ADA MERCEDES CONDE VIDAL and IVONNE LVAREZ VLEZ; MARITZA LPEZ AVILES and IRIS DELIA RIVERA RIVERA; JOS A. TORRUELLAS IGLESIAS and THOMAS J. ROBINSON; ZULMA OLIVERAS VEGA and YOLANDA ARROYO PIZARRO; JOHANNE VLEZ GARCA and FAVIOLA MELNDEZ RODRGUEZ; and PUERTO RICO PARA TOD@S, Plaintiffs, v. ALEJANDRO J. GARCIA PADILLA, in his official capacity as Governor of the Commonwealth of Puerto Rico; ANA RIUS ARMENDARIZ, in her official capacity as Secretary of the Health Department of the Commonwealth of Puerto Rico; WANDA LLOVET DIAZ, in her official capacity as Director of the Commonwealth of Puerto Rico Registrar of Vital Records; and MELBA ACOSTA FEBO, in her official capacity as Director of the Treasury in Puerto Rico, Defendants.
Civil Action No. 3:14-cv-01253-PG
PLAINTIFFS PARTIAL OPPOSITION TO DEFENDANTS MOTION FOR AN EXTENSION OF TIME TO ANSWER OR OTHERWISE PLEAD
This matter comes before the Court upon Defendants motion asking that the Court nearly triple their standard 21-day time to respond to Plaintiffs Amended Complaint -- until August 27, 2014. Defendants sole reason for requesting the extension of time is that this is a case of public policy. Def.s Mot. at 1. Plaintiffs do not oppose a reasonable extension to accommodate Defendants, but the requested extension is excessive given the ongoing harm to Plaintiffs, which accrues and deepens each day. As explained below, allowing Defendants an Case 3:14-cv-01253-PG Document 29 Filed 07/21/14 Page 1 of 7 2
additional 25 days, more than doubling the standard time, to August 15, 2014, would be consistent with the orderly and appropriate progress of this case. I. Facts On March 25, 2014, Plaintiffs Ada Conde and Ivonne Alvarez, representing themselves, filed their Complaint for Declaratory and Injunctive Relief, challenging the constitutionality of those provisions of Puerto Rico law that deny recognition of marriages lawfully entered into by same-sex couples in other jurisdictions. On June 25, 2014, the Original Complaint was amended to include the claims of two same-sex couples seeking the right to marry in Puerto Rico, Maritza Lopez Aviles and Iris Rivera Rivera, and Zulma Oliveras Vega and Yolanda Arroyo Pizarro; two additional couples seeking recognition of their legally valid marriages, Johanne Velez Garcia and Faviola Melendez Rodriguez, and Jose Torruellas Iglesias and Thomas Robinson; and Puerto Rico Para Tod@s, an organizational plaintiff with LGBT members in Puerto Rico. Plaintiffs also added Governor Alejandro J. Garcia Padilla and Secretary of the Treasury Melba Acosta Febo, in their official capacities, as Defendants. Plaintiffs timely served each of the Defendants on June 30, 2014. Defendants Answer was due July 21, 2014. One business day before the deadline, however, Defendants have asked this Court to triple the time to respond, without explaining why the time is needed or attempting to confer with Plaintiffs attorneys. II. Argument Defendants request is excessive, not justified by good cause and does not comport with the requirements of local rules. Time is of the essence in this constitutional rights litigation. Every day that the Commonwealths Marriage Ban remains in place causes undue hardship and constitutional injury Case 3:14-cv-01253-PG Document 29 Filed 07/21/14 Page 2 of 7 3
to Plaintiffs and other Banned Couples. 1 As set forth in the Amended Complaint, each Plaintiff experiences on a daily basis both the tangible and intangible ramifications of Defendants refusal to extend equal treatment, dignity, and respect to Plaintiffs. See Doc. 7 at 16-71. As this Court has stated, constitutional violations constitute per se irreparable harm for purposes of preliminary injunction. Sanchez v. McClintock, No. 11-1542, 2013 WL 1429434 (D.P.R. Apr. 8, 2013) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). See also Wal- Mart Stores v. Rodriguez, 238 F. Supp. 2d 395, 421 (D.P.R. 2002) (A presumption of irreparable harm flows from and is triggered by an alleged deprivation of constitutional rights.). In some tragic cases, a delay could permanently deprive a decades-long partner, children and other family members of marital protections if incapacity or even death of a partner were to occur. As but one example of the harms Plaintiffs face, unmarried Plaintiffs would, in such a situation, be barred forever from protections that depend upon validly consented-to matrimony. In addition, Defendants request for an extension of time fails to comply with this Courts Rules. Local Rule 6 provides that, All motions for extension of time shall specifically set forth the purpose of the extension sought, the expiration date for the period sought to be extended, and the expiration date of the proposed extension. In their motion, Defendants fail to identify the purpose of the extension sought (as well as the original expiration date for the period sought to be extended), other than their assertion that this is a case of public policy, Def.s Mot. at 1, which is insufficient to justify tripling the time to respond. However, this case is not one of mere disagreement over a public policy; it involves the continued deprivation of Plaintiffs fundamental rights and equal protection of the laws. Since the Supreme Court decided
1 Capitalized terms not defined herein are used with the same meaning as in the Amended Complaint. Case 3:14-cv-01253-PG Document 29 Filed 07/21/14 Page 3 of 7 4
United States v. Windsor, 133 S. Ct. 2675 (2013), dozens of state and federal courts have vindicated similar claims and struck down marriage bans. 2 Recognizing how time-sensitive the protections at issue are for those who seek them, federal courts have denied stays in some of the cases (e.g., district courts in Kitchen, DeBoer, Geiger, Whitewood, and Bagin, and the Court of Appeals in Kitchen) and even disallowed legislative provisions that imposed a waiting period before marriages could begin (e.g., Lee). Defendants request for an extension of time would unjustifiably delay the progress toward resolution of Plaintiffs claims. More than doubling the time Defendants would otherwise receive to respond, to August 15, 2014, would be a reasonable accommodation, given the importance of the issues presented and where no specific good cause has been identified by the Defendants. Such an extension should provide ample time for Defendants to decide their course of action with regards to this case. Plaintiffs counsel will be available during this period to discuss with Defendants counsel a proposed schedule for moving this case forward.
