Case 5:13-cv-00982-OLG Document 19 Filed 11/19/13 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS

Plaintiffs, v. RICK PERRY, in his official capacity as Governor of the State of Texas, GREG ABBOTT, in his official capacity as Texas Attorney General, GERARD RICKHOFF, in his official capacity as Bexar County Clerk, and DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services Defendants.

CIVIL ACTION NO. 5:13-cv-982-OLG

NOTICE OF PLAINTIFFS RESPONSE TO DEFENDANTS OPPOSED MOTION TO CONSOLIDATE TRIAL AND SCHEDULING DEADLINES [Dkt. No. 17, filed in Case No. A13-cv-0631]

The Office of the Attorney General of Texas, for itself and certain other named defendants, has filed a motion to consolidate this and two other cases pursuant to Fed. R. Civ. P. 42(a) on the basis that they raise common questions of law or fact. For the reasons set forth herein, plaintiffs Cleopatra De Leon, Nicole Dimetman, Victor Holmes, and Mark Phariss oppose such consolidation.

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BACKGROUND Article 1, 32 of the Texas Constitution and accompanying statutes, which collectively operate to prohibit both the performance of same-sex marriages in Texas and the recognition in Texas of same-sex marriages performed elsewhere, violate the Due Process and Equal Protection Clauses of the United States Constitution and are flatly unconstitutional. To put an end to their discriminatory effect, three sets of plaintiffs have filed similar (though by no means identical) complaints in this district seeking declaratory and injunctive relief barring their continued enforcement. The three pending lawsuits are: McNosky, et al. v. Perry, at al., Case No. 1:13-cv-00631, filed July 29, 2013; De Leon, et al. v. Perry, et al., Case No. 5:13-cv-00982, filed October 28, 2013; and Zahrn, et al. v. Perry, et al., Case No. 1:13-CV-00955, filed October 31, 2013.

The McNosky case was filed pro se by a same-sex couple who assert they wish to marry in Texas. The plaintiffs in the De Leon case, represented by the undersigned counsel, comprise two same-sex couples: one who seeks to marry in Texas; the other seeking recognition of their existing marriage lawfully performed in Massachusetts in 2009. The named plaintiffs in the Zahrn caselike the De Leon casecomprise two same-sex couples; however, the Zahrn plaintiffs also seek certification of a class under Fed. R. Civ. P. 23(b)(2) comprising all others similarly situated. Citing their desire to promote the just and efficient conduct of the actions, and to avoid a multiplicity of suits, on November 12, 2013 the various defendants filed a motion (the Motion to Consolidate) in the McNosky case for consolidation of the three lawsuits under Fed. R. Civ.

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P. 42(a). 1 Based on the fact thatof the three lawsuitsthe McNosky case was filed first in time, defendants propose that the three cases be consolidated in the McNosky case. The Zahrn plaintiffs filed their response in opposition to the Motion to Consolidate on November 18, 2013. 2 In their response, the Zahrn plaintiffs correctly point out that there are substantive differences between the McNosky case and the De Leon and Zahrn cases in that the former involves just one couple that wishes to marry in Texas, whereas the Zahrn and De Leon cases involve not only plaintiffs who wish to marry in Texas but also plaintiffs who are already married under the Laws of another state. 3 The Zahrn plaintiffs go one step further, however, and argue that because they filed their case as a class action on behalf of themselves and all similarly situated persons, the three cases should be consolidated (if at all) into the Zahrn case. For the reasons set forth herein, the De Leon plaintiffs oppose such consolidation. RESPONSE As a starting point, the De Leon plaintiffs concur with the Zahrn plaintiffs that the De Leon and Zahrn cases should not be consolidated with the McNosky case. The McNosky case was filed pro se by two plaintiffs with no litigation experience whatsoever, and raises only a narrow subset of the constitutional issues raised in the De Leon and Zahrn cases. Pro se plaintiffs are not suited to prosecute a lawsuit that has the potential to determine the rights of other similarly-situated parties. See, e.g., Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (refusing to allow pro se plaintiff to assert claims under 42 U.S.C. 1983 for himself and

