Case 3:10-cv-00091-RV -EMT Document 147 Filed 01/18/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
Pensacola Division

Case No.: 3:10-cv-91-RV/EMT

STATE OF FLORIDA, by and through

PAM BONDI, ATTORNEY GENERAL
OF THE STATE OF FLORIDA;

STATE OF SOUTH CAROLINA, by and through

ALAN WILSON, ATTORNEY GENERAL
OF THE STATE OF SOUTH CAROLINA;

STATE OF NEBRASKA, by and through

JON BRUNING, ATTORNEY GENERAL
OF THE STATE OF NEBRASKA;

STATE OF TEXAS, by and through

GREG ABBOTT, ATTORNEY GENERAL
OF THE STATE OF TEXAS;

STATE OF UTAH, by and through

MARK L. SHURTLEFF, ATTORNEY GENERAL
OF THE STATE OF UTAH;

STATE OF LOUISIANA, by and through

JAMES D. “BUDDY” CALDWELL, ATTORNEY
GENERAL OF THE STATE OF LOUISIANA;

STATE OF ALABAMA, by and through

LUTHER STRANGE, ATTORNEY GENERAL
OF THE STATE OF ALABAMA;

BILL SCHUETTE, ATTORNEY GENERAL

OF THE STATE OF MICHIGAN, ON BEHALF OF
THE PEOPLE OF MICHIGAN;

STATE OF COLORADO, by and through

JOHN W. SUTHERS, ATTORNEY GENERAL
OF THE STATE OF COLORADO;

COMMONWEALTH OF PENNSYLVANIA, by
and through THOMAS W. CORBETT, Jr.,
Case 3:10-cv-00091-RV -EMT Document 147 Filed 01/18/11 Page 2 of 12

GOVERNOR OF THE COMMONWEALTH

OF PENNSYLVANIA, and WILLIAM H. RYAN,
Jr., ACTING ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA;

STATE OF WASHINGTON, by and through

ROBERT M. McKENNA, ATTORNEY GENERAL
OF THE STATE OF WASHINGTON;

STATE OF IDAHO, by and through

LAWRENCE G. WASDEN, ATTORNEY GENERAL
OF THE STATE OF IDAHO;

STATE OF SOUTH DAKOTA, by and through

MARTY J. JACKLEY, ATTORNEY GENERAL
OF THE STATE OF SOUTH DAKOTA;

STATE OF INDIANA, by and through

GREGORY F. ZOELLER, ATTORNEY GENERAL
OF THE STATE OF INDIANA;

STATE OF NORTH DAKOTA, by and through

WAYNE STENEHJEM, ATTORNEY GENERAL
OF THE STATE OF NORTH DAKOTA;

STATE OF MISSISSIPPI, by and through

HALEY BARBOUR, GOVERNOR OF
THE STATE OF MISSISSIPPI;

STATE OF ARIZONA, by and through JANICE K.

BREWER, GOVERNOR OF THE STATE OF ARIZONA,
and THOMAS C. HORNE, ATTORNEY GENERAL OF
THE STATE OF ARIZONA;

STATE OF NEVADA, by and through JIM GIBBONS,

GOVERNOR OF THE STATE OF NEVADA;

STATE OF GEORGIA, by and through SAMUEL S. OLENS,

ATTORNEY GENERAL OF THE STATE OF GEORGIA;

STATE OF ALASKA, by and through

DANIEL S. SULLIVAN, ATTORNEY GENERAL OF
THE STATE OF ALASKA;

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NATIONAL FEDERATION OF INDEPENDENT

BUSINESS, a California nonprofit mutual benefit
corporation;

MARY BROWN, an individual; and

KAJ AHLBURG, an individual;

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES;
KATHLEEN SEBELIUS, in her official
capacity as the Secretary of the United States
Department of Health and Human Services;
UNITED STATES DEPARTMENT OF
THE TREASURY; TIMOTHY F.
GEITHNER, in his official capacity as the
Secretary of the United States Department
of the Treasury; UNITED STATES
DEPARTMENT OF LABOR; and HILDA
L. SOLIS, in her official capacity as Secretary
of the United States Department of Labor,

Defendants.
___________________________________________/

PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND AMENDED

COMPLAINT JOINING ADDITIONAL PLAINTIFF STATES AND
MEMORANDUM IN SUPPORT

Pursuant to Rules 15, 20, and 21, Federal Rules of Civil Procedure, Plaintiffs

hereby move for leave to file their Second Amended Complaint,1 submitted

1
The caption of this motion (and that of the Second Amended Complaint) reflects
changes in the identities of various public officers by and through whom this action is
brought on behalf of the Plaintiff States. Substitution of public officers is automatic
under Rule 25(d), Federal Rules of Civil Procedure.

