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U NITED STATES DISTRICT COURTfor the

Eastern District of Louisiana

Jonathan P. Robicheaux

Plaintiff/Petitionerv. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General Defendant/Respondent

COMPLAINT

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.

ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish and

respectfully represents:

1.

Made defendant herein is James D. Caldwell in his official capacity as Attorney General

for the State of Louisiana.

2.

Venue is proper in the United States District Court for the Eastern District of Louisiana

because an Orleans Parish resident is seeking to have a provision of the Louisiana Constitution

and an article of the Louisiana Civil Code declared unconstitutional as violating his rights as an

American Citizen confirmed and preserved under the Constitution of the United States.

3.

This court has jurisdiction over the subject matter of this suit because it is a constitutional

challenge invoking the Full Faith and Credit and Supremacy Clauses of the Constitution of the

United States.

Case 2:13-cv-05090-MLCF-ALC Document 1 Filed 07/16/13 of 6

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Petition for Provisions to be Declared Unconstitutional

Robicheaux v. Caldwell

4.

Defendant, James D. Caldwell is the Attorney General for the State of Louisiana.

5.

Notice requirements under Federal Rule 5.1 have been met in this constitutionality

challenge by serving the Louisiana Attorney General and making him the named defendant in his

official capacity.

6.

On September 18, 2004 by popular vote, an amendment was made to the Louisiana

Constitution that reads as follows:

Section 15. Marriage in the state of Louisiana shall consist only of the union of

one man and one woman. No official or court of the state of Louisiana shallconstrue this constitution or any state law to require that marriage or the legal

incidents thereof be conferred upon any member of a union other than the union

of one man and one woman. A legal status identical or substantially similar to thatof marriage for unmarried individuals shall not be valid or recognized. No official

or court of the state of Louisiana shall recognize any marriage contracted in any

other jurisdiction which is not the union of one man and one woman.

7.

Article 3520 of the Louisiana Civil Code reads as follows:

Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid

marriage unless to do so would violate a strong public policy of the state whose

law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public

policy of the state of Louisiana and such a marriage contracted in another state

shall not be recognized in this state for any purpose, including the assertion of anyright or claim as a result of the purported marriage.

Case 2:13-cv-05090-MLCF-ALC Document 1 Filed 07/16/13 Page 2 of 6

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Acts 1991, No. 923, §1, eff. Jan. 1, 1992; Acts 1999, No. 890, §1.

8.

Article IV, Section 1 of the United States Constitution states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws

prescribe the Manner in which such Acts, Records and Proceedings shall be

proved, and the Effect thereof.

9.

28 USC § 1738 reads:

The Acts of the legislature of any State, Territory, or Possession of the United

States, or copies thereof, shall be authenticated by affixing the seal of such State,Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory orPossession, or copies thereof, shall be proved or admitted in other courts within

the United States and its Territories and Possessions by the attestation of the clerk

and seal of the court annexed, if a seal exists, together with a certificate of a judgeof the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,

shall have the same full faith and credit in every court within the United Statesand its Territories and Possessions as they have by law or usage in the courts of

such State, Territory or Possession from which they are taken.

10.

Your Petitioner, Jonathan P. Robicheaux, a man, legally married Derek D. Penton, a man,

in Clayton County, Iowa on September 23, 2012. A copy of the marriage certificate is attached

hereto as Exhibit A.


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11.

The officials and courts of Louisiana are barred from recognizing Jon Robicheaux’

marriage to Derek Penton by Section 15 of the Louisiana Constitution and Louisiana Civil Code

article 3520.

12.

Jon Robicheaux cannot file a joint tax return with Derek Penton.

13.

If Derek Penton dies in Louisiana before Jon Robicheaux, Jon Robicheaux will not be

entitled to receive the benefits or protections of receiving parts of Derek Penton’s estate provided

to surviving spouses who are the widow or widower of a two-sex marriage whether they are

married in Louisiana or another state, territory, province or country.

14.

If there become any irreconcilable differences such that Jon Robicheaux desires to

divorce Derek Penton, Jon Robicheaux is barred from filing a Petition for Divorce in Louisiana.

15.

Any couple that is made up of two United States Citizens who have properly observed a

state’s requirements to become married and have been issued a marriage certificate therefore

have a right under the United States Constitution to have the marriage recognized by all states in

which the couple decides to live.

16.

Louisiana’s failure to recognize and give full faith and credit to Iowa’s marriage

certificate violates the Full Faith and Credit Clause of the United States Constitution.


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17.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:

This Government is acknowledged by all to be one of enumerated powers. The

principle that it can exercise only the powers granted to it would seem too

apparent to have required to be enforced by all those arguments which itsenlightened friends, while it was depending before the people, found it necessary

to urge; that principle is now universally admitted. But the question respecting the

extent of the powers actually granted is perpetually arising, and will probablycontinue to arise so long as our system shall exist. In discussing these questions,

the conflicting powers of the General and State Governments must be brought

into view, and the supremacy of their respective laws, when they are inopposition, must be settled.

If any one proposition could command the universal assent of mankind, we might

expect it would be this -- that the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result

necessarily from its nature. It is the Government of all; its powers are delegated

by all; it represents all, and acts for all. Though any one State may be willing tocontrol its operations, no State is willing to allow others to control them. The

nation, on those subjects on which it can act, must necessarily bind its component

parts. But this question is not left to mere reason; the people have, in expressterms, decided it by saying, [p406] "this Constitution, and the laws of the United

States, which shall be made in pursuance thereof," "shall be the supreme law of

the land," and by requiring that the members of the State legislatures and the

officers of the executive and judicial departments of the States shall take the oathof fidelity to it. The Government of the United States, then, though limited in its

powers, is supreme, and its laws, when made in pursuance of the Constitution,

form the supreme law of the land, "anything in the Constitution or laws of any

State to the contrary notwithstanding."

WHEREFORE, petitioner prays that after all legal delays and due proceedings are had

there be judgment, finding that Section 15 of the Louisiana Constitution and Louisiana Civil

Code article 3520 unconstitutional, directing those provisions abrogated and ordering the courts

and officials of the State of Louisiana to give full faith and credit to all marriage certificates


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legally issued in any of the several states or countries with which the United States has a treaty

requiring such full faith and credit.

Respectfully submitted:

SCOTT J. SPIVEY (#25257)

815 Dauphine St, Ste D New Orleans, LA 70116

(504) 684-4904 (office phone)

(888) 502-3935 (office fax)[email protected]

Attorney for Plaintiff, Jon Robicheaux


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Case 2:13-cv-05090-MLCF-ALC Document 1-1 Filed 07/16/13 Page 1 of 1

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MOTION TO PROCEED WITHOUT PAYING FEES – IN FORMA PAUPERIS


ROBICHEAUX, and moves this Honorable Court to allow him to proceed without paying fees

due to his financial condition. In support of this motion, the Movant has attached a verified

application declaring his income and expenses.

WHEREFORE, petitioner prays that he be granted an Order, allowing him to proceed

without paying costs, In Forma Pauperis.


SCOTT J. SPIVEY (#25257)815 Dauphine St, Ste D

New Orleans, LA 70116

(504) 684-4904 (office phone)(888) 502-3935 (office fax)

[email protected] Attorney for Plaintiff, Jon Robicheaux


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Jonathan P. Robicheaux Plaintiff/Petitioner

v. Civil Action No. 13-CV-05090


ORDER TO PROCEED IN FORMA PAUPERIS

Considering the foregoing motion and finding that the verified application demonstrates

that the Movant is entitled to the relief sought and finding that the relief sought is authorized

under the law and in the best interest of justice,

IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and

is hereby authorized to proceed without paying filing fees In Forma Pauperis.

Thus read, done and signed in New Orleans, Louisiana on this ____ day of July, 2013.

_______________________________JUDGE

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U NITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

OFFICE OF THE CLERK

WILLIAM W. BLEVINS 500 POYDRAS ST., R OOM C-151

CLERK NEW ORLEANS, LA 70130

JULY 23, 2013

TO: Scott J. Spivey RE: CA: 13-5090 F(5)

Scott J Spivey, Esq

A Professional Law Corporation

815 Dauphine Street, Suite D New Orleans, LA 70116

The application to proceed in forma pauperis pursuant to Title 28, USC, Section 1915, in the

above-captioned action has been granted by the Court.

