Dragovich et al v. United States Department of the Treasury et al

Filing 65

ORDER Granting 62 Stipulation Granting Plaintiffs Leave to File First Amended Complaint for Injunctive and Declaratory Relief. Signed by Judge Claudia Wilken on 3/1/2011. (ndr, COURT STAFF) (Filed on 3/1/2011)

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William C. McNeill III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, and CHERYL LIGHT, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE TREASURY, TIMOTHY GEITHNER, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants. WHEREAS, Plaintiffs filed this action as a putative class on April 13, 2010, alleging constitutional claims on behalf of three gay and lesbian couples, all three of whom were married in 2008, and two of whom were registered as domestic partners; WHEREAS, following extensions granted by the Plaintiffs, the defendants Board of Case No. CV 4:10-01564-CW

STIPULATION AND ORDER GRANTING PLAINTIFFS LEAVE TO FILE FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Stipulation and Proposed Order Re: First Amended Complaint for Declaratory and Injunctive Relief

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Administration of CalPERS and Anne Stausboll ("the state defendants") answered the complaint on July 2, 2010; WHEREAS, following an extension granted by the Plaintiffs, the defendants United States Department of the Treasury, Timothy Geithner, the Internal Revenue Service, and Douglas Shulman ("the federal defendants") filed a motion to dismiss on July 2, 2010; WHEREAS, the Plaintiffs opposed the motion to dismiss on August 12, 2010, and the federal defendants filed their reply on August 26, 2010; WHEREAS, on September 2, 2010, the parties filed their first joint Case Management Conference statement, and the Plaintiffs disclosed their intention to file a motion to amend the complaint by December 15, 2010 to add plaintiffs, see Joint Case Management Conference Statement, page 7; WHEREAS, the hearing on the motion to dismiss in this matter was held on October 14, 2010, as was the first case management conference; WHEREAS, on October 14, 2010, Plaintiffs' counsel stated during the case management conference that Plaintiffs were no longer planning to file a motion to amend the complaint by December 15, 2010, but that things might change; WHEREAS, on December 12, 2010, Plaintiffs' counsel emailed counsel for the state defendants and for the federal defendants, disclosing: "Since the hearing, things have changed. We now intend to file the motion to add plaintiffs. Specifically, we will ask the court to allow us to amend the complaint to add two plaintiffs who are registered domestic partners, but who are not married. (Alternatively, the parties could stipulate to such a filing.)." WHEREAS, on January 18, 2011, the Court issued an order denying the federal defendants' motion to dismiss; WHEREAS, on January 18, 2011, and on January 21, 2011, plaintiffs' counsel shared with all opposing counsel drafts of their First Amended Complaint, including the addition of two plaintiffs who are registered as domestic partners but who are not married (Joanne Schmidt and Reide Garnett);

Stipulation and Proposed Order Re: First Amended Complaint for Declaratory and Injunctive Relief

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WHEREAS, on January 26, 2011, the federal defendants filed a motion for clarification as to whether this Court's Order intended to hold that Plaintiffs have stated a constitutional claim regarding the exclusion of registered domestic partners from section 7702B(f)(2)(C)(iii) of the Internal Revenue Code, noting that "Plaintiffs have requested Federal Defendants' position regarding their plan to amend the Complaint to add plaintiffs who are not married but are registered domestic partners under California law."; WHEREAS, on February 9, 2011, the Court issued an order stating that, "The Court clarifies that, because Plaintiffs are legally married, it was not necessary to rule on whether Plaintiffs have stated a claim that I.R.C. § 7702B(f), separate and apart from 1 U.S.C. § 7 (section three of the Defense of Marriage Act), is unconstitutional."; WHEREAS, on February 22, 2011, plaintiffs' counsel shared with all opposing counsel a revised draft of their First Amended Complaint, including the addition of a plaintiff couple who are registered as domestic partners but who are not married (Joanne Schmidt and Reide Garnett), as well as a plaintiff couple who are registered as domestic partners and who are married (Charles Cole and David Beers); THEREFORE, IT IS HEREBY STIPULATED AND AGREED THAT: Plaintiffs shall be granted leave to file their First Amended Complaint, adding Plaintiffs Joanne Schmidt, Reide Garnett, Charles Cole, and David Beers, attached as Exhibit A to the supporting declaration of Claudia Center; and The state defendants' answer to the original complaint shall be deemed their answer to the amended complaint. The federal defendants shall have 60 days to answer or to file a motion to dismiss.

Stipulation and Proposed Order Re: First Amended Complaint for Declaratory and Injunctive Relief

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Respectfully submitted, THE LEGAL AID SOCIETY EMPLOYMENT LAW CENTER

Date: February 24, 2011

By: CLAUDIA CENTER Attorneys for Plaintiffs U.S. DEPARTMENT OF JUSTICE

Date: February 24, 2011

By: JEAN LIN Attorney for Defendants Dept. of the Treasury, Timothy Geithner, IRS, Douglas Shulman STEPTOE & JOHNSON LLP

Date: February 23, 2011

By:

____________________________ EDWARD GREGORY JENNIFER MORROW Attorneys for Defendants CalPERS and Anne Stausboll

ORDER IT IS SO ORDERED. UNITED STATES DISTRICT COURT

3/1/2011

By: THE HONORABLE CLAUDIA WILKEN

Stipulation and Proposed Order Re: First Amended Complaint for Declaratory and Injunctive Relief

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