Inniss et al v. Aderhold et al

Filing 35

Unopposed MOTION to Amend 1 Complaint, to Add Plaintiffs and A Defendant by Michael Bishop, Avery Chandler, Rayshawn Chandler, Christopher Inniss, Jennifer Sisson, Shelton Stroman, Johnny Shane Thomas. (Attachments: # 1 Exhibit A - First Amended Class Action Complaint for Injunctive and Declaratory Relief, # 2 Text of Proposed Order Proposed Order)(Custer, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CHRISTOPHER INNISS and SHELTON
STROMAN; RAYSHAWN CHANDLER
and AVERY CHANDLER; MICHAEL
BISHOP and JOHNNY SHANE
THOMAS; and JENNIFER SISSON, on
behalf of themselves and all others
similarly situated,

Civil Action Number
1:14-cv-01180-WSD

Plaintiffs,
v.
DEBORAH ADERHOLD, in her official
capacity as State Registrar and Director of
Vital Records; BROOK DAVIDSON, in
her official capacity as Clerk of Gwinnett
County Probate Court; and the Honorable
Judge PINKIE TOOMER, in her official
capacity as Judge of Fulton County Probate
Court,
Defendants.

PLAINTIFFS’ UNOPPOSED MOTION FOR LEAVE TO AMEND THE
COMPLAINT TO ADD PLAINTIFFS AND A DEFENDANT

Pursuant to Federal Rules of Civil Procedure 15 and 21, Plaintiffs
respectfully move the Court to permit Plaintiffs to amend their complaint to add
two plaintiffs and a defendant. Plaintiffs do not anticipate that this amendment
will affect the current schedule in the case. Plaintiffs’ proposed First Amended
Complaint is attached hereto as Exhibit A.
MEMORANDUM IN SUPPORT OF MOTION
On April 22, 2014 Plaintiffs filed a complaint against certain public officials
to challenge the State of Georgia’s exclusion of same-sex couples from marriage
and refusal to recognize the lawful marriages some of them have entered in other
jurisdictions. ECF No. 1. Plaintiffs seeking recognition of their lawful marriage
include Jennifer Sisson, a widow whose spouse recently passed away from cancer
after the couple was lawfully married in New York; Ms. Sisson seeks to correct the
death certificate that lists her late spouse as “never married.” ECF No. 1 ¶ 34-41.
Plaintiffs also include RayShawn and Avery Chandler, a couple seeking
recognition of their marriage from Connecticut, including for purposes of being
able to obtain accurate birth certificates for the children they are planning to have.
ECF No. 1 ¶ 26-30.
After the complaint was filed, other couples identified themselves to
Plaintiffs’ counsel as suffering additional forms of harm from Georgia’s refusal to
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recognize their lawful marriages. These couples include Elizabeth Wurz and
Krista Wurz, who are denied recognition of the marriage they entered in New
Hampshire; their harms include a denial of spousal health coverage for Krista
through Elizabeth’s employee health plan with the College of Coastal Georgia, and
other harms related to protecting their children. Ex. A ¶¶ 34-41. Because these
harms are not represented in the suit, Plaintiffs respectfully seek leave to amend
the complaint to include Elizabeth and Krista Wurz. Plaintiffs also request
permission to add Monica P. Fenton as the defendant responsible for the harms
alleged by Elizabeth and Krista Wurz. Plaintiffs intend to name Ms. Fenton in her
official capacity as “Director of System Benefits – Healthcare and Pharmacy
Plans” for the Board of Regents of the University System of Georgia. Ex. A ¶ 51.
Federal Rule of Civil Procedure 21 provides that either on a motion or of its
own accord, the Court may “on just terms . . . add or drop a party.” The courts are
to “freely give leave when justice so requires.” Fed. R. Civ. P. Rule 15(a)(2). “In
the absence of any apparent or declared reason – such as 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, futility of amendment, etc. – the leave sought

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should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182
(1962).
None of those concerns are present here. Plaintiffs have not unduly delayed
this request, and instead raise it at a preliminary stage of the case, shortly after
Defendants have responded to the complaint and before the parties have
commenced discovery. Nor do Plaintiffs anticipate that the amendment will cause
any delay. To maximize judicial and party economy, Plaintiffs are amenable to
treating Ms. Aderhold’s motion to dismiss as responsive to the amended complaint,
so that briefing can continue on the current schedule. Plaintiffs also are willing to
waive the need for an answer to the amended complaint by Defendants Brook
Davidson and the Honorable Judge Pinkie Toomer.
Because of the early stage of the case, no Defendant will be prejudiced by
the proposed amendment. The Defendants do not oppose the relief sought in this
motion. In the interest of efficiency, Plaintiffs request that those Defendants who
have already answered the complaint not be required to answer the amended
complaint.
Nor is the proposed amendment futile. Similar claims seeking recognition
of same-sex couples’ marriages from other jurisdictions recently have succeeded

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both with respect to spousal health benefits specifically,1 and recognition in other
contexts more broadly.2
1