Rule 4 of the Federal Rules of Civil Procedure provides for service of the summons and

complaint by the United States Marshal at the request of a party permitted to proceed in forma

pauperis. If you wish to have service effected by the U. S. Marshal, you must furnish the

enclosed certified copy of the Court’s Order granting leave to proceed in forma pauperis along

with a completed summons, USM Form 285 and a copy of the complaint for each defendant to

be served.

The USM 285 Forms can be obtained from the U. S. Marshal’s Office at the address listed

below:

500 Poydras Street

Hale Boggs Federal Building, Room B724

New Orleans, Louisiana 70130

Forward the completed summon(s), complaint(s) and USM 285 Form(s) and the certified copy of

the Pauper Order to the U.S. Marshal’s Office, 500 Poydras Street, Hale Boggs Federal Building,

Rm. B724, New Orleans, Louisiana 70130.

William W. Blevins

Clerk, U.S. District Court


By: _______________________________

Deputy Clerk


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AO

399

(01/09)

Waiver of

the

Service ofSuJ J ons

UNITED STATES DISTRICT COURT

for

the

Eastern

District of

Louisiana

Jonathan

P.

Robicheaux

Plaintiff

v.

Civil

Action No.

13-cv-05090

James

D.

Caldwell,

in

his official capacity as LA AG

Defendant

WAIVER OF

THE SERVICE OF SUMMONS

To:

Scott J. Spivey

(Name

o

the plaintiff's allorney

or

unrepresented plaintiff)

I

have received

your

request to waive service

of

a summons in this action along

with

a copy

of the

complaint,

two

copies

of

this waiver form, and a prepaid means

of

returning

one

signed copy

of

the form to you.

I

or the entity

I

represent, agree to

save the

expense

of

serving a summons

and

complaint in this

case.

I

understand that I, or

the

entity

I

represent,

will

keep all defenses or objections to

the

lawsuit, the court's

jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.

I also understand that I or the entity

I

represent, must

file

and serve an answer or a motion under Rule 12

within

60

days from

07/25/2013

,

the date when this request was sent

or 90

days

i

t was sent outside the

UnHed States).

[f

[ fa;

Ito

do so, a de fault j udgmenl

W;

[[ be ente d aga;nsl me 0' Ihe en I;

Iy I esent -1 , J

Date:

07/29/2013

f;tL.JLf/

James

D.

Caldwell, in his official capacity as LA AG

Printed name

o

party waiving service

o

summons

An eli ue Duhon Freel

Printed name

P.O. Box 94005

Baton Rouge, LA 70804

(Physical-1885 North Third Street)

Address

freela a .state.la.us

E-mail address

(225) 326-6029

Telephone number

Duty

to Avoid

Unnecessary Expenses of

Serving a

Summons

Rule 4 of the Federal Rules

of

Civil Procedure requires certain defendants to cooperate

in

saving unnecessary expenses

of

serving a summons

and complaint. A defendant who

is

located in the United States and who fails

to

return a signed waiver of service requested by a p laintiff located in

the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.

Good cause does

not

include a belief that the lawsuit is groundless, or that

it

has been brought

in an

improper venue, or that the court has

no jurisdiction over this matter or over

the

defendant or the defendant's property.

[fthe waiver

is

signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of

a summons or

of

service.

If you waive service, then you must. within

the

time speci fied on the waiver form. serve

an

answer or a motion under Rule 2 on the plainti ff

and file a copy with the court.

By

signing and returning the waiver form. you are allowed more time to respond than if a summons had been served.


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Plaintiff/Petitionerv. Civil Action No. ________________


MOTION FOR LEAVE TO FILE AMENDED COMPLAINT


ROBICHEAUX, and moves this Honorable Court for leave to file an amended complaint

pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure. More particularly, as the

Court is well-aware, Rule 15(a)(1)(A) states that “A party may amend its pleading once as a

matter of course within: (A) 21 days after serving it . . .” In this matter, the record will reflect

that the Defendant, James D. Caldwell waived service on July 29, 2013 within the twenty-one

day time limit for an automatic right to amend without the need to show the best interest of

justice.

WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to

file the attached Amended Complaint.




(504) 684-4904 (office phone) Attorney for Plaintiff, Jon Robicheaux


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v. Civil Action No. ________________


MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE

AMENDED COMPLAINT

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiff’s Motion for Leave to File Amended

Complaint pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure.

SUMMARY OF PROCEEDINGS

The Complaint was filed July 16, 2013, along with a Motion for Leave to Proceed in

forma pauperis. The Order on Motion for Leave to Proceed in forma pauperis was signed on

July 22, 2013. The Summons was issued July 23, 2013. The Defendant, James D. Caldwell,

agreed to waiver service. The Waiver of Service was executed and filed on July 29, 2013.

SUMMARY OF LAW

Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and

Supplemental Pleadings. It reads in pertinent part as follows:

Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as amatter of course within:


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(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of a motion under Rule

12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only

with the opposing party's written consent or the court's leave. The court should

freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to

an amended pleading must be made within the time remaining to respond to the

original pleading or within 14 days after service of the amended pleading,whichever is later.

APPLICATION OF LAW TO FACTS

The Motion for Leave to Amend Pleadings was filed on August 7, 2013, nine days after

the Defendant waived service. The Defendant has sixty days after waiver of service to Answer

the Complaint or file other responsive pleadings – which is September 27, 2013. Because the

Motion for Leave to Amend Pleadings is within the twenty-one day time allowance, it is

respectfully suggested that Jon Robicheaux has a right to amend his complaint.






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ORDER TO FILE AMENDED COMPLAINT





is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief .

Thus read, done and signed in New Orleans, Louisiana on this ____ day of August, 2013.

_______________________________JUDGE

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AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIEF


ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish, residing

in the United States District Court, Eastern District of Louisiana’s district, and respectfully

represents:

THE PARTIES

1.


for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this

constitutionality challenge.

2.

The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to

his Husband, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after having

been in a committed relationship together since 2005 commingling funds, living together and

holding themselves out as monogamous partners that are living together as one union.


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Amended Complaint - Robicheaux v. Caldwell

Page 2

JURISDICTION AND VENUE

3.

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343

because the suit raises federal questions under 42 U.S.C. § 1983, and the United States

Constitution, including without limitation the Fourteenth Amendment.

4.


under 28 U.S.C. § 1391(b) because the Defendant performs his official duties in this district.

FACTUAL BACKGROUND

5.

The State of Louisiana prevents any official or court of the State of Louisiana from

recognizing a valid marriage from another State or Country that is between a same-sex couple,

thus depriving a legally married same-sex couple from securing any benefits of marriage within

the State of Louisiana and stripping them of any rights to which a same-sex couple was vested

prior to residing in the State of Louisiana.

The State Laws at Issue

6.




one man and one woman. No official or court of the state of Louisiana shall

construe this constitution or any state law to require that marriage or the legalincidents thereof be conferred upon any member of a union other than the union

of one man and one woman. A legal status identical or substantially similar to that

of marriage for unmarried individuals shall not be valid or recognized. No official


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Page 3



7.


Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the

parties were first domiciled as husband and wife, shall be treated as a validmarriage unless to do so would violate a strong public policy of the state whose




shall not be recognized in this state for any purpose, including the assertion of any

right or claim as a result of the purported marriage.


Same-Sex and Opposite-Sex Couples Are

Similarly Situated for Purposes of Marriage Benefits

8.

The United State Supreme Court has called marriage “the most important relation in life,”

Zablocki v. Redhail , 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an

“expression of emotional support and public commitment.” Turner v. Safely, 482 U.S. 78, 95

(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two

people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as

true for same-sex couples as it is for opposite-sex couples.

9.

Same-sex couples such as Plaintiff and his Husband are identical to opposite-sex couples

in all of the characteristics relevant to marriage.


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Page 4

10.

Same-sex couples make the same commitment to one another as opposite-sex couples.

Like opposite-sex couples, same-sex couples build their lives together, plan their futures together

and hope to grow old together. Like opposite-sex couples, same-sex couples support one another

emotionally and financially and take care of one another physically when faced with injury or

illness

11.

Same-sex couples who marry are just as willing and able as opposite-sex couples to

assume the obligations of marriage.