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contemporaneously herewith, for the sole purpose of adding the following States as

Plaintiffs:

STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY

GENERAL OF THE STATE OF OHIO;

STATE OF KANSAS, by and through DEREK SCHMIDT, ATTORNEY

GENERAL OF THE STATE OF KANSAS;

STATE OF WYOMING, by and through MATTHEW H. MEAD,

GOVERNOR OF THE STATE OF WYOMING;

STATE OF WISCONSIN, by and through J.B. VAN HOLLEN,

ATTORNEY GENERAL OF THE STATE OF WISCONSIN;

STATE OF MAINE, by and through WILLIAM J. SCHNEIDER,

ATTORNEY GENERAL OF THE STATE OF MAINE; and

TERRY E. BRANSTAD, GOVERNOR OF THE STATE OF IOWA, ON

BEHALF OF THE PEOPLE OF IOWA.

As shown below, the inclusion and participation of these six States (the

“Additional States”) as Plaintiffs, following the recent cycle of elections nationally, is

entirely proper, because the Additional States share the same interests, assert the same

claims, and seek the same relief as the Plaintiff States in this litigation with respect to the

same Act of Congress.2 The Additional States have authorized the undersigned to advise

the Court that they support this motion.

Moreover, joinder of the Additional States and the filing of the Second Amended

Complaint to reflect that joinder will neither delay this action nor prejudice Defendants.

The Additional States accept this action as it now stands, with the parties’ cross-motions

2
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010),
as amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-
152, 124 Stat. 1029 (2010) (collectively the “ACA” or the “Act”).

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for summary judgment having been fully briefed and argued before the Court. Indeed,

the only change made by the Second Amended Complaint is the identification of the

Additional States as named Plaintiffs; even the paragraph numbers as between the

Amended Complaint and the Second Amended Complaint remain the same.3

Consequently, Defendants’ Answer, which under Rule 15(a)(3) would be due 14 days

after filing of the Second Amended Complaint is deemed effective, will require virtually

no modification.4

Beyond these simple matters of form, the only effect of granting this motion

would be to expand from 20 to 26 the number of Plaintiff States joining together to seek

both a declaration that the ACA is unconstitutional and injunctive relief for the benefit of

themselves and their citizens and residents. Thus, the requested relief will not result in

any detriment to Defendants in defending this action; and the Additional States, after

being permitted to be named as Plaintiffs, will be in a position to benefit from any

equitable remedies that may be entered in this cause.5

3
Counts Two, Three, Five, and Six of the Amended Complaint were dismissed by the
Court, per its Order and Memorandum Opinion dated October 14, 2010 [Doc. 79]. Those
counts are realleged in the Second Amended Complaint in order to preserve them and
avoid abandonment of them. (N.D. Fla. Local Rule 15.1 provides that “[m]atters not set
forth in the amended pleading are deemed to have been abandoned.”)
4
In fact, only a single paragraph of the “Answer to Amended Complaint” [Doc. 81] – in
which Defendants collectively respond to paragraphs 6-25 of the Amended Complaint –
would need to be altered, for the limited purpose of admitting that the six Additional
States are States.
5
As acknowledged in the Certificate of Conference with Opposing Parties, infra,
Defendants have indicated that they oppose this motion on the stated basis that it is
inconsistent with this Court’s Orders of April 14 and 23, 2010. Significantly, Defendants
have not claimed that they would be prejudiced – the most important consideration under
settled law, as demonstrated below. While the Court’s April 14 Order did establish a

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Memorandum in Support

Rule 20(a)(1), Federal Rules of Civil Procedure, allows parties to join together as

plaintiffs in the same action if

(A) they assert any right to relief jointly, severally, or in the

alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions and
occurrences; and

(B) any question of law or fact common to all plaintiffs will

arise in the action.

Cf. Moore v. Comfed Savings Bank, 908 F.2d 834 (11th Cir. 1990) (joinder of all

defendants held proper under Rule 20 because “all of these transactions arose out of a

series of transactions or occurrences initiated by Land Bank and all of the claims

involved the same question of law and fact.”).

The proper procedure for a party to add plaintiffs is to seek leave to amend the

complaint. 4 James Wm. Moore et al., Moore’s Federal Practice ¶ 20.02[a][ii] (3d ed.

2009).

