Windsor v. The United States Of America

Filing 77

MEMORANDUM OF LAW in Support re: 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File Sur-Reply.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
____________________________________
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EDITH SCHLAIN WINDSOR, in her
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capacity as executor of the estate of
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THEA CLARA SPYER,
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Plaintiff,
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v.
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THE UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)

Civil Action No. 10-CV-8435 (BSJ)(JCF)

MEMORANDUM OF LAW OF INTERVENOR-DEFENDANT
IN SUPPORT OF ITS MOTION FOR
CLARIFICATION, ADDITIONAL PAGES, AND LEAVE TO FILE SUR-REPLY
Intervenor-Defendant, the Bipartisan Legal Advisory Group of the United States House
of Representatives (the “House”), through its undersigned counsel, has moved today for
clarification of the Court’s August 29, 2011 “Set/Reset Deadlines” docket entry, for additional
pages in submitting its reply in support of its motion to dismiss, and for leave to file a sur-reply
in opposition to Plaintiff’s motion for summary judgment. The reasons for this motion are stated
below.
BACKGROUND
On May 11, 2011, the Court issued its Revised Scheduling Order, which imposed a
briefing schedule for both any motion for summary judgment that Plaintiff might file and any
motion to dismiss that the House might file. See Revised Scheduling Order (May 11, 2011)
(ECF No. 22). For Plaintiff’s potential motion for summary judgment, the Court required
Plaintiff to file her motion for summary judgment by June 24, 2011, the House to file any

opposition to that motion by August 1, 2011, and Plaintiff to file any reply by August 19, 2011.
See id. ¶¶ 9-11. For the House’s motion to dismiss, the Court required the House to file its
motion to dismiss by August 1, 2011, Plaintiff to file any opposition by August 19, 2011, and the
House to file any reply by September 9, 2011. See id. ¶¶ 10-12.
On August 11, 2011, Plaintiff requested from the Court, among other things, a page limit
expansion, of up to thirty-five (35) pages, to oppose the House’s motion to dismiss. See Letter
from Pl. to Court (Aug. 11, 2011) (not docketed). On August 15, 2011, the Court granted that
request, see Order (Aug. 15, 2011) (ECF No. 68), and, on August 19, 2011, Plaintiff filed a
thirty-five (35) page opposition, see Pl.’s Mem. of Law in Opp’n to Def.-Intervenor’s Mot. to
Dismiss (Aug. 19, 2011) (ECF No. 70).
Meanwhile, on August 15, 2011, the Court suspended Plaintiff’s obligation to file any
reply in support of her motion for summary judgment, pending resolution of Plaintiff’s motion to
strike certain portions of the House’s opposition. See Order (ECF No. 68) (Aug. 15, 2011).
After denying Plaintiff’s motion to strike, on August 29, 2011, the Court imposed a new,
September 16, 2011 deadline for that reply, see Order (Aug. 29, 2011) (ECF No. 75). In doing
so, the Court granted Plaintiff’s request to expand her reply brief to thirty (30) pages,
notwithstanding that the House opposition to which Plaintiff’s reply brief will respond used only
twenty-five (25) pages. See id.; House Summ. J. Opp’n (Aug. 1, 2011) (ECF No. 50). Also on
August 29, 2011, the Court issued a docket entry that reads in full: “Set/Reset Deadlines:
Replies due by 9/16/2011. (js).” Docket (Aug. 29, 2011) (No ECF No.).
ARGUMENT
The House seeks clarification that the “Set/Reset Deadlines” docket entry references both
outstanding reply briefs: Plaintiff’s reply in support of her motion for summary judgment and

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the House’s reply in support of its motion to dismiss. The House considers this the most sensible
reading of the docket entry, given its reference to “Deadlines” plural and “Replies” plural. The
House also considers this reading appropriate in light of (1) the fact that the Court’s initial
scheduling order included a deadline for Plaintiff’s summary judgment reply that was earlier
than the House’s reply in support of dismissal and (2) the uncertainty to the briefing schedule
imposed by Plaintiff’s interposition of her failed motion to strike. See Notice of Mot. to Strike
Documents Referenced by Def.-Intervenor in Opp’n to Pl.’s Mot. for Summ. J (Aug. 10, 2011)
(ECF No. 65); Mem. of Law in Supp. of Mot. to Strike Documents Referenced by Def.Intervenor in Opp’n to Pl.’s Mot. for Summ. J. (Aug. 10, 2011) (ECF No. 66); Letter from
Plaintiff to Court (Aug. 11, 2011) (not docketed); Second Letter from Plaintiff to Court (Aug. 12,
2011) (not docketed); Third Letter from Plaintiff to Court (also Aug. 12, 2011) (not docketed);
Reply Mem. in Supp. of Mot. to Strike Documents Referenced by Def.-Intervenor in Opp’n to
Pl.’s Mot. for Summ. J. (Aug. 22, 2011) (ECF No. 73); Order (Aug. 29, 2011) (ECF No. 75)
(denying Plaintiff’s motion). In the alternative, if the applicable docket entry was intended to
apply only to Plaintiff’s reply in support of her motion for summary judgment, the House
respectfully requests an extension of time to file its reply memorandum in support of dismissal to
and including September 16, 2011, to correspond with the deadline for Plaintiff’s reply.
In conjunction with its request for clarification of the date by which it must file its reply
in support of its motion to dismiss, the House also requests up to seventeen (17) pages for that
reply. Plaintiff’s opposition to the House’s motion to dismiss is thirty-five (35) pages long.
Accordingly, the House seeks to respond with less than half the pages used by Plaintiff.
Seventeen (17) pages will allow the House fully to address Plaintiff’s arguments.

