Case 1:15-cv-00477-LMM Document 18 Filed 04/17/15 Page 1 of 10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KELVIN J. COCHRAN,

v.

Plaintiff,

CITY OF ATLANTA, GEORGIA;

and MAYOR KASIM REED, IN
HIS INDIVIDUAL CAPACITY,
Defendants.

Case No. 1:15-cv-00477-LLM

PLAINTIFFS RESPONSE IN
OPPOSITION TO LAMBDA
LEGAL DEFENSE &
EDUCATION FUND, INC.S
MOTION FOR LEAVE TO FILE
AN AMICUS BRIEF IN SUPPORT
OF THE DEFENDANTS MOTION
TO DISMISS

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INTRODUCTION
The parties in this case have competent attorneys who are fully capable
of providing this Court with the briefing necessary to resolve the legal
disputes presented.

Indeed, as is evidenced by the thorough arguments

presented in the briefing on Defendants Motion to Dismiss, this Court can be

confident that the relevant legal issues will be adequately addressed.
Lambda Legal Defense & Education Fund, Inc. (Lambda Legal), an
organization that has no direct interest in this employment law litigation,
now seeks to involve itself as amicus curiae, but its involvement will burden
this Court and the parties with extraneous arguments rather than aiding this
Court in reaching a just resolution. This Court should deny Lambda Legals
request to file an amicus brief.
ARGUMENT
I.

General Principles Regarding Amicus Briefs

The Federal Rules of Civil Procedure make no provision for amicus

curiae briefs. That is because the aid of amicus curiae is less appropriate at
the trial level than at the appellate level where such participation has
become a standard practice. Wildearth Guardians v. Lane, No. 12-cv-118,
2012 WL 10028647, at *3 (D.N.M. June 20, 2012) (quotation omitted). Often,
[a]n amicus may be useful at the appellate level but not in the district
court. Sierra Club v. Fed. Emergency Mgmt. Agency, H-07-0608, 2007 WL
3472851, at *1 (S.D. Tex. Nov. 14, 2007). An amicus brief at the trial level is
particularly unlikely to be useful when it relates to a motion to dismiss. See
Abadia-Peixoto v. U.S. Dept of Homeland Sec., 277 F.R.D. 572, 576 (N.D. Cal.
2011) (Because the motion to dismiss presents purely legal issues as to the
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sufficiency of the pleadings, any unique perspectives or information the

proposed amici might have to offer are not especially pertinent at this
juncture.).
This court has noted that amicus may participate only for the benefit
of the court. See S. Realty Mgmt., Inc. v. Aspen Specialty Ins. Co., No. 1:08cv-00572-JOF, 2010 WL 966426, at *5 (N.D. Ga. Mar. 12, 2010) (quoting
Resort Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495, 1501 (S.D. Fla.
1991)). Thus, it is solely within the discretion of the court to determine the
fact, extent, and manner of participation by the amicus, if any. Id. (quoting
Resort Timeshare Resales, 764 F. Supp. at 1501).
Due to the absence of procedures governing district courts, they
generally refer to Federal Rule of Appellate Procedure 29 for guidance
regarding motions to file amicus briefs. United States v. Olis, Nos. H-07-3295
& H-03-217-01, 2008 WL 620520, at *7 (S.D. Tex. Mar. 3, 2008). A motion for
leave to file an amicus brief must state why an amicus brief is desirable and
why the matters asserted are relevant to the disposition of the case. Fed. R.
App. P. 29(b)(2).

A movant that does not meet the requirements of

desirability and relevance should not be granted leave to file an amicus brief.
Maples v. Thomas, No. 5:03-CV-2399-SLB-MHH, 2013 WL 5350669, at *2
(N.D. Ala. Sept. 23, 2013). Here, Lambda Legal is unable to show that it
meets either of these requirements.
II.

Lambda Legals Proposed Brief Is Undesirable Because The

Defendants Are Competently Represented.
An amicus brief may be desirable when a party is not represented

competently or is not represented at all. Leal v. Secretary, U.S. Dept of

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Health & Human Servs., 2009 WL 1148633, at *2 (M.D. Fla. April 28, 2009)
(quoting Citizens Against Casino Gambling in Erie Cnty. v. Kempthorne, 471
F. Supp. 2d 295 (W.D.N.Y. 2007)). As is evident from the briefing so far in
this case, the parties are adequately represented by attorneys who will
present all arguments relevant to Cochrans claims of employment
discrimination.

