Case 3:13-cv-05038-FLW-LHG Document 51 Filed 10/15/13 Page 1 of 4 PageID: 1393

State of New Jersey

CHRIS CHRISTIE
Governor

OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW
25 MARKET STREET
PO Box

JOHN J. HOFFMAN
Acting Attorney General

KIM GUADAGNO
Lt. Governor

CHRISTOPHER S. PORRINO
Director

TRENTON, NJ 08625-0

October 15, 2013

The Honorable Freda L. Wolfson, U.S.D.J. United States District Court for the District of New Jersey Clarkson S. Fisher Building & U.S. Courthouse 402 East State Street Trenton, NJ 08608 Re: Tara King, Ed.D., et al., v. Chris Christie, et al. Civil Action No.: 13-05038 (FLW-LHG) Defendants Response to Plaintiffs Motion for Reconsideration

Dear Judge Wolfson: Please accept this letter on behalf of Defendants in response to Plaintiffs Motion for Reconsideration, filed on October 11, 2013. Plaintiffs motion is deficient in several respects. First, it does not contain a notice of motion or proposed order, L. Civ. R. 7.1(b)(2), (e); those procedural defects alone are reason enough to deny their motion. Second, and most importantly, Plaintiffs do not actually seek the reconsideration of any order entered by this Court. L. Civ. R. 7.1(i) (allowing motion for reconsideration within 14 days after the entry of the order or judgment) (emphasis added). Instead, Plaintiffs latest submission is an unauthorized sur-sur-reply submitted in response to questions posed and issues raised by Your Honor at oral argument on the parties Cross-Motions for Summary Judgment. Your Honor did not invite or authorize, nor did Plaintiffs seek permission to file, supplemental papers on these questions or issues. Such additional briefing is prohibited. L. Civ. R. 7.1(d)(6) (No sur-replies are permitted without permission of the Judge or Magistrate Judge to whom the case is assigned.). While Your Honor permitted supplemental briefing by Plaintiffs and Intervenor Garden State Equality only as to the issue of Garden State Equalitys

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October 15, 2013 Page 2 of 4 need to show standing, that supplemental briefing has been completed. Procedural defects abound, and Plaintiffs latest submission should be disregarded. Allyn Z. Lite, N.J. Fed. Practice Rules, Comment 4(b) to L. Civ. R. 7.1 (explaining that, without minimal submissions, including notice of motion and proposed form of order, the motion is procedurally defective and may be denied on that ground alone.). However, to the extent that the Court considers Plaintiffs motion, Defendants respond briefly to Plaintiffs request to deem admitted the facts in the Complaint and in Plaintiffs Statement of Material Facts. First, Plaintiffs argue that the facts in the Complaint should be deemed admitted because the Defendants have not filed an answer. (Plaintiffs Motion, 31-32). Fed. R. Civ. P. 56(b) allows a party to move for summary judgment at any time, including before they file an answer. Although Fed. R. Civ. P. 12 and 56 do not specifically provide that the filing of a pre-answer motion for summary judgment tolls a defendants time to answer, courts have nevertheless extended, by analogy, the Fed. R. Civ. P. 12(a)(4) tolling to the filing of pre-answer motions for summary judgment. See Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993) ([a]lthough Rule 12 does not specifically allow for a summary judgment motion to toll the running of the period within which a responsive pleading must be filed, by analogy the language would seem to apply--particularly since a Rule 12(b)(6) motion is transformed to a Rule 56 Motion when matters outside the pleadings are considered by the court.) (citing 10 Wright & Miller, Federal Practice and Procedure 2718 at 670 (2d ed. 1983)), aff'd, 39 F.3d 1188 (9th Cir. 1994); 10-55 Moore's Federal Practice - Civil 55.11 (citation omitted);11-56 Moore's Federal Practice - Civil 56.62 (numerous citations omitted). Moreover, if Defendants failed to file an answer, the proper recourse would be default, not that the Court deem the facts admitted for a pending summary judgment motion. But default is plainly not available to Plaintiffs, here, because a pre-answer motion for summary judgment constitutes otherwise defending, under Fed. R. Civ. P. 55(a). See Hise v. Philip Morris Inc., 2000 U.S. App. LEXIS 2497, at *12 (10th Cir. Feb. 17, 2000); Johnson v. Warner, 2009 U.S. Dist. LEXIS 17143, at *10-*13 (W.D. Va. Mar. 6, 2009); Bova v. City of Medford, 2008 U.S. Dist. LEXIS 1676, at *6-7 (D. Or. Jan. 8, 2008) (motion to strike answer as untimely denied because defendants adequately defended against action by filing motion for summary judgment), revd on other grounds, 564 F.3d 1093 (9th Cir. 2009); Brooks v. D.S.S. Chappius, 2006 U.S. Dist. LEXIS 8821, at *2 (W.D.N.Y.