12.

The Plaintiff and his Husband and other same-sex couples in Louisiana, if their marriages

in other states in which marriage is legal were recognized, would benefit no less than opposite-

sex couples from the many legal protections and the social recognition afforded to married

couples.

13.

There was a time when an individual's sex was relevant to his or her legal rights and

duties within the marital relationship. For example, husbands had a duty to support their wives

but not vice versa and husbands had legal ownership of all property belonging to their wives.

But these legal distinctions have all been removed such that the legal rights and duties of

husbands and wives are now identical.


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Page 5

14.

The exclusion from marriage under mines the Plaintiff’s ability to achieve the life goals

and dreams with his Husband, Derek Penton; threatens their mutual economic stability; and

denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307,

Slip Op., at 18 (U.S. June 26, 2013).

The Exclusion of Same-Sex Couples from the Recognition of Marriage

and the Benefits of Marriage Causes Substantial Harm to Couple and Their Families

15.

By refusing to recognize same-sex marriage marriages from others states, the State’s laws

deprive same-sex couples married in other states of numerous legal protections that are available

to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The

State provides that a living spouse is entitled to benefits upon the death of his or her spouse

should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the

widow or widower for same-sex spouses married in another State in which they were legally and

properly married.

16.

Same-sex married couples are excluded from this and many other legal protections

provided for married couples under Louisiana law.

17.

The exclusion of same-sex couples from marriage also denies them eligibility for

numerous federal protections afforded to married couples including in the areas of immigration

and citizenship, taxes, and social security. Some of the federal protections for married couples

are only available to couples if their marriages are legally recognized in the state in which they


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Page 6

live. See, e.g., 42 U.S.C. § 416(h)(1)(A)(i) (marriage for eligibility for social security benefits

based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same

for Family Medical Leave Act). Thus, even Plaintiff and his Husband, who are already married,

cannot access such federal protections as long as Louisiana refuses to recognize their existing

marriage.

18.

The exclusion from marriage also harms same-sex couples and their families in less

tangible ways.

19.

Although the Plaintiff is in a long-term committed relationship, he, his Husband and

other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples

together during times of crisis or conflict.

20.

Excluding same-sex married couples from recognizing their marriages also harms

couples and their children by denying them the social recognition that comes with marriage.

Marriage has profound social significance both for the couple that gets married and the family,

friends and community that surround them. The terms "married" and "spouse" have universally

understood meanings that command respect for a couple's relationship and the commitment they

have made.


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Page 7

21.

The exclusion from the esteemed institution of marriage also demeans and stigmatizes

lesbian and gay couples and their children by sending the message that they are less worthy and

valued than families headed by opposite-sex couples.

22.

The impact of the exclusion from marriage on same-sex couples and their families is

extensive and real. The denial of the right to marry causes these couples and their families to

suffer significant emotional, physical, and economic hardships.

23.

The plaintiff recognizes that marriage entails both benefits to and obligations on the

partners and welcomes both.

Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not

Rationally Related to a Legitimate Government Interest -

Let Alone Able to Withstand Heightened Scrutiny

24.

As the evidence will show, the prohibition against recognition of marriage for same-sex

couples in Louisiana is not closely tailored to serve an important government interest or

substantially related to an exceedingly persuasive justification. In fact, as the evidence also will

show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to

any legitimate justifications that were offered in support of it when the Constitution was

amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a

basis for denying same-sex married couples recognition in Louisiana.


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Page 8

25.

The Supreme Court has made clear that the law cannot, directly or indirectly, give effect

to private biases and has expressly rejected moral disapproval of marriage for same-sex couples

as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,

at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only

marriage laws" was not a legitimate justification for federal Defense of Marriage Act).

The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States

by Amending its Constitution and Enacting Laws to Enshrine

Its Prejudices That Have No Legitimate State Interest

26.




apparent to have required to be enforced by all those arguments which its

enlightened friends, while it was depending before the people, found it necessaryto urge; that principle is now universally admitted. But the question respecting the

extent of the powers actually granted is perpetually arising, and will probably

continue to arise so long as our system shall exist. In discussing these questions,

the conflicting powers of the General and State Governments must be broughtinto view, and the supremacy of their respective laws, when they are in

opposition, must be settled.


expect it would be this -- that the Government of the Union, though limited in its

powers, is supreme within its sphere of action. This would seem to resultnecessarily from its nature. It is the Government of all; its powers are delegated

by all; it represents all, and acts for all. Though any one State may be willing to

control its operations, no State is willing to allow others to control them. Thenation, on those subjects on which it can act, must necessarily bind its component

parts. But this question is not left to mere reason; the people have, in express

terms, decided it by saying, [p406] "this Constitution, and the laws of the UnitedStates, which shall be made in pursuance thereof," "shall be the supreme law ofthe land," and by requiring that the members of the State legislatures and the

officers of the executive and judicial departments of the States shall take the oath


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Page 9

of fidelity to it. The Government of the United States, then, though limited in its


form the supreme law of the land, "anything in the Constitution or laws of anyState to the contrary notwithstanding."

CLAIMS FOR RELIEF

COUNT I:Deprivation of the Fundamental Right to Marry in

Violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution

(42 U.S.C. § 1983)

27.

Plaintiff incorporates by reference all of the preceding paragraphs of this Complaint as

though fully set forth herein.

28.

The Fourteenth Amendment to the United States Constitution precludes any State from

"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.

amend. XIV, § 1. Governmental interference with a fundamental right may be sustained only

upon a showing that the legislation is closely tailored to serve an important governmental

interest.

29.

The Supreme Court has long recognized that marriage is a fundamental right and that

choices about marriage, like choices about other aspects of family, are a central part of the liberty

protected by the Due Process Clause.


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Page 10

30.

Louisiana law denies the Plaintiff and other individuals in same-sex marriages this

fundamental right by denying them access to the state-recognized institution of marriage and

refusing to recognize the marriages they entered into in other states and countries.

31.

The State can demonstrate no important interest to justify denying the Plaintiff this

fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate

interest at all.

32.

The State's refusal to recognize marriages entered into by same-sex couples in other

jurisdictions and prohibition for the courts and officials of the State from doing so violates the

Due Process Clause.

33.

The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by

the Due Process Clause of the Fourteenth Amendment to the United States Constitution in

violation of 42 U.S.C. § 1983.

COUNT II:

Discrimination on the Basis of Sexual Orientation in

Violation of the Equal Protection Clause of the


(42 U.S.C. § 1983)

34.

Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as



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Page 11

35.

The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal

protection of the laws." U.S. Const. amend. XIV,§ 1.

36.

By denying the Plaintiff and his Husband and other lesbian and gay couples the ability

have their out-of-state marriages recognized, the State, through Defendant, disadvantages lesbian

and gay people on the basis of their sexual orientation. It denies them significant legal

protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom

same-sex couples interact, including their own children," that their relationship is "less worthy"

than the relationships of others. Windsor , Slip Op., at 25.

37.

Same-sex couples and opposite-sex couples are similarly situated for purposes of

marriage.

38.

The evidence will show that classifications based on sexual orientation demand

heightened scrutiny.

39.

Lesbians and gay men are members of a discrete and insular minority that has suffered a

history of discrimination in the State and across the United States.


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40.

Sexual orientation bears no relation to an individual's ability to perform or contribute to

society.

41.

Sexual orientation is a core, defining trait that is so fundamental to one's identity that a

person may not legitimately be required to abandon it (even if that were possible) as a condition

of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to

change through intervention. Efforts to change a person's sexual orientation through

interventions by medical professionals have not been shown to be effective. No mainstream

mental health professional organization approves interventions that attempt to change sexual

orientation, and many — including the American Psychological Association and the American

Psychiatric Association — have adopted policy statements cautioning professionals and the

public about these treatments.

42.

Prejudice against lesbians and gay men continues to seriously curtail the operation of the

political process preventing this group from obtaining redress through legislative means.

Lesbians and gay men lack statutory protection against discrimination in employment, public

accommodations, and housing at the federal level and in more than half of the states, including

Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal

level than women and racial minorities had when sex and race classifications-were declared to be

suspect or quasi suspect.

43.


