ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 197

STATEMENT of No Position Regarding Plaintiff's Motion for Certification of Class Action by Defendant Jan Scully. (Cassidy, Terence)

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ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al Doc. 197 1 A PROFESSIONAL CORPORATION 2 3 4 5 6 7 Terence J. Cassidy, SBN 99180 Kristina M. Hall, SBN 196794 350 University Ave., Suite 200 Sacramento, California 95825 TEL: 916.929.1481 FAX: 916.927.3706 A tto rn e ys for Defendants JAN SCULLY, in her official capacity U N I T E D STATES DISTRICT COURT 8 E A S T E R N DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SAC RAM EN T O , C A 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL; N A T I O N A L ORGANIZATION FOR MARRIAGE CALIFORNIA - YES ON 8, SPONSORED BY NATIONAL ORGANIZATION FOR MARRIAGE, JOHN DOE #1, an individual and as representative of the CLASS OF MAJOR DONORS, Plaintiffs, vs. DEBRA BOWEN, Secretary of State for the State of California, in her official capacity; EDMUND G. BROWN, JR., Attorney General for the State of California, in his official capacity; DEAN C. LOGAN, Registrar-Recorder of Los Angeles County, C al i fo rn ia, in his official capacity; DEPARTMENT OF ELECTIONS - CITY AND COUNTY OF SAN FRANCISCO; JAN SCULLY, District Attorney for Sacramento County, California in her official capacity and as a representative of the Class of District Attorneys in the State of California; DENNIS J. HERRERA, City Attorney for the City and County of San Francisco, California, in his official capacity and as a representative of the Class of Elected City Attorneys in the State of California; ROSS JOHNSON, TIMOTHY HODSON, EUGENE HUGUENIN, JR., ROBERT LEIDIGH and RAY REMY, members of the California Fair Political Practices Commision, in their official capacities, Defendants. / 1 C a s e No. 2:09-CV-00058-MCE-DAD DEFENDANT JAN SCULLY'S C O N D I T I O N A L STATEMENT OF NO P O S I T I O N REGARDING PLAINTIFFS' M O T I O N FOR CERTIFICATION OF C L A S S ACTION DEFENDANT JAN SCULLY'S CONDITIONAL STATEMENT OF NO POSITION REGARDING PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS ACTION 00705690.WPD w w w . p o r ter s c o t t . c o m Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 D e f e n d a n t JAN SCULLY, hereby provides the following response to Plaintiffs' M o tio n for Certification of Class Action. Plaintiffs have moved for class certification of both Plaintiffs and Defendants p u rs u a n t to Federal Rule of Civil Procedure 23, subparagraphs (b)(1), (b)(2) and (b)(3). In th e ir Third Amended Complaint, Plaintiffs move only for declaratory and injunctive relief. See TAC at p. 25, Prayer for Relief. Thus, Defendant Scully opposes Plaintiffs' motion to th e extent that Plaintiffs in any way seek damages, as this is not part of their Complaint and th e y should be estopped from asserting any position to the contrary. Further, to the extent th a t Plaintiffs seek any type of monetary damages, certification is inappropriate under Rule 2 3 (b )(1 ) and (b)(2) and therefore Plaintiffs' motion for certification also should be denied in this regard. See In re Greenman, 829 F.2d 1539 (11th Cir. 1988); McDonnell Douglas C o rp . v. United States Dist. Court, 523 F.2d 1083, 1085-1087 (9th Cir. 1975). Each of the f o r e g o in g arguments, applicable to the proposed Plaintiff Class, is also applicable to the p ro p o s e d class of California District Attorneys that Plaintiffs seek to create. Therefore, out o f an abundance of precaution, Defendant Scully respectfully requests that Plaintiff's Motion w ith respect to any Plaintiffs or any Defendants be denied as to any express or implied p o te n tia l claim for damages that Plaintiffs may assert. A ss u m in g arguendo Plaintiffs seek only injunctive relief, Defendant Scully, in her o f f ic ia l capacity, takes no position regarding the merits of Plaintiffs' Motion, subject to the C o u rt requiring Plaintiffs to provide at their expense notice to each member of the Defendant D is tric t Attorney class should Plaintiffs' Motion be granted. R e s p e c tf u lly submitted, D a te d : January 30, 2009 P O R T E R SCOTT A PROFESSIONAL CORPORATION By 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SAC RAM EN T O , C A 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 /s/Terence J. Cassidy Terence J. Cassidy A tto rn e y for Defendant J A N SCULLY, District Attorney for S a c ra m e n to County, California in her o f f ic ia l capacity 2 DEFENDANT JAN SCULLY'S CONDITIONAL STATEMENT OF NO POSITION REGARDING PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS ACTION 00705690.WPD w w w . p o r ter s c o t t . c o m