DeLeon v Perry PLAINTIFFS’ RESPONSE TO STATE DEFENDANTS 1-17-2014

8/13/2019 DeLeon v Perry PLAINTIFFS RESPONSE TO STATE DEFENDANTS 1-17-2014

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consolidate. The Court should deny the motion and proceed with the scheduled hearing on

Plaintiffs motion for preliminary injunction.

FACTUAL BACKGROUND

Three lawsuits contesting the constitutionality of Defendants refusal to allow same-sex

couples to marry are currently pending in the Western District of Texas. See McNosky v. Perry ,

No. 1:13-cv-00631, (W. D. Tex. filed July 29, 2013); De Leon v. Perry , No. 5:13-cv-00982 (W.D.

Tex. filed October 28, 2013); Zahrn v. Perry , No. 1:13-CV-00955 (W.D. Tex. filed October 31,

2013). While each of the lawsuits seeks to rectify the plaintiffs constitutional rights to marry

their partners and two of the lawsuits challenge Texas voidance of lawful out-of-state marriages,they differ in important respects from this proceeding. The McNosky case was filed pro se by a

same-sex couple who wants to marry in Texas, and challenges the constitutionality of Texas

restrictions on same-sex marriage solely on the basis of gender (as opposed to sexual orientation)

discrimination. See Exh. A, Transcript of January 9, 2014 Hearing, at 8:23-9:8, McNosky . The

named plaintiffs in the Zahrn case seek to marry in Texas and recognition of a lawful out-of-state

marriage, but through a different procedural vehicle, as they seek certification of a class under

Fed. R. Civ. P. 23.

This case has advanced farther and more quickly than either of the other pending cases.

Plaintiffs have long since filed and briefed their preliminary injunction, and the Defendants have

filed their opposition brief. Briefing will be complete on January 24, 2014, when Plaintiffs file

their reply in support of the motion for preliminary injunction. The Court has set a hearing on

the motion for February 12, 2014.

Case 5:13-cv-00982-OLG Document 48 Filed 01/17/14 Page 2 of 7


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ARGUMENT

A. The Court Should Deny Plaintiffs Second Attempt To Transfer This Case To Austin.

Defendants motion to transfer focuses on what they hope to accomplish after this Court

consents to transfer this case to the Austin Division: namely, the consolidation of the DeLeon

case with the McNosky and Zahrn cases. After full briefing on Defendants motion to

consolidate, the Honorable Sam Sparks denied without prejudice Defendants motion to

consolidate in a hearing on January 9, 2014. As a result, the three lawsuits presently remain in

their original stateunconsolidated and going forward. Following Judge Sparks ruling, and

facing the impending hearing date on the De Leon plaintiffs motion for a preliminary injunction,

Defendants filed their motion to transfer in this Court, seeking again to obtain much the same

relief Judge Sparks previously denied them. Defendants stall tactic should fail, and the Court

should hear the pending motion for preliminary injunction as scheduled.

Defendants motion to transfer does little more than restate (often verbatim) the

arguments raised by Defendants in their motion to consolidatethe same arguments that failed

to persuade Judge Sparks. See Defendants Opposed Motion to Consolidate Trial and Scheduling

Deadlines, McNosky , Docket No. 17, at 1. The plaintiffs in all three lawsuits opposed

consolidation. See, e.g. , Notice of Plaintiffs Response, De Leon , Docket No. 19. The plaintiffs

explained that consolidation was imprudent because of substantive and procedural differences

among the lawsuits. Substantively, the McNosky case involves just one couple that wishes to

marry in Texas, whereas the Zahrn and De Leon cases involve not only plaintiffs who wish to

marry in Texas but also plaintiffs who are already married under the Laws of another state.

