Case 5:13-cv-00077-MFU-RSB Document 80 Filed 10/30/13 Page 1 of 6 Pageid#: 870

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, and CHRISTY BERGHOFF and VICTORIA KIDD, on behalf of themselves and all others similarly situated, Plaintiffs, v. ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia; JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; THOMAS E. ROBERTS, in his official capacity as Staunton Circuit Court Clerk, Defendants.

No. 5:13-cv-00077

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO AMEND PROPOSED CLASS DEFINITION Plaintiffs hereby move to amend their proposed class definition. Although for the reasons stated in the opening brief and reply brief seeking certification, Plaintiffs believe the original definition is adequate, Plaintiffs propose the amendment included herein to address the objections raised by Defendants. The Court has wide discretion to alter the definition proposed in class action complaintsindeed, courts have noted that it is preferable that courts exercise that discretion rather than declining certification because of curable defects in a definition. A court is not bound by the class definition proposed in the complaint and should not dismiss the action simply because the complaint seeks to define the class too broadly. Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993); see also, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 806 1

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n. 15 (7th Cir. 2012) (when a court perceives minor problems with a class definition "that do not call into question the validity of the class as a whole, the better course is not to deny class certification entirely but to amend the class definition as needed" to correct the problems); Powers v. Hamilton Cnty. Pub. Defenders Commn, 501 F.3d 592, 619 (6th Cir. 2007) ("district courts have broad discretion to modify class definitions"); In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2005); Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 750 (7th Cir. 2005); Knudsen v. Liberty Mutual Ins. Co., 411 F.3d 805, 806 (7th Cir. 2005) (noting that "plaintiffs routinely amend their ... proposed class definitions"); Finberg v. Sullivan, 634 F.2d 50, 64 n.9 (3d Cir. 1980); Social Servs. Union, Local 535 v. Cnty. of Santa Clara, 609 F.2d 944, 948-49 (9th Cir. 1979); Charles A. Wright & Arthur Miller, Federal Practice and Procedure 1760. Plaintiffs propose to amend the definition as follows: Subclass 1: Subclass 2: All same-sex couples in Virginia who have not married in another jurisdiction. All same-sex couples in Virginia who have married in another jurisdiction.

This definition is further limited by the scope of the injunctive and declaratory relief sought in Plaintiffs complaint. Plaintiffs seek injunctive and declaratory relief [r]equiring Defendants in their official capacities to permit issuance of marriage licenses to same-sex couples to marry, pursuant to the same restrictions and limitations applicable to different-sex couples freedom to marry, and to recognize marriages validly entered into by Plaintiffs. Compl., Prayer for Relief D (emphasis added). This definition is appropriate even though not all same-sex couples may in fact wish to marry at this time. First, if Plaintiffs prevail, no couple who does not wish to marry will be required to do sothey will simply have the right to do so. Second, the Federal Rules do not

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mandate that all members of the (b)(2) class be aggrieved by or desire to challenge the defendants conduct. Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975). Instead, [a]ction or inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class. Fed. R. Civ. P. 23 Advisory Committee notes to 1966 Amendment; see also Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010) (citing Advisory Committee notes for proposition that class may be certified even if not all members have yet been injured, provided grounds for potential injury have general application to the class); Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 2004) ([C]lass members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.) (emphasis in original); cf. Griffin v. Burns, 570 F.2d 1065, 1073 (1st Cir. 1978) (noting that not all class members need be aggrieved by or desire to challenge defendants conduct in order for some to seek relief under (b)(2)) (internal quotation marks omitted); Davis v. Weir, 497 F.2d 139, 146 (5th Cir. 1974) (same). Moreover, it is commonplace to include all members of an affected group in the class definition, even though not all may have been affected by the challenged actions. See, e.g., United States v. Alabama, No. 07-10235, 2008 WL 834130, at *1 (11th Cir. Mar. 28, 2008) (class action lawsuit challenging segregation in public universities with class defined to include all black citizens of Alabama); Women Prisoners of Dist. of Columbia Dept of Corrections v. Dist. of Columbia, 877 F. Supp. 634, 638-39 (D.D.C. 1994) modified in part on other grounds 899 F. Supp. 659 (D.D.C. 1995) (class of all women prisoners); Ayers v. Fordice, 111 F.3d 1183, 1190 n.2 (5th Cir. 1997) (certified class of [a]ll black citizens residing in Mississippi) (bracket in original).

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Conclusion For the foregoing reasons, Plaintiffs respectfully request the Court grant their motion to amend their proposed class definition, and consider the amended definition for the pending class certification motion.

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Dated: October 30, 2013 Respectfully submitted, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. /s/ . Rebecca K. Glenberg (VSB No. 44099) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 rglenberg@acluva.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION James D. Esseks, pro hac vice Amanda C. Goad, pro hac vice Joshua A. Block, pro hac vice 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jesseks@aclu.org agoad@aclu.org jblock@aclu.org JENNER & BLOCK LLP Paul M. Smith, pro hac vice Luke C. Platzer, pro hac vice Mark P. Gaber, pro hac vice 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Phone: (202) 639-6000 Fax: (202) 639-6066 psmith@jenner.com lplatzer@jenner.com mgaber@jenner.com

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Gregory R. Nevins, pro hac vice 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 gnevins@lambdalegal.org Tara L. Borelli, pro hac vice 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Phone: (213) 382-7600 Fax: (213) 351-6050 tborelli@lambdalegal.org Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 30th day of October 2013, I effected service upon counsel for Defendants by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system. E. Duncan Getchell, Jr. Solicitor General of Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 dgetchell@oag.state.va.us Rita W. Beale Deputy Attorney General rbeale@oag.state.va.us Allyson K. Tysinger Senior Assistant Attorney General/Chief atysinger@oag.state.va.us Michael H. Brady Assistant Solicitor General mbrady@oag.state.va.us Counsel for Defendants Robert F. McDonnell and Janet M. Rainey Rosalie Pemberton Fessier Timberlake, Smith, Thomas & Moses, P.C. 25 North Central Avenue P.O. Box 108 Staunton, VA 24402-0108 (540) 885-1517 rfessier@tstm.com Counsel for Defendant Thomas E. Roberts October 30, 2013 . /s/ Rebecca K. Glenberg (VSB No. 44099) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 rglenberg@acluva.org