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For all these reasons, classification based on sexual orientation should be reviewed under

heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The

State's exclusion of same-sex couples from marriage is not rationally related to any legitimate

governmental interest. All it does it disparage and injure lesbian and gay couples and their

children.

44.

The State's prohibition of marriage for same-sex couples and its refusal to recognize the

marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.

45.

Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by

the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

COUNT III:

Discrimination on the Basis of Sex in



(42 U.S.C. § 1983)

46.



47.



protection of the laws.” U.S. Const. amend. XIV, § 1.


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48.

State law defines marriage as ". . . the union of one man and one woman ” and “ No

official or court of the state of Louisiana shall recognize any marriage contracted in any other

jurisdiction which is not the union of one man and one woman.” Section 15 of the Louisiana

Constitution.

49.

By defining marriage in this way, the State discriminates on the basis of sex. The only

reason that the legal marriage is prohibited is the sex of the partners.

50.

The marriage of Plaintiff and his Husband, for example, is denied recognition solely

because they are both men.

51.

The Supreme Court has made clear that perpetuation of traditional gender roles is not a

legitimate government interest.

52.

Given that there are no longer legal distinctions between the duties of husbands and

wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal

marriage performed in another state.

53.

The Defendants can demonstrate no exceedingly persuasive justification for this

discrimination based on sex.


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54.

State law prohibiting marriage and recognition of marriage for same-sex couples thus

violates the Equal Protection Clause.

55.


the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in


CLAIMS FOR RELIEF

COUNT IV:

Deprivation of the Full Faith and Credit Clause

of the United States Constitution

56.



57.


Full Faith and Credit shall be given in each State to the public Acts, Records, and

judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be


58.



States, or copies thereof, shall be authenticated by affixing the seal of such State,

Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or

Possession, or copies thereof, shall be proved or admitted in other courts within


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and seal of the court annexed, if a seal exists, together with a certificate of a judge

of the court that the said attestation is in proper form.


shall have the same full faith and credit in every court within the United States

and its Territories and Possessions as they have by law or usage in the courts ofsuch State, Territory or Possession from which they are taken.

59.




Constitution.

60.

By prohibiting the courts and officials of the State of Louisiana from recognizing

marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the

United States Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana

Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth

Amendment to the United States Constitution;


Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth



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Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United

States Constitution.

4.

Enter a permanent injunction enjoining Defendants from denying the Plaintiff and his

Husband and all other same-sex couples the benefits of marriage and to recognize

marriages validly entered into by the Plaintiff and his Husband and other same-sex

couples outside of the State of Louisiana;

5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and

6. Enter all further relief to which Plaintiffs may be justly entitled.



815 Dauphine St, Ste D

New Orleans, LA 70116(504) 684-4904 (office phone)




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Thus read, done and signed in New Orleans, Louisiana on this ____ day of August, 2013.

_______________________________JUDGE

9th


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James D. Caldwell in his official capacity as the Louisiana Attorney General

Defendant/Respondent

AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIEF


ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish, residing

in the United States District Court, Eastern District of Louisiana’s district, and respectfully

represents:

THE PARTIES

1.




2.


his Husband, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after having

been in a committed relationship together since 2005 commingling funds, living together and

holding themselves out as monogamous partners that are living together as one union.


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3.




4.



FACTUAL BACKGROUND

5.







6.







of marriage for unmarried individuals shall not be valid or recognized. No official


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7.


Art. 3520. Marriage


parties were first domiciled as husband and wife, shall be treated as a validmarriage unless to do so would violate a strong public policy of the state whose




shall not be recognized in this state for any purpose, including the assertion of any





8.







9.

Same-sex couples such as Plaintiff and his Husband are identical to opposite-sex couples

in all of the characteristics relevant to marriage.


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10.





illness

11.



12.

The Plaintiff and his Husband and other same-sex couples in Louisiana, if their marriages

in other states in which marriage is legal were recognized, would benefit no less than opposite-

sex couples from the many legal protections and the social recognition afforded to married

couples.

13.







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14.

The exclusion from marriage under mines the Plaintiff’s ability to achieve the life goals

and dreams with his Husband, Derek Penton; threatens their mutual economic stability; and

denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307,

Slip Op., at 18 (U.S. June 26, 2013).


and the Benefits of Marriage Causes Substantial Harm to Couple and Their Families

15.







properly married.

16.



17.






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for Family Medical Leave Act). Thus, even Plaintiff and his Husband, who are already married,

cannot access such federal protections as long as Louisiana refuses to recognize their existing

marriage.

18.


tangible ways.

19.

Although the Plaintiff is in a long-term committed relationship, he, his Husband and

other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples

together during times of crisis or conflict.

20.






have made.


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21.




22.




23.

The plaintiff recognizes that marriage entails both benefits to and obligations on the





24.









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25.









26.







continue to arise so long as our system shall exist. In discussing these questions,the conflicting powers of the General and State Governments must be brought

into view, and the supremacy of their respective laws, when they are in




powers, is supreme within its sphere of action. This would seem to resultnecessarily from its nature. It is the Government of all; its powers are delegated

by all; it represents all, and acts for all. Though any one State may be willing to

control its operations, no State is willing to allow others to control them. Thenation, on those subjects on which it can act, must necessarily bind its component


terms, decided it by saying, [p406] "this Constitution, and the laws of the UnitedStates, which shall be made in pursuance thereof," "shall be the supreme law ofthe land," and by requiring that the members of the State legislatures and the



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form the supreme law of the land, "anything in the Constitution or laws of anyState to the contrary notwithstanding."

CLAIMS FOR RELIEF

COUNT I:Deprivation of the Fundamental Right to Marry in



(42 U.S.C. § 1983)

27.

Plaintiff incorporates by reference all of the preceding paragraphs of this Complaint as


28.





interest.

29.





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30.

Louisiana law denies the Plaintiff and other individuals in same-sex marriages this



31.

The State can demonstrate no important interest to justify denying the Plaintiff this


interest at all.

32.



Due Process Clause.

33.




COUNT II:




(42 U.S.C. § 1983)

34.




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35.



protection of the laws." U.S. Const. amend. XIV,§ 1.

36.

By denying the Plaintiff and his Husband and other lesbian and gay couples the ability

have their out-of-state marriages recognized, the State, through Defendant, disadvantages lesbian

and gay people on the basis of their sexual orientation. It denies them significant legal

protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom

same-sex couples interact, including their own children," that their relationship is "less worthy"

than the relationships of others. Windsor , Slip Op., at 25.

37.


marriage.

38.



39.




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40.


society.

41.










42.








43.


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children.

44.



45.



COUNT III:




(42 U.S.C. § 1983)

46.



47.





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48.




Constitution.

49.



50.

The marriage of Plaintiff and his Husband, for example, is denied recognition solely

because they are both men.

51.



52.




53.




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54.



55.




CLAIMS FOR RELIEF

COUNT IV:



56.



57.





58.








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-MLCF-ALC

Aug 13 2013

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Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue


Page 2

Regardless of the foregoing, it is conceded and agreed that the question of venue is

governed by the general venue statute at 28 USC § 1391(b). In this regard, it is not alleged that

the Attorney General resides in the Eastern District. Rather, paragraph (2) is the basis on which

your Respondent relies “a judicial district in which a substantial part of the events or omission

giving rise to the claim occurred, or a substantial part of property that is the subject of the action

is situated.” The injury for which your Respondent seeks recovery is suffered in the Eastern

District of Louisiana, given that is where he and his husband reside and this is where they are

and will be denied recognition and the benefits of a married couple. For example, when your

Respondent recently suffered acute gall bladder complications, it is here where he was refused

medical care with his husband’s physician, who does not provide care to Medicaid recipients,

because your Respondent is on Medicaid as a result of not being able to secure spousal benefits

on his husband’s health insurance.

The Attorney General’s sole reliance upon residency and “enforcement” bears a striking

resemblance to the Louisiana Insurance Commissioner’s argument in Globe Glass & Mirror Co.

v. Brown, 888 F.Supp 768 (E.D.La. 1995) in which the Insurance Commissioner contended that

the Eastern District of Louisiana was an improper venue for the suit for declaratory and

injunctive relief because he maintained his official resident in the Middle District of Louisiana.

