Case3:10-cv-00257-JSW Document148

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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@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. ASS’T COUNSEL (DC Bar 476240) John.Filamor@mail.house.gov CHRISTINE DAVENPORT, SR. ASS’T COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASS’T COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASS’T COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASS’T 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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) )

KAREN GOLINSKI,

Case No. 3:10-cv-0257-JSW Hearing: Sept. 16, 2011 9:00 a.m. INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF

Plaintiff, vs.

INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

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) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________)

REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS

The Bipartisan Legal Advisory Group of the U.S. House of Representatives (“the House”) hereby moves this Court to strike the extrinsic evidence inappropriately attached to, and cited in, Plaintiff’s opposition to the House’s motion to dismiss. See Pl.’s Mem. of P&A in Opp’n to Defs.’ and Bipartisan Legal Advisory Group’s Mots. to Dismiss (“Pl.’s Opp’n”), ECF No. 133; Exs. to Pl.’s Opp’n, ECF Nos. 134-138. The House filed its motion to dismiss Plaintiff’s Second Amended Complaint on June 3, 2011. ECF No. 119. In response, Plaintiff filed an administrative motion that sought leave to file a brief that would both oppose the House’s motion to dismiss and support a motion for summary judgment to be filed by the Plaintiff. ECF No. 121. The House opposed Plaintiff’s administrative motion and specifically objected to “Plaintiff’s request to incorporate arguments and evidence relevant only to summary judgment into a consolidated brief on the House’s motion to dismiss.” House’s Opp’n to Pl.’s Admin. Mot. 1, ECF No. 127. In its opposition, the House pointed out that “‘matters outside the pleadings’ generally cannot be considered on a motion to dismiss,” id. at 2 (quoting Fed. R. Civ. P. 12(d)), and that it would be inappropriate for Plaintiff in her brief opposing the House’s motion to dismiss to “incorporate materials from outside the pleadings — such as expert reports — not cognizable in opposition to a motion to dismiss.” Id. at 3. The House also objected that “it clearly would be premature to require the House to respond” to a summary judgment motion since the House was granted leave to intervene only on June 3, 2011. Id. at 4.

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On June 15, 2011, this Court denied Plaintiff’s request for leave to inject summary judgment evidence in her opposition to the House’s motion to dismiss, stating that “her motion is denied as premature.” Order at 2, ECF No. 128. Plaintiff, however, refused to take no for an answer. Despite the clear import of this Court’s ruling — and of Rule 12(b)(6) — Plaintiff proceeded to attach to her opposition five expert affidavits, see ECF Nos. 134-138. She also proceeded to liberally cite and rely upon those materials throughout her opposition to the House’s motion. See Pl.’s Opp’n at 10-11, 12 & n.7, 13 n.10, 15, 23, 25 nn.21-22. Numerous other materials extrinsic to the Second Amended Complaint are also cited in Plaintiff’s opposition. See, e.g., id. at 13 nn.8-9, 14 nn.11-12, 15 n.15, 25 n.21. As this Court is well aware, “a district court may not consider any material beyond the pleadings in ruling on a 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). Indeed, Rule 12 provides that consideration of such matters converts the motion to “one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Lee, 250 F.3d at 688. Exceptions to this rule are limited to situations where the “complaint necessarily relies on [the extrinsic materials],” Lee, 250 F.3d at 688, or where the court “take[s] judicial notice of matters of public record,” id. at 688-89 (internal quotation marks omitted). Here, Plaintiff’s five expert affidavits are not subject to judicial notice, as they are the opinions of individuals, not matters like dates or places that can be confirmed through record checks. See, e.g., Mack v. S. Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). Nor do her claims of unlawful agency action and withholding of benefits “necessarily rel[y]” on the opinion evidence of these five academics. See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) 2 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