Response to Defendants Motion to Consolidate, Zahrn , Docket No. 11, at 2. Thus,

consolidation in McNosky made little sense because McNosky would not provide complete relief

to all the plaintiffs. Moreover, as the plaintiffs also explained, the McNosky case was filed pro se



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by two plaintiffs with no litigation experience whatsoever. Pro se plaintiffs are not suited to

prosecute a lawsuit that has the potential to determine the rights of other similarly-situated

parties. See, e.g. , Oxendine v. Williams , 509 F.2d 1405, 1407 (4th Cir. 1975) (refusing to allow

pro se plaintiff to assert claims under 42 U.S.C. 1983 for himself and similarly situated persons

where an adverse judgment could prevent other persons from later raising the same claims and

pro se plaintiff could not fairly and adequately protect the interests of others); Russell v. United

States , 308 F.2d 78 (9th Cir. 1962) (A litigant appearing in propria persona has no authority to

represent anyone other than himself). 1

Procedurally, it would be inequitable to consolidate the De Leon case with the Zahrn case. The Zahrn case, a putative class action, was filed after De Leon , and the class certification

process necessary in the Zahrn case would impose further delay on the recognition of the De

Leon plaintiffs constitutional rights. The plaintiffs in this case have already submitted

voluminous evidence to the court and are prepared to proceed with the hearing scheduled for

February 12, 2014, while the Zahrn plaintiffs stated that they will not be ready for trial until at

least late summer or early fall. See Exh. A, Transcript of January 9, 2014 Hearing, at 15:1-6,

McNosky ( Zahrn plaintiffs explaining that they dont think the case will be ready for trial until

late summer or early fall of 2014).

The circumstances of the Defendants motion to transfer also create the impression of

impermissible forum-shopping by the Defendants, further justifying denial of the motion. In the

course of the January 9, 2014 hearing, Judge Sparks made several preliminary observations

1 These cases arose in the context of a pro se plaintiff seeking relief for himself and allothers similarly situated via class certification under Fed. R. Civ. 23. The De Leon plaintiffssubmit that where, as here, the relief they seek would by its nature extend to other similarlysituated persons, pro se plaintiffs are equally unequipped to protect the interests of others.



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concerning Plaintiffs burden in seeking relief. Possibly viewing Judge Sparks as providing a

more favorable forum to hear their defense, the Defendants filed their motion to transfer soon

after the hearing.

B. The Court Should Deny The Motion To Transfer Because Austin Is Not MoreConvenient Than San Antonio.

[D]istrict courts have broad discretion in deciding whether to order a transfer. In re

Volkswagen of America, Inc. , 545 F.3d 304, 311 (5th Cir. 2008) (quoting Balawajder v. Scott , 160

F.3d 1066, 1067 (5th Cir.1998)). [W]hen the transferee venue is not clearly more convenient

than the venue chosen by the plaintiff, the plaintiffs choice should be respected. Id. at 315.

Beyond the deference inherently shown to a plaintiffs proper choice of venue, the Fifth Circuit

has identified various other factorsdivided between private interest and public interestas

relevant to whether a case should be transferred to another district or division. Id. (citing In re

Volkswagen AG , 371 F.3d 201, 203 (5th Cir. 2004)). The private interest factors include (1) the

relative ease of access to sources of proof; (2) the availability of compulsory process to secure

the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other

practical problems that make trial of a case easy, expeditious and inexpensive. Id. The public

interest factors include (1) the administrative difficulties flowing from court congestion; (2) the

local interest in having localized interests decided at home; (3) the familiarity of the forum with

the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of

laws [or in] the application of foreign law. Id.

These factors do not weigh in favor of transfer. To start, the private interest factors do not

weigh in favor of transfer. There is no greater ease of access to sources of proof in Austin than

in San Antonio. There is no greater availability of service of process in Austin than San Antonio.

Nor is Austin more economical for willing witnesses. Plaintiffs expert witnesses hale from



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California, Massachusetts, and the United Kingdom, among other destinations. Transferring this

case to Austin will not render their attendance easier or more economical. The DeLeon plaintiffs

themselves all reside in Texas, and can travel just as easily to hearings in either Austin or San

Antonio. Thus, the private interest factors do not weigh in favor of transfer.