Defendants Opposed Motion to Consolidate Trial and Scheduling Deadlines [McNosky, Dkt No. 17], at 1. 2 Response to Defendants Motion to Consolidate [Zahrn, Dkt. No. 11] (the Zahrn Response). 3 Zahrn Response, at 2. 3
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similarly situated persons where an adverse judgment could prevent other persons from later raising the same claims and pro se plaintiff could not fairly and adequately protect the interests of others); Russell v. United States, 308 F.2d 78 (9th Cir. 1962) (A litigant appearing in propria persona has no authority to represent anyone other than himself). 4 As between the two cases seeking more complete relief, the De Leon case is the first-filed of the two remaining cases, having been filed three days before the Zahrn case. However, consolidation of those two cases is not appropriate because such consolidation would substantially prejudice the rights of the De Leon plaintiffs. While the Zahrn and De Leon plaintiffs are clearly allies, engaged in a contemporaneous effort to halt discrimination in Texas against same-sex couples, the consolidation of the two cases would severely prejudice the ability of the De Leon plaintiffs to expeditiously pursue their claims and seek justice for themselves andby the natural operation of the relief they seekall other similarly situated individuals. Accordingly, consolidation must be denied or, if consolidation is granted, any such consolidation should affirmatively exclude the Zahrn plaintiffs request for class certification. Although it is widely agreed that considerations of judicial economy favor consolidation, the benefits of efficiency can never be purchased at the cost of fairness. 8 Moores Federal Practice, 42.10[4][a] (Matthew Bender 3d Ed.) (quoting Malcolm v. National Gypsum Co., 995 F.3d 346, 350 (2d Cir. 1993)); see also Devlin v. Transp. Commcn Intl Union, 175 F.3d 121, 130 (2d Cir. 1999) ([E]fficiency cannot be permitted to prevail at the expense of justiceconsolidation should be considered when savings of expense and gains of

These cases arose in the context of a pro se plaintiff seeking relief for himself and all others similarly situated via class certification under Fed. R. Civ. 23. The De Leon plaintiffs submit that where, as here, the relief they seek would by its nature extend to other similarly situated persons, pro se plaintiffs are equally unequipped to protect the interests of others. 4
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efficiency can be accomplished without sacrifice of justice.). Thus, significant among the factors typically considered by courts in determining whether consolidation under Rule 42(a) is whether there is risk of prejudice or confusion if the cases are consolidated, and if so, is the risk outweighed by the risk of inconsistent adjudications of factual and legal issues if the cases are tried separately. See Arnold & Co. v. David K. Young Consulting, LLC, 2013 BL 94672 (W.D. Tex. April 8, 2013); Harris v. Bexar County, 2009 BL 253962, *1 (W.D. Tex. November 23, 2009) (quoting Zolezzi v. Celadon Trucking Servs., Inc., 2009 WL 736057, *1 (S.D. Tex. 2009)). The Zahrn plaintiffs decision to seek class certification as a prelude to their lawsuit threatens to substantially impair the rights of the De Leon plaintiffs to seek justice for themselves and others. The Defendants have indicated that they will oppose certification of a class, and the Zahrn case is therefore likely to require resources to be spent on a class certification dispute that could take months to resolve. If the De Leon plaintiffs, who have elected to press their claims without the unnecessary and time-consuming class action overlay, are forced to consolidate their lawsuit with the Zahrn case, the resulting delay in the De Leon plaintiffs ability to press their own legitimate claims will be substantially hindered. Such delay will substantially and

inequitably prejudice the De Leon plaintiffs who, like other same-sex couples in Texas and across the country, have already waited far too long to enjoy the fundamental right to marry the person of their choosing. Moreover, there is no compelling reason for these cases to be sidetracked by the Zahrn plaintiffs request for class treatment of their claims because a class action is not necessary to obtain the plaintiffs ultimate objective of obtaining a judgment that Texas law banning (or refusing to recognize) same-sex marriage is unconstitutional. The Fifth Circuit has consistently upheld the denial of class certification under Fed. R. Civ. P. 23(b) where such certification was

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unnecessary because the nature of the rights sought to be vindicated necessarily required that its effect inure to the benefit of both the plaintiffs and all others similarly situated. See, e.g., United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Florida, 493 F.2d 799, 812 (5th Cir. 1974) (finding class certification unnecessary given that racial discrimination is by definition class discrimination and the requested injunctive and declaratory relief will benefit not only the individual appellantsbut all other persons subject to the practice under attack); Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963) (finding class certification unnecessary where [t]he very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated); see also United States v. Bexar County, 484 F. Supp. 855 (W.D. Tex. 1980) (denying request for class certification under Rule 23(b)(2) as unnecessary in that the very nature of the rights plaintiffs sought to vindicate required that the decree run to the benefit of plaintiffs as well as all persons similarly situated). Other circuits have reached the same conclusion, finding class certification both unnecessary and inappropriate in such cases. See, e.g., Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985) (We agree with those circuits which deny Rule 23(b)(2) certification where it is a formality or otherwise inappropriate.); Gray v. International Brotherhood of Electrical Workers, 73 F.R.D. 638, 640 (D.D.C. 1977) (This Court has consistently and emphatically adhered to the view that when, as here, the relief being sought can be fashioned in such a way that it will have the same purpose and effect as a class action, the certification of a class action is unnecessary and inappropriate.). Class certification is particularly unnecessary where, as here, the suit is attacking a statute or regulation as being facially unconstitutional. In that circumstance, there would appear to be little need for the suit to proceed as a class action because it can be assumed that if

