Case 6:14-cv-01959-CEM-DAB Document 22 Filed 12/19/14 Page 1 of 5 PageID 105

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DANIEL WALL-DESOUSA and
SCOTT WALL-DESOUSA,

Case No. 6:14-cv-1959-Orl-41DAB

Plaintiffs,
v.
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES, TERRY L.
RHODES, in her official capacity as Director of
the Florida Department of Highway Safety and
Motor Vehicles, DIANNE DOWMAN, in her
individual capacity as Supervisor of the Brevard
County Tax Collector's Office in Indian Harbour
Beach, and RICK SCOTT, in his official capacity
as Governor of Florida,
Defendants.
_________________________________________/
DEFENDANT DIANNE DOWMANS RESPONSE IN OPPOSITION TO PLAINTIFFS
MOTION TO EXPEDITE DEFENDANTS RESPONSE AND THE COURTS RULING
AND INCORPORATED MEMORANDUM OF LAW
COMES NOW, Defendant Dianne Dowman (Dowman), by and through her
undersigned counsel, hereby files and serves her Response in Opposition to Plaintiffs Motion to
Expedite Defendants Response and the Courts Ruling and Incorporated Memorandum of Law,
and states as follows:
1.

In this case, Plaintiff Daniel Wall-DeSousa (Daniel) and Plaintiff Scott Wall-DeSousa

(Scott) (collectively Plaintiffs) challenge, on multiple constitutional grounds, the Florida

statute that prohibits Florida from recognizing same-sex marriages formed outside of Florida and
defines marriage as only a legal union between one man and one woman as husband and
wife[.] Fla. Stat. 741.212 (2014).

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2.

As alleged in their complaint, Plaintiffs were issued Florida drivers licenses reflecting

their new surname upon presentation of their New York marriage certificate, which reflects their
new surname, Wall-DeSousa. However, Plaintiffs drivers licenses were later cancelled by
Defendant Florida Department of Highway Safety and Motor Vehicles (DHSMV).
3.

On November 25, 2014, Plaintiffs filed their Verified Complaint with the Court. Along

with their complaint, Plaintiffs also filed a Motion for Preliminary Injunction. According to the
affidavits of service Plaintiffs filed with the Court, Plaintiffs served summonses and copies of
their complaint on each named defendant on December 4, 2014.
4.

In their complaint, Plaintiffs challenge Section 741.212, Florida Statutes (2014), on many

constitutional grounds. Among other relief, Plaintiffs request that the Court enjoin defendants to
issue Plaintiffs Florida drivers licenses reflecting their new surnames.
5.

On December 5, 2014, the Court entered an Order requiring the parties to file briefs

addressing (1) whether the preliminary injunction entered in Brenner v. Scott, 999 F. Supp. 2d
1278 (N.D. Fla. 2014), will render moot Plaintiffs Motion for Preliminary Injunction and (2)
whether the case should be stayed pending the United States Court of Appeal for the Eleventh
Circuits resolution of the appeal in Brenner.
6.

The Court ordered that Plaintiffs file their brief on or before December 23, 2014 and that

defendants file their brief on or before January 10, 2015. Finally, the Court suspended the
deadlines before which defendants are due to respond to Plaintiffs complaint and Motion for
Preliminary Injunction until further Order from the Court.
7.

Plaintiffs filed their brief on December 9, 201414 days before the Courts deadline.

8.

On December 16, 2014, Plaintiffs filed their Motion to Expedite Defendants Response

and the Courts Ruling. Through their motion, Plaintiffs seek to have the Court expedite the

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deadline that it previously set for defendants to file their briefs in response to the Courts
December 5, 2014 Order. Specifically, Plaintiffs seek to have the Court set December 27, 2014
as the deadline by which defendants are due to file their briefs. Plaintiffs appear to take issue
with what they perceive as the Court granting defendants a greater amount of time to respond to
the Courts December 5, 2014 Order and Plaintiffs brief than Plaintiffs were provided.
9.

It is well established that a district court has the inherent authority to manage and

control its own docket so as to achieve the orderly and expeditious disposition of cases.
Equity Lifestyle Prop., Inc. v. Fla. Mowing and Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th
Cir. 2009) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)).
10.