The public interest factors also do not reveal the Austin Division to be clearly more

convenient than than the venue selected by Plaintiffs. The issues to be tried in this lawsuit are

not unique to one locality. To the contrary, the statutory and constitutional provisions at issue in

this case apply with equal force in Austin, San Antonio, and across the State of Texas, and the

resolution of this case will have state-wideindeed, potentially nationalsignificance.Accordingly, there are no localized interests here, nor does it appear that either forum is any

more familiar with the constitutional issues that law that will govern this case. Finally,

Defendants argue that the motion to transfer should be granted because of administrative

difficulties, such as the potential for inconsistent judgments. These claims are unfounded. The

courts are well-equipped to handle this litigation. If one case successfully obtains judicial

recognition of Plaintiffs constitutional rights, the remaining cases likely will be stayed during

the appeal of the first-decided decision, thus neutralizing all risk of potentially inconsistent

outcomes. Alternatively, Defendants could move to stay the McNosky and Zahrn lawsuits while

this case is decided. Indeed, Plaintiffs in this case are ready to proceed at the upcoming

preliminary injunction hearing and would agree to an expedited trial date.



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Conclusion

For the foregoing reasons, the De Leon plaintiffs respectfully request entry of an order

denying Defendants request to transfer this case to the Austin Division of this district.

Respectfully submitted,

AKIN GUMP STRAUSS HAUER & FELD LLP

By: /s/ Daniel McNeel Lane, Jr._______Barry A. Chasnoff (SBN 04153500)

[email protected] McNeel Lane, Jr. (SBN 00784441)[email protected] Stenger-Castro (SBN 19143500)[email protected] Weisel ( PHV pending )

[email protected] P. Cooley (SBN 24034388)[email protected] E. Pepping (SBN 24065894)[email protected] Convent Street, Suite 1600San Antonio, Texas 78205Phone: (210) 281-7000Fax: (210) 224-2035

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that, on January 17, 2014, I sent a copy of the foregoing document via the

courts electronic filing service to all attorneys of record.

___/ s/ Daniel McNeel Lane, Jr. ___Daniel McNeel Lane, Jr.



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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS

Plaintiffs, CIVIL ACTION NO. 5:13-cv-982-OLG

v.

RICK PERRY, in his official capacity as Governor of the State of Texas, GREG

ABBOTT, in his official capacity as Texas Attorney General, GERARD RICKHOFF, in his official capacity as Bexar County Clerk, and DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services

Defendants.

PLAINTIFFS RESPONSE TO STATE DEFENDANTSOPPOSED MOTION TO TRANSFER VENUE

EXHIBIT A

Case 5:13-cv-00982-OLG Document 48-1 Filed 01/17/14 Page 1 of 21


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LILY I. REZNIK , OFFICIAL COURT REPORTER

U .S. DISTRICT COURT , WESTERN DISTRICT OF TEXAS (AUSTIN )

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHRISTOPHER DANIEL MCNOSKY ) Docket No. A 13-CA-631 SSSVEN STRICKER, ET AL ) A 13-CA-955 SS

)vs. ) Austin, Texas

)THE STATE OF TEXAS, TEXAS )GOVERNOR RICK PERRY, ET AL ) January 9, 2014

TRANSCRIPT OF ALL PENDING MATTERSBEFORE THE HONORABLE SAM SPARKS

APPEARANCES:

For the Plaintiff: Mr. Christopher D. McNoskyPro Se5108 Pleasant RunColleyville, Texas 76034

Mr. Sven StrickerPro Se3047 Bent Tree CourtBedford, Texas 76021

For Zharn Plaintiffs: Mr. James J. Scheske

James J. Scheske, PLLC5501-A Balcones #10978731

For DeLeon Plaintiffs: Mr. Daniel McNeel Lane, Jr.Akin, Gump, Strauss, Hauer & Feld1500 NationsBank300 ConventSan Antonio, Texas 78205

For Mary Louise Garcia: Mr. Russell A. FriemelTarrant County Justice Center9th Floor401 West Belknap StreetFort Worth, Texas 76196



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(Appearances Continued:)

For Ricky Perry, et al: Mr. William T. DeaneMr. Michael P. MurphyOffice of the Attorney GeneralP.O. Box 12548

Austin, Texas 78711-2548

For Dana DeBeauvoir: Ms. Elaine A. CasasMs. Jennifer KraberTravis County Attornye's OfficeP.O. Box 1748Austin, Texas 78767-1748

Court Reporter: Ms. Lily Iva Reznik, CRR, RMR501 West 5th Street, Suite 4153Austin, Texas 78701(512)391-8792

Proceedings reported by computerized stenography, transcriptproduced by computer.