The Court stated the following:

Brown contends that the Eastern District of Louisiana is an improper venuefor this suit for declaratory and injunctive relief because he maintains his official

residence in the Middle District of Louisiana, relying on 28 U.S.C. § 1391(b) and

Butterworth v. Hill , 114 U.S. 128, 5 S.Ct. 796, 29 L.Ed. 119 (1885).

However, defendant relies on the pre-1990 version of § 1391(b), which

provided that venue was proper only in the district where all the defendants


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resided or “in the judicial district … where the claim arose.” 28 U.S.C. § 1391(b)

(before the 1990 amendments). See Leroy v. Great Western United Corp., 443

U.S. 173, 184, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979). In 1990, Congressamended the venue statute, replacing the language “the judicial district … in

which the claim arose” with “a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2).

“Under the amended statute it is now absolutely clear that there can be more thanone district in which a substantial part of the events giving rise to the claim

occurred.” Wright & Miller, Federal Practice and Procedure: Civil 2d § 3806

(1994 supp.). Therefore, under the current version of the venue statute, an actionmay be brought in the district “where any defendant resides, if all defendants

reside in the same state,” 28 U.S.C. § 1391(b)(1), or in any district “in which a

substantial part of the events … giving rise to the claim occurred. 28 U.S.C. §1391(b)(2). According to the affidavit of Mary Jo Prigge, a substantial part of

USA-GLAS’s existing Louisiana business occurs in the Eastern District.2

Therefore, this suit is properly brought in this district. See Farmland Dairies v.

McGuire, 771 F.Supp. 80 (S.D.N.Y.1991) (venue proper in district where milkdistributions primarily occur in action seeking declaratory relief as to

constitutionality of order issued by state commissioner for application of

compensatory payments).Glass & Mirror Co. v. Brown, 888 F.Supp 768, 770 (E.D.La. 1995).

In the case at hand, the argument, it is respectfully suggested, is even stronger for

allowing your Respondent to maintain his suit in the Eastern District of Louisiana, where he and

his husband rely. Specifically, this is a complaint, in essence, against one provision in the

Louisiana Constitution and another in the Louisiana Civil Code – affecting all residents in

Louisiana and specifically directing, as it applies to the Constitutional provision, all officials and

courts of the State of Louisiana to give no recognition to marriages of same-sex couples who

were legally married in another jurisdiction. In this regard, the Attorney General’s enforcement

is simply as the defender of the Louisiana Constitution and the Louisiana Civil Code – which is

his duty. And such enforcement extends, for example, to the Eastern District of Louisiana, when

the officials in the Louisiana National Guard are barred from enforcing a United States directive

to provide military benefits to all service men and women who carry Department of Defense


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Identification as they relate to same-sex couples. The Governor and the Attorney General

ensured that the orders of the United States Department of Defense were refused by and no

assistance was given by Officers, Enlisted personnel and civilians in the Louisiana National

Guard. Clearly, the enforcement by the Attorney General of these provisions extends beyond the

Middle District of Louisiana.

Interestingly, the Attorney General cites to Florida Nursing Home Association v. Page,

616 F.2d 1355, 1360 (5th

Cir. 1980) [a pre-1990 case] for the frequently stated “rule of law”:

“The general rule in suits against public officials is that a defendant’s residence for venue is the

district where he performs his official duties.” However, the language of the Florida Nursing

Home Association

case following this quote and the holding of the Court clearly assists your

Respondent’s, rather than your Movant’s, position. The Court stated as follows:

The general rule in suits against public officials is that a defendant’s residence forvenue purpose is the district where he performs his official duties. 1 Moore ’s

Federal Practice P 0.142(5.-1-2), at 1396 (2d ed. 1979). See, e. g., Butterworth v.

Hill , 114 U.S. 128, 132, 5 S.Ct. 796, 798, 29 L.Ed. 119 (1885); O’ Neill v. Battisti,

472 F.2d 789, 791 (6th

Cir. 1972), cert. denied sub nom. Heitzler v. O’ Neill , 411U.S. 964, 93 S.Ct. 2142, 36 L.Ed.2d 685 (1973). A number of the cases applying

this principle have involved federal officials or agencies and have found only one

official residence. See, e. g., Ernst v. Secretary of the Interior , 244 F.2d 344, 17

Alaska 133 (9th

Cir. 1957); Trueman Fertilizer Co. v. Larson, 196 F.2d 910 (5th

Cir. 1952); Hartke v. Federal Aviation Administration, 369 F.Supp. 741

(E.D.N.Y.1973).

It has been held, however, that a state agency or official does not necessarily

have a single residence. See Buffalo Teachers Federation, Inc. v. Helsby, 426

F.Supp. 828 (S.D.N.Y.1976). In Buffalo Teachers Federation the court noted thatin suits against federal agencies, the federal government would be faced with

serious difficulties if it were forced to answer complaints in a multitude of forums

and forum shopping would be greatly encouraged if suits could be brought in any

district where a subordinate departmental officer resides. Such problems,however, “are significantly less serious in the context of a suit against a state

governmental entity or official.” Id . at 829. In the state context, there is little


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As it applies to the argument of Forum Non Conveniens, the procedural requirements of

this lawsuit seem to be more suited for the convenience of the potential witnesses, if any, in the

Eastern District of Louisiana. While, at first blush, it appears that there is no substantial dispute

to the facts alleged in the complaint and thus no need for a credibility determination by a fact

finder, if the Court found a need and cause for the parties to present witnesses to testify, then the

issues would likely be damages, harm and “case and controversy”. In so doing, your Respondent

would be compelled to show damages and harm as a result of his marriage not be recognized by

the officials and courts of Louisiana and as a result of the Constitutional provisions and the Civil

Code article at issue, for example his inability to secure coverage by his husband’s health

insurance policy. Such damage and harm occurs in the city where he resides and in the

immediate vicinity – all of which are located in the Eastern District of Louisiana. Your

Respondent can think of no necessary witnesses that are located in the Middle District of

Louisiana for either the Respondent or the Mover. Accordingly, it is respectfully submitted that

the convenient forum is the Eastern District of Louisiana.

CONCLUSION

Based upon the foregoing, it is respectfully suggested that the Attorney General’s Motion

to Dismiss under Rule 12(b)(3) for improper venue is without merit. It is further respectfully

suggested that any transfer would not serve any interest of justice or this Honorable Court.

WHEREFORE, petitioner prays that after due proceedings are had that the Attorney

General’s Motion be dismissed with prejudice.


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CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the

foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill

at [email protected] and [email protected] and that on October 2, 2013, I electronically

filed the foregoing with the Clerk of Court by using the CM/EMF system, which will send anotice of filing to all counsel of record.

_________________________Scott J. Spivey, Esq.


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UNI TED STATES DI STRI CT COURT

EASTERN DI STRI CT OF LOUI SI ANA

J ONATHAN P. ROBI CHEAUX CI VI L ACTI ON

v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON "F"LOUI SI ANA ATTORNEY GENERAL

ORDER

Thi s ci vi l r i ght s l awsui t chal l enges t he const i t ut i onal i t y of

Loui si ana' s ban agai nst same- sex mar r i age and i t s r ef usal t o

r ecogni ze same- sex mar r i ages cont r act ed i n ot her st at es. J onat han

Robi cheaux mar r i ed hi s same- sex par t ner i n I owa, but l i ves i n

Or l eans Par i sh, Loui si ana; he al l eges t hat Loui si ana' s def ense of

mar r i age amendment t o t he st at e const i t ut i on ( La. Const . ar t . 12,

§ 15) and ar t i cl e 3520 of t he Loui si ana Ci vi l Code ( whi ch decr ees

t hat same- sex mar r i age vi ol at es Loui si ana' s st r ong publ i c pol i cy

and pr ecl udes r ecogni t i on of any such mar r i age cont r act f r om

anot her st at e) vi ol at e hi s f eder al const i t ut i onal r i ght s. 1

1I n par t i cul ar , t he pl ai nt i f f al l eges that t he stat e' sban on same- sex marr i age and ref usal t o r ecogni ze t he marr i age

cont r act he ent er ed i nt o i n I owa:( 1) depr i ves hi mof hi s f undament al r i ght t o mar r y i n vi ol at i on of t he U. S. Const i t ut i on' s Four t eent h Amendment Due Pr ocess Cl ause;( 2) depr i ves hi mof equal pr ot ect i on of t he l aw i n vi ol at i on of t heU. S. Const i t ut i on' s Four t eent h Amendment because i t const i t ut esdi scr i mi nat i on on t he basi s of sexual or i ent at i on and/ or sex; and( 3) vi ol at es t he Ful l Fai t h and Cr edi t Cl ause of t he U. S.