May 14 deadline for joining parties, that deadline was set in the context of fixing a date
for filing the Amended Complaint as a matter of course pursuant to Rule 15(a)(1)(A),
Defendants having filed no responsive pleading as of that time. Plaintiffs do not believe
that the Court intended the May 14 deadline to bar all later requests for leave to add
parties under Rule 15(a)(2). Plaintiffs’ belief is implicitly supported by the Court’s April
23 Order, which denied intervention by various outside parties under Rule 24, Federal
Rules of Civil Procedure. There, the Court noted its concern that allowing intervenors
with distinct claims could prevent resolution of this case “in an efficient and timely
manner.” [Doc. 37 at 2.] But the Court did not set a deadline for filing of motions to
intervene. That the Additional Plaintiffs – who will not be introducing any collateral
issues – could have sought to join this action through permissive intervention under Rule
24 underscores the appropriateness of their inclusion through amendment of the pleading
pursuant to Rule 15.

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Rule 15(a)(2), Federal Rules of Civil Procedure, governing amended and

supplemental pleadings, provides that “[t]he court should freely give leave [to amend a

pleading] when justice so requires.”6

In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court set forth the standard

to be applied in determining whether leave to amend a complaint should be granted,

stating:

In the absence of any apparent or declared reason – such as undue

delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc. – the
leave sought should, as this rule requires, be “freely given.”

Id. at 182. See also Campbell v. Emory Clinic, 166 F.3d 1157, 1161-62 (11th Cir. 1999)

(quoting Foman v. Davis); Nat’l Indep. Theatre Exhibitors, Inc. v. Charter Fin. Group,

747 F.2d 1396, 1404 (11th Cir. 1984) (same).

Of the pertinent factors identified by the courts, prejudice to the opposing party is

the most important to consider in determining whether leave to amend should be granted:

However, unlike amendments as of course, amendments under

Rule 15(a)(2) may be made at any stage of the litigation. The only
prerequisites are that the district court have jurisdiction over the
case and an appeal must not be pending. If these two conditions
are met, the court will proceed to examine the effect and the timing
of the proposed amendments to determine whether they would
prejudice the rights of any of the other parties to the suit. If no
prejudice is found, then leave normally will be granted.

6 C. Wright et al., Federal Practice and Procedure § 1484 (2010).

6
Similarly, Rule 21, Federal Rules of Civil Procedure, provides that, “[o]n motion or on
its own, the court may at any time, on just terms, add or drop a party.”

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There is no prescribed “time limit within which a party may apply to the court for

leave to amend.” Id. at § 1488. Indeed:

[t]he courts have not imposed any arbitrary timing restrictions on

requests for leave to amend and permission has been granted under
Rule 15(a) at various stages of the litigation. These include:
following discovery; after a pretrial conference; at a hearing on a
motion to dismiss or for summary judgment; when the case is on
the trial calendar and has been set for a hearing by the district
court; at the beginning, during, and at the close of trial; after a
judgment has been entered; and even on remand following an
appeal.

Id. (citations omitted).

In the case at bar, the criteria for joinder under Rule 20(a) plainly are met.

Plaintiff States, through the various causes of action set forth in their pleading, have

raised facial constitutional challenges to the ACA, and the Additional States seek to

assert exactly the same claims. Thus, the legal issues at stake are common to the Plaintiff

States and the Additional States. Further, the parties agree, by their cross-motions for

summary judgment, that there are no genuine issues of material fact – and no discovery

has been undertaken by any party.

Moreover, none of the recognized factors that might weigh against allowing a

requested amendment has any applicability here. Most importantly, no prejudice to

Defendants would arise from allowing joinder of the Additional States. The Additional

States accept the case as it is, with the summary judgment cross-motions having been

fully briefed and argued. No new claims or defenses would arise from the filing of the

Second Amended Complaint; no delay in the resolution of the summary judgment

motions would result; and, apart from the minimal task of altering their Answer (as noted

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above), Defendants will not be put to any additional burden or expense. Nor has there

been any undue delay, bad faith or dilatory motive, or repeated failure to cure

deficiencies by previous amendment.7

On the issues of timeliness, prejudice, and futility of amendment, United States v.

Oregon, 745 F.2d 550 (9th Cir. 1984), is instructive. There, the appellate court, reversing

the district court, allowed Idaho to intervene under Rule 24, Federal Rules of Civil

Procedure. The Court stated:

The key point in this appeal, however, is that the existing

parties’ concerns have little to do with timeliness. They do not
suggest that their problems are materially different now than they
would have been had Idaho sought to intervene a decade or more
ago. We find no basis in the record for holding that the
intervention would prejudice the existing parties because of the
passage of time. … There is no serious dispute that Idaho has
interests which may be affected by the disposition of this litigation.
… As a party to the action, it will be able to invoke the district
court’s jurisdiction to secure adherence to orders of the district
court.
Id. at 553.

