1:13-cv-01861 #54

Case 1:13-cv-01861-JEJ Document 54-1 Filed 10/21/13 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WHITEWOOD, et al., Plaintiffs, v. CORBETT, et al., Defendants. Civil Action No. 13-1861-JEJ
ORDER AND NOW, this ____ day of November, 2013, upon consideration of the Motion to Dismiss filed by Defendants Thomas W. Corbett and Michael Wolf (Doc. No. 27) and Plaintiffs Brief in Opposition thereto, it is hereby ORDERED that the Motion is DENIED in its entirety. BY THE COURT:
Jones, J.
EXHIBIT A
Corbett apologizes for remarks about same-sex couples

Tom Corbett (AP Photo/Matt Rourke, file) John L. Micek | jmicek@pennlive.com By John L. Micek | jmicek@pennlive.com Email the author | Follow on Twitter on October 04, 2013 at 11:30 AM, updated October 04, 2013 at 11:40 AM Gov. Tom Corbett has apologized for remarks he made during a televised interview earlier today in which he appeared to compare same-sex marriages to incest.
Here's the full text of his statement:
During a recent interview, I was asked to comment on the ruling by Judge Pellegrini that the Montgomery County Clerk of Courts did not have the power to decide the constitutionality of state laws.
My words were not intended to offend anyone. If they did, I apologize.
I explained that current Pennsylvania statute delineates categories of individuals unable to obtain a marriage license. As an example, I cited siblings as one such category, which is clearly defined in state law. My intent was to provide an example of these categories.
The constitutional question is now before a federal court and that is the venue in which same-sex couples wishing to legally marry have standing to intervene and be heard. Same-sex marriage is an important issue and the question of its legal status is one that will be heard and decided upon its merits, with respect and compassion shown to all sides. Corbett was speaking about gay marriage on Friday morning when an anchor on WHP-TV in Harrisburg asked about a statement his lawyers made in a recent court filing, comparing the marriage of gay couples to the marriage of children because neither can legally marry in the state, The Associated Press reported. "It was an inappropriate analogy, you know," Corbett said. "I think a much better analogy would have been brother and sister, don't you?" In August, administration attorneys said in a court filing that same-sex marriages were no more valid than a marriage between two 12-year-olds because state law bans both unions.
http://blog.pennlive.com/capitol-notebook//print.html?entry=/2013/10/corbett_apologize... Monday, October 21, 2013
Corbett later rejected that analogy, saying the case revolved around the question of whether a public official had "the authority to disregard state law based on his own personal legal opinion about the constitutionality of a statute," the Associated Press reported.
2013 PennLive.com. All rights reserved.
http://blog.pennlive.com/capitol-notebook//print.html?entry=/2013/10/corbett_apologize... Monday, October 21, 2013
EXHIBIT B
EXHIBIT C
Case 1:13-cv-01861-JEJ Document 54-2 Filed 10/21/13 Corbett: Lawyers used "inappropriate analogy" on gay marriage, 2013 WLNR 21620172
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8/30/13 Phila. Inquirer (Pg. Unavail. Online) 2013 WLNR 21620172 Philadelphia Inquirer, The Copyright (c) 2013 The Philadelphia Inquirer August 30, 2013 Corbett: Lawyers used "inappropriate analogy" on gay marriage Aug. 30--HARRISBURG -- Gov. Corbett on Thursday said his attorneys used "an inappropriate analogy" in the latest legal brief in a high-profile same-sex marriage case. Corbett was referring to a brief his office's attorneys filed Wednesday in a lawsuit seeking to halt Montgomery County Register of Wills D. Bruce Hanes from issuing marriage licenses to same-sex couples. In those legal papers, the attorneys argue that "had the clerk issued marriage licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12year-old . . . is entitled to a hearing on the validity of his 'license'?" The analogy quickly garnered headlines, with critics -- including the governor's political opponents -- contending the analogy displayed insensitivity, at best, bias at worst. Nils Hagen-Frederiksen, spokesman for the governor's office of general counsel, which is handling the case for the state, said that Corbett believed the analogy was inappropriate, but that several media outlets, The Inquirer among them, misrepresented the remark. "It was not a commentary on same-sex marriage," he said. "There was no intent to make disparaging statements about any group. It was a reference to the court that there is no other group in Pennsylvania, that is prohibited from marrying, that is allowed to walk into a courtroom and get a marriage license. To take that and turn it into an alleged commentary on same-sex marriage is twisting the nature of that legal filing." A 1996 Pennsylvania law defines marriage as between a man and a woman. Hanes and his supporters have argued that the law is unconstitutional and discriminatory, and they will appear in Commonwealth Court next week to fight it. Since July 24, Hanes has issued 154 marriage licenses to gay and lesbian couples. Thirty-two of the couples have petitioned to intervene in the case, arguing that a ruling against Hanes could also invalidate their marriages. The state filed a brief Wednesday opposing the couples' participation, arguing that their marriage licenses hold no "actual value or legitimacy" and thus have no right to be defended in court. Contact Angela Couloumbis at 717-787-5934 or acouloumbis@phillynews.com, or follow on Twitter @AngelasInk. ___ (c)2013 The Philadelphia Inquirer
2013 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:13-cv-01861-JEJ Document 54-2 Filed 10/21/13 Corbett: Lawyers used "inappropriate analogy" on gay marriage, 2013 WLNR 21620172
Visit The Philadelphia Inquirer at www.philly.com Distributed by MCT Information Services
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---- Index References ---News Subject: (Divorces (1DI23); Gay & Lesbian Issues (1GA65); Health & Family (1HE30); Human Sexuality (1HU27); Legal (1LE33); Personal & Family Law (1PE02); Social Issues (1SO05)) Region: (Americas (1AM92); North America (1NO39); Pennsylvania (1PE71); U.S. Mid-Atlantic Region (1MI18); USA (1US73)) Language: EN Other Indexing: (D. Bruce Hanes; Nils Hagen-Frederiksen; Corbett) Word Count: 373
End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works.
2013 Thomson Reuters. No claim to original U.S. Government Works.
EXHIBIT D
EXHIBIT E

Volume 25 Issue 1
Spring 2010
Newsletter of the Pennsylvania Catholic Conference
IEWPOINT
Pennsylvania Primary Election May 18, 2010
here is a crowded field of candidates for U.S. Senator, governor and lieutenant governor in Pennsylvanias Democratic and Republican primary elections. The Pennsylvania Catholic Conference (PCC) sent a questionnaire to the candidates to survey their positions on key issues that are important to Catholics. The responses of the candidates for U.S. Senator and governor are inside this issue of Viewpoint. Responses from the candidates for lieutenant governor as well as the full responses of the candidates for senate and governor are available online at www.pacatholic.org/faith-politics.
CANDIDATES FOR U.S. SENATOR Democrats Joe Sestak Peg Luksik Republicans
+
Arlen Specter Democrats Dan Onorato
+
Pat Toomey Republicans
CANDIDATES FOR PENNSYLVANIA GOVERNOR Anthony Hardy Williams Tom Corbett
+
Jack Wagner
+
Joseph M. Hoeffel
+
Samuel E. Rohrer
CANDIDATES FOR PENNSYLVANIA LIEUTENANT GOVERNOR Democrats Doris A. Smith-Ribner Steve Johnson Republicans Billy McCue
+
H. Scott Conklin
+
Jean Craig Pepper
+
John Kennedy
+
Jonathan A. Saidel
+
Russ Diamond
+
Stephen A. Urban
+
Chet Beiler
Look up your polling place at
+
Daryl Metcalfe
www.votespa.com
+
Jim Cawley 1
CANDIDATE RESPONSES - U.S. SENATOR

Do you support or oppose the use of taxpayer funds to pay for abortion? What is your position on providing a federal tax credit to businesses that donate to scholarship organizations that provide scholarships for low-income students at private and religious schools in grades kindergarten through 12? SESTAK SPECTER DEMOCRATS Did not respond OPPOSE
What is the PCC?

The Pennsylvania Catholic Conference is the public affairs arm of Pennsylvanias Catholic bishops and the Catholic dioceses of Pennsylvania. There are 10 Catholic dioceses in the Commonwealth of Pennsylvania. Eight are Latin Rite dioceses, fully contained within the Commonwealth. Two are Byzantine Rite dioceses with Apostolic Sees in Philadelphia and Pittsburgh. Dr. Robert J. OHara EXECUTIVE DIRECTOR rjoh@pacatholic.org Francis J. Viglietta DIRECTOR OF SOCIAL CONCERNS fjv@pacatholic.org Sean P. McAleer DIRECTOR OF EDUCATION smcaleer@pacatholic.org Sr. Clare Christi Schiefer, OSF PRESIDENT, PCHA srccs@pacatholic.org Amy B. Hill, APR DIRECTOR OF COMMUNICATIONS abhill@pacatholic.org
SESTAK SPECTER
DEMOCRATS Did not respond OPPOSE
REPUBLICANS LUKSIK OPPOSE* * Oppose abortion - period TOOMEY OPPOSE Do you support or oppose legislation to prevent federal agencies and states that receive federal funds from discriminating against health care providers who do not perform or participate in abortions (HydeWeldon Amendment)? SESTAK SPECTER DEMOCRATS Did not respond OPPOSE
REPUBLICANS LUKSIK SUPPORT TOOMEY Did not indicate* * I have been a long-term supporter of PAs EITC Program that is very similar. Will you support or oppose significant annual increases in poverty-focused development assistance to reduce global poverty and increase the percentage of gross domestic product (GDP) contributed in foreign aid? SESTAK SPECTER DEMOCRATS Did not respond SUPPORT
REPUBLICANS LUKSIK SUPPORT* * Support conscience clause provisions for agencies and workers. TOOMEY SUPPORT Do you support or oppose legislation to continue and expand current federal laws that provide educational benefits to students and teachers in private and religious schools on an equitable basis in comparison to the benefits received by public school students and teachers? DEMOCRATS SESTAK Did not respond SPECTER OPPOSE* * I have concerns about the constitutional separation of church and state. REPUBLICANS LUKSIK Did not indicate* * Support ending federal role in education. If federal govt is involved, there should be no discrimination against non-government schools TOOMEY SUPPORT* * I have been a long-term advocate for expanding parents choice in schools through different funding mechanism.
REPUBLICANS LUKSIK OPPOSE* * We have a federal debt of over $12 trillion dollars. We need to decrease federal spending, not pledge to spend more. TOOMEY OPPOSE* * Our perilous budget situation does not allow for this. Do you support or oppose legislation to increase aid for refugees who are fleeing from persecution abroad and to provide adequate funding for the U.S. refugee admissions program? SESTAK SPECTER DEMOCRATS Did not respond SUPPORT
REPUBLICANS LUKSIK Did not indicate* * Support appropriate asylum for those fleeing persecution. TOOMEY Did not indicate* * I support aid for refugees fleeing persecution, but I dont know if an increase in aid is necessary at this time.
Indicate your position on this statement: The government should assume financial responsibility for providing affordable, accessible health care for the uninsured. SESTAK SPECTER DEMOCRATS Did not respond SUPPORT
Do you support or oppose overturning the federal Defense of Marriage Act (DOMA)? SESTAK SPECTER LUKSIK TOOMEY DEMOCRATS Did not respond SUPPORT REPUBLICANS OPPOSE OPPOSE
REPUBLICANS LUKSIK Did not indicate* * Do not support concept that everyone has a right to have someone else pay for their health care. There is a place for state government to assist; however socialized medicine is a proven failure. TOOMEY Did not indicate* * I support helping those who are unable to help themselves. Those who are capable of supporting themselves should do so. Do you support or oppose embryonic stem cell research? DEMOCRATS SESTAK Did not respond SPECTER SUPPORT LUKSIK TOOMEY REPUBLICANS OPPOSE OPPOSE
Do you support or oppose legislation that would permit undocumented immigrants who have lived in the United States for a number of years, have worked and built equities in our country, and who do not have criminal records to register with the government and take steps to earn legal status? SESTAK SPECTER DEMOCRATS Did not respond SUPPORT
Do you support or oppose legislation that would guarantee comprehensive freedom of conscience for health care providers and health care institutions? SESTAK SPECTER LUKSIK TOOMEY DEMOCRATS Did not respond OPPOSE REPUBLICANS SUPPORT SUPPORT
REPUBLICANS LUKSIK OPPOSE* * Do not support rewarding illegal activity with citizenship; do support addressing immigration issues by closing borders, removing incentives; and addressing those already here with a plan. TOOMEY OPPOSE* * I support higher levels of legal immigration but oppose granting legal status to those who have broken our laws. Do you support or oppose legislation that would expedite the issuance of permanent visas for immediate family members, such as children, siblings, and spouses, of U.S. citizens and U.S. permanent residents? SESTAK SPECTER DEMOCRATS Did not respond SUPPORT
Do you support or oppose efforts to pass legislation that would make sexual orientation and gender identity or expression protected classes equivalent to other protected classes (e.g., race, religion, sex, etc.)? SESTAK SPECTER LUKSIK TOOMEY DEMOCRATS Did not respond SUPPORT REPUBLICANS OPPOSE OPPOSE
REPUBLICANS LUKSIK Did not indicate* * Cannot give a blanket answer to what should be a case-by-case decision. TOOMEY Did not indicate* * I would support this in some cases, but it must be done in a way that respects the rule of law and protects the security of our country.
CANDIDATE RESPONSES - PA GOVERNOR

