1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION



Rosenbrahn, et al.,

Plaintiffs,

vs.

Daugaard, et al.,

Defendants.
Court File No. 14CV4081KES
Case Type: Civil Rights / 1983


PLAINTIFFS
MEMORANDUM OPPOSING
DEFENDANTS RULE 56(d)
MOTION AND ALTERNATE
RULE 6(b) MOTION FOR
EXTENSION OF TIME


INTRODUCTION

This dispute is a purely legal one. Whether loving and committed same-sex
couples are entitled to equal protection, due process, and the rights to marry and travel
does not necessitate factual discovery.
1
Defendants have not identified a single item of
factual discovery necessary to demonstrate that a genuine issue of material fact could
preclude summary judgment; nor have they shown good cause to delay responding.
Nevertheless, they ask for an extension while they are developing [their] defense and
determining what discovery is necessary[.] (Doc. 28 at 3). Essentially, they ask this
Court for additional time to figure out whether any facts might exist to support their
ongoing discriminatory treatment of Plaintiffs and other same-sex couples throughout this
State and District. Plaintiffs respectfully oppose Defendants motion in its entirety.

1
Multiple courts have ruled in favor of plaintiffs with similar claims on summary judgment where no
factual discovery had been conducted. See, e.g., Henry v. Himes, No. 1:14cv129, 2014 WL 1418395
(S.D. Ohio Apr. 14, 2014) Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 190999 (D. Idaho May 13,
2014); Baskin v. Bogan, No. 1:14-cv-00355-RLY-TAB, 2014 WL 2884868 (S.D. Ind. June 25, 2014);
Love v. Beshear, No. 3:13-CV-750-H, 2014 WL 2957671 (W.D. Ky. July 1, 2014).
Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 1 of 6 PageID #: 358
2
DISCUSSION
A. Legal Standard for Relief Under Rule 56(d)
Rule 56(d) ensures a party a fair chance to respond by, inter alia, permitting a
continuance of a summary judgment motion until the opposing party has had adequate
opportunity to conduct discovery and obtain facts essential to justify its opposition to
the motion. Johnson v. ADP Screening & Selection Serv., 768 F. Supp. 2d 979, 982 (D.
Minn. 2011); see also United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d
419, 426 (8th Cir. 2002); St. Louis Union Trust Co. v. United States, 617 F.2d 1293,
1299-1300 (8th Cir. 1980).
While a party must have a fair chance to respond to a summary judgment
motion, a party must show that, for specified reasons, he cannot present facts essential
to justify its opposition. Johnson, 768 F. Supp. 2d at 982 (emphases added).
The Eighth Circuit has indicated that:
Rule 56[(d)] is not a shield that can be raised to block a motion for
summary judgment without even the slightest showing by the
opposing party that his opposition is meritorious. A party invoking
its protections must do so in good faith by affirmatively
demonstrating why he cannot respond to a movants affidavits as
otherwise required by Rule 56[(c)] and how postponement of a
ruling on the motion will enable him, by discovery or other means,
to rebut the movants showing of the absence of a genuine issue of
fact. Where...a party fails to carry his burden under Rule 56[(d)],
postponement of a ruling is unjustified.

Willmar Poultry Co. v. Morton-Norwich Prod., Inc., 520 F.2d 289, 297 (8th Cir. 1975).
Accordingly, a party cannot prevail on a Rule 56(d) motion merely by pointing out
that no discovery has occurred. The Defendants here must show that discovery is required
Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 2 of 6 PageID #: 359
3
to establish specific facts necessary to oppose the motion for summary judgment. See
Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 895 (8th Cir. 2014) (citing
Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir.1997) ([I]t is well settled that Rule 56(
[d] ) does not condone a fishing expedition where a plaintiff merely hopes to uncover
some possible evidence.)), cert. denied, 523 U.S. 1137 (1998) (abrogated on other
grounds); United States v. C.E. Light, 766 F.2d 394, 397 (8th Cir. 1985) (the party
seeking additional discovery must affirmatively demonstrate how it will allow her to
rebut the movant's showing of the absence of a genuine issue of fact); Moore's Federal
PracticeCivil, 56.102[2] (3d ed.2013) (Specific facts sought must be identified.
Mere speculation that there is some relevant evidence not yet discovered will never
suffice.).
Rule 56(d) requires that a party file an affidavit or declaration to support its
assertion that for specified reasons, it cannot present facts essential to justify its
opposition. Fed. R. Civ. P. 56(d); see also Ray v. Am. Airlines, Inc., 609 F.3d 917, 923
(8th Cir. 2010) (citing Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078,
1081 (8th Cir. 1993).
The Eighth Circuit mandates that this affidavit describe, inter alia, (1) what facts
are sought and how they are to be obtained and, (2) how these facts are reasonably
expected to raise a genuine issue of material fact. See, e.g., Johnson v. United States,
534 F.3d 958, 965 (8th Cir. 2008). Moreover, [a]ttorney advocacy cannot be substituted
for a Rule 56[(d)] affidavit. Nuckles v. Wal-Mart Stores, Inc., No. 4:06CV00178-WRW,
Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 3 of 6 PageID #: 360
4
2006 WL 3420338, at *1 (E.D. Ark. Nov. 28, 2009) (citing Radich v. Goode, 886 F.2d
1391, 1393-95 (3d Cir. 1989)).
B. The Defendants Have Failed to Meet The Requirements of Rule 56(d)
The Affidavit of Giedd (Doc. 28-1) submitted with the Defendants Rule 56(d)
Motion (the Rule 56(d) Affidavit) fails the elements required under Eighth Circuit
law.
1. The Affidavit Does Not Identify Specific Facts Necessary to the
Defendants Opposition of Plaintiffs Motion