See, e.g., Bourke v. Beshear, No. 3:13-CV-750, 2014 U.S. Dist. LEXIS 17457, at
*11 (W.D. Ky. Feb. 12, 2014) (ruling that Kentucky must recognize same-sex
couples’ marriages in a case including a married same-sex couple denied equal
access to spousal health coverage); Tanco v. Haslam, No. 3:13-cv-01159, 2014
U.S. Dist. LEXIS 33463, at *9 (M.D. Tenn. Mar. 14, 2014) (holding that
Tennessee must recognize same-sex couples’ marriages for purposes of, inter alia,
spousal health coverage).
2
See, e.g., Bostic v. Schaefer, No. 14-1167, 2014 U.S. App. LEXIS 14298, at *6667 (4th Cir. July 28, 2014) (holding that Virginia must recognize same-sex
couples’ marriages from other jurisdictions); Kitchen v. Herbert, No. 13-4178,
2014 U.S. App. LEXIS 11935, at *4 (10th Cir. June 25, 2014) (affirming district
court ruling that Utah must recognize same-sex couples’ lawful marriages from
other jurisdictions); Wolf v. Walker, No. 14-cv-64-bbc, 2014 U.S. Dist. LEXIS
77125, at *61 (W.D. Wis. June 6, 2014) (holding that Wisconsin’s refusal to
recognize same-sex couples’ marriages violates the fundamental right to marry);
Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *27 (M.D.
Penn. May 20, 2014) (holding that Pennsylvania’s refusal to recognize same-sex
couples’ marriages violates the Fourteenth Amendment); Geiger v. Kitzhaber, No.
6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171, at *49-50 (D. Or. May 19,
2014) (striking down Oregon’s refusal to allow or recognize marriages for samesex couples); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 U.S. Dist. LEXIS
66417, at *81 (D. Idaho May 13, 2014 (finding Idaho’s laws refusing to recognize
marriage for same-sex couples unconstitutional); Wright v. Arkansas, No. 60CV13-2662 (Ark. Cir. Ct. May 9, 2014) (ruling for plaintiffs, including eight same-sex
couples seeking recognition of their marriages, by striking down Arkansas’s
marriage ban); Baskin v. Bogan, Nos. 1:14-cv-00355-RLY-TAB (L),1:14-cv00404-RLY-TAB,1:14-cv-00406-RLY-MJD, 2014 U.S. Dist. LEXIS 86114, at
*42 (S.D. Ind. June 25, 2014) (holding that Indiana “cannot refuse to recognize
out-of-state, same-sex marriages”); Henry v. Himes, No. 1:14-cv-129, 2014 U.S.
Dist. LEXIS 51211, at *3 (S.D. Ohio Apr. 14, 2014) (finding facially invalid
Ohio’s refusal to recognize same-sex couples’ marriages); De Leon v. Perry, 975
F. Supp. 2d 632, 662-63 (W.D. Tex. 2014) (preliminarily enjoining Texas from
refusing to recognize same-sex couples’ marriages).
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CONCLUSION
For all the reasons above, Plaintiffs respectfully request an order permitting
them to file the proposed First Amended Class Action Complaint for Injunctive
and Declaratory Relief attached hereto as Exhibit A.

Respectfully submitted this 31st day of July, 2014.

BRYAN CAVE LLP

LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Tara L. Borelli (Bar No. 265084)
Gregory R. Nevins (Bar No. 539529)
Elizabeth L. Littrell (Bar No. 454949)
730 Peachtree Street, NE, Suite 1070
Atlanta, Georgia 30308
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

/s/ William V. Custer
William V. Custer (Bar No. 202910)
Jennifer D. Odom (Bar No. 549717)
Jennifer B. Dempsey (Bar No. 217536)
Luke A. Lantta (Bar No. 141407)
1201 W. Peachtree Street, N.W.
Fourteenth Floor
Atlanta, GA 30309
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Susan L. Sommer (Pro Hac Vice)
120 Wall Street, 19th Floor
New York, NY 10005
Phone: [phone]
Fax: [phone]
[e-mail]

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BRYAN CAVE LLP
Douglas E. Winter (Pro Hac Vice)
1155 F. Street, NW, Suite 700
Washington, DC 20004
Phone: [phone]
Fax: [phone]
[e-mail]

WHITE & CASE LLP
David P. Draigh (Pro Hac Vice
Southeast Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131-2352
Phone: [phone]
Fax: [phone]
[e-mail]

Counsel for Plaintiffs

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LOCAL RULE 7.1(D) CERTIFICATION OF COMPLIANCE
I certify that this pleading has been prepared with Times New Roman font,
14 point, as approved by the Court in L.R. 5.1(C), N.D. Ga.
Respectfully submitted, this 31st day of July, 2014.

/s/ William V. Custer
William V. Custer (Bar No. 202910)
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2014, I electronically filed the foregoing
document with the Clerk of Court using the CM/ECF system which will
automatically send email notification to the following attorneys of record:

Tara L. Borelli
Susan L. Sommer (Pro Hac Vice)
Gregory R. Nevins
Elizabeth L. Littrell
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Attorneys for Plaintiffs

William V. Custer
Douglas E. Winter (Pro Hac Vice)
Jennifer D. Odom
Jennifer B. Dempsey
Luke A. Lantta
BRYAN CAVE LLP
Attorneys for Plaintiffs

Nels Peterson
Devon Orland
OFFICE OF STATE ATTORNEY GENERAL
Attorneys for Defendant Deborah
Aderhold

David P. Draigh (Pro Hac Vice)
WHITE & CASE LLP
Attorneys for Plaintiffs

Diana L. Freeman
Kaye W. Burwell
R. David Ware
FULTON COUNTY ATTORNEY’S OFFICE
Attorneys for Defendant Hon. Judge
Pinkie Toomer

Frank E. Jenkins, III
Michael Van Stephens, II
Robert L. Walker
JENKINS & BOWEN, P.C.
Attorneys for Defendant Brook
Davidson

I further certify that all attorneys of record are CM/ECF participants.
/s/ William V. Custer
William V. Custer (Bar No. 202910)
BRYAN CAVE LLP
1201 W. Peachtree Street, N.W.
Fourteenth Floor
Atlanta, GA 30309
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Phone: [phone]
Fax: [phone]
Counsel for Plaintiffs

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