Which statement reflects your position most accurately? a. b. c. d. I do not oppose legalized abortion. I oppose legalized abortion in all circumstances. I oppose legalized abortion, except when the life of the mother is in danger. I oppose legalized abortion, except when the life of the mother is in danger or the pregnancy is a result of rape or incest. What is your position on legislation that would provide direct grants to parents to choose the schools that they believe are best suited for their children, including nonpublic schools? DEMOCRATS ONORATO Did not indicate* * I support, and would expand, the Educational Improvement Tax Credit. WAGNER Did not indicate* * I have always been open-minded about new and innovative ways to strengthen the quality of education. I voted for both the Charter School Law and the Educational Improvement Tax Credit Program. I would want to review the details of this legislation. WILLIAMS Did not respond HOEFFEL OPPOSE* * I believe public money should be spent on public schools. REPUBLICANS CORBETT SUPPORT* * I favor the EITC and promotion of greater educational options. ROHRER Did not respond Do you support or oppose embryonic stem cell research? DEMOCRATS ONORATO Did not indicate* * I oppose the creation of embryos for stem cell research. WAGNER OPPOSE* * Oppose generally, but I would want to review the details of such legislation. WILLIAMS Did not respond HOEFFEL SUPPORT REPUBLICANS CORBETT OPPOSE* * Promising research can be pursued without creating or destroying embryos. ROHRER Did not respond
DEMOCRATS ONORATO Did not indicate* * As governor, I would support Pennsylvanias current law. WAGNER d.* * If Roe v. Wade were overturned and the decision to protect unborn human life were returned to the states, I would support a state law to protect unborn children with an exception to protect the life of the mother. It is likely that any law passed by the General Assembly would also include exceptions for the cases of rape or incest; I would support such a law. WILLIAMS Did not respond HOEFFEL a.* * I trust women to make their own personal, private decisions regarding reproductive health issues. CORBETT ROHRER REPUBLICANS d. Did not respond
What is your position on providing annual cost of living increases for low-income Pennsylvanians receiving cash assistance grants? DEMOCRATS ONORATO Did not indicate* * I would support COLAs if the states financial condition allows. WAGNER Did not indicate* * Support, if such increases are both necessary and fiscally responsible. WILLIAMS Did not respond HOEFFEL SUPPORT REPUBLICANS CORBETT SUPPORT* * I would prefer to promote financial independence through economic recovery. ROHRER Did not respond
What is your position on amending the Pennsylvania Constitution to define marriage as the union between one man and one woman? ONORATO * I support definition. WAGNER * I voted for WILLIAMS HOEFFEL * I support couples. DEMOCRATS OPPOSE* the current law, which includes this Did not indicate* Act 124 of 1996 as a State Senator. Did not respond OPPOSE* full marriage equality for same-sex
WILLIAMS Did not respond HOEFFEL SUPPORT* * I support the death penalty only for murders that were pre-meditated. REPUBLICANS CORBETT SUPPORT* * Its needed as a disincentive and penalty for heinous crimes. ROHRER Did not respond What is your position on restoring state funding to the Supplemental Security Income (SSI) program for the aged, blind and disabled Pennsylvanians? DEMOCRATS ONORATO Did not indicate* * I support this restoration once the states financial condition allows. WAGNER SUPPORT WILLIAMS Did not respond HOEFFEL SUPPORT REPUBLICANS CORBETT SUPPORT* * Supporting targeted populations should be prioritized while reducing overall spending. ROHRER Did not respond What is your position on legislation requiring employers to provide employee benefits to which they are morally opposed, for example, mandating coverage for contraceptives or benefits to same-sex partners of employees? DEMOCRATS ONORATO Did not indicate* * I would consider on a case-by-case basis with religious exemptions. WAGNER Did not indicate* * I generally believe that employers should make these decisions. I would want to see the details of such legislation. WILLIAMS Did not respond HOEFFEL SUPPORT CORBETT * I oppose conscience of ROHRER REPUBLICANS OPPOSE* mandates contrary to the moral employers. Did not respond
REPUBLICANS CORBETT SUPPORT* * Constitutional amendment would help safeguard marriage against an alternative agenda. ROHRER Did not respond Do you support or oppose legislation that would add state restrictions to existing federal prohibitions concerning the hiring of undocumented immigrants or the provision of healthcare or government services to the undocumented? DEMOCRATS ONORATO Did not indicate* * This issue is best addressed at the federal level. WAGNER Did not indicate* * These issues will generally be decided at the federal level. I am open-minded about these issues at the state level and would want to see the details of such legislation. WILLIAMS Did not respond HOEFFEL OPPOSE REPUBLICANS CORBETT SUPPORT* * Pennsylvania has a responsibility to ensure eligibility of all participants. ROHRER Did not respond What is your position on the death penalty in Pennsylvania? DEMOCRATS ONORATO SUPPORT WAGNER SUPPORT* * I am open-minded to finding ways to validate the process of how the death penalty is applied, such as DNA testing.
CANDIDATE RESPONSES - PA GOVERNOR (continued)

Which statement reflects your position most accurately? a. Religious childcare and pre-kindergarten providers should be subject to government review of educational content. Religious childcare and pre-kindergarten providers should follow state standards for health and safety of children, but be free to determine their own educational content based on the teachings of their faith tradition. What is your position on legislation that forces health care providers to provide, pay for or refer for services contrary to their conscience for moral or religious reasons? DEMOCRATS ONORATO Did not indicate* * We should protect both religious institutions and patient rights. WAGNER OPPOSE WILLIAMS Did not respond HOEFFEL OPPOSE REPUBLICANS CORBETT OPPOSE* * I support safeguarding the moral conscience of Pennsylvanias healthcare providers. ROHRER Did not respond Do you support or oppose increased funding for Educational Improvement Tax Credits (EITC) if the state budget includes an increase in public school funding? DEMOCRATS ONORATO SUPPORT* * I support an increase if the states financial condition allows. WAGNER SUPPORT* * As long as both sets of increases are fiscally responsible. I voted to create the Educational Improvement Tax Credit Program and, later, to expand and increase funding to the program. WILLIAMS Did not respond HOEFFEL SUPPORT REPUBLICANS CORBETT SUPPORT* * EITC is crucial to preserve an array of educational options. ROHRER Did not respond
b.
Religious childcare and pre-kindergarten providers should be free from government regulation. DEMOCRATS ONORATO b. WAGNER b. WILLIAMS Did not respond HOEFFEL b. REPUBLICANS CORBETT c.* * Providers should develop services appropriate for their faith and community. ROHRER Did not respond Indicate your position on this statement: The government should assume financial responsibility for providing affordable, accessible health care for the uninsured. DEMOCRATS ONORATO Did not indicate* * The national government should ensure access to quality affordable healthcare. WAGNER Did not indicate* * I am open-minded to any proposal to expand access to health care for the uninsured in a fiscally responsible way. I would want to review the details of such legislation, which may be unnecessary in light of the recently enacted federal health care reform law. WILLIAMS Did not respond HOEFFEL SUPPORT* * I support establishing a single-payer system modeled on Medicare to provide health care for all Pennsylvanians. REPUBLICANS CORBETT OPPOSE* * I oppose public option but support greater access to healthcare. ROHRER Did not respond
c.
CANDIDATES FOR LIEUTENANT GOVERNOR

Space constraints did not allow PCC to print the responses of the candidates for lieutenant governor in Viewpoint. Complete responses are available online on PCCs website:
www.pacatholic.org/faith-politics 6
Legislative Review
The PCC supports the following legislation: Social Concerns Department House Bill 1968 Access to Adoption Records - This bill would establish procedures for the disclosure of information regarding adoption without endangering the identity of any of the parties involved. It would require certain procedures for the storage and maintenance of attorney or agency records in adoption.
Pennsylvania Catholic Health Association Senate Bill 190 Childrens Health InsuranceProgram (CHIP) - This bill would extend the Childrens Health Insurance Program (CHIP) through December 31, 2015. NOTE: A different bill (SB 237) was amended to extend CHIP to 2013. It was signed into law on March 22, 2010. PCHA supported this alternative legisilation. The PCC opposes the following legislation: Social Concerns Department House Bill 1978 Privacy of birth parents in adoption - This bill would drastically change protections found under current law for the privacy of birth parents in an adoption. The bill does not allow a birth mother to veto the release of birth certificate information.
Education Department State Budget Educational Improvement Tax Credit (EITC) cuts - Last year, the EITC program was cut $15 million. It is scheduled for another $10 million cut in this years budget. PCC is lobbying to restore EITC to its original funding of $75 million.
Pennsylvania Catholic Health Association Senate Bill 1175 House Bill 2192 Purely Public Charity Act - These bills seek to amend the Act to impose essential service fees on tax-exempt properties owned by institutions of purely public charity. joesestak.com specter2010.com pegluksik.com toomeyforsenate.com voteonorato.com jackwagner.org williams4governor.com joehoeffel2010.com tomcorbettforgovernor.com samrohrer.org paforsaidel.com scottconklin.net smithribnerforlieutenantgovernor.com billymccue.com cawleyforlg.com stevejohnson2010.com electsteveurban.com kennedyforlg.com votechet.com pepper2010.com russdiamond.org darylmetcalfe.com
Online Election Resources

www.pacatholic.org/faith-politics www.votespa.com
Viewpoint is published by the Pennsylvania Catholic Conference, the public affairs agency of Pennsylvanias Catholic bishops. For more information, contact Amy B. Hill, APR, editor, at (717) 238-9613 or email at abhill@pacatholic.org. Visit our website at www.pacatholic.org.
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EXHIBIT F
Marriage equality is still a heavy lift in Pennsylvania | PA Independent Case 1:13-cv-01861-JEJ Document 54-2 Filed 10/21/13 Page 32 of 49
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News
June 27, 2013 | By Eric Boehm | Posted in Legislature
Marriage equality is still a heavy lift in Pennsylvania