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the court declares the statute or regulation unconstitutional then the responsible government officials will discontinue the [regulations] enforcement. Mills v. District of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010) (quoting Alliance to End Repression, 565 F.2d at 980); see also Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973) (Friendly, J.) (affirming denial of class certification on the ground that an action seeking declaratory or injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality, especially where the judgment run[s] to the benefit not only of the named plaintiffs but of all other similarly situated). Indeed, numerous lawsuits seeking similar relief similar in other federal districts have been decided without the need for class certification. See Sevcik et al. v. Sandoval et al.; Case No. 2:12-cv-00578-RCJ-PAL (D. Nev. April 10, 2012) (without class certification, seeking declaratory and injunctive relief barring enforcement of Nevada law prohibiting same-sex marriage); Jackson et al. v. Abercrombie et al.; Case No. 1:11-00734-ACK-KSC (D. Haw. January 27, 2012) (without class certification, seeking declaratory and injunctive relief barring enforcement of Hawaii law prohibiting same-sex marriage); Perry et al. v. Schwarzenegger et al., Case No. 3:09-cv-02292-JW (N.D. Cal. May 22, 2009) (without class certification seeking declaratory relief that California law prohibiting same-sex marriage was unconstitutional and injunctive relief barring enforcement of such laws). By contrast, in a similar same-sex

marriage case filed in Virginia in August 2013, the parties are still battling over the question of class certificationincluding whether discovery should be taken before certification can be finally determinedwhile the substantive issues of the case remain on hold. Harris et al. v. McDonnell et al., Case No. 5:13-cv-00077-MFU-RSB (W.D. Va. August 1, 2013).

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Although clearly overlapping in some respects, the De Leon, Zahrn, and McNosky cases are in fact quite different. The first, filed pro se, seeks only a subset of the relief sought in the other two. Of the latter two, the McNosky case is bound to become mired in class certification issues that are unnecessary to the relief requested and serve no meaningful purpose, while the De Leon case is poised to move forward swiftly to a trial on the merits. To force consolidation of the De Leon case with either or both of the other two cases would work a substantial prejudice that counsels against consolidation of these cases. Conclusion For the foregoing reasons, the De Leon plaintiffs respectfully request entry of an order denying the request for consolidation of the three cases into the McNosky case. To the extent the Court believes that consolidation of the De Leon and Zahrn cases is warranted, the De Leon plaintiffs propose that the two cases be consolidated into the first-filed casethe De Leon case on a limited basis so that the Zahrn plaintiffs request for class certification will not prejudice the De Leon plaintiffs ability to expeditiously prosecute their lawsuit.

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Respectfully submitted,

AKIN GUMP STRAUSS HAUER & FELD LLP

By:__/s/ Daniel McNeel Lane, Jr.____________ Barry A. Chasnoff (SBN 04153500) bchasnoff@akingump.com Daniel McNeel Lane, Jr. (SBN 00784441) nlane@akingump.com Frank Stenger-Castro (SBN 19143500) fscastro@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that, on November 19, 2013, I sent a copy of the foregoing document via certified mail, return receipt requested, or via the courts electronic filing service to: Greg Abbott Daniel T. Hodge David C. Mattax James Beau Eccles William T. Deane Office of the Attorney General P.O. BOX 12548 Austin, TX 78711-2548 Attorneys for Defendants Governor Perry, Attorney General Abbott, and Commissioner Lakey Jason P. Steed Bell Nunnally & Martin, LLP 3232 McKinney Ave., Ste. 1400 Dallas, TX 75204 James J. Scheske James J. Scheske PLLC 5501-A Balcones, #109 Austin, TX 78731 S Leigh Jorgenson Ian Pittman Jorgeson Pittman LLP 4505 Spicewood Springs Road, Suite 335 Austin, TX 78759 Attorneys for Plaintiffs Zahrn, Zahrn, Augustine, and Simpson Sven Stricker 3047 Bent Tree Ct. Bedford, TX 76021 Pro Se Plaintiff

Christopher Daniel McNosky 5108 Pleasant Run Colleyville, TX 76034 Pro Se Plaintiff

___/s/ Daniel McNeel Lane, Jr._____ Daniel McNeel Lane, Jr.

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