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2:12-cv-10285 #33

2:12-cv-10285 #33

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Published by Equality Case Files
Doc #33 - Leave to file amended complaint w/amended complaint attached
Doc #33 - Leave to file amended complaint w/amended complaint attached

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Published by: Equality Case Files on Sep 10, 2012
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07/01/2014

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGANSOUTHERN DIVISIONAPRIL DEBOER, individually and as parentand next friend of N.D.-R, R.D.-R., and J.D.-R,minors, and JAYNE ROWSE, individually and as parentand next friend of N.D.-R, R.D.-R., and J.D.-R,minors,Plaintiffs, ED Mi No. 12-10285Honorable Bernard A. Friedman -vs-RICHARD SNYDER,
et.al
.,Defendants. / 
PLAINTIFFS’ MOTION AND INCORPORATEDBRIEF FOR LEAVE TO AMEND THE COMPLAINT
NOW COME the Plaintiffs APRIL DEBOER, individually and as parentand next friend of N.D.-R, R.D.-R., and J.D.-R, and JAYNE ROWSE, individually and as parentand next friend of N.D.-R, R.D.-R., and J.D.-R, by and through their Attorneys, DANA NESSELand CAROLE M. STANYAR, and pursuant Rule 15(a)(2) of the Federal Rules of CivilProcedure, do hereby move the Court for leave to file and serve the First Amended Complaint.Attached herewith is a copy of the First Amended Complaint.1. The original complaint in this case challenged the State’s actions in discriminatingagainst unmarried persons and their children by prohibiting so-called “second parent adoptions”by virtue of the Defendants’ enforcement of MCL 710.24.2. In its motion to dismiss, based upon abstention and the failure to state a claim uponwhich relief can be granted, Defendants invoked the Michigan Constitution, specifically, the
2:12-cv-10285-BAF-MJH Doc # 33 Filed 09/07/12 Pg 1 of 4 Pg ID 683
 
Michigan Marriage Amendment, which prohibits same-sex couples from marrying. Mich. Const.1963, art 1, §25.3. Consequently, in the attached amended complaint, Plaintiffs seek to add a claim thatthe Michigan Marriage Amendment itself violates the Equal Protection and Due Process Clausesof the United States Constitution, and they seek to add a third defendant, Bill Bullard Jr., theOakland County Clerk responsible for accepting or rejecting applications for marriage licenses inthe county where Plaintiffs reside.4. Rule 15 provides that “a party may amend its pleading only with the opposing party’swritten consent or the court’s leave. The court should freely give leave when justice so requires.”A decision as to “when justice so requires” is within the sound discretion of the Court.
 Martin v. Assoc. Truck Lines, Inc
., 801 F.2d 246, 248 (6th Cir 1986).5. A motion for leave to amend should be denied only for good reason such as “unduedelay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficienciesby amendments previously allowed, undue prejudice to the opposing party by virtue of allowanceof the amendment, futility of amendment, etc.”
 Ruotolo v City of New York 
, 514 F3d 184, 191(2d Cir 2008) (quoting Foman v Davis, 371 US 178, 182 (1962).6. Plaintiffs have a legitimate motive for seeking to add the instant claim and the instantdefendant. Based upon Defendants’ motion to dismiss, the Michigan Marriage Amendment isinextricably tied to the claims raised in the original complaint, and Defendant Bullard is theofficial responsible for approving or rejecting the Plaintiffs’ marriage license application. Noprior amendments have been sought or allowed. There is no prejudice to the parties for thereason that this is early in the proceedings, with the parties not yet engaged in discovery. Thereare no statute of limitations issues. This is a viable constitutional claim under 42 USC §1983.
2:12-cv-10285-BAF-MJH Doc # 33 Filed 09/07/12 Pg 2 of 4 Pg ID 684
 
7. Counsel for Defendants was contacted and indicates that they do not concur in therelief sought herein.WHEREFORE, Plaintiffs respectfully request leave to file and serve the FirstAmended Complaint naming Bill Bullard Jr. as a new-party Defendant in this action, and addinga challenge based upon the unconstitutionality of the Michigan Marriage Amendment.Respectfully submitted,Dated: September 7, 2012
 /s/ Dana Nessel
 DANA M. NESSEL P51346645 Griswold Street, Suite 3060Detroit, MI 48226(313) 556-2300
dananessel@hotmail.com
 
s/Carole M. Stanyar 
 CAROLE M. STANYAR P34830682 Deer StreetPlymouth, MI 48170(313) 963-7222
cstanyar@wowway.com
Attorneys for PlaintiffsOf counsel: 
s/Robert A. Sedler 
 ROBERT A. SEDLER P31003Wayne State University Law School471 W. Palmer StreetDetroit, MI 48202(313) 577-3968
rsedler@wayne.edu
s/ Kenneth M. Mogill
Kenneth M. Mogill P17865MOGILL, POSNER & COHEN27 E Flint Street, 2
nd
FloorLake Orion, MI 48362(248) 814-9470
kmogill@bignet.net 
2:12-cv-10285-BAF-MJH Doc # 33 Filed 09/07/12 Pg 3 of 4 Pg ID 685

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