Plaintiff is represented by one of the nations leading

religious liberty firms, and Defendants are represented by the City of

Atlantas legal departmentwhich has ample experience defending against
employment discrimination lawsuits. 1
Where there is no evidence that the parties counsel are unable to
represent the relevant interests at stake, [t]he amici will not be prejudiced if
the court only considers the parties briefs in this case. Maples, 2013 WL
5350669, at *5; see also Lehman XS Trust, Series 2006-GP2 v. Greenpoint
Mortgage Funding, Inc., Nos. 12 CIV. 7935 ALC-HBP, 12 CIV. 7942, & 12
CIV. 7943, 2014 WL 265784, at *2 (S.D.N.Y. Jan. 23, 2014) (denying leave to
file an amicus brief where a party was represented by competent counsel
that has given as good as it gets).

Notably, the particular attorneys who submitted Defendants motion to

dismiss are both seasoned attorneys. Mr. Robert N. Godfrey has been a
member of the State Bar of Georgia for over thirty years and Ms. Y. Soo Jo
has been a member for over fifteen years. Membership Directory Search,
State
Bar
of
Georgia,
http://www.gabar.org/MemberSearchDetail.
cfm?ID=Mjk4NTUw;
http://www.gabar.org/MemberSearchDetail.cfm?ID=
Mzg1ODE3.

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III.

Lambda Legals Proposed Brief Raises Extraneous Arguments

That Are Irrelevant to the Case.
Lambda Legals proposed brief does not adhere to the general

requirement that amicus briefs assert matters relevant to the disposition of

the case. See Fed. R. App. P. 29(b)(2). Instead, its proposed brief raises a
factual contention that neither party to this litigation has asserted and
devotes multiple pages of its proposed brief to this diversion.

Namely,

Lambda Legal makes the spurious allegation that Cochran is a misogynist.

See Proposed Amicus Br. 48 (advocating that the biblical story of Eve being
deceived by the serpent in the Garden of Eden is misogynistic and that
Cochran included that story to demean women). As alleged in the complaint,
Defendants did not justify Cochrans firing by falsely accusing him of being a
misogynist.

Rather,

Defendants

public

justifications

for

Cochrans

termination solely focused on his biblically-based views on same-sex marriage

and homosexual conduct.

See Compl. 15657.

Lambda Legal merely

seeks to cast Cochran in a false and unflattering light on a topic that is

irrelevant to the motion to dismiss.
This is not the classic situation in which an entity participating as
amicus curiae simply raises legal authority that can assist a court in
resolving the issues raised by the parties.

Miller-Wohl Co. v. Commr of

Labor and Indus., 694 F.2d 203, 204 (9th Cir. 1982) (indicating that the
classic role of amicus curiae is assisting in a case of general public interest,
supplementing the efforts of counsel, and drawing the courts attention to law
that escaped consideration). Rather, Lambda Legals amicus brief proposes
to create controversy where none exists, which, if permitted, will distract
from the real issues and result in more work for the parties and this Court.
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Courts strongly disfavor amicus briefs that present artificially created

controversies that have no relevance to the case. See Leal, 2009 WL 1148633,
at *1. This is especially true where an amicus presents entirely new issues,
which Lambda Legal does by raising highly inflammatory claims that
Cochran is a misogynist. As one court explained, the named parties should
always remain in control, with the amicus merely responding to the issues
presented by the parties.

An amicus cannot initiate, create, extend, or

enlarge issues. Lehman XS Trust, Series 2006-GP2, 2014 WL 265784, at *2;

accord Andersen v. Leavitt, No. 03-CV-6115 DRH-ARL, 2007 WL 2343672, at
*2 (E.D.N.Y. Aug. 13, 2007) ([T]he filing of an amicus curiae brief should not
be used to address wholly new issues not raised by the parties.) (quotations
omitted).
Allowing a non-party to raise new issues would require unnecessary
responses and would not give the court specific information that can assist
the court beyond what the parties can provide. Maples, 2013 WL 5350669,
at *4 (quoting Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th
Cir. 2003)). This concern is heightened here, where allowing Lambda Legal
to proceed as amicus could necessitate a response from both parties regarding
the new issues raised by Lambda Legal. In particular, Cochran would be
forced to defend against Lambda Legals unsupported accusations that he is a
misogynist, which would undoubtedly result in additional filings by all
parties.
In reviewing the motion to dismiss, this Court must accept all of the
well-pleaded allegations in the complaint as true and draw[] all reasonable
inferences in favor of the plaintiff. Montgomery Cnty. Commn v. Fed. Hous.
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Fin. Agency, 776 F.3d 1247, 1254 (11th Cir. 2015). Therefore, in deciding the
motion to dismiss, this Court must accept as true Cochrans assertion that he
never discriminated against anyone on the basis of gender. See id.; Compl.
9.

Lambda Legals divergence from the matters in dispute and lack of

appreciation for the governing legal standard militates strongly in favor of

the Court denying its motion to file an amicus brief.
IV.

