Waters et al vs. Heineman et al
MEMORANDUM AND ORDER - IT IS ORDERED that: The plaintiffs' supplemental motion (Filing No. 83 ) and the defendants' motion to strike (Filing No. 85 ) are denied as moot. The plaintiffs' motion for leave to supplement the record (Filing No. 87 ) is granted. The supplemental materials (Filing No. 87 , Attachments 1-8) are deemed filed instanter. The defendants shall file any responsive materials or briefs within 14 days of the date of this order and the plaintiffs shall have one week thereafter in which to respond, at which time the cross-motions for summary judgment will be considered submitted. Ordered by Senior Judge Joseph F. Bataillon. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN WATERS, SALLY WATERS,
NICKOLAS KRAMER, JASON CADEK,
CRYSTAL VON KAMPEN, CARLA
MORRIS-VON KAMPEN, GREGORY
TUBACH, WILLIAM ROBY, JESSICA
KATHLEEN KALLSTROMSCHRECKENGOST, MARJORIE PLUMB,
TRACY WEITZ, RANDALL CLARK, AND
MEMORANDUM AND ORDER
PETE RICKETTS, in his official capacity as
Governor of Nebraska; DOUG PETERSON,
in his official capacity as Attorney General of
Nebraska; LEONARD J. SLOUP, in his
official capacity as Acting Tax Commissioner
of the Nebraska Department of Revenue;
DAN NOLTE, in his official capacity as the
Lancaster County Clerk; and COURTNEY
PHILLIPS, in her official capacity as CEO of
the Nebraska Department of Health and
This matter is before the court on the plaintiffs' motion for leave to supplement the
record, Filing No. 87, on their motion for summary judgment, Filing No. 68.1 This is an
action for violation of civil rights brought pursuant to 42 U.S.C. § 1983. The plaintiffs seek
declaratory and injunctive relief for violation of rights protected by the Fourteenth
Amendment by virtue of Nebraska’s exclusion of same-sex couples from marrying and its
Also pending is the defendants' motion to strike, Filing No. 85. Without seeking leave of court,
the plaintiffs originally filed the supplemental motion and materials at Filing No. 83. Defendants moved to
strike that evidence, Filing No. 85. In response to that motion, plaintiffs moved for leave, attaching the
evidence. Filing No. 87. Defendants oppose the motion for leave, raising the same arguments as they
raised in their motion to strike. See Filing Nos. 86 and 89, Briefs. The court finds the plaintiffs' motion for
leave renders the plaintiffs' original supplemental motion and the defendants' motion to strike moot.
prohibition against recognizing the marriages of same-sex couples validly entered into in
other jurisdictions under Neb. Const. art. I, § 29 (hereinafter, "Section 29" or "the
Amendment"). In their amended complaint, the plaintiffs allege they suffered numerous
harms as a result of the defendants' proscription of same-sex marriage. See Filing No. 9,
Cross-motions for summary judgment are presently pending. Filing Nos. 68 and 72.
The plaintiffs seek to supplement the evidence submitted in connection with their motion for
summary judgment with evidence connected to the state officials' practices in connection
with birth certificates issued to same-sex couples.
This court's earlier ruling on the plaintiffs' motion for a preliminary injunction, Filing
Nos. 55 and 56, was affirmed by the Eighth Circuit Court of Appeals ("Eighth Circuit") on an
interlocutory appeal and the action was remanded "for entry of final judgment on the merits
in favor of the plaintiffs" and for proceedings consistent with the Eighth Circuit's opinion.
Filing No. 78, Eight Circuit Opinion; see Filing No. 79, Judgment; Filing No. 80, Amended
Judgment. The Eighth Circuit found the challenged provision unconstitutional on light of the
Supreme Court's decision Obergefell v. Hodges, 135 S. Ct. 2584 (2015), abrogating
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Filing No. 78, Eighth
Circuit Opinion at 3. The court also denied the state's motion to vacate the preliminary
injunction and rejected its suggestion of mootness. Id. at 3-4. The Appeals Court noted
that the decision in Obergefell had not invalidated laws in Nebraska, nor had it considered
the state benefits incident to marriage that had been addressed in this court. Id. Further, it
found Nebraska's assurances of compliance with Obergefell did not moot the case, but
noted the State' assurances could "impact the necessity of continued injunctive relief." Id.
at 5. It directed this court to "consider Nebraska’s assurances and actions and the scope of
any injunction, based on Obergefell and Federal Rule of Civil Procedure 65(d)."2 Id. The
Eighth Circuit's mandate was issued on September 24, 2015. Filing No. 84.
Defendants argue that the proposed supplemental evidence and brief touch on an
issue absent from the plaintiff's pleadings. Further, they raise substantive arguments as to
the import of the supplementary materials and assert evidentiary objections.
The court finds the defendants' arguments lack merit. The court finds the plaintiffs'
complaint broadly alleges denial of rights, responsibilities, and incidents of marriage and
can be construed as encompassing the birth-certificate issue presented in the
Moreover, if the issue had not been presented, the plaintiffs
would be granted leave to amend their complaint to include it. Subsequent to the plaintiffs
filing of their motion for summary judgment, defendants sought and were granted leave to
amend their answer to add allegations of mootness.
See Filing No. 70, Motion; 70-1,
Proposed Amended Answer; 75, text order; 76, Amended Answer.
supplemental materials address that contention of mootness and are relevant to issues in
The defendants have not shown they will suffer any prejudice as a result of the filing
of the supplementary materials. They will be afforded an opportunity to respond to the
Further, the defendants' substantive arguments and evidentiary
objections can be addressed in connection with the cross-motions for summary judgment.
The court finds the plaintiffs' motion for leave to file supplementary materials should be
granted and the defendants should be afforded an opportunity to respond thereto.
Rule 65(d) sets out the content and scope of every injunction and restraining order. Fed. R. Civ. P.
IT IS ORDERED that:
The plaintiffs' supplemental motion (Filing No. 83) and the defendants' motion
to strike (Filing No. 85) are denied as moot.
The plaintiffs' motion for leave to supplement the record (Filing No. 87) is
The supplemental materials (Filing No. 87, Attachments 1-8) are deemed filed
The defendants shall file any responsive materials or briefs within 14 days of
the date of this order and the plaintiffs shall have one week thereafter in which to respond,
at which time the cross-motions for summary judgment will be considered submitted.
Dated this 20th day of October, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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