Dowman respectfully submits that the Court should maintain the deadlines set through

the Courts December 5, 2014 Order, which the Court set pursuant to its inherent authority,
discretion, and sound judgment.
11.

Dowman acknowledges the public importance presented by the issues raised in this case.

However, due to other countervailing reasons, Dowman opposes the relief sought by Plaintiffs in
their Motion to Expedite Defendants Response and the Courts Ruling.
12.

Dowman acknowledges that Plaintiffs are correct in that the Court has afforded

defendants more time to file their briefs than the Court afforded Plaintiffs to file their brief.
However, as the master of the complaint, Plaintiffs had the opportunity to thoroughly research,
select, and analyze their claims prior to initiating this case. 1 In contrast, defendants must
research and analyze Plaintiffs claims in a reactive manner, following service of Plaintiffs
complaint and conference between attorneys and clients. This is particularly important here
where Plaintiffs challenge section 741.212, Florida Statutes (2014), on many different
constitutional bases and the law concerning same-sex marriage has developed extremely rapidly
1

Indeed, Rule 11(b) of the Federal Rules of Civil procedure requires that Plaintiffs counsel have done so.

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in recent years. See, e.g., Brenner, 999 F. Supp. 2d at 1281-82 (noting that since the United
States Supreme Court decided United States v. Windsor, 133 S. Ct. 2675 (2013), in 2013, 19
different federal courts have ruled on the constitutionality of state bans on same-sex
marriage.).
13.

Dowman respectfully submits that she would be prejudiced in her ability to respond to

the Courts December 5, 2014 Order through the Courts expediting the deadline for defendants
to file their briefs in the manner that Plaintiffs seek in their motion.
14.

Additionally, Plaintiffs early filing of their brief in response to the Courts December 5,

2014 Order should not provide Plaintiffs with a basis to unfairly prejudice any defendant with
respect to its opportunity to provide a complete and thorough response to the Courts December
5, 2014 Order.
15.

Finally, Section 86.091, Florida Statutes (2014), requires that when a party seeks

declaratory relief alleges that a Florida statute is unconstitutional, the party must serve a copy of
its complaint upon the Attorney General. Section 86.901 further provides that the Attorney
General be entitled to be heard in such an action. Based on Plaintiffs service list, it is not clear
that Plaintiffs have complied with Section 86.091, Florida Statutes (2014), in this case.
16.

Therefore, Dowman respectfully requests that the Court deny Plaintiffs Motion to

Expedite Defendants Response and the Courts Ruling.

17.

Alternatively, Dowman respectfully requests that the Court deny Plaintiffs motion for

failure to certify complianceor even attempted compliancewith Middle District of Florida

Local Rule 3.01(g).

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Respectfully submitted by:

/s/ Frank Mari
Michael J. Roper, Esquire
Florida Bar No.: 0473227
mroper@bellroperlaw.com
Frank M. Mari, Esquire
Florida Bar No.: 93243
fmari@bellroperlaw.com
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, FL 32803
(407) 897-5150
(407) 897-3332 (fax)
Secondary: phermosa@bellroperlaw.com
Attorneys for Defendant Dianne Dowman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the Courts CM/ECF system on this 19th day of December, 2014, to: Wm. J. Sheppard,
Esquire, Elizabeth L. White, Esquire, Matthew R. Kachergus, Esquire, Bryan E. DeMaggio,
Esquire, Sheppard, White, Kachergus & DeMaggio, P.A., 215 Washington Street, Jacksonville,
FL 32202 at sheplaw@att.net (counsel for Plaintiffs); Adam S. Tanenbaum, Esquire, Office of
the Attorney General, The Capitol - PL01, Tallahassee, FL 32399-1050 at
adam.tanenbaum@myfloridalegal.com (counsel for Defendants DHSMV, Director Terry L.
Rhodes, and Governor Rick Scott).
/s/ Frank Mari
Michael J. Roper, Esquire
Florida Bar No.: 0473227
mroper@bellroperlaw.com
Frank M. Mari, Esquire
Florida Bar No.: 93243
fmari@bellroperlaw.com
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, FL 32803
(407) 897-5150
(407) 897-3332 (fax)
Secondary: phermosa@bellroperlaw.com
Attorneys for Defendant Dianne Dowman