The Proposed Briefing from Lambda Legal Is Contradictory

and Lacks Objectivity.
In addition to raising extraneous arguments that lack merit, Lambda

Legals briefing is contradictory and lacks objectivity. In an effort to cast

itself as an objective friend of the Court that is not fully siding with the
assertions of any litigant, Lambda Legal emphasizes that it takes no
position on many of the defendants arguments, including those regarding
due process.

Proposed Amicus Br. 12.

Lambda Legal, however,

subsequently reverses course and states that it concurs with the City of
Atlanta that the complaint in this action should be dismissed in its entirety.
Id. at 16 (emphasis added). In saying that it takes no position on the due
process arguments, but then asserting that the due process claims should be
dismissed, Lambda Legal undercuts its attempt to appear as an objective
friend of the Court.
This internal contradiction, coupled with Lambda Legals false and
inflammatory accusations regarding Cochrans views towards women, reveal
its true intentions in this case. Lambda Legal does not seek to serve in the
traditional role of amicus curiae by advising the Court in order that justice
may be done, but rather to advocate a point of view so that a cause may be

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won by one party or another. Sciotto v. Marple Newtown Sch. Dist., 70 F.

Supp. 2d 553, 554 (E.D. Pa. 1999) (quotation omitted).
District courts routinely deny the privilege of amicus status to movants
that seek not to provide the court with an objective, dispassionate, neutral
discussion of the issues but instead to appear as an advocate for one side.
See Sierra Club, 2007 WL 3472851, at *2. Plaintiff respectfully suggests that
the Court should do the same here.
CONCLUSION
For the foregoing reasons, this Court should deny Lambda Legals
motion for leave to file an amicus brief. 2
TYPESET CERTIFICATION
Undersigned counsel hereby certifies, pursuant to Local Rules 5.1C and
7.1D, that this document was prepared in Century Schoolbook 13-point font.

If the Court determines to grant Lambda Legals motion, Plaintiff

respectfully requests an opportunity to respond to Lambda Legals brief.

Case 1:15-cv-00477-LMM Document 18 Filed 04/17/15 Page 9 of 10

Respectfully submitted this 17th day of April, 2015,

By: s/ David A Cortman
JONATHAN D. CRUMLY, SR.
DAVID A. CORTMAN
Georgia Bar No. 199466
Georgia Bar No. 188810
MANER CRUMLY CHAMBLISS J. MATTHEW SHARP
LLP
Georgia Bar No. 607842
2900 Paces Ferry Road
RORY T. GRAY
Georgia Bar No. 880715
Suite B-101
ALLIANCE DEFENDING FREEDOM
Atlanta, GA 30339
1000 Hurricane Shoals Road, NE
(770) 434-0310
Suite D-1100
(404) 549-4666 (facsimile)
Jcrumly@Manercc.com
Lawrenceville, GA 30043
(770) 339-0774
(770) 339-6744 (facsimile)
Garland R. Hunt
dcortman@alliancedefendingfreedom.org
Georgia Bar No. 378510
msharp@alliancedefendingfreedom.org
HUNT & ASSOCIATES
rgray@alliancedefendingfreedom.org
12110 Helleri Hollow
Alpharetta, GA 30005
(770) 294-0751
KEVIN H. THERIOT
Georgia Bar No. 373095
(770) 777-5847 (facsimile)
JEREMY D. TEDESCO*
garlandhunt1@gmail.com
Arizona Bar No. 023497
JONATHAN A. SCRUGGS*
Arizona Bar No. 030505
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, Arizona 85260
(480) 444-0020
(480) 444-0028 Fax
ktheriot@alliancedefendingfreedom.org
jtedesco@alliancedefendingfreedom.org
*pro hac vice admission
jscruggs@alliancedefendingfreedom.org
ATTORNEYS FOR PLAINTIFF

Case 1:15-cv-00477-LMM Document 18 Filed 04/17/15 Page 10 of 10

CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of April, 2015, a copy of the
foregoing document was filed with the Clerk of the Court using the ECF
system which will send notification of such filing to the following:
Robert N. Godfrey
Georgia Bar No. 298550
Y. Soo Jo
Georgia Bar no. 385817
City of Atlanta Law Department
55 Trinity Avenue, S.W. Suite 5000
Atlanta, GA 30303
404-546-4100
404-739-4888 (facsimile)
rgodfrey@atlantaga.gov
ysjo@atlantaga.gov
Attorneys for Defendants
Gregory R. Nevins
Georgia Bar No. 539529
Lambda Legal Defense & Educ. Fund, Inc
730 Peachtree Street N.E., Suite 1070
Atlanta, GA 30308
404-897-1880
404-897-1884 (facsimile)
Attorney for Amicus Curiae

s/ David A Cortman
David A. Cortman
Attorney for Plaintiff