Strawser v. State of Alabama

Filing 46

Order re: Plfs' 43 Emergency MOTION for Leave to File an Amended Complaint, MOTION for Preliminary Injunction &/or Temporary Restraining Order. Plfs' 43 MOTION for Leave to File an Amended Complaint is GRANTED as set out. A Hearing o n the 43 MOTION for Preliminary Injunction is set for 2/12/2015 at 01:00 PM in US Courthouse, Courtroom 2B, 113 St. Joseph Street, Mobile, AL 36602 before Judge Callie V. S. Granade. The clerk of court is directed to provide Joseph Michael Druhan, Jr., counsel for Judge Don Davis, with a copy of this Order. Signed by Judge Callie V. S. Granade on 2/10/2015. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES N. STRAWSER and JOHN
E. HUMPHREY,
Plaintiffs,
vs.
STATE OF ALABAMA,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 14-0424-CG-C

ORDER
This matter is before the court on Plaintiffs’ emergency motion for leave to
file an amended complaint and for preliminary injunction and/or temporary
restraining order (Doc. 43), and the response thereto of Attorney General Strange
(Doc. 44). For the reasons explained below, the court finds that Plaintiffs’
emergency motion for leave to amend should be granted and that a hearing should
be set on Plaintiffs’ motion for preliminary injunction.
I. Motion to Amend
Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings
“shall be freely given when justice so requires.” See Fed. R. Civ. P. 15(a). The
Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court’s
discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir.
2005). “Unless a substantial reason exists to deny leave to amend, the discretion of
the District Court is not broad enough to permit denial.” Florida Evergreen Foliage
v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation

omitted). That said, leave to amend can be properly denied under circumstances of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape
Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted).
Plaintiffs Strawser and Humphrey, who until recently had proceeded pro se,
are now represented by counsel and wish to clarify their causes of action and add
new parties. Plaintiffs’ motion to amend seeks to add three additional same-sex
couples as plaintiffs and to add Don Davis as a defendant in his official capacity as
Probate Judge of Mobile County, Alabama. The current Defendant, Attorney
General Luther Strange does not oppose Plaintiffs’ request for leave to file an
amended complaint. (Doc. 43). The same-sex couples Plaintiffs wish to add live in
Alabama and like Strawser and Humphrey have allegedly been denied the basic
rights, privileges, and protections of marriage for themselves and their children.
Plaintiffs seek to join Judge Davis as a defendant because he allegedly refused to
issue marriage licenses to all of the Plaintiffs’ named in the proposed Amended
Complaint, despite this court having granted a preliminary injunction to Strawser
and Humphrey (Doc. 29) and despite this court’s ruling in Searcy v. Strange, SDAL
Civil Action No. 14-00208-CGN, that Alabama’s laws prohibiting and refusing to
recognize same-sex marriage are unconstitutional. The proposed amendment will
not cause undue delay or prejudice, there is no indication of any bad faith or

2

dilatory motive on the part of the movants, and the amendment does not appear to
be futile. There being no substantial reason to deny leave to amend, the court must
allow the amendment. Accordingly, Plaintiffs’ motion for leave to file an amended
complaint is hereby GRANTED.
II. Motion for Preliminary Injunction
After reviewing Plaintiff’s motion, the court finds it appropriate to set a
preliminary injunction hearing. A hearing on Plaintiffs’ motion for preliminary
injunction is hereby set for February 12, 2015, at 1:00 p.m., in Courtroom 2B,
United States Courthouse, Mobile, Alabama.
Counsel for plaintiffs has averred that his co-counsel has spoken with Joseph
Michael Druhan, Jr., counsel for Judge Don Davis, and that Mr. Druhan agreed to
accept service by e-mail of the motion to amend the complaint and associated
papers. (Doc. 43-2). The clerk of court is directed to provide Mr. Druhan, a member
of the bar of this court, with a copy of this Order.
The court notes that Attorney General Luther Strange is already subject to
an injunction from this court which prohibits him from enforcing Alabama’s
marriage laws to the extent they prohibit same-sex marriage or the recognition of
same-sex marriages legally performed in other states. Accordingly, Attorney
General Strange’s presence is not required at the preliminary injunction hearing set
above.
DONE and ORDERED this 10th day of February, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

3