Likewise, in the instant action, the inclusion of the Additional States as parties has

“little to do with timeliness” and, as noted, would result in no prejudice to Defendants.

Moreover, the requested amendment would not be a futile act, because the Additional

States, like Plaintiff States, have a legitimate desire to obtain injunctive relief in order to

7
In sharp contrast, in National Independent Theatre Exhibitors, Inc. v. Charter
Financial Group, “Charter and Columbia, both ready for trial, would have been
prejudiced by the delay and expense occasioned by the largely repetitious discovery the
new defendants would have required[,]” and amendment would have been futile. 747
F.2d at 1404. Similarly, in Campbell v. Emory Clinic, “[a]mendment at the late date
offered would have been futile, caused undue delay and expense, and resulted in unfair
prejudice to the individual defendants.” 166 F.3d at 1162.

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protect themselves, their citizens, and their residents from enforcement of the ACA by

the Defendants, and seek to “invoke the District Court’s jurisdiction to secure adherence

to orders of the District Court.”

Conclusion

For all the reasons stated above, Plaintiffs ask that their motion be granted and

that their Second Amended Complaint be deemed effectively filed.

Respectfully submitted,

PAMELA JO BONDI
ATTORNEY GENERAL OF FLORIDA

/s/ Blaine H. Winship

Blaine H. Winship (Fla. Bar No. 0356913)
Special Counsel
Joseph W. Jacquot (Fla. Bar No. 189715)
Special Counsel
Scott D. Makar (Fla. Bar No. 709697)
Solicitor General
Louis F. Hubener (Fla. Bar No. 0140084)
Timothy D. Osterhaus (Fla. Bar No.
0133728)
Deputy Solicitors General
Office of the Attorney General of Florida
The Capitol, Suite PL-01
Tallahassee, Florida 32399-1050
Telephone: (850) 414-3300
Facsimile: (850) 488-4872
Email: [email protected]
Attorneys for Plaintiff States

Karen R. Harned David B. Rivkin (D.C. Bar No. 394446)

Executive Director Lee A. Casey (D.C. Bar No. 447443)
National Federation of Independent Baker & Hostetler LLP
Business 1050 Connecticut Avenue, N.W., Ste. 1100
Small Business Legal Center Washington, DC 20036
1201 F Street, N.W., Suite 200 Telephone: (202) 861-1731
Washington, DC 20004 Facsimile: (202) 861-1783
Telephone: (202) 314-2061 Attorneys for Plaintiff States, National

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Facsimile: (202) 554-5572 Federation of Independent Business, Mary

Of counsel for Plaintiff National Brown, and Kaj Ahlburg
Federation of Independent Business
Katherine J. Spohn
Special Counsel to the Attorney General
Office of the Attorney General of Nebraska
2115 State Capitol Building
Lincoln, Nebraska 68508
Telephone: (402) 471-2834
Facsimile: (402) 471-1929
Email: [email protected]
Attorneys for Plaintiff the State of Nebraska

Bill Cobb
Deputy Attorney General
for Civil Litigation
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-0131
Facsimile: (512) 936-0545
Email: [email protected]
Attorneys for Plaintiff the State of Texas

CERTIFICATE OF CONFERENCE WITH OPPOSING PARTIES

Pursuant to Local Rule 7.1(B) of the Northern District of Florida, the undersigned

counsel hereby certifies that he conferred with counsel for Defendants in a good faith

effort to resolve by agreement the issues raised in Plaintiffs’ Motion for Leave to File

Second Amended Complaint Joining Additional Plaintiff States, but that he was

unsuccessful in reaching agreement. Defendants’ counsel indicated that they believe

Plaintiffs’ Motion to be inconsistent with the Court’s Order of April 23, 2010, denying

motions to intervene; and that adding new parties now is, among other things,

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inconsistent with the Court’s Order of April 14, 2010, permitting amendment by May 14,

2010.

/s/ Blaine H. Winship

Blaine H. Winship
Special Counsel
Office of the Attorney General of Florida

CERTIFICATE OF SERVICE

I hereby certify that, on this 18th day of January, 2011, a copy of the foregoing

motion was served on counsel of record for all Defendants through the Court’s Notice of

Electronic Filing system.

/s/ Blaine H. Winship

Blaine H. Winship
Special Counsel
Office of the Attorney General of Florida

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