Case 2:14-cv-02518-DDC-TJJ Document 93 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.

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) Case No. 14-CV-2518-DDC-TJJ
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SUSAN MOSIER, M.D., in her official capacity
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as Secretary of the Kansas Department of
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Health and Environment and
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DOUGLAS A. HAMILTON, in his official
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th
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Capacity as Clerk of the District Court for the 7
Judicial District (Douglas county), and
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BERNIE LUMBRERAS, in her official capacity
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as Clerk of the District Court for the 18th
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Judicial District (Sedgwick County),
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NICK JORDAN, in his official capacity as
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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
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Health Plan,
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Defendants.
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_________________________________________ )

MOTION OF DEFENDANTS MOSIER JORDAN, KASPAR, AND MICHAEL FOR

ADDITIONAL TIME TO RESPOND TO PLAINTIFFS MOTION FOR SUMMARY
JUDGMENT

Defendants Susan Mosier, Nick Jordan, Lisa Kaspar, and Mike Michael, named in their
respective official capacities, hereby move for additional time to respond to the motion for
summary judgment filed on February 13 by plaintiffs (document 85). In order to respond fully to
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the motion for summary judgment, defendants must first receive responses to the interrogatories
and requests for production served today and must have an opportunity to depose some or all of
the plaintiffs, depending on the substance of the paper discovery responses. Additional time
should also be allowed so that the Court has an opportunity to rule on pending motions to
dismiss, and defendants have a chance to file their answers. Defendants request that they be
allowed 21 days following the completion of plaintiffs depositions to file their response to the
motion for summary judgment.
Counsel for plaintiffs has been contacted, and he objects to the requested extension.
An extension of the summary judgment response date is necessary to give meaning to the
scheduling order (document 91). The early filing of the motion for summary judgment, before
half of the defendants have filed an answer and before the Court has ruled on defendants
motions to dismiss based in part on jurisdictional defects, serves the apparent purpose of
depriving defendants and the Court of the benefit of discovery responses in considering the
motion. Plaintiffs have made no secret of their preference for obtaining a final judgment in this
lawsuit without an opportunity for discovery on any subject. The Court has already advised the
parties that discovery will be allowed, and the scheduling order sets forth a short timetable for
completion of that discovery. If plaintiffs respond quickly to the paper discovery, and if the
depositions that must be taken following consideration of those discovery responses can be set
for the earliest possible dates following receipt of those responses, then no substantial delay will
be imposed by granting an extension. Response briefs will certainly be filed in advance of the
pretrial conference, which is set for May 7, 2015, unless some unforeseen circumstance prevents
the prompt completion of the depositions of the various plaintiffs.
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Magistrate Judge Teresa James advised the parties during the scheduling conference that
the scheduling order would not set defendants deadline for responding to plaintiffs motion for
summary judgment, and that a separate motion would be necessary, because she considered that
deadline to be under the exclusive control of the district judge. The remainder of the scheduling
order reflects the assumption that the lawsuit will not be decided until after the close of the
current term of the United States Supreme Court at the end of June. A provision appears in the
scheduling order permitting the parties to seek leave to file supplemental summary judgment
motions based upon the expected decision in DeBoer v. Snyder, 2015 WL 213650 (U.S. Jan. 16,
2015). No amendment to the scheduling order should therefore be necessary if the requested
extension of time is granted.
Procedures in this lawsuit have been both changeable and unusual. Plaintiffs have at
various times expressed great urgency to see the litigation finally resolved, and at other times
have been less eager to proceed to a hearing on the merits. Following the filing of the first
amended complaint, which added three new defendants and six new plaintiffs, the new plaintiffs
filed a motion for a preliminary injunction (document 54). That motion was then withdrawn
based on representations to the court that the parties were working on a set of stipulations of fact
for consideration by the Court in deciding the merits. Then plaintiffs lost interest in the
stipulation process and instead filed a motion for summary judgment (document 85) in advance
of the scheduling conference. That motion made no reference to stipulated facts, even though the
parties had already agreed upon dozens of stipulations. The scheduling conference held on
February 18 then resulted in a scheduling order that gave defendants nine days to conduct paper
discovery and permitted other discovery to proceed through the third week of April, but did not
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set a date for responding to the motion for summary judgment that allowed consideration of
discovery responses.
An extension of time to complete discovery is justified under F.R.C.P. 56(d)(2). If the
pending motions to dismiss are denied (which the motion for summary judgment assumes will
occur) then the credibility of the plaintiffs concerning their claims of standing, case or
controversy, and supposed irreparable harms will become critical to resolution of the case. The
original four plaintiffs have already placed their own credibility in issue, by refusing to take
advantage of the preliminary injunction that they alleged was made necessary by the irreparable
harms they would suffer if they were not immediately allowed to marry in Kansas. We now
know based on the affidavits submitted in support of the summary judgment motions that they
have no plan to seek Kansas marriage licenses until after the final resolution of this lawsuit,
including any subsequent appeal. We have other plaintiffs who claim to have had interactions
with unnamed state officials concerning their income taxes, or health insurance, or drivers
licenses. All plaintiffs continue to allege supposed irreparable harms that may turn out to be
easily remediable or even nonexistent. Defendants cannot refute these allegations without having
discovery responses from plaintiffs. There is also long list of requested stipulations that plaintiffs
either deny or to which they object.
For all of the above stated reasons an extension of time should be granted to these
defendants to respond to plaintiffs motion for summary judgment no later than 21 days
following completion of the last deposition of a plaintiff in these proceedings.

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Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
s/ Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420; Fax: (785) 296-6296
Email: Steve.Fabert@ag.ks.gov
Attorney for Defendants Mosier, Jordan, Kaspar
and Michael

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 and served via the Courts electronic filing system upon 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.
s/Steve R. Fabert
Steve R. Fabert
Attorney for defendants Jordan, Kaspar, and Michael