Case 2:14-cv-02518-DDC-TJJ Document 94 Filed 02/27/15 Page 1 of 5

IN THE UNITED STATED 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.

)
)
)
)
)
)
(
) Case No. 14-CV-2518-DDC-TJJ
)
)
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
)
th
Capacity as Clerk of the District Court for the 7
)
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.
)
_________________________________________)

MOTION TO STAY DISCOVERY

AND OTHER PRETRIAL ACTIVITIES
Douglas A. Hamilton and Bernie Lumbreras, Clerks of the District Court for the 7th and
18th Judicial Districts of Kansas respectively, named as defendants herein, move the Court for an
Order staying all other pretrial activities as to Clerks Hamilton and Lumbreras, including those
specified in the Courts Scheduling Order (Doc. 91), as well as these Defendants response to
1

Case 2:14-cv-02518-DDC-TJJ Document 94 Filed 02/27/15 Page 2 of 5

Plaintiffs summary judgment motion (Doc. 85-86), pending:

(1)

a ruling on these Defendants Motion to Dismiss the Amended Complaint

(Docs. 58-59), filed December 10, 2014, arguing that this Court lacks
jurisdiction over these defendants and lacks subject matter jurisdiction over
this action;

(2)

a ruling by the Tenth Circuit on Defendants appeal of the preliminary

injunction, 14-3246, which involves the same issue as is presently being
argued here and is presented by Plaintiffs summary judgment motion, and
over which the Circuit now has jurisdiction; and

(3)

the United States Supreme Courts opportunity to consider and rule upon the
case of DeBoer v. Snyder, upon which certiorari was accepted on or about
January 16, 2015, and in which the following question is presented to the
Court for decision: Does the Fourteenth Amendment require a state to
license a marriage between two people of the same sex? No. 14-571, 83 U.S.
L.W. 3315, 2015 WL 213650 (U.S. Jan. 16, 2015).

A stay is appropriate for the following reasons:

1.

The circumstances support a stay under the Wolf v. United States1 factors;

2. As argued by the Clerks Motion to Dismiss (Docs. 58-59), this Court lacks subject
matter jurisdiction over the claims against them based upon Eleventh Amendment
and sovereign immunity, but also a lack of Article III jurisdiction given that there is
no present case or controversy between the original Plaintiffs (Marie, Wilks, DiTrani
and Brown) and the Clerks, as recently admitted in Plaintiffs Declarations filed in

157 F.R.D. 494, 495 (D. Kan. 1994).

Case 2:14-cv-02518-DDC-TJJ Document 94 Filed 02/27/15 Page 3 of 5

support of their motion for summary judgment that they have no intention of applying
for any marriage license or doing anything in that regard until the appeals have been
exhausted in this matter.2
3. The defense of immunity has been recognized by the U.S. Supreme Court as well as
this Court as a defense against discovery and the other burdens of litigation, as well as
from liability, and is effectively lost if a case is allowed to proceed in disregard of
defendants immunity defenses.
4.

Denial of the Clerks Motion to Dismiss may be immediately appealable to the Tenth
Circuit Court of Appeals.

5. Given the Clerks November 5, 2014 appeal to the Tenth Circuit, presently pending
there as appeal no. 14-3246, , this Court has no jurisdiction over the claims against
the Clerks as jurisdiction over the propriety of injunctive relief, including the request
in Plaintiffs summary judgment motion for another preliminary injunction against
the Clerks.3
6. Given that the United States Supreme Court will definitively resolve the issue in this
lawsuit as to the Clerks in a matter of a few months, activities in this Court at this
time serve no purpose and are inefficient, wasteful, unduly expensive and unduly
burdensome, contrary to the express direction of Fed. R. Civ. P. 1 that the Federal
Rules are to be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding, and Fed. R. Civ. P.
16(a)(3) stating the goal of Rule 16 includes adopting special procedures where
appropriate and facilitating in other ways the just, speedy, and inexpensive
2

Declaration of Kail Marie (86-6), at 7; Declaration of Michelle Brown (86-7), at 6; Declaration of Kerry Wilks
(86-8), at 6; Declaration of Donna DiTrani (86-9), at 6.
3
Doc. 86, at p.21, (2).

Case 2:14-cv-02518-DDC-TJJ Document 94 Filed 02/27/15 Page 4 of 5

disposition of the action. Fed. R. Civ. P. 16(c)(2)(L), and (P).

7. Given Plaintiffs recent declarations admitting that they have no intention of seeking
a marriage license until all appeals are exhausted, the requested stay does not affect
these Plaintiffs in any way.
8. The matter of a stay was raised at the February 18, 2015, telephone conference with
the U.S. Magistrate Judge who indicated that a motion must be filed requesting such
relief hence, this motion.
Wherefore Douglas A. Hamilton and Bernie A. Lumbreras request a stay of discovery
and all other pretrial activities, including but not limited to a stay of response to Plaintiffs
pending summary judgment motion, pending resolution of their Motion to Dismiss which, if
denied, may result in an immediate appeal to the Tenth Circuit, pending the Tenth Circuits
opportunity to rule on the pending appeal regarding the preliminary injunction already entered by
this Court, and pending the Supreme Courts opportunity to rule in the DeBoer v. Snyder,
presently pending before that Court. As per D. Kan. 7.1(a), a memorandum in support is
submitted herewith.
Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT

s/ M.J. Willloughby
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
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CERTIFICATE OF SERVICE
This is to certify that on this 27th day of February, 2015, a true and correct copy of the
above and foregoing was filed by electronic means via the Courts electronic filing system which
serves a copy upon all registered users including Plaintiffs counsel of record, Stephen Douglas
Bonney, ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111, Mark P.
Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111,
dbonney@aclukansas.org and Mark.johnson@dentons.com, and Joshua A. Block, American
Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004,
jblock@aclu.org and to Steve Fabert, Assistant Attorney General, Office of Attorney General
Derek Schmidt, 120 SW 10th Avenue, Topeka, KS 66612-1597, Attorney for Defendants
Mosier, Jordan, Kaspar and Michael.
/s M.J. Willoughby___________
M.J. Willoughby, Assistant A.G.