By Gary Joseph Wilson | PA Independent HARRISBURG Gay marriage may be coming to courthouse or church near you, but the timetable for such is uncertain.
EQUALITY EVENTUALLY: Frankel suspects gay marriage http://paindependent.com/2013/06/marriage-equality-is-still-a-heavy-lift-in-pennsylvania/ 9/27/2013
Marriage equality is still a heavy lift in Pennsylvania | PA Independent 1:13-cv-01861-JEJ Document 54-2 Filed 10/21/13 Page 33 of 49 will eventually beCase legal in Pennyslvania.
Page 2 of 4
State Rep. Dan Frankel, D-Allegheny, on Wednesday said gay marriage eventually will be legal in Pennsylvania. Frankels prediction came just hours after the U.S. Supreme Court delivered gay rights advocates their biggest court victory in history. The courts rulings in two cases placed the subject firmly in the Keystone States consciousness. Gay rights advocates say are hopeful the increased media attention will further their cause. But marriage equality is still a heavy lift in Pennsylvania, according to Frankel. The representative urged advocates to work for civil rights protections, which gay people lack under Pennsylvania law. Frankel was cautious about the timeline for marriage equality, saying the state will be late to the game, as we are in many of these progressive issues but that at some point in time, there will be marriage equality in Pennsylvania. I think the Supreme Court decision just energizes those of us who that this is something we ought to be moving forward on, Frankel said. But as far as the politics of legalizing gay marriage go, heavy lift may be an understatement, said Terry Madonna, a pollster and professor of political science at Franklin and Marshall College. Madonna said he suspects the Supreme Court will rule on statewide bans of gay marriage before the Pennsylvania Legislature addresses the issue. A Franklin and Marshall poll taken in May showed 54 percent of state voters polled support gay marriage. Pollsters talked to 526 registered voters for the survey, which has a margin of error of plus or minus 4.3 percent. Madonna cited this poll as evidence voters are ahead of lawmakers on the issue. The two rulings Wednesday also may suggest the Supreme Court is ahead of lawmakers on the issue as well.
In the first case, the Court struck down the Defense of Marriage Act by a 5-4 vote. The Defense of Marriage Act required the federal government to withhold any marriage benefits, such as tax breaks, from legally married same-sex couples. http://paindependent.com/2013/06/marriage-equality-is-still-a-heavy-lift-in-pennsylvania/ 9/27/2013
Marriage equality is still a heavy lift in Pennsylvania | PA Independent Case 1:13-cv-01861-JEJ Document 54-2 Filed 10/21/13 Page 34 of 49
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FOREVER ALONE: Rep. Sims, the states first openly gay lawmaker to be elected, can not marry in Pennsylvania. In the second case, the Court was tasked with determining if the 14th amendment prevents states from defining marriage as a union between a man and a woman. The justices declined to rule definitively on the matter. However, as a practical result of the ruling, marriage equality was affirmed in California but not nationwide. The two rulings were met with widespread acclaim across the country, but will have little practical effect on Pennsylvania residents. Gov. Tom Corbett and the Republican majorities in the General Assembly do not figure to move quickly towards changing the rules for marriage in Pennsylvania. In an email, Janet Kelley, a spokeswoman for Corbett said the courts ruling clearly supports the power of states to regulate domestic relations issues such as marriage and that the governor supports Pennsylvania law on marriage which is plainly defined as one man and one woman taking each other as for husband and wife. State Rep. Brian Sims, D-Philadelphia, the first openly gay lawmaker elected to Pennsylvanias General Assembly, hailed the ruling for recognizing the validity and dignity of thousands of Pennsylvanians relationships. The Supreme Court has spelled out in no uncertain terms that the LGBT community is deserving of respect under the law and that when legislatures use state law to punish and discriminate against LGBT people, those laws will be found unconstitutional, he said. Wilson can be reached at Gary@PAIndependent.com and follow @PAIndependent on Twitter for more. Be Sociable, Share!
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Eric Boehm is a reporter for PA Independent. He can be reached at Eric@PAIndependent.com or at (717) 350-0963. View all posts by Eric Boehm Report Tips and Leads
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EXHIBIT G
EXHIBIT H
Case Case 1:13-cv-01861-JEJ 5:04-cv-01152-C Document Document54-2 20 Filed Filed 12/07/04 10/21/13 Page Page 1 40 of 10 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ) ) Plaintiffs, ) ) vs. ) ) DREW EDMONDSON, in his official ) capacity as Attorney General of Oklahoma; ) and BRAD HENRY, in his official capacity ) as Governor of Oklahoma, ) ) Defendants. ) ORDER Plaintiffs have sued Oklahomas governor, Brad Henry (Henry), and attorney general, Drew Edmondson (Edmondson), to enjoin their enforcement of Oklahomas Adoption Code, which prohibits the state, its agencies, or its courts from recognizing out-of-state adoptions by same-sex couples. Defendants have moved for dismissal, claiming that they are protected from suit by Eleventh Amendment immunity. The Court disagrees. Because the Plaintiffs are seeking prospective equitable relief from state officials for alleged violations of federal law, Defendants are not shielded from suit by the Eleventh Amendment. Therefore, Defendants motion to dismiss (Dkt. No. 13) is denied. BACKGROUND On May 3, 2004, the Oklahoma legislature amended Oklahomas Adoption Code to prevent the state from recognizing an adoption by more than one individual of the same sex from any other state or foreign jurisdiction. 10 Okla. Stat. 7502-1.4. Plaintiffs allege that the Adoption Code was amended in response to an Opinion issued by Edmondson concluding HEATHER FINSTUEN, et al.,
No. CIV-04-1152-C
that the U.S. Constitution and Oklahoma law required an Oklahoma agency to recognize adoption decrees issued by other states to same-sex couples. See 2004 OK AG 8, 14, 16. As a result, Edmondson concluded that the Oklahoma State Department of Health was required to issue supplementary birth certificates to persons adopted by same-gender parents. Id. Plaintiffs are families composed of children adopted out-of-state by same-sex parents who either now live in or wish to travel to Oklahoma. Collectively, they filed this action challenging the amended statute as unconstitutional under the Full Faith & Credit Clause and the Equal Protection Clause, additionally claiming that the law violates their right to travel freely among the states. Plaintiffs seek a declaration that the newly-enacted provision of the Adoption Code is unconstitutional and request the entry of an injunction barring Edmondson and Henry from enforcing or attempting to enforce the subject provision. DISCUSSION The Court begins by noting what Defendants are not arguing in this motion Defendants are not challenging the justiciability of Plaintiffs claims. Defendants appear specially to argue only that they are protected from suit by the Eleventh Amendment. Generally, the Eleventh Amendment prevents a citizen from suing a state in federal court. U.S. Const. Amend. XI; Hans v. Louisiana, 134 U.S. 1, 13-15 (1890). A suit for money damages against a state official in his official capacity is usually considered a suit against the state and, consequently, is barred by the Eleventh Amendment. See Elephant Butte Irrigation District v. Dept. of the Interior, 160 F.3d 602, 607 (10th Cir. 1998).
2
However, when a plaintiff names a state official as a defendant and seeks only prospective equitable relief for violations of federal law, the Eleventh Amendment does not bar the suit. Ex Parte Young, 209 U.S. 123, 159-60 (1908); id. at 607-08. In reaching the holding in Ex Parte Young, the Supreme Court concluded that state officials have no authority to violate federal law and, thus, the Eleventh Amendment does not shield them from liability. Ex Parte Young, 209 U.S. at 159-60. Ex Parte Young attempts to strike a balance between protecting states sovereignty and holding states responsible for violations of federal law. Frew v. Hawkins, 540 us 431, ___, 124 S.Ct. 899, 903 (2004); see also Erwin Chemerinsky, Federal Jurisdiction 7.1, 7.5.1 (4th ed. 2003). The Ex Parte Young doctrine permits suit against state officers upon satisfaction of a four-part test: (1) the action must be against the state officials and not the state itself; (2) Plaintiffs must have alleged a nonfrivolous violation of federal law; (3) the relief sought must be prospective, equitable relief, rather than compensatory damages or other retroactive monetary relief to be paid from the state treasury; and (4) the suit cannot implicate special sovereignty issues. Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975 (10th Cir. 2001); Elephant Butte, 160 F.3d at 609. If Plaintiffs meet each element of this test, they may proceed against the state officials. Defendants do not specifically address the four-part test articulated by the Tenth Circuit. Defendants arguments, however, appear to challenge whether Plaintiffs have satisfied the first prong of the test is Plaintiffs suit really one against the Defendants as state officials or against the state itself? Defendants argue that they are entitled to immunity because they have not enforced or threatened to enforce the amended statute. According to
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Defendants, until they actually enforce or threaten to enforce the provisions, they are entitled to Eleventh Amendment Immunity. Defendants also argue that they have no duty to enforce the newly-revised statute. Defendants assert that the statute does not contain any procedures for its enforcement and Defendants have no power or duty to enforce the amended statute except for a general duty to uphold the laws of the State of Oklahoma. Defendants contend that this general duty is insufficient to demonstrate that they have any connection to the enforcement of the statute. Defendants arguments are unavailing. Defendants arguments rely primarily on an 1899 case, Fitts v. McGhee, 172 U.S. 516 (1899), and language in Ex Parte Young distinguishing Fitts. In Fitts, railroad companies sued the governor and attorney general of Alabama to challenge a statute fixing the maximum toll rates for crossing the bridges over the Tennessee River. Fitts, 172 U.S. at 516. If toll operators charged too much, the statute permitted the persons over-charged to collect penalties via a private civil action against the operator. Id. The Supreme Court found that the state officials named had no connection to the collection of the penalties and that naming them as parties was simply an effort to test the constitutionality of the statute. Id. at 530. The Court in Ex Parte Young examined Fitts. The Court found that the named officials in Fitts had no connection whatsoever to the alleged unconstitutional act, and, in distinguishing that situation from the one before it in Ex Parte Young, stated that some connection with the enforcement of the unconstitutional act was necessary to make the state officials parties to the suit. Ex Parte Young, 209 U.S. at 157-58. A duty arising out of the
general law was sufficient to establish this connection; it was unnecessary that a duty to enforce stem from the unconstitutional act itself. Id. The Tenth Circuit has not directly addressed the some connection language of Ex Parte Young, although several other circuits have. Defendants cite cases from the Third, Fifth, Sixth, and Ninth Circuits in support of their motion. See 1st Westco Corp. v. School Dist., 6 F.3d 108, 113 (3d Cir. 1993); Okpalobi v. Foster, 244 F.3d 405, 417 (5th Cir. 2001); Childrens Healthcare Is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996); Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992). Although the dicta in these other courts of appeals cases suggests an expansive reading of Ex Parte Young, the actual holdings are fairly narrow and appear inapposite to this case. To the extent these cases purport to expand the holding of Ex Parte Young, the Court finds that they are unpersuasive. The holdings merely reinforce the rather unremarkable rule that you may not name the attorney general or governor as a party to challenge a statute enforced exclusively by either (1) other state officials, or (2) private parties through a private cause of action or, put another way, when the state officials do not have any enforcement connection to the statute. See e.g., Southern Pacific Transp. Co. v. Brown, 651 F.2d 613, 615 (6th Cir. 1980) (holding that under Oregon law, the district attorneys had autonomy from the attorney general and thus, the attorney generals power to advise and direct the district attorneys was insufficient to create an enforcement connection); 1st Westco Corp., 6 F.3d at 113-14 (holding that the attorney general was not a proper party because he had no authority to enforce a law requiring contractors to meet residency requirements before their
5
construction specifications are approved and because the attorney general did not have the duty to provide legal counsel to the school district with the power to enforce the subject law). See also Summit Medical Assoc., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999) (holding that the attorney general did not have any connection to a partial-birth abortion statute that provided for private civil enforcement); accord Okpalobi, 244 F.3d at 422. In each of these cases, then, the Fifth Circuit found the state officials general duty to uphold the law or supervise those enforcing the law was irrelevant because the statute provided for enforcement through other means. As the modified statute does not provide any means for enforcement, but is directed to the state itself, its enforcement falls squarely on the shoulders of these defendants. Governor Henry has both the authority and the duty to enforce the statute. The Oklahoma Constitution provides that the governor shall cause the laws of the State to be faithfully executed. Okla. Const. art. VI 8. According to the amended statute, the state [or] any of its agencies ... shall not recognize an adoption by a same-gender couple. 10 Okla. Stat. 7502-1.4 (emphasis added). Therefore, if Governor Henry faithfully executes this Oklahoma law pursuant to his duty to do so, no state agency will recognize these Plaintiffs as a family and these Plaintiffs could be deprived of all the legal rights and obligations associated with that relationship. See Grimes v. City of Oklahoma City, 2002 OK 47, 11, 49 P.3d 719, 724 (noting that a statute that uses the term [s]hall signifies a mandatory directive or command)
The constitutional duty to faithfully execute Oklahomas laws, coupled with the mandatory language of the amended statute, is sufficient for the Court to conclude that the suit is being brought against Governor Henry as a state official, and not against the state itself. See Harris, 264 F.3d at 1290 (holding that the governors supreme executive power and duty to ensure the faithful execution of the law was sufficient authority to ensure compliance with law and, thus, they could be enjoined under Ex Parte Young); see also Robinson v. Kansas, 295 F.3d 1183, 1191-92 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003) (holding that the governor was a proper party to a suit to enjoin his enforcement of the Kansas School District Finance and Quality Performance Act in violation of the plaintiffs federal rights). The relevant and material fact simply is that Governor Henry, by virtue of his office, has the authority to enforce the amended statute and it does not matter that this authority arose from a general duty imposed on him through the Oklahoma Constitution rather than the amended statute itself. See Ex Parte Young, 209 U.S. at 157.1 Similarly, the attorney general has a duty to: initiate or appear in any action in which the interests of the state or the people of the state are at issue, or to appear at the request of the Governor, the Legislature, or either branch thereof, and prosecute and defend ... any cause or proceeding, civil or criminal, in which the state may be a party or interested.
As noted by Plaintiffs, the governor also has specific and special duties relevant to and dependent upon the legal relationships between parents and their children, such as child support enforcement in abandonment cases, and under the Uniform Interstate Family Support Act. See 21 Okla. Stat. 853, et seq., 43 Okla. Stat. 601, et seq.
1
74 Okla. Stat. 18b(A)(3). The state has an interest in the welfare of its children and defining and enforcing parents legal obligations accordingly. See, e.g., 10 Okla. Stat. 7202 (declaring the states interests in and responsibility to children whose parents fail to fulfill their obligations to provide proper care, supervision, and protection). In fact, Oklahomas attorney general is charged with the specific duty of carrying out the Oklahoma Childrens Code, an act purporting to preserve, unify and strengthen ... family ties by providing expeditious and timely judicial and agency procedures ... [to] protect the health, safety and welfare of allegedly deprived children. 10 Okla. Stat. 7001-1.2 (B), 7002-3.1. In the context of adoption, Oklahoma has declared a strong interest in ensuring that children placed for adoption are raised in stable, loving homes. 10 Okla. Stat. 7501-1.2(8). Additionally, Oklahoma has expressed its interest in [p]romot[ing] and strenthen[ing] the integrity and finality of adoptions. Id. at 7501-1.2(9). Finally, it appears that the state is interested in defining family relationships to exclude units headed by same-sex couples. The Oklahoma legislature passed the amended statute less than two months after Edmondson issued his Opinion concluding that the Department of Health must issue birth certificates with the names of both parents,2 even when both parents are of the same gender. Because the states interests are numerous, the Court concludes that Edmondson has a statutory duty to enforce the amended statute.
Edmondson issued Attorney General Opinion 04-8 on March 19, 2004. 8
Further, the fact that neither Henry nor Edmondson have threatened to enforce the amended statute is irrelevant to the Eleventh Amendment inquiry. According to the Supreme Court, the Ex Parte Young analysis is a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Verizon Maryland, Inc. v. Public Serv. Commn, 535 U.S. 635, 645 (2002) (citation omitted); Winnebago Tribe v. Stovall, 341 F.3d 1202, 1207 (10th Cir. 2003). As this statement is quite clear, the Court declines to read into it any sort of timing requirement or element mandating a threat of enforcement. Of course, this does not mean that timing or the absence of enforcement is irrelevant to this suit; in fact, the converse is true, as timing and the absence of enforcement is likely to be highly relevant. See 17 Charles Alan Wright, et al., Federal Practice and Procedure 4232 (2d ed. 1988) (stating that a plaintiff who has brought his case within the Young doctrine must still overcome the other statutory and court-made barriers to equitable relief). The problems that arise from an unripe controversy, however, are already adequately addressed by the justiciability doctrines, most notably the Article III and prudential ripeness requirements, and standing analysis. See Nova Health Systems. v. Gandy, ___ F.3d ___ (10th Cir. 2004) (discussing the constitutional standing requirements as including an actual or imminent injury suffered by the plaintiff and caused by the named defendants); Natl Audubon Socy, Inc. v. Davis, 307 F.3d 835, 846-47 (9th Cir. 2002) (declining to read a ripeness or imminence requirement into Ex Parte Young). Thus, [t]here is ... no need
Case Case 1:13-cv-01861-JEJ 5:04-cv-01152-C Document 20 54-2Filed Filed 12/07/04 10/21/13Page Page 1049 of of 1049
to strain [the] Ex Parte Young doctrine to serve that purpose.3 Natl Audubon Socy at 847. Indeed, Defendants have expressly reserved their right to challenge Plaintiffs complaint on the basis of the justiciability doctrines, including lack of ripeness and lack of standing (see Defs. Br. 1, n.1). As those issues have not been briefed and are not currently before the Court, the Court declines to speculate as to the potential impact Defendants lack of enforcement will play in that context. CONCLUSION Because the Plaintiffs are seeking prospective relief against state officials for an alleged violation of their federal rights, Defendants are not entitled to Eleventh Amendment immunity. As immunity was the only ground challenged by Defendants, their Motion to Dismiss (Dkt. No. 13) is DENIED. IT IS SO ORDERED this 7th day of December, 2004.
Natl Audubon Socy interprets prior Ninth Circuit law (and that of other circuits) purporting to impose an imminence requirement as simply addressing the question of whether a named state official has direct authority and practical ability to enforce the challenged statute, rather than the question of whether enforcement is imminent. Natl Audubon Socy, 307 F.3d at 846. Ultimately, the question for Eleventh Amendment purposes is who can be sued, not when. Id.
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UNPUBLISHED OPINIONS
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Only the Westlaw citation is currently available
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
ten of their children brought action against Attorney General, Commissioner of the Department of Human Services, and the Commissioner of the Department of Health. The action asserted claims for denial of equal protection under the State and Federal Constitutions, fundamental right to marry, and substantive due process. Holding: The Superior Court, Law Division, Mercer County, Feinberg, A.J.S.C., held that plaintiffs stated claim against defendants on the basis that Civil Union Act violated the Equal Protection Clause of the Fourteenth Amendment. Reconsideration granted and count reinstated. West Headnotes Constitutional Law 92 X3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B)Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Unions. Most Cited Cases Marriage 253 ~~17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In General. Most Cited Cases Lesbian, gay, bi-sexual, and transgender (LGBT) civil rights organization, seven same-sex couples who resided in New Jersey, and ten of their children stated claim against Attorney General, Commissioner of the Department of Human Services, and Commissioner of the Department of Health and Senior Services, on the basis that Civil Union Act violated the Equal Protection Clause of the Fourteenth Amendment by denying them access to marriage and relegating them to a separate and arguably second class status, while not serving any legitimate state interest. U.S.C.A. Const.Amend. 14
Superior Court of New Jersey, Law Division, Mercer County. GARDEN STATE EQUALITY; Daniel Weiss and John Grant; Marsha Shapiro and Louise Walpin; Maureen Kilian and Cindy Meneghin; Sarah KilianMeneghin, aminor, by and through her guardians; Erica and Tevonda Bradshaw; Teverico Barack Hayes Bradshaw, a minor, by and through his guardians; Marcye and Karen NicholsonMcFadden; Kasey NicholsonMcFadden, a minor, by and through his guardians; Maya NicholsonMcFadden, a minor, by and through her guardians; Thomas Davidson and Keith Heimann; Marie Heimann Davidson, a minor, by and through her guardians; Grace Heimann Davidson, a minor, by and through her guardians; Elena and Elizabeth Quinones; Desiree Nicole Rivera, a minor, by and through her guardian; Justine Paige Lisa, a minor, by and through her guardian; Patrick James Roylance, a minor, by and through his guardian; and Eli Quinones, a minor, by and through his guardians, Plaintiffs, v. Paula DOW,in her official capacity as Attorney General of New jersey; Jennifer Velez, in her official capacity as Commissioner of the New Jersey Department of Human Services, and Mary E. O'Dowd, in her official capacity as Commissioner ofthe New Jersey Department of Health and Senior Services, Defendants. Feb. 21, 2012. Background: Lesbian, gay, bi-sexual, and transgender (LGBT) civil rights organization, seven same-sex couples who resided in New Jersey, and
O 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&vr=2.0&destination=atp&sv=Split&mt=... 10/21/2013

