be construed and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding.
As a general rule, this District deems a stay of discovery appropriate when a decision on
a pending motion is likely to bring the case to its conclusion. A stay of discovery pending a
motion to dismiss is warranted where the facts sought through uncompleted discovery would not
affect the resolution of the motion and where discovery on all issues of the broad complaint
would be wasteful and burdensome. These factors underlying a motion to stay were stated in
Wolf v. United States,16 a decision still followed by this Court.
A Stay of Proceedings Is Warranted Under Wolf v. United States
In Wolf v. United States, this Court described three circumstances which warrant a stay of
discovery pending a dispositive motion:
[I]t is appropriate for a court to stay discovery until a pending dispositive motion
is decided, especially where the case is likely to be finally concluded as a result of
the ruling thereon; where the facts sought through uncompleted discovery would
not affect the resolution of the motion; or where discovery on all issues of the
broad complaint would be wasteful and burdensome.17
All three of the circumstances described in Wolf are evident here. Among other things,
the Clerks argue that this action against them (which is now entirely retrospective in nature as
there is no prospective relief to be obtained), is barred by Eleventh Amendment and sovereign
15

See Fed. R. Civ. P. 16(a)(3) (recognizing the purpose of discouraging wasteful pretrial activities); Fed. R. Civ. P.
16(b)(3) (recognizing the Courts authority in a scheduling order to modify the timing of initial disclosures, to
modify discovery, to set dates for pretrial conferences and to include other appropriate matters).
16
157 F.R.D. 494, 495 (D. Kan. 1994) (citing Kutilek v. Gannon, 132 F.R.D. 296, 297-98 (D. Kan.1990)).
17
157 F.R.D. at 494-95.

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immunity which is in the nature of a jurisdictional bar.18 The Clerks also argue there is no
subject matter jurisdiction and no pending case or controversy, something Plaintiffs now freely
admit.
Under the Wolf factors, a stay of discovery is appropriate because a ruling on the Motion
to Dismiss will conclude Plaintiffs claims against the Clerks and because discovery will not
provide any information that could possibly affect the outcome of the ruling on the legal issues
raised in the Motion to Dismiss, which are, for the most part, questions of law, not fact. Until the
dispositive legal issues raised in the Motion to Dismiss are resolved, discovery and other
activities in this case would be wasteful and burdensome to the Court and to the parties.19 For
example, the Scheduling Order sets deadlines and orders Defendants to proceed, despite the
pending motion to dismiss and the Courts lack of jurisdiction over the Clerks and the subject
matter. The Scheduling Order also provides Plaintiffs with the opportunity to seek discovery as
to the Clerks, despite their claim of immunity.
As Courts have recognized and as addressed below, a defendant asserting the defense of
immunity is entitled to have that defense decided prior to undergoing discovery or any other
burden of suit. In addition, should the motion to dismiss be denied, defendants will exercise any
available appeal rights to the Tenth Circuit.
As a practical matter, there is nothing that this Court can or should do to speed up the
resolution of this case as it is now in the hands of the U.S. Supreme Court and there is no further
relief that these Plaintiffs can get or that they even want from Clerk Hamilton or Lumbreras.
18

Edelman v. Jordan, 415 U.S. 651, 678 (1974); AMISUB (PSL), Inc. v. Colorado Dept. of Soc. Servs., 879 F.2d
789, 792 (10th Cir. 1989)(In essence, the fundamental principle of sovereign immunity embodied in the Eleventh
Amendment limits the grant of federal jurisdiction in Article III.) (citing Welch v. Texas Dept. of Highways and
Pub. Transp., 483 U.S. 468, 472 (1987) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98
(1984)).
19
Wolf, 157 F.R.D. at 495 (citing Kutilek v. Gannon, 132 F.R.D. 296, 297-98 (D. Kan. 1990) and Fed. R. Civ. P. 1;
16 (recognizing the Courts right to control discovery-related activities)).

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Stays Have Been Granted in Similar Circumstances

Stays of discovery and other pretrial activities have been frequently granted in this
District where threshold issues of jurisdiction or immunity are at stake.20 As stated in an opinion
by Magistrate Rushfelt of this District:
[a]nother basis for staying discovery is based upon a defendant's assertion of an immunity
defense in a dispositive motion. Generally, a defendant is entitled to have questions of
immunity resolved before being required to engage in discovery and other pretrial
proceedings. One of the purposes of immunity. . . is to spare a defendant not only
unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit. The Supreme Court has made it clear that until the
threshold question of immunity is resolved, discovery should not be allowed.21

As this Court has recognized, a stay pending resolution of Eleventh Amendment

immunity is also appropriate.22
Denials of Eleventh Amendment immunity may be subject to an immediate appeal to the
Tenth Circuit, which is another reason pretrial activities in the district court should not proceed
until these threshold issues are resolved.23
While the Clerks recognize that in the usual case stays are the exception not the rule, this
is not the usual case. Discovery and other pretrial activities should be stayed based upon
Eleventh Amendment and sovereign immunity and the other arguments raised in the Clerks
Motion to Dismiss and Memorandum in Support.

