3:15-cv-00578 #55

Case 3:15-cv-00578-DPJ-FKB Document 55 Filed 10/02/15 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN EQUALITY, ET AL.
VS.
PLAINTIFFS
CIVIL ACTION NO. 3:15cv578-DPJ-FKB
The MISSISSIPPI DEPARTMENT OF HUMAN

SERVICES, ET AL.
DEFENDANTS
_______________________________________________________
EXECUTIVE BRANCH DEFENDANTS MOTION
TO DISMISS THE PLAINTIFFS FIRST AMENDED COMPLAINT
FOR LACK OF SUBJECT MATTER JURISDICTION
_______________________________________________________
Defendants the Mississippi Department of Human Services, Richard Berry, in his
official capacity as Executive Director of the Mississippi Department of Human Services,
Phil Bryant, in his official capacity as Governor of the State of Mississippi, and Jim
Hood, in his official capacity as Mississippi Attorney General (the executive branch
defendants) move the Court to dismiss the claims asserted against them in the
plaintiffs First Amended Complaint for Declaratory and Injunctive Relief [Docket No.
23] pursuant to Fed. R. Civ. P. 12(b)(1) and state:
1.
On August 12, 2015, plaintiffs filed their Complaint for Declaratory and
Injunctive Relief solely against the executive branch defendants contending Mississippi
Code Section 93-17-3(5) violates the United States Constitutions Equal Protection and
Due Process Clauses. [Complaint, Docket No. 1]. After the executive branch defendants
moved to dismiss the Complaint [Motion to Dismiss, Docket No. 15; Joinder, Docket No.
19], plaintiffs filed their First Amended Complaint reiterating their claims against the
executive branch defendants, and adding three Mississippi Chancery Court Districts and
nine Mississippi Chancery Court Judges as defendants [First Amended Complaint,
Docket No. 23].

2.
The claims against the executive branch defendants should be dismissed
for lack of subject matter jurisdiction as no Article III case or controversy exists due to
plaintiffs lack of standing.
3.
Alternatively, the claims against the executive branch defendants should
be dismissed for lack of subject matter jurisdiction due to the executive branch
defendants Eleventh Amendment immunity.
4.
Further in the alternative, even if the Court has subject matter jurisdiction
over the claims against the executive branch defendants and the Eleventh Amendment
does not apply, the Court should decline to exercise its jurisdiction and stay this lawsuit
on account of the Pullman abstention doctrine.
5.
The executive branch defendants motion is based on the foregoing, their
separately submitted Memorandum of Authorities, and the Declaration of Mark Smith,

affixed hereto as Exhibit 1, the Second Declaration of Mark Smith, affixed hereto as
Exhibit 2, DHSs Division of Family and Childrens Services Policy Manual Section D,
affixed hereto as Exhibit 3, DHSs Division of Family and Childrens Services Policy
Manual Section F, affixed hereto as Exhibit 4, and DHSs Division of Family and
Childrens Services Policy Manual Section G, affixed hereto as Exhibit 5.
FOR THESE REASONS, and those set forth in their separate Memorandum of
Authorities, the executive branch defendants jointly and respectfully request that the
Court enter an order dismissing the claims against them in plaintiffs First Amended
Complaint for Declaratory and Injunctive Relief, or alternatively staying this case.
THIS the 2nd day of October, 2015.
-2-
Respectfully submitted,
JIM HOOD, in his official capacity
as Mississippi Attorney General
By:
S/Justin L. Matheny
Justin L. Matheny (Bar No. 100754)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
Counsel for Attorney General Jim Hood
AND
MISSISSIPPI DEPARTMENT OF HUMAN
SERVICES, RICHARD BERRY, in his official
capacity as Executive Director of the
Mississippi Department of Human Services,
and PHIL BRYANT, in his official capacity as
Governor of the State of Mississippi
By:
S/Tommy Goodwin
Tommy Goodwin (Bar No. 100791)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
tgood@ago.state.ms.us
Counsel for MDHS, Executive Director
Richard Berry, and Governor Phil Bryant
-3-
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been filed with the Clerk of
Court using the Courts ECF system and thereby served on all counsel of record who
have entered their appearance in this action to date.
THIS the 2nd day of October, 2015.
S/Justin L. Matheny
Justin L. Matheny
-4-
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Case 3:15-cv-00578-DPJ-FKB Document 55 Filed 10/02/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 3:15cv578-DPJ-FKB

The MISSISSIPPI DEPARTMENT OF HUMAN

Case 3:15-cv-00578-DPJ-FKB Document 55 Filed 10/02/15 Page 2 of 4

Docket No. 23].

The claims against the executive branch defendants should be dismissed

Alternatively, the claims against the executive branch defendants should

The executive branch defendants motion is based on the foregoing, their

separately submitted Memorandum of Authorities, and the Declaration of Mark Smith,

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