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THE COURT: I'm going to call 13-CA-631, McNosky, et al

vs. The State of Texas, and 13-CA-955, Zahrn, et al vs. Perry,

jointly for a few comments, and then, we will see how we are

going to proceed.

First, where is Christopher Daniel McNosky?

MR. MCNOSKY: Right here, your Honor.

THE COURT: Okay. And Sven Stricker?

MR. STRICKER: Yes.

THE COURT: Okay. So I've identified McNosky and

Stricker. And I'll have the defendants make their announcements,

please.

MR. MURPHY: Your Honor, Mike Murphy for the state

defendants from the Texas Attorney General's Office.

MR. DEANE: And Bill Deane, co-counsel, your Honor.

MR. FRIEMEL: Your Honor, Rus Friemel from Tarrant

County, representing the Tarrant County County Clerk.

MS. CASAS: Your Honor, Elaine Casas from the Travis

County Attorney's Office representing the Travis County Clerk.

MS. KRABER: And Jennifer Kraber from the Travis County

Attorney's Office, counsel for Dana DeBeauvoir.

THE COURT: All right. And then, the Zahrn case, we've

already had a Ms. Casas and Ms. Kraber announce from that. So

who is going to be the spokesperson for the plaintiffs?

MR. SCHESKE: Your Honor, Jodie Scheske for the Zahrn

Plaintiffs and the proposed class. And with me is from my



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understanding. You think I can go upstairs and tell Judge

Yeakel, I want one of his cases?

MR. MURPHY: Well, it was our understanding that there

would be, obviously, some agreement among the judges or between

the judges with respect to --

THE COURT: Well, that would certainly be true if there

is. I've simply talked to Judge Garcia this morning simply to

advise him that he had been advised by pleadings that this

hearing was going to go. And he didn't even know there was a

motion to consolidate, so there wasn't much point in talking

about that.

All right. I understand we've got three points of view

that are different and not in agreement, although it appears that

there are common issues in these cases. Anything else you want

to say on the consolidation?

MR. MURPHY: Well, just that this is a classic case for

consolidation, your Honor. I mean, we have three sets of

plaintiffs who essentially argued -- make the same arguments

against the same law, against the same defendants.

THE COURT: Actually, there are two issues to be

litigated.

MR. MURPHY: I understand. The three sets of

plaintiffs.

THE COURT: But one set of plaintiffs just has one

issue.



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MR. MURPHY: Uh-huh.

THE COURT: The other two are class actions with two

issues each.

MR. MURPHY: Zahrn technically is the only one that's

asked for class certification. DeLeon has not.

THE COURT: Well, but the others have multiple

plaintiffs that embrace the same issues as the Zahrn case, and

that is prohibition against marriage, and marriage in a separate

state, and not receiving the benefits of marriage, people in this

state.

MR. MURPHY: Right. But the recognition of the

marriage and the granting of the marriage license in Texas, the

legal issues are nearly identical in those two -- in those two

points.

THE COURT: Well, that's the point I'm trying to make.

There's only going to be one trial.

MR. MURPHY: Right.

THE COURT: You know, the Western District is the -- we

have more cases than any other district in the United States.

There's just going to be one trial. It just depends on which

trial as to whether or not all of the issues will be determined.

If the San Antonio case or the Zahrn case is not the one that's

going to be tried, well, then, there's an incidental issue that

can be litigated or maybe even gone off with on motions. I don't

know.



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MR. MURPHY: Well, we think that they could all be

litigated as a single unit with -- you know, to promote both, as

you mentioned, judicial efficiency.

THE COURT: Well, have you talked with opposing

counsel?

MR. MURPHY: Well, they oppose consolidation.

THE COURT: So this isn't any good, is it? Y'all are

opposed.

