Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 1 of 6

IN THE UNITED STATES 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.
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
as Clerk of the District Court for the 18th
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.
______________________________________________

)
)
)
)
)
)
)
) Case No. 14-CV-2518-DDC-TJJ
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

DEFENDANT HAMILTON AND LUMBRERAS MOTION FOR EXTENSION OF

TIME REGARDING PLAINTIFFS MOTION FOR SUMMARYJUDGMENT WITH
MEMORANDUM IN SUPPORT INCORPORATED
Nature of the Matter Before the Court
And Statement of Facts

Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 2 of 6

The Amended Complaint (Doc. 52) involves ten (10) different plaintiffs, six (6) different
defendants, and several different types of claims, implicating different facts, issues, law and
defenses.
On December 10, 2014, Defendants Hamilton and Lumbreras filed a motion to dismiss
the Amended Complaint, asserting defenses of immunity and lack of jurisdiction, especially
given the absence of any pending case or controversy. (Doc. 58-59). On December 10, 2014,
Defendant Moser also moved to dismiss the Amended Complaint (Doc. 57). Defendants Kaspar,
Jordan and Michael have also moved to dismiss the Amended Complaint. (Doc. 79). All of these
motions are pending for decision by this Court.
On February 13, 2015, prior to Defendants motions to dismiss having been ruled upon,
prior to the scheduled scheduling conference or any order being entered, prior to Answers to the
Amended Complaint having been filed by Defendants Jordan, Kaspar or Michael and prior to
Defendants having had any opportunity to conduct discovery, Plaintiffs filed their motion for
summary judgment (Doc. 85-86) as to all claims and all defendants. The motion seeks a second
preliminary injunction against Hamilton and Lumbreras (Doc. 85); the first preliminary
injunction is on appeal to the Tenth Circuit, Appeal No. 14-3246, and is in the process of being
briefed there.
The Declarations attached to the summary judgment motion seeking a second preliminary
injunction against Hamilton and Lumbreras acknowledge there is no case or controversy within
the limited Article III jurisdiction of this Court between the original Plaintiffs and Hamilton and
Lumbreras as Plaintiffs acknowledge that they have no intention of seeking a marriage license
from Hamilton or Lumbreras (or ostensibly any other Clerk or Judge) until after the case has
2

Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 3 of 6

been fully litigated to final judgment and any appeals exhausted. Second Declaration of Kail
Marie (Doc. 86-6), at 7; Second Declaration of Michelle Brown (86-7), at 6; Declaration of
Kerry Wilks (Doc. 86-8), at 6; Declaration of Donna DiTrani (86-9), at 6. Plaintiffs motion
also acknowledges that new Administrative Orders have been entered by the Chief Judges in
both the 7th and 18th Judicial Districts directing the clerks to issue same-sex marriage licenses.
(Doc. 86, p.6, 20).
On February 27, 2015, in accordance with the directions of the U.S. Magistrate Judge at
Scheduling Conference, Clerks Hamilton and Lumbreras filed a motion for stay of discovery and
other pretrial activities (Docs. 94-95), including a request to stay the due date for these
Defendants response to Plaintiffs summary judgment motion (Docs. 85-86). This Court has not
yet had an opportunity to rule on Defendants motion for stay. As per local rule, a response to
Plaintiffs summary judgment motion is generally due on or before March 6, 2015. Out of an
abundance of caution and in deference to the Court and its local rules, including D. Kan. 7.4, and
because the motion for stay may not appear in the Courts electronic filing system as linked to
the pending summary judgment motion, Defendants Hamilton and Lumbreras submit this motion
requesting an extension of time or continuance for any response to Plaintiffs summary judgment
motion, pending this Courts opportunity to consider Defendants pending motions for stay and
to dismiss.
ARGUMENTS AND AUTHORITIES
As per D. Kan. 6.1(a), Defendants Hamilton and Lumbreras submit that: (1) Doug
Bonney, ACLU attorney, has indicated he is generally opposed to extensions of time to respond
to the ACLUs summary judgment motion; (2) under local rule, the response to Plaintiffs
3

Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 4 of 6

summary judgment motion is due March 6, 2015; and (3) no prior extensions of this deadline
have been requested by these Defendants or granted by this Court.
As per D. Kan. 6.1(a), the cause for the requested extension or continuance is set forth in
Defendant Hamilton and Lumbreras motion to stay and supporting memorandum, incorporated
by reference herein (Docs. 94-95), which includes and references Defendants motion to dismiss
raising immunity and jurisdictional issues (Doc. 58-59). If this Court lacks jurisdiction, it cannot
consider summary judgment, but rather, must dismiss the action. C. Wright, A. Miller, M. Kane,
R. Marcus, A. Steinman, 10A Federal Practice and Procedure 2713 (3d ed.), n.50 (annotating
cases). The jurisdictional issue must be decided first. Id. (citing Miller v. National Maritime
Union, 275 F. Supp. 890, 810 (D. Pa. 1967) (Because there appears no basis for jurisdiction of
this court over the present controversy, however, we do not reach this question [whether
summary judgment should be entered], but must dismiss the complaint . . . Dismissal, rather than
the granting of defendants motion for summary judgment, is the proper disposition where this
court lacks jurisdiction to decide on whether defendants would be entitled to a judgment as a
matter of law.).
In addition, these Defendants adopt and incorporate by reference the arguments,
authorities and filings of Defendants Mosier, Kaspar, Jordan and Michael, including those under
Fed. R. Civ. P. 56(d) (Docs. 93, 99, 99-1, 99-2, 99-3, 99-4).

Plaintiffs are in exclusive

possession of certain facts, which Defendants are attempting to discover in accordance with this
Courts directions to date; in fairness and in accordance with this Courts previous indications,
and to develop a complete and full factual record, Defendants should be given the opportunity

Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 5 of 6

for reasonable discovery in this matter. C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman,
10B Federal Practice and Procedure 2741 (3d ed.).
Summary judgment motions have been termed a drastic or extreme remedy, only
cautiously invoked. C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman, 10A Federal
Practice and Procedure 2712 (3d ed.) (annotating cases at notes 31-33). Courts have been
particularly cautious about summary judgment in cases involving important public issues. Id., at
2732 ([c]ases involving major constitutional or civil rights acts questions also frequently are
not very suitable for summary judgment; citing 2732.2; see 2732.2, n.2, citing the need for a
fuller record for disposition of such cases).

The Court has considerable discretion in dealing

with such motions as serves the needs of justice in a particular case, including deferring or
reserving ruling where additional pleadings or additional development of an adequate factual
record would be beneficial, particularly on appeal, to facilitate orderly case processes or to avoid
piecemeal disposition of a matter. See Id., at 2728 (citing cases, including Askew v. Hargrave,
401 U.S. 476, 478-79 (1971) (in reversing and remanding a district courts order granting
summary judgment to the plaintiffs on an equal protection claim, which was decided on the
pleadings and an affidavit, a basis the Court found inadequate, noting that full development of
the factual record should be required: [s]ince the manner in which the program operates may be
critical in the decision of the equal protection claim, that claim should not be decided without
fully developing the factual record at hearing.).
For the reasons stated herein and for the reasons stated in Defendants Motion to Stay and
Supporting Memorandum (Doc. 94-95), and, in the alternative, for the reasons offered in support
of an extension or continuance by Defendants Mosier, Kaspar, Jordan and Michael, Defendants
5

Case 2:14-cv-02518-DDC-TJJ Document 103 Filed 03/06/15 Page 6 of 6

request an extension of time or continuance to respond until after this Courts opportunity to rule
upon Defendants Motion for Stay (Docs. 94-95) and Defendants Motion to Dismiss (Docs. 5859), and for such other and further relief as this Court deems just and proper.
Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT

s/ M.J. Willoughby
M.J. Willoughby # 14059
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 296-2215
Fax: (785) 291-3767
Email: MJ.Willoughby@ag.ks.gov
Attorney for Defendants Hamilton and Lumbreras

CERTIFICATE OF SERVICE
This is to certify that on this 6th day of March, 2015, a true and correct copy of the
above and foregoing was served by electronic means upon Plaintiffs counsel of record, Stephen
Douglas Bonney, ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and
Mark P. Johnson, Samantha Wenger, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas
City,
MO
64111,
dbonney@aclukansas.org,
Mark.johnson@dentons.com,
Samantha.Wenger@dentons.com and Joshua A. Block, American Civil Liberties Foundation,
125 Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org, and Steve R. Fabert,
Assistant Attorney General, 120 SW 10th, Topeka, KS 66612, Attorney for Defendants Mosier,
Kaspar, Jordan and Michael.
s/M.J. Willoughby
M.J. Willoughby, Assistant Attorney General