The Rule 56(d) Affidavit makes generalized references that the State is
considering undertaking discovery, but the Affidavit does not identify any specific
discoverable facts essential to justify its opposition to Plaintiffs motion. Defendants
counsel simply asserts that this case is in its early stages and that Defendants have
difficulty identifying specific facts they might uncover. Doc. 28 at 3. While Defendants
go on to state that they might uncover facts about the history of the States marriage
laws and governmental interests in the States marriage bans and that such facts might
be relevant, id., they altogether fail to address how such facts are essential to resist
summary judgment Toben, 751 F.3d 888, 895.
That a discovery record might establish some facts, but not necessarily anything
relevant to opposing summary judgment, does not give rise to relief under Rule 56(d).
Were that the case, the ability to thwart a summary judgment motion under Rule 56(d)
would be enabled only by the non-moving partys allegation that discovery is
incomplete and that discovery might help them oppose summary judgment; such an
Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 4 of 6 PageID #: 361
5
argument overly broadens Rule 56(d), which concerns the availability of specific facts
essential to the opposition of the motion.
2. The Rule 56(d) Declaration Does Not Identify How Additional Facts
Could Create a Genuine Issue of Material Fact.

Furthermore, Defendants do not explain how any discoverable facts would be
material, nor do they explain how such facts would create any genuine issue that could
preclude summary judgment. Perhaps this is unsurprising; without identifying any
discoverable fact necessary to support their opposition, as discussed above, Defendants
cannot demonstrate how such a fact would create any genuine issue over whether loving
and committed same-sex couples are entitled to equal protection, due process, and the
rights to marry and travel.
C. Defendants Have Not Shown Good Cause for Extending Their Deadline to
Respond to Plaintiffs Motion

Defendants move in the alternative for an extension of time pursuant to Rule 6(b).
See generally, Doc. 28. Although required to do so by Rule 6(b), Defendants fail to
specify what good cause exists to support their request. Instead, Defendants simply point
to their argument in support of their Rule 56(d) Motion. See Doc. 28 at 5. Accordingly,
for the same reasons outlined above, Plaintiffs urge this Court to deny Defendants
alternative Motion in its entirety.
Dated this 14th day of July, 2014.



Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 5 of 6 PageID #: 362
6
MADIA LAW LLC
/s/Joshua A. Newville .
Joshua A. Newville
Admitted pro hac vice
345 Union Plaza
333 Washington Avenue North
Minneapolis, Minnesota 55401
Phone: (612) 349-2743
Fax: (612) 235-3357
joshuanewville@madialaw.com

NATIONAL CENTER FOR LESBIAN RIGHTS
/s/Shannon P. Minter .
Shannon P. Minter
Christopher F. Stoll
Admitted pro hac vice
870 Market Street, Suite 370
San Francisco, California 94102
Phone: (415) 392-6257
Fax: (415) 392-8442
sminter@nclrights.org

BURD AND VOIGT LAW OFFICE

/s/Debra Voigt .
Debra Voigt
SD Bar No. 2473
601 S. Cliff Ave, Suite A
Sioux Falls, SD 57103
Phone: (605) 332-4351
Fax: (605) 334-6844
debra@burdandvoigt.com

Case 4:14-cv-04081-KES Document 30 Filed 07/15/14 Page 6 of 6 PageID #: 363