1


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Bef or e t he Cour t i s t he At t or ney Gener al ' s mot i on t o di smi ss

or , i n t he al t er nat i ve, mot i on t o t r ansf er f or i mpr oper venue,

whi ch i s not i ced f or submi ssi on on Oct ober 16, 2013. The br i ef i ng

on t he i ssue of whet her venue i s pr oper i n t he East er n Di st r i ct of

Loui si ana i s i nadequat e. 2 Nei t her si de addr esses t he f undament al

st andar ds appl i cabl e t o venue chal l enges such as whi ch par t y bear s

t he bur den of est abl i shi ng pr oper venue; 3 nei t her s i de acknowl edges

Const i t ut i on.

2 The At t or ney Gener al i nvokes t he gener al venue st at ute,28 U. S. C. § 1391, but appear s t o rel y on t he pr e- amended ver si on of t he st at ut e, whi ch, al t hough si mi l ar , no l onger appl i es. Sect i on1391 was modi f i ed by t he Feder al Cour t s J ur i sdi ct i on and VenueCl ar i f i cat i on Act of 2011. Pub. L. No. 112- 63, 125 St at . 758; amongot her amendment s, a r esi dency pr ovi si on i s f ound at § 1391( c) .Cur i ousl y, t he At t or ney Gener al appear s t o i nvoke st at e l aw asappl i cabl e t o t he venue det er mi nat i on, whi ch seems i nappr opr i at e i nci vi l r i ght s cases. See Ar nol d v. Maynar d, 942 F. 2d 761, 762- 63( 10t h Ci r . 1991) ; see al so Wr i ght , A. , Mi l l er , & E. Cooper , 14D Fed.Pr ac. & Pr oc. § 3806. 1 ( 3d ed. 2013) ( not i ng t hat "st at e l aw has no

appl i cat i on i n det er mi ni ng t he appl i cabi l i t y of t he f eder al venuest at ut e") . The pl ai nt i f f , f or hi s par t , suggest s that he does notasser t t hat venue i s proper because t he At t or ney Gener al r esi des i nt he East er n Di st r i ct ; r at her , he aver s t hat he i nvokes t hesubst ant i al i t y t est cont ai ned i n § 1391( b) ( 2) . Cur i ousl y, however ,hi s amended compl ai nt cont ai ns but one al l egat i on concerni ng venue( "[ v] enue i s pr oper i n t he Uni t ed St at es Di st r i ct Cour t f or t heEast er n Di st r i ct of Loui si ana under 28 U. S. C. § 1391( b) because t heDef endant per f or ms hi s of f i ci al dut i es i n t hi s di st r i ct ") , and heot her wi se f ai l s t o submi t any evi dence or suppl ement al al l egat i onst o advance t he venue determi nat i on.

3

I ndeed, t her e i s an i nconsi st ency i n t he case l i t er at ur et hat mi ght be advanced by adequat e br i ef i ng. See Ross v. Di gi oi a,No. 11- 1827, 2012 WL 72703 ( E. D. La. J an. 10, 2012) ( Vance, J . ) ( not i ng t hat " t he j ur i sprudence of f eder al di st r i ct cour t s i nt he Fi f t h Ci r cui t on t he quest i on of whi ch par t y bear s t he bur denof pr oof on a Rul e 12( b) ( 3) mot i on t o di smi ss f or i mpr oper venue i si nconsi st ent ", but concl udi ng t hat t he bur den i s on t he pl ai nt i f f

2


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Accordi ngl y, I T I S ORDERED: t hat , no l at er t han Oct ober 30,

2013, counsel f or both si des must submi t si mul t aneous suppl ement al

paper s, suppor t ed by ci t at i on t o l egal aut hor i t y ( and, i f r el evant

and necessar y, evi dence) , addr essi ng whet her venue i s proper i n t he

East er n Di st r i ct of Loui si ana under ei t her 28 U. S. C. § 1391( b) ( 1)

or (b)(2).

I T I S FURTHER ORDERED: t hat t he submi ssi on dat e on t he

def endant ' s mot i on i s cont i nued t o November 13, 2013, on t he

paper s, unl ess ot her wi se or dered.

New Or l eans, Loui si ana, Oct ober 16, 2013

______________________________ MARTI N L. C. FELDMAN

UNI TED STATES DI STRI CT J UDGE

WL 2310946, at *8 ( E. D. Pa. 2008) ( "wher e pl ai nt i f f s chal l engest at e- wi de pol i ci es, and not mer el y t he act i ons of st at e of f i ci al si n a si ngl e count y, venue i s proper pur suant t o Sect i on 1391( b) ( 2)i n t he di st r i ct wher e t hose pol i ci es ar e devel oped") .

4


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(1) Amending as a Matter of Course. A party may amend its pleading once as a

matter of course within:



service of a responsive pleading or 21 days after service of a motion under Rule12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading onlywith the opposing party's written consent or the court's leave. The court should




original pleading or within 14 days after service of the amended pleading,

whichever is later.

Unless there is a substantial reason to deny leave to amend, the discretion of the district

court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th

Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist .,

28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading

U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d

594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so

requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack

Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider

include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and

futility of amendment." Id.


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Page 4

PERTINENT FACTS

As the Court is well aware from the previous pleadings, Derek Penton is substantially if

not equally situated with the Plaintiff as his husband. Courtney Blanchard and Nadine Blanchard

were married August 30, 2013 in Clinton County, Iowa. Courtney is the biological mother and

Nadine is the birth mother of their son, C.B. Nadine adopted C.B. and Courtney essentially has

no rights to her own biological son with whom she lives along with her legally wedded wife.

Courtney and Nadine desire to sue the State of Louisiana in the exact same manner as your

Plaintiff and Movant, Jonathan Robicheaux.

CONCLUSION

Your Honor has vast discretion to determine when an Amendment is in the best interest

of justice. In addition, your Honor may determine when an Amendment is a matter of judicial

efficiency. Based upon the foregoing, it is respectfully submitted that allowing Derek Penton,

Courtney Blanchard and Nadine Blanchard to join this lawsuit as plaintiffs will be in the best

interest of justice and is not undue delay, bad faith or a dilatory motive on the part of the movant.






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Second Amended Complaint - Robicheaux et al v. Caldwell

Page 2

THE PARTIES

1.




2.


his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after

having been in a committed relationship together since 2005 commingling funds, living together

and holding themselves out as monogamous partners that are living together as one union.

3.

The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally

married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013

after having been in a committed relationship with a child, C.B., commingling funds, living

together and holding themselves out as monogamous partners that are living together as one

union.


4.





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Page 3

5.



FACTUAL BACKGROUND

6.







7.







of marriage for unmarried individuals shall not be valid or recognized. No officialor court of the state of Louisiana shall recognize any marriage contracted in any



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Page 4

8.


Art. 3520. Marriage





policy of the state of Louisiana and such a marriage contracted in another stateshall not be recognized in this state for any purpose, including the assertion of any





9.







10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the

characteristics relevant to marriage.


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Page 5

11.





illness.

12.



13.

The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states

in which marriage is legal were recognized, would benefit no less than opposite-sex couples

from the many legal protections and the social recognition afforded to married couples.

14.






15.

The exclusion from marriage undermines the Plaintiffs’ abilities to achieve the life goals

and dreams with their spouses; threatens their mutual economic stability; and denies them "a


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Page 6

dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18

(U.S. June 26, 2013).


and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.







properly married.

17.



18.








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Page 7

for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access

such federal protections as long as Louisiana refuses to recognize their existing marriage.

19.


tangible ways.

20.

Although the Plaintiffs are in long-term committed relationships, they and other same-sex

couples are denied the stabilizing effects of marriage, which helps keep couples together during

times of crisis or conflict.

21.






have made.

22.





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Page 8

23.




24.

The plaintiffs recognize that marriage entails both benefits to and obligations on the





25.








26.