All right. Let me hear the opposition.

MR. SCHESKE: Your Honor, we oppose consolidation,

first, because we're unaware of any basis to consolidate, unless

you and Judge Garcia decide who wants to handle all the cases

among the two of you. Second of all, I'm the lawyer that filed

the class action, and a class action is going to work at a

different speed than the other two cases will. And if there is

to be any consolidation, we think it should be into our case

because if class is certified, that will, of course, subsume the

other two plaintiffs, because they'll be members of the class.

The legal issues between an unmarried couple who wishes

to marry here and Texas residents who are married out of state

are not exactly the same as you just heard, that there are

different legal harms that are occurring. And --

THE COURT: Alleged.

MR. SCHESKE: Alleged.

THE COURT: Legal harm.



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MR. SCHESKE: Alleged at this point.

So that's our basis for opposing consolidation. We've

got a class action and we think it stands on its own. We filed

it here in front of you, and this is where we're happy to be.

THE COURT: Well, I don't know about happy.

And so, Mr. McNosky and Stricker, who filed their

lawsuit first, they just get swept under? Is that your -- that

they're opposed to it, also, as I understand.

MR. SCHESKE: That's my understanding, too, that

they're opposed to it.

THE COURT: If y'all will -- one of you, both of you

like to say anything? You need to come up here.

MR. MCNOSKY: Do you want me to address the podium?

THE COURT: Yeah. Just play like you're a lawyer.

MR. MCNOSKY: Yes, sir. Or yes, your Honor.

THE COURT: So you're opposed to the consolidation?

MR. MCNOSKY: Yes, your Honor.

THE COURT: Why?

MR. MCNOSKY: Because our cases don't share a similar

question of law since we are seeking --

THE COURT: Have you read the pleadings of the other

cases?

MR. MCNOSKY: Yes, your Honor. We are -- our idea is

that we are claiming sex discrimination, rather than sexual

orientation discrimination. Specifically, discrimination based



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on gender or biological gender, rather than sexual orientation,

which the other plaintiffs are not claiming.

THE COURT: So you're not claiming in any way, shape or

form sexual orientation discrimination.

MR. MCNOSKY: No, your Honor.

THE COURT: Your case is limited simply to sex

discrimination.

MR. MCNOSKY: Yes, your Honor.

THE COURT: May not take long to try your case. You

may sit down. Anything else? No, no, no. We've got two

plaintiffs. Anything else you want to add?

MR. STRICKER: No, your Honor.

THE COURT: All right. Thank you.

MR. MCNOSKY: All right. Thank you.

THE COURT: So what say our friends from San Antonio?

MR. LANE: Your Honor, Neel Lane, counsel for the

plaintiffs in the DeLeon case. With me is my co-counsel, Frank

Stenger-Castro, and also, two of our clients, Nicole Dimetman

and, also, Cleo DeLeon.

And we oppose consolidation, as well. We aren't

presenting class issues, certification issues that will require

some time from the Court to determine whether under Rule 23, a

class is the appropriate procedure --

THE COURT: How long do you think that's going to take,

counsel?



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it tried twice. Anything else?

MR. LANE: No, your Honor.

THE COURT: All right. Okay. Well, I'll grant the

motion to intervene that legitimizes your statements and make the

order clear that you are not a party to this lawsuit, at this

point in time, although it would have been a little trickery to

say you were.

MR. LANE: Thank you.

THE COURT: And it would have eliminated that argument.

I never had a pending motion to consolidate, I've got to -- at

this point in time, doesn't appear practical from the standpoint

that no one wants to consolidate except, of course, the state.

So I'm going to overrule that motion without prejudice to

reconsidering at a different time.

These issues are pretty much the same. I've got, also,

motion for summary judgment in the -- in the McNosky and Stricker

case that was filed in the latter part of December, motion for

extension of time to file the response. I don't grant indefinite

extensions. So how long does the state want? I've never

actually had anybody ask for an indefinite extension before.

MR. DEANE: Yes, your Honor.

I think we need about 20 days. We were hoping it was

going to be part of a scheduling order following the

consolidation. That was the idea.