2 See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013), affd, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014); Love v. Beshear, No. 3:13-CV-750-H, 2014 WL 2957671 (W.D. Ky. July 1, 2014); Baskin v. Bogan, No. 1:14-CV-00355-RLY-TAB, 2014 WL 2884868 (S.D. Ind. June 25, 2014); Wolf v. Walker, No. 14-CV-64-BBC, 2014 WL 2558444 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014); Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014); Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); Tanco v. Haslam, No. 3:13- cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 20, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Lee v. Orr, No. 1:13-cv-08719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); Obergefell v. Wymyslo, No. 13-cv-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013); Huntsman v. Heavilin, No. 2014-CA-305-K (Fla. Dist. Ct., Monroe Cnty. July 17, 2014); Brinkman v. Long, No. 13 -CV-32572 (Colo. Dist. Ct., Cook Cnty. July 9, 2014); Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2d Div. May 9, 2014); A.L.F.L. v. K.L.L., No. 2014-CI-02421 (Tex. 438th Jud. Dist., Bexar Cnty, Apr. 22, 2014); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Darby v. Orr, No. 12-CH- 19718 (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013); Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 2013). Case 3:14-cv-01253-PG Document 29 Filed 07/21/14 Page 4 of 7 5
CONCLUSION For all the reasons set forth herein, Plaintiffs respectfully request that this Court deny Defendants Motion for Extension of Time, and instead issue an order allowing Defendants to file an answer or otherwise plead by August 15, 2014.
Dated: July 22, 2014 Respectfully submitted, /s/ Hayley Gorenberg . Hayley Gorenberg Omar Gonzalez-Pagan Jael Humphrey-Skomer LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 120 Wall Street, 19 th Floor New York, New York 10005-3904 T: (212) 809-8585 | F: (212) 809-0055 ogonzalez-pagan@lambdalegal.org hgorenberg@lambdalegal.org jhumphrey@lambdalegal.org
Gary W. Kubek Harriet M. Antczak Jing Kang DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 T: (212) 909-6000 | F: (212) 909-6836 gwkubek@debevoise.com hmantcza@debevoise.com jkang@debevoise.com
Ryan M. Kusmin DEBEVOISE & PLIMPTON LLP 555 13th Street N.W. Washington, DC 20004 T: (202) 383-8000 | F: (202) 383-8118 rmkusmin@debevoise.com
Case 3:14-cv-01253-PG Document 29 Filed 07/21/14 Page 5 of 7 6
Celina Romany-Siaca Celina Romany Law Offices 268 Munoz Rivera Avenue, Suite 1500 San Juan, PR 00918 T: (787) 754-9304 | F: (787) 754-9324 bufetecelinaromany@gmail.com
Attorneys for Plaintiffs MARITZA LPEZ AVILES and IRIS DELIA RIVERA RIVERA; JOS A. TORRUELLAS IGLESIAS and THOMAS J. ROBINSON; ZULMA OLIVERAS VEGA and YOLANDA ARROYO PIZARRO; JOHANNE VLEZ GARCA and FAVIOLA MELNDEZ RODRGUEZ; and PUERTO RICO PARA TOD@S
/s/ Ada M. Conde Vidal . ADA M. CONDE-VIDAL, ESQ. P.O. Box 13268 San Juan, PR 00908-3268 T: (787) 721-0401 | F: (787) 977-8072 CONDELAWPR@GMAIL.COM USDCPR 206209
Attorney for Plaintiffs ADA M. CONDE- VIDAL and IVONNE LVAREZ VLEZ
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CERTIFICATE OF SERVICE I, Celina Romany-Siaca, an attorney, certify that on July 21, 2014, I served upon counsel for all parties by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system.
/s/ Celina Romany-Siaca
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John J. Pomerantz, Walter Leiter, Alan Golub, Fred Pomerantz and Ralph Iannazzone, Plaintiffs-Counterclaim v. Ira D. Schandler, Carolina Erath 1978 Associates, Carolina Erath 1979 Associates and Carolina Energy Corporation, and M. Albert Nissim, Defendant-Counterclaim v. Leslie Fay Inc., Additional Counterclaim Golenbock and Barell, Movants-Appellants, 704 F.2d 681, 2d Cir. (1983)
Dorris J. Kromer, Administratrix of The Estate of Charles R. Kromer, Deceased, of Ector County, Texas, and Delbert Townsend v. John W. MC, Nabb, (Two Cases), 308 F.2d 863, 10th Cir. (1962)