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Motion to Consolidate - IN THE UNITED STATES DISTRICT COURT.pdf

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					                        In the United States District Court
                       for the Nozrthern District of Florida
                                Gainesville Division



 National Organization for Marriage, Inc.,

                                       Plaintiff

        v.
                                                    Civil Action No. ____

 Dawn Roberts, in her official capacity as
 Florida secretary of state; Jorge Cruz-Bustillo,
 in his official capacity as chair of the Florida
 Elections Commission, and William Hollimon,
 Alia Faraj-Johnson, Leon Jacobs, Jr., Julie
 Kane, Gregory King, Jose Luis Rodriguez,
 Thomas Rossin, and Brian Seymour, in their
 official capacities as members of the Florida
 Elections Commission,

                                    Defendants


                        Plaintiff’s Motion to Consolidate

      Plaintiff National Organization for Marriage, Inc. (“NOM”) moves to

consolidate the preliminary-injunction hearing with a trial on the merits. See FED.

R. CIV. P. 65.a.2 (2009). This motion incorporates the brief. See L.R. 7.1.A (2005).

      Consolidations means advancing the trial on the merits to the preliminary-

injunction hearing, see id., and is particularly valuable when a substantial part of

the evidence at the preliminary-injunction stage will be relevant to the merits and

admissible at trial.   Consolidation is also valuable, because it avoids repeating

evidence and expedites final disposition. See FED. R. CIV. P. 65.a.2 (notes on 1966

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NOM MOTION TO CONSOLIDATE
amendment); see also Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463

F.2d 1055, 1057 (7th Cir. 1972) (Stevens, J.) (holding that when discovery is

concluded or unnecessary, “consolidation may serve the interests of justice”); West

Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229 (8th Cir. 1986) (“This

procedure is a good one, and we wish to encourage it”), cert. denied, 479 U.S. 1070

(1987); United States ex rel. Goldman v. Meredith, 596 F.2d 1353, 1358 (8th Cir.

1979) (approving consolidation when there was “no conflict of material fact” and the

disputed question was one of law); Bright v. Nunn, 448 F.2d 245, 247 n.1 (6th Cir.

1971) (approving consolidation when decisive facts were uncontested).

      Plaintiff submits consolidation is appropriate, because Plaintiff has presented

the necessary facts – which are within Plaintiff’s, not Defendants’, knowledge – and

the remaining questions are question of law. And consolidation is consistent with

the principle that a challenge such as this one

      must entail minimal if any discovery, to allow parties to resolve
      disputes quickly without burdensome litigation. And it must eschew
      the open-ended rough-and-tumble of factors, which invites complex
      argument in a trial court and a virtually inevitable appeal. In short, it
      must give the benefit of any doubt to protecting rather than stifling
      speech.

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007) (“WRTL II”) (brackets,

quotation marks, and internal citations omitted).

      Moreover, “the burdens at the preliminary[-]injunction stage track the

burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 429 (2006). For example, at both stages, Defendants must show their law


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NOM MOTION TO CONSOLIDATE
survives constitutional scrutiny. See id. (citing Ashcroft v. ACLU, 542 U.S. 656, 666

(2004)). If Defendants cannot meet their burden now, they will not be able to meet

it at trial either; they cannot need time to “discover” an interest supporting their

law.

       Consolidation will therefore conserve judicial time and effort by avoiding

duplicative hearings.

       For the foregoing reasons, Plaintiff asks that the Court grant its motion to

consolidate.

                                       Respectfully submitted,


/s/ Horatio G. Mihet
Mathew D. Staver,                      James Bopp, Jr., Ind. No. 2838-84
Fla. No. 0701092                       Randy Elf, New York No. 2863553
Horatio G. Mihet,                      JAMES MADISON CENTER FOR FREE SPEECH
Fla. No. 026581                        1 South Sixth Street
LIBERTY COUNSEL                        Terre Haute, Ind. 47803
Post Office Box 540774                 Telephone (812) 232-2434
Orlando, Fla. 32854                    Facsimile (812) 235-3685
Telephone (800) 671-1776               bcb@BoppLaw.com
Facsimile (407) 875-0770               Lead Counsel for Plaintiff
court@lc.org
Local Counsel for Plaintiff

September 22, 2010




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NOM MOTION TO CONSOLIDATE

				
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