Case 2:14-cv-02518-DDC-TJJ Document 98 Filed 02/28/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE, et al.
Plaintiffs,
v.
SUSAN MOSIER, M.D., in her official capacity
as Secretary of the Kansas Department of
Health and Environment, et al.,
Defendants.

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Case No. 14-cv-2518

PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION OF DEFENDANTS MOSIER,

JORDAN, KASPAR, AND MICHAEL FOR ADDITIONAL TIME TO RESPOND TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Defendants Mosier, Jordan, Kaspar, and Michael have moved the Court for Additional
Time to Respond to Plaintiffs Motion for Summary Judgment (Doc. #93) under Federal Rule
56(d) based on their purported need for additional discovery.

The Court should deny

Defendants' Motion for at least three reasons. First, Defendants Motion is procedurally and
substantively deficient as it is not supported by an affidavit or declaration in accordance with
Rule 56(d), explaining (a) the probable facts not available, (b) what steps have been taken to
obtain these facts, and (c) how additional time will enable Defendants to rebut the movants
allegations of no genuine issue of material fact. Further, Defendants have not put forth any
probable facts they hope to uncover in discovery, only speculation. Finally, as reflected by the
motion to stay proceedings that were filed just a few hours after the Rule 56(d) request,
Defendants true motive is simply to delay the proceedings as long as possible.
I.

Defendants Motion is Procedurally and Substantively Deficient

Under Rule 56(d), the Court may allow time to take discovery if the nonmoving party

shows that it cannot present essential facts to justify its opposition. See Fed. R. Civ. P. 56(d).

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But the party requesting relief under Rule 56(d) must adhere to specific requirements. The rule
is clear: Although the Supreme Court has held that, under Fed. R. Civ. P. 56([d]), summary
judgment [should] be refused where the nonmoving party has not had the opportunity to discover
information that is essential to his opposition, this protection arises only if the nonmoving party
files an affidavit explaining why he or she cannot present facts to oppose the motion. Universal
Money Centers, Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1536 (10th Cir. 1994) (internal
quotation marks omitted). The court of appeals has expressly held that it is not error to grant
summary judgment without ruling on a motion to compel where the nonmovant fails to comply
with Rule 56(d). Id.
In support of a request for more time to respond to a motion for summary judgment under
Rule 56(d), a nonmovant must file an affidavit specifying the reasons it is not able to present the
essential facts to justify its opposition. See Fed. R. Civ. P. 56(d). In addition, [t]he affidavit
must identify the probable facts not available and what steps have been taken to obtain these
facts, and it must explain how additional time will enable it to rebut the movants allegations of
no genuine issue of fact. Sprint Communications Co. v. Vonage Holdings Corp., 500 F. Supp.
2d 1290, 1334 (D. Kan. 2007) (citing Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722,
732 (10th Cir. 2006)).
The requirement of an affidavit is not a mere technicality. The purpose of the affidavit
is to ensure that the nonmoving party is invoking the protections of Rule 56[(d)] in good faith
and to afford the trial court the showing necessary to assess the merit of a partys opposition.
Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citation
omitted). Advocacy by counsel does not suffice for evidence or fact in the Rule 56[d] context.
Id.

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Moreover, although Defendants assert that they have not yet taken discovery, there is no
requirement in Rule 56 that discovery be complete before summary judgment can be entered.
Estate of Ricci v. Salt Lake City Corp., 180 Fed. Appx. 810, 812 (10th Cir.2006) (unpublished);
Bio Med Technologies Corporation v. Sorin CRM USA, Inc., No. 14cv0154WJMCBS, 2015
WL 428580, at *3 n.2 (D. Colo. 2015). Defendants assert that the motion for summary judgment
somehow conflicts with the scheduling order issued by Magistrate Judge James, but as
Defendants concede Judge James made clear that her scheduling order did not control the
timing of Plaintiffs motion for summary judgment. If Defendants believe that discovery is
necessary to respond to the summary judgment motion, they have an obligation to explain by
affidavit what probable facts they seek to obtain and why those facts are actually material to this
dispute. They have failed to do so.
Because Defendants failed to attach any affidavit in support of their Motion for Extension
of Time, it is procedurally deficient under Rule 56(d). Consequently, the Court should deny the
Motion.
II.

Defendants Motion Fails to Set Forth Any Probable Facts it Hopes to Discover
Not only did Defendants fail to attach an affidavit to their Motion for Extension of Time,

they also failed to state any probable facts that are not available to them and to explain why those
facts cannot be presented at this time.

The law requires a party seeking a Rule 56(d)

continuance to identify probable facts that are not available, not merely a possible factual
scenario that could be true. Barker v. Citigroup, Inc., 2012 WL 1379308 (D. Utah 2012).
Speculation cannot support a Rule 56(d) motion. F.D.I.C. v. Arciero, 741 F.3d 1111, 1116
(10th Cir. 2013).
Plaintiffs motion for summary judgment turns entirely on pure questions of law,
specifically whether the Kansas laws prohibiting same-sex marriage are unconstitutional. The
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undisputed material facts set forth in the Memorandum in Support of Plaintiffs Motion for
Summary Judgment are largely facts that are indisputable on their face. Many of the material
facts have been admitted or can be judicially noticed (i.e., statutes, administrative regulations,
and the identities of state officials). See, e.g., Doc. 85, 1, 4-11, 13-14, 16-20, 25-30, 33-38,
and 47-50. The remaining material facts asserted by Plaintiffs relate to the length and nature of
the Plaintiff couples relationships with each other (Doc. 85, 2-3, 22-24) and descriptions of
how state actors violated their rights to due process and equal protection by refusing to allow
them to file state income tax returns as married (Doc. 85, 31-32), refusing to allow them to
change their names on their Kansas drivers licenses after they took new last names as part of the
marriage licensing process (Doc. 85, 39-46), and refusing to allow them to add their spouses
to their state employee health insurance as dependents (Doc. 85, 51-58). There is no dispute
that the Defendant District Court Clerks denied the marriage license applications of Plaintiffs
Marie and Brown and Plaintiffs Wilks and DiTrani; Defendants have admitted that. See Doc. 85,
13, 14, & 16.
Defendants only explanation for why they require additional discovery is that: We have
other plaintiffs who claim to have had interactions with unnamed state officials concerning their
income taxes, or health insurance, or drivers licenses. Doc. 93 at 4. But Defendants do not
explain how their depositions of the plaintiffs could possibly have bearing on a material issue of
fact relevant to this summary judgment motion. Indeed, Defendants do not assert that Plaintiffs
are, in fact, able to file joint taxes, to add their spouses to their health insurance, or to use their
marriage licenses to change the last names on their drivers licenses. Where a defendant fails to
explain how contemplated depositions would allow it to oppose the operative facts of a motion
for summary judgment, a district court is justified in denying a request for additional time under