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) tion. Furthermore, plaintiffs asserted that thirdparty entities, including insurance companies and private employers, failed to accord benefits to same-sex couples. Both parties moved for summary judgment. On November 5, 2003, this court granted summary judgment in the State's favor and dismissed the complaint. On the record, however, the court referred to pending legislation intended to extend healthcare, insurance coverage, and other benefits to same-sex couples: (1) the "Family Equality Act" that established domestic partnerships which was introduced on June 9, 2003; and (2) an act to establish "Civil Unions" was introduced in 2003 as well. See B. 3743, 210th Leg. (N.J.2003); see also B. 3762, 210th Leg.(N.J.2003). As anticipated, the Legislature adopted the Domestic Partnership Act ("the DPA"), N.J.S.A. 26:8A-1 et seq., effective July 10, 2004. The DPA provided that "all persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples...." N.J.S.A. 26:8A-2. In 2005, a divided panel of the Appellate Division in Lewis v. Harris, 378 N.J.Super. 168, 875 A.2d 259 (App.Div.2005), held the State's marriage statutes did not contravene the substantive due process and equal protection guarantees of the State Constitution. N.J. Coast . art. I, 1. Judge Skillman, writing for the majority, noted that only the Legislature could authorize same-sex marriage. Lewis, supra, 378 N.J.Super. at 194, 875 A.2d 259. Judge Collester, Jr., dissenting, concluded that substantive due process and equal guarantees of Article I, Paragraph 1 obligated the State to afford samesex couples the right to marry on terms equal to those afforded to opposite-sex couples. Id. at 201, 875 A.2d 259. On October 25, 2006, the Supreme Court of New Jersey, in Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006), affirmed in part and modified in part the judgment ofthe Appellate Division. In
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42 U.S.C.A. 1983; N.J.S.A. 37:1-28. Lawrence S. Lustberg and Jonathan Manes, for the plaintiffs (Gibbons, P.C., attorneys; Mr. Lustberg and Mr. Manes, on the joint briefl. Hayley J. Gorenberg, for the plaintiffs, admitted pro hac vice (Lambda Legal, attorneys; Ms. Gorenberg, on the joint briefl. Jeffrey S. Chiesa, Attorney General of New Jersey, for the defendants (complaint named former Attorney General Paula Dow as defendant) Kevin R. Jespersen, Assistant Attorney General, of counsel and on the brief and Jean P. Reilly, Deputy Attorney General, on the brie.
FEINBERG, A.J.S.C. I. BACKGROUND *1 On June 26, 2002, after being denied marriage licenses in their respective jurisdictions, seven same-sex couples (" Lewis plaintiffs"), in permanent committed relationships for more than ten years, filed a complaint in the Superior Court, Law Division, Hudson County. Plaintiffs also sought injunctive relief compelling State officials ("defendants" or "State"), to grant them marriage licenses.FN~ An amended complaint was filed on October 9, 2002 and by consent, on November 22, 2002, venue was transferred to Mercer County. FNi. The named defendants were Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. In challenging the State's denial of marriage licenses, plaintiffs argued they were deprived of statutory protections, benefits, and mutual responsibilities accorded to heterosexual couples in violation of the liberty and equal protection guarantees of Article I, Paragraph l of the New Jersey Constitu-
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Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.))
Lewis, the Court held:
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To comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitutiou, the State must provide to same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual couples. The State can fulfill that constitutional requirement in one of two ways. It can either amended the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage. If the State proceeds with a parallel scheme, it cannot make entry into same-sex civil union any more difficult than it is for heterosexual couples to enter the state of marriage. It may, however, regulate that scheme similarly to marriage and, for instance, restrict civil unions based on age and consanguinity and prohibit polygamous relationships. *2 [Id. at 463, 908 A.2d 196.] The Court's ruling firmly established that samesex couples must be afforded the same rights and benefits enjoyed by opposite-sex couples in civil marriage. The Court determined, however, in the first instance, that it was the Legislature's prerogative to decide whether to open the institution of civil marriage to same-sex couples or to devise a parallel statutory scheme. A parallel statutory scheme, if selected, would be required to provide equal rights and benefits to same-sex couples as those enjoyed by heterosexual couples in civil marriage. Id. at 222-23. In response to the Lewis opinion, the New Jersey Legislature enacted the Civil Union Act. N.J.S.A. 37:1-28 et seq. On March 18, 2010, the Lewis plaintiffs filed a motion in aid of litigant's rights challenging the failure of the Civil Union Act to fulfill the Lewis Court's mandate. The complaint sought an order from the Court to compel the Legislature to open
the institution of civil marriage to same-sex couples. On July 26, 2010, finding that the action should be heard in the Superior Court, the Court denied plaintiffs' motion to enforce litigant's rights, without prejudice. On June 29, 2011, plaintiffs filed afour-count complaint in the Superior Court, Law Division, Mercer County. Plaintiffs are Garden State Equality, an organization with more than 82,000 members, which advocates for lesbian, gay, bi-sexual, and transgender ("LGBT") civil rights, seven samesex couples who reside in New Jersey and ten of their children. Defendants are named in their official capacities based on their respective roles in implementing and enforcing New Jersey's laws: Paula Dow, the Attorney General of the State of New Jersey, Jennifer Velez, the Commissioner of the New Jersey Department of Human Services, and Mary E. O'Dowd, the Commissioner of the New Jersey Department of Health and Senior Services. Counts one through four, respectively, assert a denial of equal protection under Article I, Paragraph 1 of the New Jersey Constitution; a denial of the fundamental right to marry under Article I, Paragraph 1 of the New Jersey Constitution; a denial of equal protection under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. 1983; and a denial of substantive due process under the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. 1983. On August 10, 2011, defendants filed a motion to dismiss the complaint. On November 29, 2011, the court denied the motion to dismiss count one and granted the motion to dismiss counts two, three and four.F"z FN2. The court heard oral argument on November 4,2011. On December 19, 2011, plaintiffs filed a mo-

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) tion for reconsideration to reinstate count three of the complaint. The State filed opposition and plaintiffs filed a reply. Plaintiffs assert: (1) under Section 1983 it is not necessary to demonstrate that the right at issue is "well-established" or the existence of a fundamental right to same-sex marriage; (2) the court overlooked its role in enforcing Federal Constitutional Rights; (3) other courts have considered challenges to discriminatory state marriage practices based on Federal Constitutional grounds; and (4) the interests of justice warrant permitting plaintiffs to develop a full record for appellate review. *3 In opposition to the motion for reconsideration, the State argues: (1) the Supreme Court's dismissal of the appeal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), establishes that a state statute limiting marriage to heterosexual couples does not violate the Federal Equal Protection Clause; (2) this court must apply a rational basis test in evaluating the Federal Equal Protection claim because there is no fundamental right or suspect/quasi-suspect classification; (3) the limitation of the designation of "marriage" to heterosexual couples satisfies the rational basis test and is valid under the Federal Equal Protection Clause; and (4) the Federal Equal Protection claim fails in the absence of state action. On January 30, 2012, the plaintiffs filed a reply. Plaintiffs argue: (1) Baker v. Nelson is not binding on their Federal Equal Protection claim; (2) heightened scrutiny applies to the Federal Equal Protection claim since sexual orientation is considered asuspect class; (3) heightened scrutiny applies to the Equal Protection claim because prohibiting same-sex couples from marrying also constitutes discrimination based on sex; (4) even based under a rational basis test, the Civil Union Act cannot survive as a matter of federal law; and (5) the State action alleged is sufficient to maintain a cause of action. Without objection from the State, the court permiffed plaintiffs to file a supplemental letter brief, dated February 10, 2012. The letter brief addresses the decision by the Ninth Circuit in Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7.2012). Plaintiffs assert the reasoning in Perry, despite its reference to specific circumstances present in California, supports their claim under the Federal Equal Protection clause.FN3 FN3. Consistent with this court's prior practice, the court provided counsel with a tentative decision the week before the return date. Counsel elected to waive oral argument. 2 ANALYSIS Rule 4:49-2 provides "a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." R. 4:49-2. The "motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Ibid.
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"Reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice". Cummings v. Bahr, 295 N.J.Super. 374, 384, 685 A.2d 60 (App.Div.1996) (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401, 576 A.2d 957 (Ch.Div.1990)). In order to succeed, alitigant on a motion for reconsideration is required to establish that the court expressed its decision on a "palpably incorrect or irrational basis," or did not properly consider "probative, competent evidence." D'Atria, supra, 242 N.J.Super. at 401, 576 A.2d 957. "Alternatively, if a litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application, the [c]ourt should, in the interest of justice (and in the exercise of sound discretion), consider

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the [c]ourt must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration." Cummings, supra, 295 N.J.Super. at 384, 685 A.2d 60 (quoting D'Atria, supra, 242 N.J.Super. at 401-02, 576 A.2d 957). *4 As a preliminary matter, here, the parties dispute whether Baker v. Nelson, supra, 409 U.S. at 810 is binding. For the reasons set forth herein, it is not. In Baker v. Nelson, 291 Minn. 310, 191 N. W.2d 185 (Minn.1971), two adult male residents of Hennepin County, Minnesota, sought and were denied a marriage license by the county clerk. Plaintiffs challenged a Minnesota statute which declared a lawful marriage to be only between "persons of the opposite- sex" under both the Equal Protection and Due Process guarantees of the Federal Constitution. FNa jbid. FN4. While plaintiffs challenged the statute under the First and Eighth Amendments, the claims were dismissed by the trial court. The Minnesota Supreme Court held the State's laws prohibiting same-sex marriage did not violate the Equal Protection Clause of the Fourteenth Amendment. Baker, supra, 191 N. W.2d at 187. The decision was appealed to the United States Supreme Court. The Supreme Court dismissed the appeal for want of a substantial federal question. Baker v. Nelson, supra, 409 U.S. at 810. F"s FNS. Until 1988, the Supreme Court had mandatory appellate jurisdiction under 28 U.S.C. 1257(2) which was repealed. A dismissal for want of a substantial federal question is a decision on the merits that is binding on lower courts. Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). "The scope of the rule is narrow ... It is diapositive only of `the specific challenges presented in the statement of jurisdiction.' "Smelt v. County of Orange, 374 F.S~pp.2d 861, 872 (C.D.Ca1.2005) (citing Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam)), affd in part and vacated in part, 447 F.3cl 673 (9th Cir.Cal .2006). "It prevents lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by the dismissal, but it does not affirm the reasoning or the opinion of the lower court whose judgment is appealed." Id. at 872 (internal quotations omitted). "It remains a decision on the merits of the precise questions presented èxcept when doctrinal developments indicate otherwise.' "Hicks, supra, 422 U.S. at 344 (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 260 n. 3 (2d Cir.1967)). Baker was decided forty years ago and both doctrinal and societal developments since Baker indicate that it has sustained serious erosion. The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently which indicate that the issue of denying same-sex couples access to the institution considered be would not of marriage "unsubstantial" today. One such development was the Supreme Court's invalidation of anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). While Loving was decided a decade before Baker, Loving is significant when considered in its historical context. In Loving, the court considered whether a statutory scheme adopted by the Virginia Legislature to prevent marriages between persons solely based on racial classifications violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court concluded that "[t]here can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Loving,
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supra, 388 U.S. at 1823.
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*5 Today, a state law limiting an individual's right to marry based on racial classifications is patently repugnant to the Federal Constitution. However, at the time Loving was decided, the United State Supreme Court had never addressed whether a statute limiting marriages solely on the basis of race would be impermissible. For decades, many people considered marriage to be appropriately between persons of the same race. While surprising by today's standards, nonetheless, it took many years for the court to render a decision invalidating these laws based on the Federal Equal Protection Clause. We are now at a point in history where samesex couples face similar challenges. Courts are now presented with a new type of classification, namely, sexual orientation. Clearly, the denial of the title of marriage to same-sex couples' relationships has been likened by courts and scholars to other forms of discrimination once considered to be appropriate. As one scholar noted: Just as the official separation of races was a stimulant to racial prejudice and the denial of equal educational opportunities to women hinged on the message of inferiority, the official segregation of married heterosexual couples and civilly united same-sex couples smacks of discrimination founded upon traditional intolerance. [Matthew K. Yan, "What's In A Name?" Why The New Jersey Equal Protection GuaYantee Regzfires Full Recognition of SameSex Marriage, 17 B. U. Pub. Int. L.J., 179, 195 (2007) (internal quotations omitted).] This scholar's comment illustrates yet another form of discrimination once considered conventional; discrimination based on sex. Another development contemporaneous with Baker was the United States Supreme Court's inclusion of classifications based on sex with those sub-
ject to heightened judicial scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). The question before the Court in Frontiero concerned the right of a female member of the uniformed services to claim her spouse as a "dependant' for the purpose of receiving certain benefits. While a serviceman could, at the time, claim his wife as a dependant, a servicewoman could not claim her husband as a dependant for the same purpose. Under a heightened scrutiny review, the Court found that this different treatment constituted unconstitutional discrimination under the Due Process Clause of the Fifth Amendment. Frontiero, supra, 411 U.S. at 678. Even though it dealt with a different classification, Frontiero, like Loving, is relevant in its historical context. The Court noted in Frontiero that "our Nation has had a long and unfortunate history of sex discrimination...." Frontiero, supra, 411 U.S. at 684. Further, the Court stated that American "statute books ... [are] laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes." Id. at 685. Even though it was once common place, today, the idea that "[m]an is, or should be, woman's protector and defender" is cliched. Id. at 684 (internal quotations omitted). *6 Quite simply, Baker has been undermined subsequent Supreme Court precedent, most notby ably the Court's decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) and Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In Romer the court faced a challenge to "Amendment 2" to the Constitution of the State of Colorado .which prohibited "all legislative, executive or judicial action at any level of state or local government designed to protect ... homosexual persons or gays and lesbians." Id. at 624. The Court found that Amendment 2 violated the Equal Protection Clause of the Federal Consti-