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Page 9






27.



principle that it can exercise only the powers granted to it would seem tooapparent to have required to be enforced by all those arguments which its

enlightened friends, while it was depending before the people, found it necessary

to urge; that principle is now universally admitted. But the question respecting theextent of the powers actually granted is perpetually arising, and will probably




If any one proposition could command the universal assent of mankind, we mightexpect it would be this -- that the Government of the Union, though limited in its

powers, is supreme within its sphere of action. This would seem to result


by all; it represents all, and acts for all. Though any one State may be willing tocontrol its operations, no State is willing to allow others to control them. The




the land," and by requiring that the members of the State legislatures and theofficers of the executive and judicial departments of the States shall take the oath


powers, is supreme, and its laws, when made in pursuance of the Constitution,form the supreme law of the land, "anything in the Constitution or laws of any



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Page 10

CLAIMS FOR RELIEF

COUNT I:

Deprivation of the Fundamental Right to Marry in



(42 U.S.C. § 1983)

28.



29.





interest.

30.




31.

Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this




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Page 11

32.

The State can demonstrate no important interest to justify denying the Plaintiffs this


interest at all.

33.



Due Process Clause.

34.




COUNT II:




(42 U.S.C. § 1983)

35.



36.



protection of the laws." U.S. Const. amend. XIV, § 1.


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Page 12

37.

By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-

state marriages recognized, the State, through Defendant, disadvantages lesbian and gay people

on the basis of their sexual orientation. It denies them significant legal protections. And it

"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples

interact, including their own children," that their relationship is "less worthy" than the

relationships of others. Windsor , Slip Op., at 25.

38.


marriage.

39.



40.



41.


society.

42.




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Page 13








43.








44.





children.


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Page 14

45.



46.



COUNT III:




(42 U.S.C. § 1983)

47.



48.




49.




Constitution.


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Page 15

50.



51.

The marriages of Plaintiffs, for example, are denied recognition solely because they are

both men and both women, respectively.

52.



53.




54.

The Defendant can demonstrate no exceedingly persuasive justification for this


55.




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Page 16

56.

Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in


CLAIMS FOR RELIEF

COUNT IV:



57.



58.



judicial Proceedings of every other State. And the Congress may by general Laws



59.











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Page 17

and its Territories and Possessions as they have by law or usage in the courts of


60.




Constitution.

61.




PRAYER FOR RELIEF












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Page 18

4. Enter a permanent injunction enjoining Defendant from denying the Plaintiffs and all

other same-sex couples the benefits of marriage and to recognize marriages validly

entered into by the Plaintiff and his Husband and other same-sex couples outside of the

State of Louisiana;






(504) 684-4904 (office phone)


Attorney for Plaintiffs, Jon Robicheaux,

Derek Penton, Courtney Blanchard and

Nadine Blanchard


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ORDER TO FILE SECOND AMENDED COMPLAINT






Thus read, done and signed in New Orleans, Louisiana on this ____ day of November,

2013.

_______________________________

JUDGE

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JONATHAN P. ROBICHEAUX * CIVIL ACTION NO. 13-CV-05090

**

*Versus *

*

JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCFATTORNEY GENERAL *

* MAGISTRATE JUDGE: ALC

******************************************************************************

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THE ATTORNEY GENERAL’S

MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO TRANSFER FOR

IMPROPER VENUE

1


NOW INTO COURT, through undersigned counsel, comes the named Defendant, James

D. “Buddy” Caldwell, in his official capacity as Attorney General of the State of Louisiana, who,

files this supplemental memorandum in support of his previously filed motion to dismiss the

Plaintiff’s Complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) or, in the

alternative, motion to transfer for improper venue.2 We adopt all arguments made in our

previously filed motion and memorandum and offer this supplement to enhance and clarify our

motion as per this Honorable Court’s Order.3

The Attorney General does not concede to this Honorable Court’s jurisdiction and

appears solely for the purpose of asserting improper venue. The Attorney General specifically

reserves and retains any and all rights and privileges available to him to contest such jurisdiction

at a later time, file motions to dismiss on alternative grounds, raise affirmative defenses not now

1 Rec. Doc. 13.

2 The Attorney General provides citations to case law from other federal circuits as well as unpublished

opinions for its persuasive value only. The Attorney General is aware that these opinions are not binding on this

Honorable Court.3 Rec. Doc. 15.


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2

asserted, and/or contest the substance and merit of Plaintiff’s constitutional claims including its

request for injunctive relief.

Federal Rule of Civil Procedure 12(b)(3) provides a mechanism for a defendant to move

for dismissal based on improper venue. 28 U.S.C. § 1406 determines the standard by which a

dismissal for venue is evaluated. “The district court of a district in which is filed a case laying

venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).

In assessing a motion to dismiss for improper venue, the burden is on the plaintiff to show the

district he chose is a proper venue.

4

A plaintiff may overcome his burden by providing evidence

from outside the complaint to prove venue is proper.5 In further evaluating a Fed. R. Civ. P.

12(b)(3) motion to dismiss the court must accept all well pleaded allegations within the

complaint as true and resolve any conflicts in favor of the plaintiff. 6

It is undisputed that in this matter venue is determined by the general venue statute, 28

U.S.C. § 1391(b) which states:

A civil action may be brought in-

(1) a judicial district in which any defendant resides, if all defendants are residents

of the State in which the district is located;(2) a judicial district in which a substantial part of the events or omissions giving

rise to the claim occurred, or a substantial part of property that is the subject of

the action is situated; or

4 Perez v. Pan Am. Life Ins. Co., 70 F.3d 1268 (5th Cir. 1995) (citing Advanced Dynamics Corp. v. Mitech

Corp ., 729 F.Supp. 519, (N.D.Tex.1990)); Asevedo v. NBC Universal Media, LLC , 921 F. Supp. 2d 573, 589 (E.D.

La. 2013); Smith v. Fortenberry, 903 F.Supp. 1018, 1020 (E.D.La.1995) (citing 15 Wright, Miller & Cooper,

Federal Practice and Procedure: Jurisdiction 2d § 3826); Langton v. Cbeyond commc'n, L.L.C., 282 F.Supp.2d 504,508 (E.D.Tex.2003); Summers v. Kenton, OH Police, CIV.A. 11-3162, 2012 WL 1565363 (E.D. La. May 2, 2012)

(unpublished); Ross v. Digioia, CIV.A. 11-1827, 2012 WL 72703 (E.D. La. Jan. 10, 2012) (unpublished).

5 Ambraco Inc. v. Bossclip B. V., 570 F.3d 233, 238 (5th Cir. 2009), cert. denied, 130 S.Ct. 1054 (2010);

Asevedo, 921 F. Supp. 2d at 589; Laserdynamics Inc. v. Acer America Corp., 209 F.R.D. 388, 390 (S.D.Tex. 2002).

.6 Asevedo, 921 F. Supp. 2d at 589-90); Braspetro Oil Services, Co. v. Modec (USA), Inc., 240 Fed. App'x

612, 615 (5th Cir.2007)(unpublished).


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3

(3) if there is no district in which an action may otherwise be brought as provided

in this section, any judicial district in which any defendant is subject to the court’spersonal jurisdiction with respect to such action.

The Plaintiff’s First Amended Complaint only alleges venue is proper in the Eastern

District because the Defendant performs his official duties in this district.7 As discussed above,

although the Court should give the benefit of the doubt to the Plaintiff in evaluating a 12(b)(3)

motion, the Plaintiff fails to provide any evidence or even respond to the Defendant’s assertion

that venue is improper based on 28 U.S.C. § 1391(b)(1). As discussed in the memorandum in

support of the Attorney General’s motion to dismiss for purposes of venue,8 the Attorney

General does not reside in the Eastern District of Louisiana.