THE COURT: Well, I have no problem with the 20-day



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period.

MR. DEANE: Thank you.

THE COURT: You know, we've gotten -- we've received

the blessings of a great many requests for injunctive relief in

issue cases of the day, and we get the TRO or immediate

injunction post a hearing and then, a temporary injunction in the

federal court, and it goes to the Fifth Circuit, unless the Fifth

Circuit sometimes gets them out before I can get it there. In

fact, I've had the experience of seeing an opinion the day after

the notice of appeal that was written before the appeal.

And then, Judge Yeakel started a procedure that I like

and I'm going to implement in this case, and that is, I'm going

to have one hearing. I'll decide which one it is. And I'm going

to write an injunction or deny an injunction on that hearing,

with the parties having the opportunity to put in the record what

they want. And then, I'll enter judgment and then, it will go

up. Because, you know, we're just district judges.

But one of the things that concerns me considerably is

all of the graveling between lawyers and non-lawyers on the same

issues for the same results. The other side of the coin is, I'm

concerned about all of the writings and statements because the

parties here are anticipating -- part of the parties here are

anticipating that one judge, a district judge, or two circuit

judges, or five Supreme Court judges, will tell the majority of

the people that live in this state that the legal institution of



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marriage, which was formed by the state in the powers given to

them by the Constitution because they're reserve powers, can be

changed by two people. And I'm not so sure that's going to be

correct.

But I do want to find out about how long it's going to

take, and then, I can deny certification and put you to trial at

the same time as the other case. But I intend to have one

judgment on these issues so that you could take them up in an

orderly fashion to New Orleans.

Now, if Judge Garcia wants to try the case or if the

San Antonio case wants to participate in that, the clerk's office

is open every weekday, and I will look at it.

So let me ask, Mr. McNosky, and, Mr. Stricker, how long

do you think it would take for you to be ready?

MR. MCNOSKY: Ready for what, your Honor?

THE COURT: Ready for a trial.

MR. MCNOSKY: Two weeks.

THE COURT: All right. And how about you, counsel?

MR. SCHESKE: You're speaking of the one injunction

hearing that you just described?

THE COURT: Yes, sir, I am, because you have more

issues. In a way, you have more issues, but the principle is the

same.

MR. SCHESKE: If we would have the standard motion

response reply, sort of briefing schedule and then, a hearing?



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Is that what you're asking?

THE COURT: Well, these two gentlemen are representing

themselves. They're thinking all they're going to do is testify.

MR. SCHESKE: Right. Apparently, yes.

THE COURT: You're going to have witnesses, probably.

I need to know about how much time you think you're going to need

in discovery so that I can put a date on that you can rest

assured that you will go. And I need to do that because I am

booked. But I will -- I figure this case can't take more than

three to three-and-a-half days, at most. And I'll work in that.

Because there may be experts, there may not be experts. I don't

know how you anticipate trying the case. But how you do it with

the state, you're going to have to have some discovery and some

rules and that type of thing.

So I want to know how long you think it would take you

to, one, know who you want to put on as witnesses and how long

the discovery would take.

MR. SCHESKE: And this would be after we decide

certification? Because, really, the --

THE COURT: This will be a time after today.

MR. SCHESKE: Okay. Well, the reason I ask is the

trial may vary, depending on whether it's a class or not in terms

of experts, and so forth.

THE COURT: Well, let's just say you'd have the same

issues.



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MR. SCHESKE: Okay. I agree with your three to

three-and-a-half day time period. That sounds fine to me. I

would say we would need probably till late summer in order to --

late summer or early fall in order to have discovery end, have

motions, response, reply briefing, expert affidavits, and so

forth.

THE COURT: Well, I'm not going to hold anybody to what

they say today because this is new, but that gives me a good

idea.

MR. SCHESKE: Something like that.

THE COURT: All right. How about the state?

MR. MURPHY: Your Honor, we agree it would take -- if

we're going to have discovery with depositions in the normal

briefing schedule, it will -- it would have to be at least, you

know, late summer, early fall, I think would be appropriate. We

also think that because this is a rational basis case, there's no

need for -- necessarily for discovery. But if the plaintiffs

want to seek that.