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) tution. The Court stated that it is not "within our constitutional tradition to enact laws ... singling out a certain class of citizens for disfavored legal status or general hardships ..." Id. at 634. The Supreme Court concluded that "Amendment 2 classifies homosexuals not to further a proper legislative purpose but to make them unequal to everyone else." Id. at 636. Even more recently, the Court decided Lawrence, supra, 539 U.S. at 558. In Lawrence, the question before the Court was the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Id. at 562. The Court concluded that petitioners were free as adults to engage in private conduct in the exercise of liberty under the Due Process Clause ofthe Fourteenth Amendment. Id. at 564. The Court placed its decision in Lawrence in context of the long history of discrimination that lesbians and gay men have endured in this country. Importantly, the Court noted that the very concept of "the homosexual as a distinct category of person did not emerge until the late 19th century." Lawrence, supra, 539 U.S. at 568. Perhaps that is why it "was not until the 1970's that any State singled out same-sex relations for criminal prosecution ..." because same-sex relationships were not occurring in the public arena. See Lawrence, supra, 539 U.S. at 570. The Lawrence Court recognized that while "[fjor centuries there have been powerful voices to condemn homosexual conduct as immoral ... [the Court's] obligation is to define the liberty of all, not to mandate [its] own moral code." Id. at 570. It was succinctly stated by the Supreme Court of California in In Re Marriage Cases, 43 Ca1.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (Ca1.2008) that: [E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions. as constitutionally equal treatment. *7[ Id. at 853-854, 76 Ca1.Rptr.3d 683, 183 P.3d 384]. The Baker case was brought at a time when "the history of systemic and harsh discrimination against lesbians and gay men had barely been challenged." Bennett Klein and Daniel Redman, Commenting: From Separate to Egual: Litigating Marriage Equality in a Civil Union State, 41 Conn. L.Rev. 1381, 1385 (2009). As late as 1971, "no state even prohibited discrimination on the basis of sexual orientation in basic aspects of life such as employment and housing ... and the lives of lesbians and gay men were largely invisible in the nation's courts." Ibid. Incredibly, until the 1970s, much of the mental health community still regarded lesbians and gay men as mentally ill. Klein, supra, 41 Conn. L.Rev. at 1395. Lesbians and gay men still face widespread discrimination and are "among the most frequent victims of hate crimes." Ibid. Fortunately, the position of gays and lesbians in this country has markedly improved in recent decades. Importantly, New Jersey's Legislature has often been at "the forefront of combating sexual orientation discrimination and advancing equality of treatment towards gays and lesbians." Lewis, supra, 188 N.J. ~t 213, 902 A.2d 1212. As the Court noted in Lewis, "discrimination against gays and lesbians is no longer acceptable in this State, as is evidenced by the various laws and judicial decisions prohibiting differential treatment based on sexual orientation." Id. at 438, 875 A.2d 259.
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CO 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) While in Baker the Supreme Court dismissed the appeal for want of a substantial federal question, based on the evolution set forth herein, subsequent developments support the conclusion that the issues raised in Baker would no longer be considered unsubstantial.FNb Accordingly, in today's legal arena, BakeN is not controlling. FN6. See also Smelt, supra, 374 F.Supp.2d at 873 (the court found that developments since Baker indicate that "the questions presented in the Baker jurisdictional statement would [not] still be viewed by the Supreme Court as ùnsubstantial.' "; see also, In re Marriage of .I.B. and H.B., 326 S. W.3d 654 (2010) (finding Baker was not dispositive in a challenge to Article I, section 32(a) of the Texas constitution and section 6.204 of the Texas Family Code under the Equal Protection Clause). Recently, the Ninth Circuit affirmed the District Court's ruling from Perry v. Schwarzenegger, 704 F.Supp.2d 921, 927 (N.D.Ca1.2010). Perry v. Brown, supra, No. 10-16696. Originally, in their motion for reconsideration, plaintiffs cited Perry in support of the proposition that excluding same-sex couples from the institution of marriage violates the Equal Protection Clause of the Fourteenth Amendment.FN' FN7. Notably, the Circuit Court in Perry v. Brown, supra, No. 10-16696 gave only a cursory analysis of Baker, finding that it need not decide whether Baker was controlling or the effect of subsequent doctrinal developments because it was considering an entirely different issue, not addressed by Baker, and "squarely controlled by Romer. "Perry v. Brown, supra, No. 10-16696 at n. 14. In Perry, plaintiffs challenged avoter-enacted amendment to the California state constitution, known as Proposition 8, alleging Due Process and Equal Protection violations contrary to the Fourteenth Amendment. Plaintiffs sought a finding that its enforcement by state officials violated 42 U.S.C. 1983. Perry, supra, 704 F.Supp.2d at 927. Judge Walker, writing the opinion for the District Court noted: The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
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*8 Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same sex couples from marriage is simply not rationally related to a legitimate state interest. [Id. at 978.] On appeal to the Ninth Circuit, Judge Stephen Reinhardt, writing for the three judge panel, upheld the District Court's ruling that Proposition 8 violated the Fourteenth Amendment to the United States Constitution. Judge Reinhardt relied heavily on Romer in which the United States Supreme Court held Amendment 2 to the Colorado Constitution, prohibiting the enactment of any laws protective of gays and lesbians, violated the Equal Protection Clause because " `[i]t is not within our constitutional tradition to enact laws of this sort'laws that `singl[e] out a certain class of citizens for disfavored legal status', which `raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.' " Perry v. Brown, supra, No. 10-16696, quoting Romer, supra, 517 U.S. at 633-34. In conducting a rational basis review, after evaluating several .rationales to support Proposition

Not Reported in A.3d, 2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) 8, the Circuit Court found Proposition 8 was similar to Amendment 2 because it singled out a certain class of citizens for disfavored treatment. Further, the Circuit Court found that Proposition 8 has "no apparent purpose but to impose on gays and lesbians ... disapproval of their relationships, by taking away from them the official designation of marriage with its societally recognized status." Perry v. Brown, supra, No. 10-16696 (internal quotations omitted). Further, "[a]bsent any legitimate purpose for Proposition 8, [the court was] left with the inevitable inference that the disadvantage imposed is born of animosity toward, or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, the class of persons affected." Ibid(internal quotations omitted). The Supreme Court has found that "[e]nacting a rule into law based solely on the disapproval of a group ... is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit." Perry v. Brown, supra, No. 10-16696 (citing Ronzer, supra, 517 U.S. at 635). The Perry Court noted that "[j]ust as a desire to harm ... cannot constitute a legitimate governmental interest ... neither can a more basic disapproval of a class of people. Perry v. Brown, supra, No. 10-16696 (internal quotations omitted). The Perry Court found that Proposition 8 violated the Fourteenth Amendment because it was a classification undertaken for its own sake. Here, under the third count, plaintiffs assert the Civil Union Act violates the Equal Protection Clause of the Fourteenth Amendment by denying them access to marriage and relegating them to a separate and arguably second class status, while not serving any legitimate state interest. The Civil Union Act, unlike Proposition 8, was intended to confer more benefits on same-sex couples, rather then take any away. However, the Civil Union Act is arguably similar because it singles out a certain class of citizens, namely gays and lesbians, for allegedly disfavored treatment. *9 While the Civil Union Act does bestow cer-
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tain benefits on same-sex couples, it also denies them the designation of marriage for their committed relationships and it allegedly does not bestow upon plaintiffs all of the same benefits enjoyed by their heterosexual counter parts. For all the reasons set forth herein, the court grants the motion for reconsideration. Accordingly, the matter shall proceed to trial on counts one and three. At this juncture, the court leaves open the question of what standard of proof is applicable. The Court in Lewis previously found that there is no legitimate governmental purpose for denying samesex couples the same benefits and responsibilities afforded to their heterosexual counter parts. Plaintiffs will have the opportunity to develop a full and complete trial record in an effort to substantiate allegations of unequal treatment under the Civil Union Act. In Lewis, the Court noted that the New Jersey Legislature made sexual orientation a "protected category" by enacting legislation committed to the "goal of eradicating discrimination against gays and lesbians." Lewis, supra, 188 N.J. at 452, 908 A.2d 196. The Supreme Court concluded in Lewis that "denying to committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose." Id. at 457,908 A.2d 196. As noted heretofore, the Court held it was the Legislature's prerogative to determine how to provide same-sex couples with equal benefits; whether to open the institution of marriage to samesex couples or create a parallel statutory structure. Accordingly, the Civil Union Act was enacted to "bridge" the inequality gap left by the Domestic Partnership Act.FN$ Id. at 448, 908 A.2d 196. FN8. Today, many states recognize samesex marriages as the result of legislation or judicial mandate. These include: New

Not Reported in Aid,2012 WL 540608 (N.J.Super.L.) (Cite as: 2012 WL 540608(N.J.Super.L.)) York, Massachusetts, Connecticut, Vermont, New Hampshire, Iowa and Washington State. In addition, while the New Jersey Legislature recently adopted legislation to legalize same-sex marriage, Governor Chris Christie vetoed the legislation and there are insufficient votes to override the veto. The Lewis plaintiffs challenged the Domestic Partnership Act under the Equal Protection provisions of the State constitution, not the Federal Equal Protection Clause. With regards to sexual orientation as a classification under Federal case law, "[t]he [United States] Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes." Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir.2006); see also Johnson v. Johnson, 385 F.3d 503, 532(5th Cir.2004). As the Lewis Court noted, the "New Jersey Constitution not only stands apart from other state constitutions, but also `may be a source of individual liberties more expansive than those conferred by the Federal Constitution.' "Lewis, supra, 1.88 N.J. 41.5 at 465, 908 A.2d 196 (citing State v. Novembrino, 105 N.J. 95, 1445,519 A.2d 820 (1987)). For the most part, the justification offered by the State to support the distinction between heterosexual and same-sex couples in the Civil Union Act is "tradition." Since marriage has historically been defined as the union between a man and woman, the State argues this is a sufficient basis to distinguish between heterosexual and same-sex couples. *10 Not surprisingly, courts have held that tradition alone "never can provide sufficient cause to discriminate against a protected class, for `[neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the][c]ourt's scrutiny.' "Kerrigan v. Conzm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 479 (Conn.2008)(citing Bowers v. Hardwick, 478 U.S.
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186, l06 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting)). "If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed." Varnum v. Brien, 763 N. W.2d 862, 898(Iowa 2009). Finally, to state a claim for relief in an action brought under Section 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under colar of state law. Am. Mfrs. Mut. Ins. Co. v. Sulliva~, 526 U.S. 4Q, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). "The ultimate issue in determining whether a person is subject to suit under [Section] 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights `fairly attributable to the State?' RendellBaker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482. 937 (1982)). Defendants challenge the premise that alleged unequal treatment of same-sex couples, under the Civil Union Act, constitutes state action under the Fourteenth Amendment's Equal Protection Clause. Defendants rely on Mentavlos v. Anderson, 249 F.3d 301 (4th Cir.2001), cent. denied, 534 U.S. 952, 122 S.Ct. 349, 151 L.Ed.2d 264(2001). In Mentavlos, the Fourth Circuit considered the question of whether two male cadets at The Citadel, a state-sponsored military college, acted under the color of state law. The Circuit Court found that because the cadets' actions were not "coerced, compelled, or encouraged by any law, regulation or custom of the State of South Carolina or The Citadel," the cadets' actions were not fairly attributable to the state and thus, not actionable under Section 1983. Id. at 323. In Mentavlos, unlike in the present matter,

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there was no statute or regulation being challenged. Moreover, plaintiffs in the present matter do not seek to impose liability on the private actors discussed in the complaint. Fx~ FN9. The United States Supreme Court has concluded that acts of private parties were fairly attributable to the state on certain occasions such as when the private party acted in concert with state actors. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 155-56, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (finding that a restaurant acted under color of state law because it conspired with a town sheriff, a state actor, in depriving ateacher offederal rights). Plaintiffs allege the Civil Union Act and its enforcement by certain state officials, who are named defendants, violates the Equal Protection Clause of the Fourteenth Amendment. At this juncture, the court is satisfied there is sufficient state action to permit the claim under the Federal Equal Protection Clause to proceed. Accordingly, plaintiffs' motion for reconsideration is GRANTED and count three is hereby reinstated. N.J.Super.L.,2012. Garden State Equality v. Dow Not Reported in A.3d, 2012 (N.J.Super.L.) END OF DOCUMENT
WL
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http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&vr=2.0&destination=atp&sv=Split&mt=:.. 10/21/2013

Westlaw,
Page 1 Not Reported in F.Supp.2d, 2006 WL 3143914(M.D.Pa.) (Cite as: 2006 WL 3143914(M.D.Pa.))
C
Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Blake MATTHEWS,Plaintiff, v. Lt. Joseph G. ELIAS, et. al, Defendants. No. 4:CV-06-1760. Oct. 31, 2006. Don Bailey, Bailey & Ostrowski, Harrisburg, PA, for Plaintiff. Gregory R Neuhauser, Office of Attorney General, Harrisburg, PA,for Defendants.
MEMORAND UM AND ORDER JOHN E. JONES III, District Judge. THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: *1 Pending before the Court is a Motion to Dismiss of Defendant, Attorney General of Pennsylvania (doc. 4) filed on September 21, 2006. Also pending before the Court is a Motion to Dismiss of Defendant, Pennsylvania State Police (doc. 7)filed on September 26, 2006.
ported him to the Ephrata Community hospital where he was involuntarily committed, as a result of an application filed by Plaintiffs ex-girlfriend under Section 302 of the Mental Health Procedures Act. The officers also took possession of certain firearms which were the property of Plaintiff. On October 3, 2003, a hearing was held, as required by Section 303 of the Mental Health Procedures Act, and it was determined by the hearing officer that the Plaintiff was not in need of emergency involuntary treatment and he was released from the hospital. Plaintiff alleges that he continually has asked the for the return of the firearms, however on July 14, 2005, Plaintiff received a letter from pefendant Lieutenant Joseph Elias, on the letter head of the Defendant Pennsylvania State Police, that his request for return of his firearms was being denied. The letter cited 18 Pa.C.S. 6105(c)(4), which prohibits a person who has been adjudicated incompetent or has been involuntarily committed to a mental institution for inpatient care under Section 302, 303 or 304 of the Mental Health Procedures Act from possession of a firearm. On September 8, 2006, the Plaintiff filed a complaint with this Court, seeking damages from the Defendants jointly and severally for claimed violations of Plaintiffs Fourth, Fifth and Fourteenth Amendment rights (Counts One, Two and Three). The complaint also seeks declaratory relief concerning the constitutionality of 18 Pa.C.S. 6105(c)(4), and an injunction against its enforcement (Count Four). The instant Motions (docs. 4 and 7) were filed by Defendants Attorney General of Pennsylvania and Pennsylvania State Police. The Motions have been fully briefed and are therefore ripe for our review.
STANDARD OF REVIEW. In considering a motion to dismiss pursuant to
police
For the following reasons the Motions (docs. 4 and 7), shall be granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY. On September 30, 2006, local police officers entered Plaintiff Blake Matthews'("Plaintiff') residence upon a report from Plaintiffs ex-girlfriend that Plaintiff was suicidal and was in need of hospitalization. The officers took Plaintiff into custody and trans-

Page 2 Not Reported in F.Supp.2d, 2006 WL 3143914(M.D.Pa.) (Cite as: 2006 WL 3143914(M.D.Pa.)) Fed. R. Civ. Pro. 12 b 6~, a court must accept the veracity of a plaintiffs allegations. See Scheirer v. Rhodes, 416 U.S. 232, 236 (1974 ;see also kite v. Napoleon, 897 F.2d 103, 106 (3d Cir.1990~. In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996~, our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore,"a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief" Conlev v. Gibson, 355 U.S. 41, 45-46 (1957; see also District Council 47 v. Bradley, 795 F.2d3 310(3d Cir.1986). DISCUSSION: A. Motion to Dismiss ofDefendant Attorney General of Pennsylvania x2 The Defendant Attorney General of Pennsylvania ("Attorney General") moves this Court to dismissthe complaint, alleging that none ofthe counts in the complaint state a claim against the Attorney General upon which relief may be granted. Counts One, Two and Three allege claims of violations of the Plaintiffs Fourth, Fifth and Fourteenth Amendment rights via 42 U.S.C. $ 1983. To establish a ~ 1983 claim, a plaintiff must demonstrate: (1) a violation of a right secured by the Constitution and the laws of the United States; and (2) that the alleged deprivation was committed by a person acting under color of state law. See Nicini v. Morra. 212 F.3d 798, 806. "A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior."Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (citing Parratt v. Tavlor, 451 U.S. 527,537 n. 3~1981~)."Personal involvement can be shown through allegations ofpersonal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence ... must be made with appropriate particularity." Id. The Attorney General argues that since no factual allegations are presented against him with respect to the Plaintiffs 1983 claims, that there is no basis upon which to hold the Attorney General liable in damages. Plaintiff argues that because the Attorney General oversees the actions of the Defendant Pennsylvania State Police in upholding or overruling the denial ofan alleged prohibition to possess firearms, that a 1983 claim is properly pled against the Attorney General. It is quite apparent from a review of Counts One, Two and Three of Plaintiffs complaint that the Attorney General is not alleged to have participated in, or to have had knowledge of and acquiesced in, the confiscation of Plaintiffs firearms, the involuntary commitment proceeding or even the decision to refuse to return Plaintiffs firearms to him. Plaintiffs allegation that the Attorney General generally oversees co-Defendant Pennsylvania State Police does not save Plaintiffs 1983 claim against the Attorney General inasmuch as Plaintiff has not alleged any personal involvement by the Attorney General in the alleged deprivation of Plaintiffs rights. Accordingly, we shall dismiss Counts One, Two and Three as against the Attorney General. Count Four of the complaint seeks declaratory and injunctive relief against the Attorney General in connection with a determination by the Court that 18 Pa.C.S. 6105(c)(4) is unconstitutional. "[A] plaintiff challenging the validity of a state statute may bring suit against the official who is charged with the statute's enforcement only if the official has either enforced, or threatened to enforce,