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Finally, the House also seeks leave to file a sur-reply in opposition to Plaintiff’s motion
for summary judgment. Plaintiff filed a Notice of Motion for Summary Judgment (June 24,
2011) (ECF No. 28), a forty-three (43) page Memorandum of Law in Support of Plaintiff’s
Motion for Summary Judgment (June 24, 2011) (ECF No. 29), and seven declarations in support
(averaging more than fifty-eight numbered paragraphs each, and appending exhibits), see
Assorted Decls. (June 24, 2011) (ECF Nos. 30-36). The House responded with a twenty-five
(25) page opposition, see House Summ. J. Opp’n (Aug. 1, 2011) (ECF No. 50), and a single
eight (8) numbered paragraph declaration, see Decl. (Aug. 1, 2011) (ECF No. 54), to which
Plaintiff now will reply with up to thirty (30) additional pages, see Order (Aug. 29, 2011) (ECF
No. 75). Accordingly, the House seeks leave to file a sur-reply of moderate length, fifteen (15)
pages. Even if the House were to use all of those requested pages, it will have responded to
Plaintiff’s extensive briefing with just over half of the pages expended by Plaintiff (not counting
Plaintiff’s voluminous declarations and exhibits).
Moreover, the Court’s original scheduling order contemplated that briefing on Plaintiff’s
motion for summary judgment should begin before the House’s motion to dismiss, overlap with
briefing on the motion to dismiss for a period, and then conclude before the completion of
briefing on the House’s motion. The effect of the extension of time occasioned by Plaintiff’s
motion to strike, however, has been that, absent a House sur-reply, Plaintiff would have both the
first and the last word in briefing dispositive motions in this case. Permitting a short sur-reply by
the House thus would restore the balance contemplated in the original scheduling order not only
in terms of the number of pages for each side’s briefing, but also in the timing of that briefing.

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The House suggests Friday, September 30, 2011, as an appropriate due date for its surreply. This would provide the House two weeks to respond to Plaintiff’s reply brief, for which
Plaintiff had seven weeks to respond to the House’s opposition.
CONCLUSION
Accordingly, the House respectfully requests that the Court (1) clarify the August 29,
2011 “Set/Reset Deadlines” docket entry to make express that the House reply in support of its
motion to dismiss is due Friday, September 16, 2011, or, in the alternative, extend the deadline
for the House’s reply in support of dismissal to that date to correspond with the filing date for
Plaintiff’s reply brief in support of summary judgment; (2) permit the House up to seventeen
(17) pages for its reply in support of its motion to dismiss; and (3) grant the House leave to file a
sur-reply in opposition to Plaintiff’s motion for summary judgment, which sur-reply shall be up
to fifteen (15) pages in length and shall be filed on or before September 30, 2011.

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Respectfully submitted,
/s/ Paul D. Clement
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, Northwest, Suite 470
Washington, District of Columbia 20036
Telephone:
[phone]
Facsimile:
[phone]
Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel
Christine Davenport, Senior Assistant Counsel
Katherine E. McCarron, Assistant Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Washington, District of Columbia 20515
Telephone:
[phone]
Facsimile:
[phone]
September 2, 2011

CERTIFICATE OF SERVICE
I certify that on September 2, 2011, I served one copy of the Memorandum of
Law of Intervenor-Defendant in Support of Its Motion for Clarification, Additional
Pages, and Leave To File Sur-Reply by CM/ECF and by electronic mail (.pdf format) on
the following:
Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York City, New York 10019-6064
[e-mail]
[e-mail]
Alexis Karteron, Esquire, & Arthur Eisenberg, Esquire
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 19th Floor
New York City, New York 10004
[e-mail]
[e-mail]
James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York City, New York 10004
[e-mail]
[e-mail]
[e-mail]
Jean Lin, Esquire
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
20 Massachusetts Avenue, Northwest, Seventh Floor
Washington, District of Columbia 20530
[e-mail]
Simon Heller, Esquire
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
120 Broadway
New York City, New York 10271
[e-mail]
/s/ Kerry W. Kircher
Kerry W. Kircher