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PAUL D. CLEMENT (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN (MI Bar P66901) cdugan@bancroftpllc.com NICHOLAS J. NELSON (MD Bar) nnelson@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov JOHN D. FILAMOR, SR. ASST COUNSEL (DC Bar 476240) John.Filamor@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives

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INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

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1 2 3 4 5 KAREN GOLINSKI,

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) ) ) ) __________________________________________)

Case No. 3:10-cv-0257-JSW

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INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Rule 7-11(b), Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives (the House) submits this partial opposition to Plaintiff Karen Golinskis administrative motion filed on June 8, 2011 (Docket Entry 121). As Plaintiff indicated in her motion, the House does not oppose her filing a consolidated brief of up to 30 pages in opposition to the Houses and the other defendants separate motions to dismiss, nor to an extension of the deadline for the filing of the opposition to June 24, 2011. (Plaintiffs motion also indicated that Plaintiff does not oppose a one-week extension for the Houses reply brief.) The House does, however, oppose Plaintiffs request to incorporate arguments and evidence relevant only to summary judgment into a consolidated brief on the Houses motion to dismiss. Far from avoid[ing] repetitive and duplicative briefing as Plaintiff suggests, see Admin. Mot. at 1, combining briefing on a motion to dismiss and a motion for summary
INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

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judgment can only result in needless and potentially prejudicial confusion of the standards 1 2 3 4 5 governing the two motions and undue delay in the adjudication of the Houses motion. As this Court is well aware, Federal Rule of Civil Procedure 12(d) makes clear that matters outside the pleadings generally cannot be considered on a motion to dismiss, and that the consideration of such matters converts the motion to one for summary judgment under Rule 56.1 By contrast, of course, a motion for summary judgment under Rule 56 may be adjudicated based upon materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1). It is not appropriate for Plaintiff to advocate for summary judgment in the same brief in which she opposes dismissal, because such a brief would 10 11 cognizable in opposition to a motion to dismiss. This would require the Court and the House to necessarily incorporate materials from outside the pleadings such as expert reports not

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disentangle the dismissal facts in Plaintiffs consolidated brief from the summary judgment facts in the same brief, leading a needless risk of confusion and disputes. Fortunately, this problem can be easily addressed: Plaintiff can simply file a separate

15 motion for summary judgment with a separate supporting memorandum of points and 16 17 motion for summary judgment on June 24, prior to discovery and prior to the resolution of the 18 19 20 21 22 23
INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW
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authorities. The House agrees that Rule 56 authorizes Plaintiff, if she so chooses, to file a

A court considering a 12(b)(6) motion may tak[e] notice of items in the public record. Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); Fed. R. Evid. 201(b) (facts are suitable for judicial notice if they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (under Fed. R. Evid. 201, a court may take judicial notice of matters of public record on a motion to dismiss) (citation and quotation marks omitted).

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Houses motion to dismiss. However, any ruling on a summary judgment motion would be 1 2 3 4 additional facts to support its opposition, in which case the court may deny the motion or defer 5 considering it in order to permit further discovery. As the Advisory Committee recognized in its clearly premature at this point, as the House was granted leave to intervene only ten days ago, see Docket Entry 116, and the House has not yet had the opportunity to engage in discovery. Rule 56(d) permits a party to respond to a summary judgment motion by showing that it needs

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notes on the 2010 amendments to Rule 56, [a]lthough the rule allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial

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proceedings have been had. Fed. R. Civ. P. 56 advisory committees note (2010). Accordingly, both the Supreme Court and the Ninth Circuit have recognized that Rule 56 requires that

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summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986); see also Ladd v. Law & Tech. Press, 762 F.2d 809, 811 (9th Cir. 1985)

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(The party opposing summary judgment must have an opportunity to respond to the motion, which includes time for discovery of facts essential to its opposition.); Clark v. Capital Credit & Collection Servs., Inc., 560 F.3d 1162, 1178-79 (9th Cir. 2006) (district court should not have granted summary judgment against party without first ruling on partys motion for discovery). Here, although Plaintiff has informally indicated to the House that she intends to identify as

19 proposed expert witnesses all of those identified in the Windsor and Pedersen challenges to 20 DOMAand may also identify one additional expert witnessPlaintiff Golinski has not 21 22 23
INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

formally identified her expert witnesses, let alone produced to the House any expert witness

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reports, as Rule 26 requires. See Fed. R. Civ. P. 26(a)(2). The House intends to depose 1 2 3 4 another reason why a consolidated brief is not appropriate here: to the extent it suggests that the 5 motions to dismiss and summary judgment motion be resolved simultaneously to each other, it Plaintiffs experts, and it clearly would be premature to require the House to respond to her summary judgment motion until it has completed those depositions. The need for discovery prior to resolution of a summary judgment motion illustrates

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would result in a long and needless delay in the adjudication of the motions to dismiss. Unlike in 7 8 the House to wait to move to dismiss until after discovery and a summary judgment motion, here 9 10 2011the same day the House was permitted to intervene. See Docket Entries 116, 119. It 11 would be manifestly unfair for this motion to sit unresolved on the Courts docket for months while discovery proceeds. Finally, the House notes that Plaintiffs suggestion that this suit has been unduly delayed, see Docket Entry 121 at 3 (Plaintiff filed this lawsuit over sixteen months ago . . . .), is untenable. Until two months ago this case was focused on an entirely different claim that this 16 17 state a claim in her first Complaint should somehow entitle her to expedited handling of her case 18 now that she has decided to try againa proposition that finds no support in either law or reason. 19 20 motion insofar as it seeks to consolidate a summary judgment motion into her response to the 21 22 23
INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

the other DOMA cases cited by plaintiff (Windsor and Pedersen), where the courts have required

the House complied with the Courts scheduling order in filing a motion to dismiss on June 3,

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Court ordered dismissed. See Docket Entry 98. Plaintiff essentially suggests that her failure to

The House therefore respectfully requests that this Court deny Plaintiffs administrative

motions to dismiss now pending in this matter.

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Respectfully submitted,

/s/ H. Christopher Bartolomucci____ H. Christopher Bartolomucci, Esq. Conor B. Dugan, Esq. Nicholas J. Nelson, Esq. BANCROFT PLLC Counsel for Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives

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INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

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CERTIFICATE OF SERVICE 1 2 3 4 means, as more fully reflected on the Notice of Electronic Filing: 5 James R. McGuire, Esq. Gregory P. Dresser, Esq. Rita F. Lin, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Jon W. Davidson, Esq. Tara L. Borelli, Esq. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010-1729 Christopher R. Hall, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil DivisionFederal Programs Branch Room 7128 20 Massachusetts Ave., N.W. Washington, DC 20001 _/s/ Conor B. Dugan________ Conor B. Dugan June 13, 2011 I hereby certify that on June 13, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic

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INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES PARTIAL OPPOSITION TO PLAINTIFFS ADMINISTRATIVE MOTION REGARDING OPPOSITIONS TO MOTIONS TO DISMISS AND ANTICIPATED MOTION FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW