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Case 2:13-cv-00395-AWA-LRL Document 15 Filed 08/22/13 Page 1 of 4 PageID# 71

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIANORFOLK DIVISION

TIMOTHY B. BOSTIC, and TONY C. LONDON, Plaintiffs, v. ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia, and KENNETH T. CUCCINELLI, in his official capacity as Attorney General of Virginia, and GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendants. MEMORANDUM IN SUPPORT OF AGREED MOTION FOR ENTRY OF A CONSENT ORDER TO SUSPEND BRIEFING ON MOTION TO DISMISS AND MOTION TO INTERVENE, AND TO SET DEADLINES FOR FILING AMENDED COMPLAINT, AND FOR FILING CROSS-MOTIONS FOR SUMMARY JUDGMENT COME NOW Plaintiffs, Timothy B. Bostic and Tony C. London, (collectively Plaintiffs), by counsel, and respectfully file this Memorandum in support of their agreed motion to stay the briefing schedule on the Motion to Dismiss and Motion to Intervene and to set agreed-upon deadlines for filing an amended complaint, cross-motions for summary judgment and supporting, response and rebuttal memoranda. In support of this motion, Plaintiffs aver the following. CASE NO. 2:13cv00395

Case 2:13-cv-00395-AWA-LRL Document 15 Filed 08/22/13 Page 2 of 4 PageID# 72

On July 18, 2013, Plaintiffs filed their Complaint in this action. On August 9, 2013, Defendants McDonnell and Cuccinelli filed a Motion to Dismiss on the Grounds of Sovereign Immunity pursuant to Fed. R. Civ. P. 12(b). On this same date the Commonwealth of Virginia filed a Motion to Intervene for the purposes of defending the constitutionality of the laws challenged in Plaintiffs Complaint. According to applicable federal and local rules of civil procedure, Plaintiffs response to these motions would be due on August 23, 2013. However,

Plaintiffs contemplate filing an amended complaint that may resolve some, or all, of the issues raised in the Motion to Dismiss and the Motion to Intervene1. Accordingly, Plaintiffs request that the Court suspend briefing on these motions pending filing of an amended complaint. The parties have also agreed that Plaintiffs will file an amended complaint by August 30, 2013 and that Defendants may file responsive pleadings and/or Rule 12(b) motions within 21 days after Plaintiffs file their amended complaint. Finally, the parties have agreed, subject to the Courts approval, to establish the following schedule governing cross-motions for summary judgment: 1) Plaintiffs and Defendants shall file their respective cross-motions for summary judgment and supporting memoranda and exhibits by September 30, 2013; 2) Plaintiffs and Defendants shall file their responses to the cross-motions for summary judgment by October 24, 2013; and 3) Plaintiffs and Defendants shall file rebuttals by October 31, 2013. Counsel for all

Defendants and the Commonwealth agree with this motion and proposed deadlines and have consented to placement of their electronic signatures on the attached Consent Order. Accordingly, Plaintiffs respectfully request that the Court enter the attached Consent

Defendants reserve the right to file additional motions to dismiss with respect to any amended complaint filed by Plaintiffs. 2

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order 1) suspending indefinitely briefing on the Motion to Dismiss filed by Defendants McDonnell and Cuccinelli and the Motion to Intervene filed by the Commonwealth of Virginia pending filing of an amended complaint; 2) establishing that Plaintiffs have until August 30, 2013 to file an amended complaint, and Defendants shall have 21 days to file responsive pleadings and/or Rule 12(b) motions; and 3) establishing the above-referenced briefing schedule for cross-motions for summary judgment, supporting memoranda and exhibits and response and rebuttal materials.

Respectfully Submitted,

_________/s/__________________ Charles B. Lustig VSB #29442 Thomas B. Shuttleworth VSB #13330 Robert E. Ruloff VSB # 13471 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Suite 300 Virginia Beach, VA 23452 (757) 671-6057 (phone) (757) 671-6004 (fax) clustig@srgslaw.com tshuttleworth@srgslaw.com rruloff@srgslaw.com Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of August 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send electronic notice of such filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendants McDonnell and Cuccinelli and Counsel for the Commonwealth, and to David B. Oakley, Esq., Counsel for Defendant Schaefer. _________/s/__________________ Charles B. Lustig VSB #29442 Thomas B. Shuttleworth VSB #13330 Robert E. Ruloff VSB # 13471 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Suite 300 Virginia Beach, VA 23452 (757) 671-6057 (phone) (757) 67j1-6004 (fax) clustig@srgslaw.com tshuttleworth@srgslaw.com rruloff@srgslaw.com Counsel for Plaintiffs