But one question, just for clarification so we can

understand how these cases will proceed together and, yet, not be

consolidated, how do you anticipate that to work?

THE COURT: Well, I can anticipate it by me putting

y'all to trial at the same day and issuing an order of the issues

that will be tried.

MR. MURPHY: Okay.



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THE COURT: Be pretty easy. Even I can do that.

MR. MURPHY: Do you suggest that we move to transfer

the DeLeon case to this --

THE COURT: You've already heard my statement.

MR. MURPHY: Just to avoid any danger of inconsistent

rulings at different times. And also, just for the efficiency of

the state being defendants in all three cases.

THE COURT: I don't know. I don't know that there's a

rush to this trial because I don't know that Judge Garcia is

going to handle it any differently. But it's America; you can

file a motion to transfer, any motion that you want one way or

the other. I want to make sure that every party for their own

interest has sufficient time to be ready and to put something on

the record so that this case gets tried once and it gets tried

well. Whether you call it a class-action case or you call it a

pro se-action case, it's really immaterial.

There's one guiding thing and that is -- well, there

are two, really, issues, and that is, one, will the courts amend

the state law to include same-sex marriages either by

discrimination, as one case says, or by alleged constitutional

rights? I'm sure they're going to be in the pleadings, due

process or equal protection. And then, two, if that is so, or if

that is not so, how must Texas constitutionally react to

marriages in other states that residents come here?

But I've been thinking about this ever since these



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the other. You know what the contentions are.

But I could envision if I was on either side of this

case as a trial lawyer, a lot of things that I would be thinking

about in the trial. But I want you to decide that within ten

days and give me a letter as to if you need discovery, if you

don't need discovery, and if you do need discovery, how you want

to handle it; then I'll give a rapid order, scheduling order and

a definite date that you'll know how to go. And then, we'll

proceed that way.

MS. CASAS: Your Honor, if I may.

This may have some bearing on which case you choose to

go on. You said you want to figure out the complications. We've

sought to make it a little less complicated. In the Zahrn case,

Dana DeBeauvoir was served and named as a defendant. Prior to

answering, we contacted plaintiffs' attorney and -- the

plaintiffs' attorney in the Zahrn case and reached an agreement

prior to answering that they would not seek damages, fees or

costs from Mrs. DeBeauvoir.

THE COURT: That was charitable of you since you

couldn't get them, anyway.

MS. CASAS: And we are just going to allow the AG to

defend the statute and don't anticipate engaging her.

THE COURT: I didn't anticipate any lawyers

representing the clerks to be on the ship.

MS. CASAS: I just wanted to take the opportunity to



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let you know.

THE COURT: Okay. Well, we'll miss you.

All right. Any questions or anybody have anything else

that they would like to state? Now, the ten days is going to be

important, counsel, and include these two gentlemen back here.

Y'all give them the appropriate addresses so that you'll know how

to address your letter. And then, oh -- then give me your

estimates, please, by the 28th in writing. And I will get you an

order out as to when I can fit you in.

Okay. If there's not anything else, I'm in recess

until 9:00 in the morning.

(End of proceedings.)



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* * * * * *

UNITED STATES DISTRICT COURT)

WESTERN DISTRICT OF TEXAS )

I, LILY I. REZNIK, Official Court Reporter, United States

District Court, Western District of Texas, do certify that the

foregoing is a correct transcript from the record of proceedings

in the above-entitled matter.

I certify that the transcript fees and format comply with

those prescribed by the Court and Judicial Conference of the

United States.

WITNESS MY OFFICIAL HAND this the 16th day of January, 2014.

/s/Lily I. ReznikLILY I. REZNIK, CRR, RMROfficial Court ReporterUnited States District CourtAustin Division501 W. 5th Street, Suite 4153Austin, Texas 78701(512)391-8792Certification No. 4481Expires: 12-31-14


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DeLeon v Perry PLAINTIFFS’ RESPONSE TO STATE DEFENDANTS 1-17-2014

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