Page 3 Not Reported in F.Supp.2d, 2006 WL 3143914(M.D.Pa.) (Cite as: 2006 WL 3143914(M.D.Pa.)) the statute against the plaintiffs. General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law." ~ st Westco Corp. v. School District o~iladelphia, 6 F.3d 108, 113 (3d Cir.1993 (citing Rode, 845 F.2d at 1209). *3 As properly submitted by the Attorney General, the Pennsylvania State Police, the entity that refused to return Plaintiffs firearms, is an agency under the Governor's jurisdiction. Furthermore, although the Plaintiffsuggests that the Attorney General "oversees" the decision of the Pennsylvania State Police with respect to the implementation of 18 Pa.C.S. ~ 6105(cL,under the Pennsylvania Uniform Firearms Act, the Attorney General's involvement is limited to a review of a challenge by an individual to the accuracy of his or her records. See l8 Pa.C.S. 6111.1 e . Plaintiff has not alleged that the Attorney General has enforced 6105(cL against him, nor can he allege such, because the Attorney General does not oversee the administration ofthe subject section or the Pennsylvania State Police. Accordingly, because Plaintiffhas failed to state a claim against the Attorney General with respect to Count Four, we shall dismiss the complaint as against the Attorney General. B. Motion to Dismiss of Defendant, Pennsylvania State Police The Defendant Pennsylvania State Police("PSP") moves this Court to dismiss the complaint, alleging that none of the counts in the complaint state a claim against the PSP upon which relief may be granted. The PSP further alleges that, as an agency of the government of the Commonwealth of Pennsylvania, it is entitled to Eleventh Amendment immunity. Immunity under the Eleventh Amendment to the United States Constitution precludes suits against a state or state agency in federal court by citizens ofthat state or other states. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd ., 527 U.S. 666, 669 (1999, Edelman v. Jordan, 415 U.S. 651, 662-663 (1974. The Eleventh Amendment's jurisdictional bar is equally applicable to suits seeking money damages and equitable relief. See Edelman, 415 U.S. at 663; Alabama v. Pugh, 438 U.S. 781, 782 1978 . A state may consent to suit against it or its agency in federal court by waiving its immunity. In the absence of consent a suit against a state or one of its agencies is proscribed by the Eleventh Amendment. See Pennhurst State School and Hopsital v. Halderman, 465 U.S. 89, 98(1984. It is not alleged that the PSP, an agency of the Commonwealth of Pennsylvania, has waived in its immunity in this action. Accordingly, because immunity has not been waived,the Eleventh Amendment provides a jurisdictional bar to suit against the PSP and the Motion(doc.7)shall be granted and complaint shall be dismissed as against the PSP. NOW,THEREFORE,IT IS HEREBY ORDERED THAT: 1. Motion to Dismiss of Defendant Attorney General of Pennsylvania(doc. 4)is GRANTED. 2. The complaint is DISMISSED as against Defendant Attarney General of Pennsylvania. 3. The Clerk shall terminate Defendant Attorney General ofPennsylvania as a party to this action. 4. Motion to Dismiss Defendant Pennsylvania State Police (doc. 7)is GRANTED. *4 5. The complaint is DISMISSED as against Defendant Pennsylvania State Police. 6. The Clerk shall terminate Defendant Pennsylvania State Police as a party to this action.

Page 4 Not Reported in F.Supp.2d, 2006 WL 3143914(M.D.Pa.) (Cite as: 2006 WL 3143914(M.D.Pa.)) M.D.Pa.,2006. Matthews v. Elias Not Reported in F.Supp.2d, 2006 WL 3143914 (M.D.Pa.) END OF DOCUMENT

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Page 1 --- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.)))
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Only the Westlaw citation is currently available. United States Court of Appeals, Third Circuit. Jeffry S. VODENICHAR; David M. King, Jr, and Leigh V. King, husband and wife; Joseph B. Davis and Lauren E. Davis, husband and wife; Grove City Country Club; and Richard Broadhead, individually and on behalf of those similarly situated, v. HALCON ENERGY PROPERTIES,INC.; Morascyzk & Polochak; and CoExprise, DBA CXEnergy Halcon Energy Properties, Inc., Appellant. No. 13-2812. Submitted Under Third Circuit L.A.R. 34.1(a) July 16, 2013. Filed Aug. 16, 2013. Background: Landowners who sought to lease oil and gas rights in their land filed putative class action in state court against their agent, an oil and gas company, and an energy company, alleging breach of lease. After oil and gas defendant removed, plaintiffs moved to remand. The United State District Court for the Western District of Pennsylvania, 2013 WL 1386954,Arthur J. Schwab, J., remanded, pursuant to Class Action Fairness Act (CAFA). Defendants appealed. Holdings: The Court of Appeals, Shwartz, Circuit Judge, held that: (1) Delaware corporate defendant with principal place of business and headquarters in Texas was not a citizen of Pennsylvania; but (2) unincorporated association defendant was a citizen of Pennsylvania, (3) all three defendants were "primary defendants" for purposes of home state exception under CAFA; (4) home state exception did not apply; but (5) local controversy exception to CAFA applied to mandate remand.
Affirmed. West Headnotes [1] Federal Courts 170B G~776 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)1 In General 170Bk776 k. Trial De Novo. Most Cited Cases Court of Appeals reviews issues of subject matter jurisdiction de novo. [2] Federal Courts 170B X776 170B Federal Courts ]70BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)1 In General 170Bk776 k. Trial De Novo. Most Cited Cases Court of Appeals reviews matters of statutory interpretation de novo. [3J Removal of Cases 334 0107(7) 334 Removal of Cases 334VII Remand or Dismissal of Case 334k107 Proceedings for Remand and Review Thereof 334k107(7)k. Evidence. Most Cited Cases Party seeking to invoke either local controversy exception or home state exception to Class Action Fairness Act (CAFA), in order to remand federal suit to state court, bears burden of proving by a preponderance of the evidence that the exception applies. 28 U.S.C.A. 1332(d)(4)(A)(B). [4) Federal Courts 170B C~32 170B Federal Courts

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) 170BI Jurisdiction and Powers in General 170BI(A)In General 170Bk29 Objections to Jurisdiction, Determination and Waiver 170Bk32 k. Pleading. Most Cited Cases Federal Courts 170B C:~33 170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A)In General 170Bk29 Objections to Jurisdiction, Determination and Waiver 170Bk33 k. Affidavits and Evidence in General. Most Cited Cases Courts may consider pleadings as well as evidence that parties submit to determine whether subject matter jurisdiction exists or an exception thereto applies. [5] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 0102 334 Removal of Cases 334VII Remand or Dismissal of Case 334k101 Grounds for Remand 334k102 k. Want of Jurisdiction or of Cause for Removal. Most Cited Cases The "home state exception" to Class Action Fairness Act (CAFA), used to seek remand of suit removed from state court, requires a federal court to decline to exercise subject matter jurisdiction where two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the state in which the action was originally filed. 28 U.S.C.A. 1332(d)(4)(B). [6] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 X102
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334 Removal of Cases 334VI1 Remand or Dismissal of Case 334k101 Grounds for Remand 334k102 k. Want of Jurisdiction or of Cause for Removal. Most Cited Cases A party seeking to invoke home state exception, under Class Action Fairness Act (CAFA), to remand suit removed from state count must: (1) establish that the citizenship of the members of twothirds or more of the putative class is the state in which the action was originally filed; (2) establish the citizenship of defendants; (3) identify the primary defendants; and (4) demonstrate that twothirds or more of the members of the putative class are citizens of the same state as the primary defendants. 28 U.S.C.A. 1332(d)(4)(B). [7) Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Under Class Action Fairness Act (CAFA), for purposes of home state exception to federal court removal jurisdiction, members of putative class who are natural persons are deemed citizens of the state in which they are domiciled, which is typically the state where the person lives. 28 U.S.C.A. 1332(d)(4)(B). [S] Removal of Cases 334 ~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provi-

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) sions. Most Cited Cases Removal of Cases 334 G~26 334 Removal of Cases 334III Citizenship or Alienage of Parties 334k26 lc. Citizenship of Parties in General. Most Cited Cases Under Class Action Fairness Act (CAFA), removed suits brought by unincorporated associations are treated like suits by corporations in that the citizenship of the association for diversity purposes is determined by the entities' principal place of business and not by the citizenship of its members. 28 U.S.C.A. 1332(d)(4)(B), 1332(d)(10). [9] Removal of Cases 334 ~2 [11) Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 C~27 Removal of Cases 334 C:~26 334 Removal of Cases 334III Citizenship or Alienage of Parties 334k27 k. Citizenship or Residence of Corporations. Most Cited Cases Oil and gas company defendant was not a citizen of Pennsylvania, for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA) in Pennsylvania landowners' putative breach of lease class action, where company was a Delaware corporation with its principal place of business and Texas. 28 U.S.C.A. headquarters in 1332(d)(4)(B), 1332(d)(10). [10] Removal of Cases 334 C~2 (12] Removal of Cases 334 G~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 X27 334 Removal of Cases 334III Citizenship or Alienage of Parties 3341c27 k. Citizenship or Residence of Corporations. Most Cited Cases Energy company defendant was a citizen of Pennsylvania, for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA) in Pennsylvania landowners' putative breach of lease class action, where Pennsylvania was both its state of incorporation and the place where the corporation's high level officers directed, controlled, and coordinated the corporation's activities. 28 U.S.C.A. 1332(d)(4)(B), 1332(d)(10), 1332(c)(1).
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334 Removal of Cases 334III Citizenship or Alienage of Parties 334k26 k. Citizenship of Parties in General. Most Cited Cases Unincorporated association defendant in Pennsylvania landowners' putative breach of lease class action was a citizen of Pennsylvania, for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), where association had its principal place of business in Pennsylvania and had been organized under the laws of that state. 28 U.S.C.A. 1332(d)(4)(B), 1332(d)(10).
334 Removal of Cases 334I Power to Remove and Right of Removal in General 3341c2 lc. Constitutional and Statutory Provi-

--- F.3d ----, 2013 WL 4268840 (C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) sions. Most Cited Cases "Primary defendant," for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), means principal defendant, fundamental defendant, or direct defendant. 28 iJ.S.C.A. 1332(d)(4)(B). [13] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases A "primary defendant," for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), is one who is directly liable to the proposed class, as opposed to being vicariously or secondarily liable based upon theories of contribution or indemnification. 28 U.S.C.A. 1332(d)(4)(B). (14] Removal of Cases 334 G~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases A "primary defendant," for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), is one who is the real target of the lawsuit. 28 U.S.C.A. 1332(d)(4)(B). [15] Removal of Cases 334 C`~2 334 Removal of Cases 3341 Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Courts examining whether a defendant is a "primary defendant," for purposes of home state exception to removal jurisdiction under Class Action Fairness Act (CAFA), should not consider 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 0107(7) whether the defendant may be able to recover from others or whether it is able to satisfy a judgment. 28 U.S.C.A. 1332(d)(4)(B). [16] Removal of Cases 334 C~2
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334 Removal of Cases 334I Power to Remove and Right of Removal in General 3341c2 k. Constitutional and Statutory Provisions. Most Cited Cases The term "primary defendant," for purposes of home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), includes any person who has substantial exposure to significant portions of the proposed class in the action, particularly any defendant that is allegedly liable to the vast majority of the members of the proposed classes, as opposed to simply a few individual class members. 28 U.S.C.A. 1332(d)(4)(B). [17] Removal of Cases 334 C~2
334 Removal of Cases 334VII Remand or Dismissal of Case 334k107 Proceedings for Remand and Review Thereof 334k107(7)k. Evidence. Most Cited Cases Court tasked with determining whether a defendant is a "primary defendant' for purposes of home .state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), should assume liability will be found and determine whether the defendant is the real target of plaintiffs' accusations; in doing so, court should determine if plaintiffs seek to hold the defendant responsible for

--- F.3d ----, 2013 WL 4268840(C.A.3(Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) its own actions, as opposed to seeking to have it pay for the actions of others, and ask whether, given the claims asserted against the defendant, it has potential exposure to a significant portion of the class and would sustain a substantial loss as compared to other defendants if found liable. 28 U.S.C.A. 1332(d)(4)(B). [18] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Oil and gas company, energy company, and landowner's agent were all "primary defendants" in landowners' putative breach of lease class action, for purposes of determining home state exception to federal court removal jurisdiction under Class Action Fairness Act (CAFA), where plaintiffs alleged that each defendant was directly liable, attempted to apportion liability equally among the defendants, and sought similar relief from them all. 28 U.S.C.A. 1332(d)(4)(B). (19] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 G~102 334 Removal of Cases 334VII Remand or Dismissal of Case 334k101 Grounds for Remand 334k102 k. Want of Jurisdiction or of Cause for Removal. Most Cited Cases By using the word "the" before the words "primary defendants," rather than the word "a," the Class Action Fairness Act (CAFA) requires remand of removed action under the home state exception only if all primary defendants are citizens of plaintiffs' home state. 28 U.S.C.A. 1332(d)(4)(B). [20] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 3341c2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 0102
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334 Removal of Cases 334VII Remand or Dismissal of Case 334k101 Grounds for Remand 334k102 k. Want of Jurisdiction or of Cause for Removal. Most Cited Cases Home state exception to Class Action Fairness Act (CAFA) did not apply to mandate remand of Pennsylvania landowners' putative state court breach of lease suit against oil and gas company, energy company, and agent, removed to federal court, since not all three primary defendants were residents of Pennsylvania. 28 U.S.C.A. 1332(d)(4)(B). [21~ Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases A party seeking to invoke local controversy exception to removal jurisdiction under Class Action Fairness Act (CAFA) must show that: (1) greater than two-thirds of the putative class are citizens of the state in which the action was originally filed; (2) at least one defendant is a citizen of the state in which the action was originally filed, i.e., local defendant; (3) the local defendant's conduct forms a significant basis for the claims asserted; (4) plaintiffs are seeking significant relief from the local defendant; (5) the principal injuries occurred in the state in which the action was originally filed; and (6) no other class action asserting the same or
D 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) similar allegations against any of the defendants had been filed in the preceding three years. 28 U.S.C.A. 1332(d)(4)(A). [22] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases The local controversy exception to removal jurisdiction under the Class Action Fairness Act (CAFA) applies when the class is primarily local, the lawsuit is against at least one real in-state defendant whose alleged conduct is central to the class claims and from whom the class seeks significant relief, the injuries the defendant allegedly caused occurred within the forum, and no other similar class actions have been filed against any of the defendants. 28 U.S.C.A. 1332(d)(4)(A). (23] Removal of Cases 334 ~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases Removal of Cases 334 0102 334 Removal of Cases 334V1I Remand or Dismissal of Case 334k101 Grounds for Remand 334k102 k. Want of Jurisdiction or of Cause for Removal. Most Cited Cases Local controversy exception to Class Action Fairness Act(CAFA) applied to mandate remand of Pennsylvania landowners' putative breach of lease class action against oil and gas company, energy company, and agent removed from state to federal court; two-thirds of the plaintiffs were citizens of Pennsylvania, two of three primary defendants were citizens of Pennsylvania, and thus local defendants, the local defendants' conduct in allegedly breaching
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lease formed significant basis for claims, plaintiffs sought more than $50,000 for each of the 1,362 putative class members, injuries were incurred in Pennsylvania where the leased land was located, and although previous suit had been filed by same plaintiffs and dismissed with prejudice, the dismissed action was not an "other class action" which would preclude remand, but instead was a refiled action merely enlarged when two local defendants were added with claims unique to those parties that arose from the same lease transaction. 28 U.S.C.A. 1332(d)(4)(A)(i)(II), 1332(d)(4)(A), 1332(d)(4)(A)(i)(III). [24~ Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases The "local controversy exception" to removal jurisdiction under Class Action Fairness Act (CAFA) seeks to identify a truly local controversy, one that uniquely affects a particular locality to the exclusion of all others, so as to allow state courts to adjudicate truly local disputes involving principal injuries concentrated within the forum state. 28 U.S.C.A. 1332(d)(4)(A). [25] Removal of Cases 334 C~2 334 Removal of Cases 334I Power to Remove and Right of Removal in General 334k2 k. Constitutional and Statutory Provisions. Most Cited Cases If two class actions arise out of the same facts, but are .factually and analytically different, such that the proof necessary for one class to prevail differs from the proof another class would need to present, the first filed class action would not constitute an "other class action" under local controversy exception to removal jurisdiction under the Class Action Fairness Act (CAFA). 28 U.S.C.A. 1332(d)(4)(A).
D 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) On Appeal from the United State District Court for the Western District of Pennsylvania (D.C. Civ. Action No. 2-13CV-00360) District Judge: Honorable Arthur J. Schwab.Kevin L. Colosimo, Esq., Burleson LLP, Canonsburg, PA,for Appellant. David A. Borkovic, Esq., Jones, Gregg, Creehan & Gerace, LLP, Richard A. Finberg, Esq., Pittsburgh, PA, for Appellees. landowners who entered into LMAs and who had submitted lease documents to Halcon. Under the Halcon Agreement, each landowner who executed an LMA was guaranteed a $3,850 per acre payment plus an 18.5% royalty on the net amount Halcon realized from the oil and gas recovered from the property. According to Plaintiffs, Halcon agreed to accept the leases absent a title defect, an adverse environmental claim, or restrictions on the ability to explore, drill for, or produce oil, gas, or hydrocarbons. Plaintiffs assert that Halcon rejected many of the leases for reasons other than those permitted under the Halc6n Agreement. Halc6n counters that the word "geology" was fraudulently omitted from the list of grounds upon which it could decline to lease the property, and that Halcbn was within its bargainedfor rights to reject the leases. Plaintiffs claim that this explanation was pretextual, as Halcon sought to extricate itself from the lease arrangement because it lost a bid to secure oil and gas rights in other nearby properties, which made the leases of Plaintiffs' land less attractive. Plaintiffs further claim that they did not-know that any words were omitted from the agreements and if a change had been made, it was the fault of M & P and CXEnergy.
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Before RENDELL, SMITH, and SHWARTZ, Circuit Judges.
OPINION OF THE COURT SHWARTZ,Circuit Judge. ''~1 Defendant Halc6n Energy Properties, Inc. ("Halcbn") appeals the District Court's Order remanding this case to state court based on the "home state" exception to subject matter jurisdiction under the Class Action Fairness Act ("CAFA"). For the reasons stated below, we will affirm the District Court's remand order, but do so instead based on CAFA's "local controversy" exception. I. FACTS &PROCEDURAL HISTORY Plaintiffs Jeffry S. Vodenichar, David M. King, Jr., Leigh V. King, Joseph B. Davis, Lauren E. Davis, Grove City Country Club, and Richard Broadhead filed suit on behalf of themselves and other similarly situated landowners who sought to lease the oil and gas rights in their land in Mercer County, Pennsylvania. Defendants Morascyzk & Polochak ("M & P") and Co-eXprise, d/b/a "CXEnergy," ("CXEnergy") agreed to act as Plaintiffs' agents to negotiate leases of their oil and gas interests to energy companies under the terms of. Landowner Marketplace Agreements ("LMAs"). In exchange for their successful marketing efforts, M & P and CXEnergy were to be paid a "transaction fee." M & P and CXEnergy entered into a Letter of Intent with Halcon ("Halcbn Agreement'), an oil and gas company, pursuant to which Halc6n would lease up to 60,000 acres of oil and gas rights from
As a result of these events, Plaintiffs filed a putative class action against Halcon based upon diversity jurisdiction, 28 U.S.C, 1332(a), in the United States District Court for the Western District of Pennsylvania ("first filed action"). In their complaint, Plaintiffs alleged that Halc6n breached their agreement and the duty of fair dealing. Halc6n filed an answer and the District Court convened a case management conference. During the conference, Halcon informed the District Court that it anticipated joining M & P and CXEnergy, claiming that they were "necessary parties." Case Mgmt. Con Tr. 13-14, No. 12-1624 (W.D .Pa. Jan. 16, 2013), ECF No. 31. X2 Plaintiffs decided to file direct claims against M & P and CXEnergy. Knowing that

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) adding these parties to the complaint would destroy diversity jurisdiction, Plaintiffs filed a motion to dismiss the first filed action without prejudice and with the intent of pursuing their claims against all defendants in state court. In response to the motion, Halcon stated that it did not oppose joining M & P and CXEnergy, agreed that the claims against all three defendants would benefit from being heard in a single proceeding, but asserted that the case should proceed in the District Court under CAFA, particularly given the discovery already produced and the ongoing alternative dispute resolution ("ADR")activities. The District Court granted the motion to voluntarily dismiss the first filed action without prejudice, reasoning that the parties agreed that the claims should proceed in one forum, federal diversity would be destroyed by the addition of M & P and CXEnergy, and CAFA had not been pled as a basis for jurisdiction. The District Court also ordered the parties to complete the ADR process and directed the parties to retain the discovery produced to both facilitate the ADR process and assist in the state court case. On the day Plaintiffs filed their motion to dismiss the first filed action, they, through their same counsel, filed a state court class action complaint in the Court of Common Pleas of Mercer County, Pennsylvania, alleging that Halcbn, M & P, and CXEnergy breached their agreements with, and duties to, the putative class ("second filed action"). The second filed complaint is identical to the first filed complaint, except with respect to the addition of two named plaintiffs, two defendants; the causes of action against the additional defendants, seven paragraphs setting forth the facts supporting those additional claims, and several exhibits relating thereto. Halcun then removed the second filed action to the District Court, which was assigned to the same District Judge as the first filed action. On the cover sheet that accompanied the removal petition, Halcon indicated that the second filed action was related to the first filed action. In a text-entry order filed in the second filed action shortly after removal, the District Court made specific reference to the first filed action, including a directive that the parties inform the District Court of the status of the ADR process that the Court had ordered in the first filed action. Plaintiffs filed a motion to remand the second filed action based upon CAFA's local controversy exception to federal subject matter jurisdiction. The District Court found that the local controversy exception did not apply, but held that CAFA's home state exception required remanding the case to the Court of Common Pleas. Halcon petitioned for review of the remand order pursuant to 28 U.S.C. 1453(c)(1), which we granted. IL JURISDICTION &STANDARD OF REVIEW [1][2] We have jurisdiction over this appeal pursuant to 28 U.S.C. 1453(c) and review issues of subject matter jurisdiction and statutory interpretation de novo. Kaufman v. Allstate New Jersey Insurance Co., 561 F.3d 144, 151 (3d Cir.2009). III. DISCUSSION *3 [3][4] CAFA provides federal courts with jurisdiction over civil class actions if the "matter in controversy exceeds the sum or value of $5,000,000," the aggregate number of proposed class members is 100 or more, and any class member is a citizen of a state different from any defendant. 28 U.S.C. 1332(d)(2), (d)(2)(A), (d)(5)(B). Thus, the statute authorizes federal jurisdiction over class actions even in the absence of complete diversity between the parties, except where the "controversy is uniquely" connected to the state in which the action was originally filed. Kaufn7an, 561 Fad at 149 & n. 4. To this end, the statute includes two mandatory exceptions to federal subject matter jurisdiction, known as the "local controversy" and state" exceptions. 28 U.S.C. "home 1332(d)(4)(A)-(B). The party seeking to invoke an exception bears the burden of proving by a preponderance ofthe evidence that the exception applies.
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--- F.3d ----, 2013 WI,4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) rN~ Kaarfman, 561 Fad at 153-54. Upon determining that the local controversy exception was inapplicable, the District Court concluded that the home state exception applied to this case. For the reasons explained herein, we part company with the District Court and conclude that CAFA's home state exception is inapplicable to this case, but that remand is warranted under the local controversy exception. A. Home State Exception [5][6] The home state exception requires a federal court to decline to exercise subject matter jurisdiction in CAFA class actions where "two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." 28 U.S.C. 1332(d)(4)(B). A party seeking to invoke this exception must therefore: (1) establish that the citizenship of the members of two-thirds or more of the putative class is the state in which the action was originally filed; (2) establish the citizenship of the defendants; (3) identify the primary defendants; and (4) demonstrate that two-thirds or more of the members of the putative class are citizens of the same state as the primary defendants. See Anthony, 535 F.Supp.2d at 514-15. ['7][8][9][10][11] There is no dispute that the named plaintiffs, more than two-thirds of the class members,FN2 CXEnergy, and M &Pare all citizens of Pennsylvania, the state where the action was originally filed.'~N3 Halcon is a Delaware Corporation with its principal place of business and headquarters in Texas, and thus it is not a citizen of Pennsylvania. Having established the citizenships of the parties and two-thirds or more of the putative class, the Court must next identify the "primary defendants" under Section 1332(d)(4)(B). Here, the District Court concluded that the home state exception applied based upon its determination that M & P and CXEnergy were the only primary defendants
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and both were citizens of Pennsylvania, where the second filed action was originally filed. Because Halcon had denied liability in its answer, the District Court reasoned that Halcon was not a primary however, that conclude, We defendant. Halconwhich is not a citizen of Pennsylvaniais a primary defendant, thereby rendering CAFA's home state exception inapplicable to this case. x4 [12] CAFA itself does not define the phrase "primary defendants." The word "primary" has several meanings, including: "first in order of time or development," "primitive," "of first rank, import"basic," "principal," or value," ance, and "fundamental," "direct," "firsthand," "belonging to the first group or order in successive divisions, combinations or ramifications." MerriamWebster's Collegiate Dictionary 923 (10th ed.2002). Looking at the surrounding statutory language, we can rule out certain of these definitions (such as those that focus on sequence), and construe mean "principal," primary to the word "fundamental," or "direct." [13][14][15] Some courts have embraced the definition of primary to mean direct and construed the words "primary defendants" to capture those defendants who are directly liable to the proposed class, as opposed to being vicariously or secondarily liable based upon theories of contribution or indemnification. See, e.g., Copper Sands Homeowners Assn, Inc. v. Copper Sands Realty, LLC, No. 2:10cv-00510, 2011 WL 941079, at * 6 (D.Nev. Mar.16, 2011); Anthony, 535 F.Supp.2d at 517; Kitson v. Bank of Edwardsville, No. 06-528, 2006 WL 3392752, at *13-17 (S.D.III. Nov.22, 2006). This construction finds support in the statements of CAFA's Sponsors, which describe the primary defendants as those who are the "real targets" of the lawsuit. 151 Cong. Rec. H72301, 2005 WL 387992 (daily ed. Feb. 17, 2005)(statement of Rep. Goodlatte); see also H.R.Rep. No. 108-144, 2003 WL 21321526, at 38 (2003) (stating that "[t]he sponsors intend that primary defendants be intended to reach those defendants who are the real tar-

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) gets of the lawsuit, i.e., the defendants who would be expected to incur most of the loss if liability is found.") This language shows that the Sponsors were focused on the defendants who plaintiffs alleged are the real wrongdoers as opposed to those defendants who may have to pay because of the actions of others.FN4 Therefore, the direct versus secondary liability distinction some courts use is consistent with the legislative intent. [16] Courts also look at the allegations to identify the defendants expected to sustain the greatest loss if liability were found, Bennett v. Bd. of Commis for East Jefferson Levee Dist., Nos. 07-3130, 07-3131, 2007 WL 2571942, at * 6 (E.D.La. Aug.31, 2007) (comparing the maximum exposure of liability for each defendant to determine primacy), and whether such defendants have "substantial exposure to significant portions of the proposed class." FNs Robinson v. Cheetah Transp., No. 06-0005, 2006 WL 468820, at *2 n. 7 (W.D.La. Nov.14, 2006).FN~ These considerations, therefore, focus on the number of class members purportedly impacted by the defendant's alleged actions and the amount the defendant may lose if found liable. To determine the number of class members to whom a defendant may be liable and to identify the defendants who would sustain the greatest loss if found liable, courts must assume liability will be established.FN' As a result, courts should not consider whether a defendant has denied liability, and the District Court's reliance on Halcon's denial of liability was misplaced. *5 [17] In short, courts tasked with determining whether a defendant is a "primary defendant" under CAFA should assume liability will be found and determine whether the defendant is the "real target' of the plaintiffs' accusations. In doing so, they should also determine if the plaintiffs seek to hold the defendant responsible for its own actions, as opposed to seeking to have it pay for the actions of others. Also, courts should ask whether, given the claims asserted against the defendant, it has potential exposure to a significant portion of the class
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and would sustain a substantial loss as compared to other defendants if found liable. [18] Applying these principles, we conclude that Plaintiffs allege that each defendant is directly liable, appear to apportion liability equally among the defendants, and seek similar relief from all defendants. While more claims are asserted against M & P and CXEnergy than against Halcbn, the claims against Halcon are as, if not more, significant in that Plaintiffs allege Halcon breached its lease agreement with more than 1,000 landowners and owes damages exceeding $50,000 to each class member. Thus, Halc6n is a "primary defendant." [l9][20] Finally, by using the word "the" before the words "primary defendants" rather than the word "a," the statute requires remand under the home state exception only if all primary defendants are citizens of Pennsylvania. Anthony, 535 F.Supp.2d at 515. Because Halcon is a primary defendant and is not from the same state as the Pennsylvania class members, remand based upon this exception is not warranted. For these reasons, we conclude that the home state exception does not apply and remand should not have been ordered on this basis. B. Local Controversy Exception Finding the District Court's rationale for remand lacking, we turn to the other exception to CAFA's subject matter jurisdiction: the local controversy exception. The District Court ruled that the local controversy exception did not apply to this case because another class action had been filed arising from the same facts and asserting similar claims. For the reasons set forth herein, we conclude that "no other class action" had been filed as contemplated under CAFA, and therefore remand of this case pursuant to the local controversy exception is appropriate. [21][22] Under the local controversy exception: A district court shall decline to exercise jurisdic-