The Attorney General serves as the executive head and chief administrator of the

Department of Justice which is domiciled in Baton Rouge.9 The Civil Division of

the Attorney General, which is tasked with defending the state in constitutionalchallenges when the Attorney General chooses to exercise his discretion in cases

involving constitutional challenges to state laws, is located in Baton Rouge,

Louisiana. Accordingly, because the Attorney General performs his official

duties in Baton Rouge and the Civil Division of the Louisiana Department ofJustice is located in Baton Rouge, this would serve as his residence for purposes

of venue.10

In Florida Nursing Home Association v. Page, the Fifth Circuit addressed venue.11 The

Plaintiff’s supplemental memorandum directs this Honorable Court’s attention to this case,

which states:

the general rule in suits against public officials is that a defendant’s residence forvenue purposes is the district where he performs his official duties.…A number of

cases applying this principle have involved federal officials or agencies and have

found only one official residence.12

7 Rec. Doc. 10.

8 Rec. Doc. 13.

9 La. R.S. 36:701 (A) and (B).

10 Rec. Doc. 13.

11 616 F.2d 1355 (5th Cir. 1990).

12 Rec. Doc. 16 (citing to 616 F.2d 1355 (5th Cir. 1990)).


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4

The Plaintiff goes on to provide a lengthy excerpt from that case, which actually shows that for

purposes of venue under 28 U.S.C. § 1391(b)(1), the Attorney General does not reside in the

Eastern District. The defendant at issue in Florida Nursing is distinguishable from the Attorney

General in this matter. There the court discussed that venue may be proper based on 1391(b)(1)

because the defendant’s office located in the district was large and much of the business of that

State entity was conducted from that office.13

Other district courts have applied a three factor

test which looks at similar grounds for 1391(b)(1) venue purposes.14 The factors required to

establish a state defendant has a second official residence for venue purposes depends on

examining the following: (1) the defendant’s presence in the district where the plaintiff sued; (2)

the extent of the defendant’s official activities in the district; and (3) the relationship between the

defendant’s activities in the district and the cause of action asserted by the plaintiff.15

In the

Western District of Louisiana one court articulated that “for purposes of venue a state official's

residence is located at the state capitol, even where branch offices of the state official's

department are maintained in other parts of the state.”16

Looking at all the ways to evaluate whether state officials reside for venue purposes in a

district, it is clear the Attorney General does not reside in the Eastern District in this matter. The

Louisiana Attorney General conducts the majority of business from the Baton Rouge Office.

Further, although the Attorney General has an office in the Eastern District of Louisiana, it is not

13 Florida Nursing Home Association, 616 F.2d 1355, 1360 (5th Cir. 1990). See also Globe Glass & Mirror

v. Brown, 888 F.Supp. 768 (E.D. La. 1995) (holding that because of the defendant conducted a substantial amount of

his business in the district venue was proper).14

Braggs v. Lane, 717 F. Supp. 609, 611 (N.D. Ill. 1989) Cheeseman v. Carey, 485 F.Supp. 203, 207

(S.D.N.Y. 1980), remanded on other grounds, 623 F.2d 1387 (2d Cir.1980).15

Id .16

Osterweil v. Edmonson, CIV.A.10-CV-0263, 2010 WL 2428074 (W.D. La. June 10, 2010) (unpublished)

(citing Stanton-Negley Drug Co. v. Pennsylvania Dep't of Pub. Welfare, CIV.A. 07-1309, 2008 WL 1881894 (W.D.

Pa. Apr. 24, 2008)(unpublished)).


7/21/2019 vol-98361


5

a large office nor does he conduct the majority or a substantial amount of his business there.17

In

fact, the Attorney General does not even accept service of process at this office. Additionally the

activities performed by the Attorney General’s satellite office in New Orleans have no

relationship with the plaintiff or his cause of action. Therefore, the venue is not proper in the

Eastern District of Louisiana based on the Attorney General’s residence under 28 U.S.C. §

1391(b)(1).

Although nowhere in the Plaintiff’s Amended Complaint does he allege venue is proper

based on 28 U.S.C. § 1391(b)(2), his opposition brief to the Attorney General’s motion to

dismiss and his supplemental response to this Honorable Court, imply that he is changing his

basis of asserting venue. The Attorney General asserts that the Plaintiff should not be able to

change the basis upon which he asserts venue without amending his complaint. Yet, if this

Honorable Court accepts the Plaintiff’s amended venue assertion made via his opposition

memorandum, this matter should still be dismissed for improper venue in the Eastern District of

Louisiana.

Just as with 28 U.S.C. § 1391(b)(1) the burden is on the Plaintiff to show venue is proper

based on 28 U.S.C. § 1391(b)(2). 28 U.S.C. § 1391(b)(2) provides “(2) a judicial district in

which a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated.” The Plaintiff must show

that the Eastern District of Louisiana is where a substantial part of the event or omission giving

rise to the claim occurred, which he fails to do. There is a two part test that the Second Circuit

Court of Appeal applies to determine whether venue is proper under 1391(b)(2): (1) a court must

identify the nature of the claim and what gives rise to it; and (2) then determine whether a

17 The Louisiana Attorney General’s main office is located in Baton Rouge, Louisiana. Over 450 employees

work in the Baton Rouge Office. The New Orleans Office has less than fifty (50) employees and is a satellite office

that solely handles risk litigation.


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7


I hereby certify that, on October 30, 2013, I electronically filed the forgoing with theClerk of Court by using the CM/EMF system, which will send a notice of electronic filing to all

counsel of record.

_____/s/Jessica MP Thornhill_______

Jessica MP Thornhill


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Page 3











whichever is later.













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Jonathan P. Robicheaux et al



District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez

SECOND AMENDED COMPLAINT

FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come

JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of

Orleans Parish, residing in the United States District Court, Eastern District of Louisiana’s

district,

DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,

residing in the United States District Court, Eastern District of Louisiana’s district,

COURTNEY BLANCHARD, a person of full age and majority who is a resident of

Lafourche Parish, residing in the United States District Court, Eastern District of Louisiana’s

district, and

NADINE BLANCHARD, a person of full age and majority who is a resident of


district,

and respectfully represent:


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Page 2

THE PARTIES

1.




2.





3.





union.


4.





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Page 4

8.


Art. 3520. Marriage










9.







10.




7/21/2019 vol-98361


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Page 7



19.


tangible ways.

20.




21.






have made.

22.





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Page 8

23.




24.






25.








26.





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Page 10

CLAIMS FOR RELIEF

COUNT I:




(42 U.S.C. § 1983)

28.



29.





interest.

30.




31.





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Page 11

32.



interest at all.

33.



Due Process Clause.

34.




COUNT II:




(42 U.S.C. § 1983)

35.



36.





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Page 12

37.







38.


marriage.

39.



40.



41.


society.

42.




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Page 13








43.








44.





children.


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Page 14

45.



46.



COUNT III:




(42 U.S.C. § 1983)

47.



48.




49.




Constitution.


7/21/2019 vol-98361



Page 15

50.



51.



52.



53.




54.



55.




7/21/2019 vol-98361



Page 16

56.




CLAIMS FOR RELIEF

COUNT IV:



57.



58.






59.











7/21/2019 vol-98361



Page 17



60.




Constitution.

61.




PRAYER FOR RELIEF












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Page 18




State of Louisiana;






(504) 684-4904 (office phone)




Nadine Blanchard


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2013.

_______________________________

JUDGE

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2013.

_______________________________

JUDGE


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Defendant/RespondentDistrict Judge: Martin Leach-Cross Feldman


SECOND AMENDED COMPLAINT





district,





district, and



district,



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Page 2

THE PARTIES

1.




2.





3.





union.


4.





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Page 3

5.



FACTUAL BACKGROUND

6.







7.







of marriage for unmarried individuals shall not be valid or recognized. No officialor court of the state of Louisiana shall recognize any marriage contracted in any



7/21/2019 vol-98361



Page 4

8.


Art. 3520. Marriage










9.







10.




7/21/2019 vol-98361



Page 5

11.





illness.

12.



13.




14.






15.




7/21/2019 vol-98361



Page 6


(U.S. June 26, 2013).



16.







properly married.

17.



18.








7/21/2019 vol-98361



Page 7



19.


tangible ways.

20.




21.






have made.

22.





7/21/2019 vol-98361



Page 8

23.




24.






25.








26.





7/21/2019 vol-98361



Page 9






27.









If any one proposition could command the universal assent of mankind, we mightexpect it would be this -- that the Government of the Union, though limited in its

powers, is supreme within its sphere of action. This would seem to result

necessarily from its nature. It is the Government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to

control its operations, no State is willing to allow others to control them. The




the land," and by requiring that the members of the State legislatures and theofficers of the executive and judicial departments of the States shall take the oath