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Rule 56(d). Estate of Ricci v. Salt Lake City Corp., 180 Fed.Appx. 810, 813 (10th Cir. 2006)
(unpublished). A Rule 56(d) affidavit must do more than simply allege that further discovery is
necessary; it must demonstrate precisely how additional discovery will lead to a genuine issue
of material fact. Id. (quoting Ben Ezra, Weinstein & Co. v. Am. Online Inc., 206 F.3d 980, 987
(10th Cir.2000)).
In reality, the ultimate facts relating to the States policies of continuing to refuse to
recognize same-sex marriages rest in the hands of Defendants. If state agencies like the Division
of Taxation, the Division of Vehicles, and the State Employee Health Plan (SEHP) are actually
recognizing same-sex marriages and allowing same-sex couples to file taxes as married, change
names on drivers licenses, and add same-sex spouses as dependents on the SEHP, Defendants
could say so. But they do not do that because they know that Plaintiffs asserted undisputed
material facts are true. There is nothing here to discover. Defendants merely want to delay and
run out the clock.
In addition, even if Defendants could explain how the depositions are relevant to a
material fact in dispute, Defendants do not offer any good-faith reason to question Plaintiffs
description of their interactions. Defendants have not provided an affidavit describing what steps
they have taken to corroborate or refute Plaintiffs descriptions despite the fact that defendants
have known about the allegations for months and have had ample time to contact the states own
employees for corroboration. And Defendants do not even suggest that these facts might be
disputed by the states own employees. Defendants offer no grounds to think that those
interactions never happened. That is not enough to show that it is probable that the facts
Defendants hope to uncover actually exist. Instead, Defendants offer sheer speculation.Baker,

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2012 WL 1379308, at *6. Consequently, the Court should deny their Motion for Extension of
Time.
III.

Delay Alone Cannot Support a Request for Extension of Time Under Rule 56(d)
This is an open-and-shut case where the result is dictated by binding precedent. Because

Defendants have failed to provide any probable facts they hope to uncover if allowed additional
time to conduct discovery, it appears that the true purpose of their Motion for Extension of Time
is simply to delay for the sake of delay. This is even more apparent when you consider that
Defendants Hamilton and Lumbreras filed a Motion to Stay Discovery (Doc. #94) within a few
hours of Defendants Mosier, Jordan, Kaspar, and Michael filing their Motion for Extension of
Time .
This Court already found when it granted the motion for preliminary injunction on the
marriage license claims that Plaintiffs and other same-sex couples are suffering irreparable harm
each day that Defendants prevent them from exercising their clearly established rights under
binding precedent. The Tenth Circuit and Supreme Court then denied Defendants motion to
stay enforcement of that decision. Yet, by failing to provide any legal recognition to the
marriage licenses that same-sex couples receive, Defendants continue to deprive same-sex
couples of the fundamental rights associated with marriage that they are entitled to under binding
precedent.
Earlier this month, the Supreme Court denied a request by Alabama to stay enforcement
of a district court decision striking down that states marriage bans even though the Supreme
Court had already granted petitions for certiorari to decide the constitutional question this term.
See Strange v. Searcy. 135 S. Ct. 940 (2014). In denying that request, the Supreme Court made

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clear that the rights of same-sex couples should not be held in abeyance until it issues a decision
at the end of June. Plaintiffs and other same-sex couples in Kansas are entitled to relief now.
Rule 56(d) does not allow for extensions of time to respond to a summary judgment
motion simply because defendants wish to delay proceedings especially when the plaintiffs are
suffering ongoing violations of their constitutional rights. Defendants Motion for Extension of
Time should be denied.
IV.

Conclusion
The Court should deny Defendants Mosier, Jordan, Kaspar, and Michael's Motion for

Extension of Time because it is procedurally deficient, Defendants fail to set forth any probable
facts to justify an extension under Federal Rule 56(d), and they only seek to delay the
proceedings.
Respectfully submitted,
By:/s/ Mark P. Johnson
Mark P. Johnson, KS Bar #22289
Dentons US LLP
4520 Main Street, Suite 1100
Kansas City, MO 64111
Tel. : (816) 460-2400; Fax: (816) 531-7545
Email: mark.johnson@dentons.com
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney, KS Bar #12322
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
Tel.: (816) 994-3311; Fax: (816) 756-0136
email: dbonney@aclukansas.org
Joshua A. Block [admitted pro hac vice]
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212) 549-2593
email: jblock@aclu.org
ATTORNEYS FOR PLAINTIFFS
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Certificate of Service
I certify that, on February 28, 2015, the foregoing document was served on counsel for all
defendants per the Courts ECF system.
/s/ Stephen Douglas Bonney