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) tion under paragraph(2) (A)(i) over a class action in which(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; (II) at least 1 defendant is a defendant (aa) from whom significant relief is sought by members ofthe plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and *6 (III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and (ii) during the 3year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons[.] 28 U.S.C. 1332(d)(4)(A). A party seeking to invoke this exception must therefore show that: (1) greater than two-thirds of the putative class are citizens of the state in which the action was originally filed; (2) at least one defendant is a citizen of the state in which the action was originally filed (the "local defendant'); (3) the local defendant's conduct forms a significant basis for the claims asserted; (4) plaintiffs are seeking significant relief from the local defendant; (5) the principal injuries occurred in the state in which the action was originally filed; and (6) no other class action asserting the same or similar allegations against any of the defendants had been filed in the preceding three years. These elements ensure that the exception is
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invoked when the class is primarily local, the lawsuit is against "at least one real in-state defendant whose alleged conduct is central to the class claims and from whom the class seeks significant relief," the injuries the defendant allegedly caused occurred within the forum, and no other similar class actions have been filed against any of the defendants. 151 Cong. Rec. S999-02, 2005 WL 283380 (daily ed. Feb. 7, 2005)(statement of Sen. Specter). [23] Each element of the local controversy exception is met and remand pursuant to this exception is warranted. First, as stated previously, there is no dispute that more than two-thirds of the class members are citizens of Pennsylvania. Second, there is no dispute that at least .one defendant named in the case is localthat is, from the state in which the case was originally filed. As discussed above, both M & P and CXEnergy are citizens of Pennsylvania,.the state in which the case was originally filed, and hence are local defendants under CAFA. Third, each local defendant's "alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class." 28 U.S.C. 1332(d)(4)(A)(i)(II)(bb).''N$ As agents for the putative class members, the local defendants entered an agreement with Halcbn pursuant to which Halcbn would lease up to 60,000 acres of Plaintiffs' oil and gas rights. Plaintiffs allege that the local defendants breached their contractual and fiduciary obligations to the class by failing to ensure that the lease agreements conformed to Halcbn's requirements and made negligent misrepresentations to the class concerning the basis upon which Halcon could refuse to enter the leases.FN~ Put differently, Plaintiffs essentially assert that M & P and CXEnergy made misrepresentations to induce them to relinquish their oil and gas rights and caused Halcon to decline to enter the lease agreement by changing the terms of the agreement and that these actions damaged Plaintiffs. Because

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) Plaintiffs' claims are based upon Halcon's rejection of the leases and because Halcbn allegedly rejected the leases based on language that the local defendants purportedly omitted, the local defendants' conduct forms a "significant basis" of Plaintiffs'. claims. *7 Fourth, Plaintiffs are seeking "significant relief' from both local defendants. Plaintiffs seek from the local defendants damages totaling more than $50,000 for each of the 1,362 class members and a declaration that the local defendants were not entitled to receive fees from Plaintiffs for the lease transactions. While monetary and declaratory relief is also sought from Halcbn, this does not change the fact that significant relief is being sought from the local defendants. Fifth, there is no dispute that the "principal injuries" resulting from the alleged conduct or related conduct of each defendant were "incurred in the state in which the case was originally filed." 28 U.S.C. 1332(d)(4)(A)(i)(III).FN~o Here, most class members who sought to lease their oil and gas rights allegedly reside in, and all of the land is located in, Mercer County, Pennsylvania. Thus, Pennsylvania citizens own the land that is at the heart of this dispute, and they were allegedly financially injured by the defendants' alleged breach of the agreements. to lease the oil and gas rights to their Pennsylvania property. Finally, contrary to the District Court, we determine that no other class action, as contemplated by CAFA, asserting the same or similar allegations against any of the defendants had been filed in the preceding three years. While we recognize that Plaintiffs filed two separate putative class action complaints against Halcon, the act of filing a subsequent complaint does not necessarily mean that the earlier filed action bars invocation of the exception. Indeed, close scrutiny of the two cases shows that the first filed action does not constitute an "other class action" as contemplated by CAFA. [24] CAFA does not define what constitutes an
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"other class action" other than to limit it to filed cases asserting similar factual allegations against a defendant. The goals of the statute, however, provide guidance. In enacting CAFA, Congress recognized the benefits of having one federal forum to adjudicate multiple cases filed in various courts against a defendant. See Class Action Fairness Act of 2005, Pub.L. No. 109-2, 2(a)(1), 1.19 Stat. 4. To this end, the statute seeks to control the impact of multiple class actions filed by different members of the same class against a defendant by providing a single forum to resolve similar claims.. See S.Rep. No. 109-14, at 4-5 (2005), reprinted in 2005 U.S.C.C.AN. 3, 5-6; DeHart v. BP America, Inc., No. 09-626, 2010 WL 231744, at * 12 (W.D.La. Jan. 14, 2010). Moreover, Congress sought to have all but truly local controversies r"" proceed in federal court and found that when a "controversy results in the filing of multiple class actions, it is a strong signal that those cases may not be of the variety that [the local controversy] exception is intended to address." S.Rep. No. 109-14, at 40-41, 2005 U.S.C.C.A.N. at 39; see also Class Action Fairness Act of 2005, Pub.L. No. 109-2, 2(b)(2), 119 Stat. 4. *8 [25] In short, Congress wanted to ensure that defendants did not face copycat, or near copycat, suits in multiple forums and hence excluded from the local controversy exception cases where a defendant was named in multiple similar cases. It follows that the "no other class action" factor must not be read too narrowly. The "inquiry is whether similar factual allegations have been made against the defendant in multiple class actions"and hence they are facing separate, distinct lawsuitswithout regard to the procedural posture of the earlier filed cases or whether the putative classes in the cases overlap, their claims arise from an identical event, or involve the same causes of action or legal theories.FN12 S.Rep. No. 109-14, at 41, 2005 U.S.C.C.A.N. at 39; see also Giannini v. Nw. Mut. Life Ins. Co., No. 12-77, 2012 WL 1535196, at *5 (N.D.CaI. Apr.30, 2012); Rasberry, 609 F.Supp.2d at 605.

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) The question here is whether the first and second filed actions are the same case or if the first filed action is an "other class action," as contemplated .under the local controversy exception. The same representative plaintiffs filed two complaints on behalf of an identically-defined putative class arising from the same factual allegations. While the first filed action was pending in federal court, the parties proceeded with discovery and Halcon disclosed its intention to join the local defendants based on their role in the transaction that gave rise to the dispute. Plaintiffs then expressed a desire to add them as direct defendants. Instead of amending the first filed complaint in a way that would destroy complete diversity, Plaintiffs sought to voluntarily dismiss the first filed action so that Plaintiffs and Halc6n could assert claims against the local defendants in a single forum in which subject matter jurisdiction undisputedly existed. Apparently recognizing the possibility that, absent a settlement, the dispute between the sides would continue, the District Court granted the motion to dismiss the first filed action without prejudice but ordered the parties to participate in ADR and to retain the discovery that they had exchanged for use in both the ADR and the case that joined the two local defendants. Thus, the District Court's actions showed that it considered the second filed action a continuation of the first filed action and took practical steps to ensure that the act of filing the second complaint did not delay the parties' ability to proceed. Treating the second filed action in this way is consistent with the goal of the local controversy exception of ensuring that the defendants are not subject to similar claims in different forums and allowing all claims against them to proceed in a coordinated fashion. Furthermore, this is not a copycat situation where the defendants face similar class claims brought by different named plaintiffs and different counsel in different forums. Rather, the named Plaintiffs and their counsel brought class claims in November 2012 and, based on Halcon's disclosure, Plaintiffs decided to enlarge the case to add the two local defendants together with claims unique to
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those parties that arose from the same transactions. In practical terms, Plaintiffs' actions were no different from a situation where a party amends a pleading to join parties to an existing case, which is indeed what Halcon itself stated it intended to do during the original district court proceeding. Indeed, there is nothing in the record that would suggest otherwise. *9 In short, Halcon is defending the same case that it had been defending since November 2012 with the exception of the addition of the other parties Halcbn intended to join. The first filed action therefore is not an "other class action" as contemplated under CAFA, but rather is the same case, albeit enlarged, and thus, the "no other class action" prong ofthe local controversy exception is satisfied. For these reasons, the local controversy exception to CAFA jurisdiction mandates remand of this truly local case involving Pennsylvania landowners and their land. IV. CONCLUSION For the foregoing reasons, we will affirm the order of the District Court granting the motion to remand. FN1. Because these exceptions are examined to determine whether a federal court has subject matter jurisdiction, "our inquiry is limited to examining the case às of the time it was filed in state court [.]' " Std. Fire Ins. Co. v. Knowles, U.S. 133 S.Ct. 1345, 1349, 185 L.Ed.2d 439 (2013)(quoting Wisc. Dept of Corrs. v. Schacht, 524 U.S. 381, 390, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998)) (concluding that, although District Court appropriately considered stipulation in the complaint by the class action plaintiff to an amount in controversy below CAFA's jurisdictional threshold, the District Court wrongly concluded that the precertification stipulation was binding on the absent class

--- F.3d ----, 2013 WL 4268840(C.A.3 (Pa.)) (Cite as: 201.3 WL 4268840(C.A.3(Pa.))) members). As we noted in Erie Ins. Exch. F.3d v. Erie Indem. Co., No. 13-1415, 2013 WL 3481493, at *3 (3d Cir. June 28, 2013), in evaluating whether removal was proper, "we generally focus on the allegations in the Complaint and the notice of removal." Id. (emphasis added). Courts may consider pleadings as well as evidence that the parties submit to determine whether subject matter jurisdiction exists or an exception thereto applies. See Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1015-17 (9th Cir.2011) (relying solely on the pleadings to evaluate the "significant relief' and "significant basis of the claims" factors under the local controversy exception, but considering exdetermine the ternal evidence to "citizenship" factor); Coffey v. Freeport McMoran Copper &Gold, 581. F.3d 1240, 1246 (10th Cir.2009) (looking to the total activity of a company to determine the "citizenship" factor); Moua v. JaniKing of Minn., Inc., 613 F.Supp.2d 1103, 1108-09 (D.Minn.2009) (considering the allegations and plaintiffs arguments in other submissions); Anthony v. Small Tube Mfg. Corp., 535 F.Supp.2d 506, 517 (E.D.Pa.2007) (considering defendant's answer and averments). FN2. Members of the putative class who are natural persons are deemed citizens of the state in which they are domiciled, which is typically the state where the person lives. See NewmanGreen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1.989); District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 86 L.Ed. 329 (1941). Under CAFA, suits brought "by unincorporated associations [are] treated like suits by corporations in that the citizenship of the association for diversity purposes is determined by the entities' principal place of
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business and not by the citizenship of its members." Erie Ins., 2013 WL 3481493, at *6 n. 7; 28 U.S.C. 1332(d)(10). FN3. CXEnergy is deemed a citizen of Pennsylvania, which is both its state of incorporation, 28 U.S.C. 1332(c)(1), and the place "where the corporation's high level officers direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 559 U.S. 77, 80, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). As an unincorporated association, CAFA deems M & P "to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized," 28 U.S.C. 1332(d)(10), which in this case is Pennsylvania. FN4. For this reason, courts examining whether a defendant is a "primary defendant" should not consider whether the defendant may be able to recover from others or whether it is able to satisfy the judgment. FNS. This is also consistent with the legislative history. The Sponsors explicitly stated that "[t]he term "primary defendanP' should include any person who has substantial exposure to significant portions of the proposed class in the action, particularly any defendant that is allegedly liable to the vast majority of the members of the proposed classes, as opposed to simply a few individual class members." 151 Cong. Rec. H72301, 2005 WL 387992 (daily ed. Feb. 17, 2005) (statement of Rep. Goodlatte); see also H.R.Rep. No. 108-144, 2003 WL 21321526, at 38 (2003). Thus, the Sponsors intended the identity of the "primary defendants" to be determined based upon the allegations concerning the defendants expected to be liable to the greatest number of class members and to suffer the greatest loss if liability is found.

--- F.3d ----, 2013 WI,4268840(C.A.3 (Pa.)) (Cite as: 2013 WL 4268840(C.A.3(Pa.))) FN6. See also Hollinger v. Hoene .State Mut. Ins. Co., 654 F.3d 564, 572 (5th Cir.2011) (finding that defendants were primary defendants after considering the fact that all punitive class members had claims against them and that they had issued the insurance policies at the center of the dispute). FN7. This is in keeping with the contingent nature of the Sponsors' language (i.e., "if liability is found"). H.R.Rep. No. 108-144, 2003 WL 21321526, at 38(2003). FN8. This factor does not require that each class member assert a claim against that local defendant nor must the local defendant's alleged conduct form the basis of every claim asserted. Kaufman, 561 F.3d at 155. The focus is on the conduct in which the local defendant allegedly engaged and the alleged number of people impacted by it. FN9. Halcon's cross-claim also alleges that the local defendants agreed to include language in certain lease documents that did not appear in the documents that plaintiffs signed. Halcon claims that the local defendants made statements concerning the basis upon which Halcon could reject the lease, which Halcon alleges contradicts the written agreement. FN10. This provision is written in the disjunctive and hence, the provision is "satisfied either 1) when principal injuries resulting from the alleged conduct of each defendant were incurred in the state in which the action was originally filed òr' 2) when principal injuries resulting from any related conduct of each defendant were incurred in the state." Kaufman, 56] F.3d at 158. FNIl. The local controversy exception
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seeks to "identify a truly local controversya controversy that uniquely affects a particular locality to the exclusion of all others" 151 Cong. Rec. H72301, 2005 WL 387992 (daily ed. Feb. 17, 2005) (statement of Rep. Sensenbrenner), and "enables State courts to adjudicate truly local. disputes involving principal injuries concentrated within the forum State." 151 Cong. Rec. 5999-02, 2005 WL 283380 (daily ed. Feb. 7, 2005) (statement of Sen. Specter). FN12. Also, if two class actions arise out of the same facts, but are factually and analytically different, such that the proof necessary for one class to prevail differs from the proof another class would need to present, the first filed class action would not constitute an "other" class action as defined in CAFA. Rasberry v. Capitol Cnry. Mut. Fire Ins. Co., 609 F.Supp.2d 594, 605 (E.D.Tex.2009).
C.A.3 (Pa.),2013. Vodenichar v. Halcon Energy Properties, Inc. --- Fad ----, 2013 WI,4268840(C.A.3 (Pa.)) END OF DOCUMENT

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Newsletter of the Pennsylvania Catholic Conference

Pennsylvania Primary Election May 18, 2010

CANDIDATES FOR PENNSYLVANIA GOVERNOR Anthony Hardy Williams Tom Corbett

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Edmondson issued Attorney General Opinion 04-8 on March 19, 2004. 8

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