20

See, e.g., Hwang v. Kansas State Univ., No. 11-4185-EFM, 2012 WL 3292835, *2 (D. Kan. Aug. 13, 2012) (J.
Humphreys); Wedel v. Craig, 10-1134-EFM, 2010 WL 2545974, *2 (D. Kan., June 22, 2010)(J. OHara); Heistand
v. Coleman, 08-3292-CM-DJW, 2009 WL 1226737, *1 (D. Kan., April 30, 2009) (J. Waxse).
21
Pfuetze v. State of Kansas, 10-1139-CM-GLR, 2010 WL 3718836, *1 (D. Kan., Sept. 14, 2010) (citations
omitted).
22
Hwang v. Kansas State Univ., No. 11-4185-EFM, 2012 WL 3292835, *2 (D. Kan. Aug. 13, 2012) (J.
Humphreys); Heistand, 2009 WL 1226737, *1; see Liverman v. Committee on the Judiciary, U.S. House of Rep.,
No. 02-4049, 51 Fed. Appx. 825, 827-28, 2002 WL 31379892 , *2 (10 th Cir. Oct. 23, 2002) (unpublished);
Goshtasby v. Board of Trustees of University of Illinois, 123 F.3d 427, 429 (7th Cir. 1997).
23
See, e.g., Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (Eleventh
Amendment); Mitchell v. Forsyth, 475 U.S. 511, 526-27 (1985) (qualified immunity).

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Jurisdiction over the Preliminary Injunction is Now in the Circuit

Given the pendency of the Clerks Tenth Circuit appeal, this Court is without jurisdiction
to consider Plaintiffs request for preliminary injunction against the Clerks asserted in their
summary judgment motion.24 The general rule is that the filing of a notice of appeal divests the
district court of jurisdiction and transfers jurisdiction to the appellate court.25 When the appeal is
from an order that does not finally determine the entire action, jurisdiction is lost as to the
matters which are involved in the appeal.26 This rule is squarely at issue in this case and bars
jurisdiction over Plaintiffs second request for preliminary injunction against the Clerks.
DeBoer will Resolve the Issue
This Court has recognized it would not be the last court to address the licensing issue in
this case. We know now that the United States Supreme Court will decide the licensing issue
and very, very soon. At this stage, any further activities in this Court as to the Clerks are
wasteful, burdensome, expensive, and inefficient, contrary to the dictates of Fed. R. Civ. P. 1.
These expensive activities in this Court are also useless and meaningless, as whatever the
Supreme Court decides will control. The Court should not accede to Plaintiffs request to try to
rush to judgment prior to the Supreme Court having its say because, with respect, that is the say
that will matter as the Supreme Courts decision will ultimately speed up the resolution of this
entire matter by giving both parties the answer they seek.
CONCLUSION
Douglas A. Hamilton and Bernie Lumbreras respectfully request that the Court grant its
24

Doc. 86, at 21-22.

Griggs v. Provident Consumer Discount, 459 U.S. 56, 58 (1982) (per curiam); 9 J. Moore, Moores Federal
Practice 203.11.
26
J. Moore, at 203.11, 3-54.
25

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Motion for an Order staying discovery and other pretrial activities including the activities set
forth in the Courts Scheduling Order (Doc. 91), and defendants response to Plaintiffs pending
summary judgment motion, pending a ruling on the Clerks Motion to Dismiss and ultimately,
pending a ruling by the U.S. Supreme Court on the licensing issue underlying this case.
Respectfully submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT
By /S/ M.J. Willoughby____
M.J. Willoughby KS 14059
Assistant Attorney General
Memorial Hall, 2nd Fl.
120 S.W. 10th
Topeka, KS 66612-1597
(785)296-2215
MJ.Willoughby@ag.ks.gov
CERTIFICATE OF SERVICE
This is to certify that on this 27th day of February, 2015, a true and correct copy of the
above and foregoing was filed by electronic means via the Courts electronic filing system which
serves a copy upon all registered users including Plaintiffs counsel of record, Stephen Douglas
Bonney, ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111, Mark P.
Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111,
dbonney@aclukansas.org and Mark.johnson@dentons.com, and Joshua A. Block, American
Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004,
jblock@aclu.org and to Steve Fabert, Assistant Attorney General, Office of Attorney General
Derek Schmidt, 120 SW 10th Avenue, Topeka, KS 66612-1597, Attorney for Defendants
Mosier, Jordan, Kaspar and Michael.
/s M.J. Willoughby___________
M.J. Willoughby, Assistant A.G.

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