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October 15, 2013 Page 3 of 4 Mar. 1, 2006; Kovats v. Hi-Lex Corp., 2001 U.S. Dist. LEXIS 23050, at *3-4 (W.D. Mich. Oct. 12, 2001); Gilreath v. Winston, 2000 U.S. Dist. LEXIS 19217, at *1-2 (E.D. Va. Mar. 16, 2000); Brumley v. Dole, 1994 U.S. Dist. LEXIS 21569, at *47 n.9 (E.D. Ark. Oct. 17, 1994); Rashidi, 818 F. Supp. at 1355-1357 (clearly a summary judgment motion which speaks to the merits of the case and demonstrates a concerted effort and an undeniable desire to contest the action is sufficient to fall within the ambit of otherwise defend for purposes of Fed. R. Civ. P. 55); 10-55 Moore's Federal Practice - Civil 55. For the same reason that a pre-answer motion for summary judgment precludes the entry of default, a summary judgment motion in lieu of answer precludes Plaintiffs request that the Court deem admitted the facts in the Complaint. Nevertheless, if the Court decides that Defendants time to file an answer was not tolled by the filing of a pre -answer motion for summary judgment, despite the parties agreement to proceed summarily in this matter, the Court may, in its discretion, extend Defendants time to answer until the Cross-Motions for Summary Judgment have been decided. See e.g., Muadhdhin Cousin v. Dodrill, 2010 U.S. Dist. LEXIS 25063 (N.D.N.Y Feb. 25, 2010) Second, Plaintiffs argue that, because Defendants did not respond to their Statement of Material Facts, those facts should be deemed admitted. Again, Plaintiffs seek tactical advantage from their own failure to follow this Courts rules. Plaintiffs fail to acknowledge that they did not submit a Statement of Material Facts with their moving papers or their supplemental papers. Initially, Plaintiffs filed a motion for a preliminary injunction. During the initial conference with the Court, Plaintiffs requested that the parties treat the motion as a motion for summary judgment. Defendants consented to the conversion of Plaintiffs motion to a motion for summary judgment. The Court then granted Plaintiffs leave to file supplemental papers in support of the motion for summary judgment. On September 3, 2013, Plaintiff submitted their Supplemental Brief In Support Of Converted Motion For Summary Judgment. However, Plaintiffs did not file a Statement of Material Facts as required by Fed. R. Civ. P. 56(c)(1). On September 13, 2013, Defendants filed their Cross-Motion for Summary Judgment, with the required supporting Statement of Material Facts. On September 20, 2013, Plaintiffs filed an Opposition to Defendants Cross-Motion for Summary Judgment, with the necessary response to Defendants Statement of Material Facts , and a Statement of Material Facts, which was not filed with their moving papers or supplemental summary judgment papers. Therefore, this Court should disregard

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October 15, 2013 Page 4 of 4 Plaintiffs late Statement of Material Facts. However, if the Court accepts the Plaintiffs untimely Statement of Material Facts, Defendants should be provided an opportunity to respond pursuant to Fed. R. Civ. P. 56 (e)(1), particularly where Defendants had no previous opportunity to respond given the Plaintiffs failure to properly file a Statement of Material Facts with their moving papers or supplemental summary judgment papers. Thank you for your kind consideration in this matter. Respectfully submitted, JOHN J. HOFFMAN ACTING ATORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General

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