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(allowing consideration of document not included in original complaint that formed the basis for suit). Recognizing what she has done, Plaintiff admits that “[t]he Court may rely solely on the allegations of the complaint, and need not rely on [her expert] declarations.” Pl.’s Opp’n at 11 n.6. Her attempted explanation — that she seeks to “show that . . . there is substantial evidence supporting [her] allegations,” id. — identifies precisely why her evidence must be stricken as improper in response to a motion to dismiss: as Rule 12(d) and the Supreme Court’s recent precedents make plain, and as Plaintiff apparently fails to understand, the correctness of Plaintiff’s contention that this matter “cannot be decided on the pleadings alone,” Pl.’s Opp’n 11 n.6, must itself be decided on the pleadings. The law requires that the pleadings themselves contain more than “the possibility that a plaintiff might later establish some set of . . . facts to support recovery.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007) (internal quotation marks omitted). In other words, a plaintiff must state a plausible claim in the complaint, not in any filing she prefers. Plaintiff also attempts to defend her improper use of expert affidavits in response to a motion to dismiss with the assertion that “she could easily amend her complaint to incorporate the facts detailed in those expert declarations.” Pl.’s Opp’n at 11 n.6. But the filing of a Third Amended Complaint would of course require leave of Court, see Fed. R. Civ. P. 15(a)(2), and Plaintiff has not sought or received leave to amend her complaint yet again. And it is far from clear that such leave would be forthcoming. Plaintiff has already filed three versions of her complaint. It would be her burden to prove that she should receive a fourth bite at the apple. For the foregoing reasons, the Court should (1) strike the five declarations appended to Plaintiff’s opposition to the House’s motion to dismiss, see ECF Nos. 134-138; (2) strike from 3 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

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Plaintiff’s opposition all references to those declarations, see Pl.’s Opp’n 10-11, 12 & n.7, 13 n.10, 15, 23, 25 nn.21-22; (3) strike all references to other extrinsic materials, see id. at 13 nn.89, 14 nn.11-12, 15 n.15, 25 n.21; and (4) order Plaintiff to file a corrected opposition that omits the stricken materials. Respectfully submitted, /s/ Paul D. Clement____ Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC1 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 Bancroft PLLC has been “specially retained by the Office of General Counsel” of the House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its attorneys are, therefore, “entitled, for the purpose of performing [that] function[], to enter an appearance in any proceeding before any court of the United States . . . without compliance with any requirement for admission to practice before such court . . . .” 2 U.S.C. § 130f(a). Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher Bartolomucci, Esq., and Conor B. Dugan, Esq. 4 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW
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(202) 225-9700 (phone) (202) 226-1360 (fax) July 15, 2011

5 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

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CERTIFICATE OF SERVICE I certify that on July 15, 2011, I served one copy of the Bipartisan Legal Advisory Group of the U.S. House of Representatives’ Motion to Strike Extrinsic Materials by CM/ECF, by electronic mail (.pdf format), and by first-class mail, postage prepaid, on the following:

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 Division - Federal Programs Branch Room 7128 20 Massachusetts Ave., N.W. Washington, DC 20001

/s/ Kerry W. Kircher Kerry W. Kircher

INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS NO. 3:10-CV-257-JSW

Case3:10-cv-00257-JSW Document148-1

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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@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 CHRISTINE DAVENPORT, SR. ASS’T COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASS’T COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASS’T COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASS’T 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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) )

KAREN GOLINSKI,

Case No. 3:10-cv-0257-JSW Hearing: Sept. 16, 2011 at 9:00 a.m. [Proposed] ORDER GRANTING INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES’ MOTION

Plaintiff, vs. UNITED STATES OFFICE OF PERSONNEL

PROPOSED ORDER GRANTING INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

Case3:10-cv-00257-JSW Document148-1

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MANAGEMENT, et al.,

) ) Defendants. ) __________________________________________)

TO STRIKE EXTRINSIC MATERIALS

It is hereby ORDERED that Intervenor-Defendant’s motion to strike is GRANTED. The expert declarations and accompanying materials submitted by Plaintiff in opposition to dismissal, ECF Nos. 134-138, as well as all portions of Plaintiff’s Memorandum in Opposition, ECF No. 133, which rely on these declarations and materials, are STRICKEN from the record and the Clerk is directed to remove these electronic documents from the docket. Plaintiff shall submit an amended version of her Memorandum in Opposition by no later than July 20, 2011, which shall make no reference to any of the stricken documents and shall contain no other changes from her previously filed Memorandum in Opposition except as is grammatically necessary in light of the redactions. Intervenor-Defendant and the remaining defendants may file replies, with page limits as determined by the Court’s previous orders, by no later than July 25, 2011. So ordered.

HONORABLE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE Dated: ___________

PROPOSED ORDER GRANTING INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES’ MOTION TO STRIKE EXTRINSIC MATERIALS—CASE NO. 3:10-CV-257-JSW

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