PLAINITFF MALC'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT

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1 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs and MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC Plaintiffs v. STATE OF TEXAS; RICK PERRY, In his official capacity as Governor of the State of Texas; DAVID DEWHURST, In his official capacity as Lieutenant Governor of the State of Texas; JOE STRAUS, in his official capacity as Speaker of the Texas House of Representatives Defendants CIVIL ACTION NO: SA-11-CA-360-OLG-JES-XR (consolidated, lead case PLAINITFF MALC'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT INTRODUCTION Plaintiff Mexican American Legislative Caucus (the Caucus or MALC respectfully moves the Court, pursuant to Rule 15 of the Federal Rules of Civil Procedure, for leave to file an AMENDED COMPLAINT, a copy of which is attached hereto. The new complaint maintains most of the counts and allegations against the same defendants from the original complaint, but accounts for the significant factual and procedural developments that have occurred since the 1

2 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 2 of 6 original complaint was filed, including the enactment of new legislative plans for the state house, state senate, and congressional districts. On July 1st, the parties met in open court to discuss, in part, amending the pleadings to include the recently enacted plans. At that time, Defendant openly stated that it would oppose amendment, because of its stated belief that the issue was now moot because of Defendant s asserted motion to dismiss. Thereafter, this court denied without prejudice the State's motion to dismiss. STATEMENT OF FACTS On June 26, 2013, Governor Perry signed into law SB 3, relating to the composition of districts for the election of members of the Texas House of Representatives, and SB 4, relating to the composition of districts for the election of members of the United States House of Representatives from Texas. These new redistricting plans will become effective on September 24, On June 25, 2013, the United States Supreme Court held section 4 of the Voting Rights Act unconstitutional and that its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. 1 On July 1, 2013, this Court ordered that "[a]ll parties who wish to amend their pleadings in this lawsuit shall file motions for leave to amend, with proposed pleadings and briefs in support, on or before Friday, July 12, 2013." 2 ARGUMENT PLAINTIFF HAS MET THE STANDARD FOR OBTAINING LEAVE TO FILE AN AMENDED COMPLAINT UNDER FEDERAL RULE OF CIVIL PROCEDURE 15 1 Shelby County v. Holder, No , slip op. (U.S. June 25, 2013, 2 Perez v. Perry, 11-cv-00360, Dkt. 772, page 1. 2

3 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 3 of 6 Pursuant to Federal Rule of Civil Procedure 15(a(2, a party may amend its pleading only with the opposing party s written consent or the court s leave. The court should freely give leave when justice so requires. 3 The decision whether to grant leave to amend a pleading is within the sound discretion of the district court. 4 There must be a justification for denial of an amendment. In determining whether to allow an amendment of the pleadings, a court considers the following: 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, [and] futility of amendment. 5 Given the significant factual and legal developments in the previous six weeks, good cause for amending the Complaint is immediately clear and in the interests of justice. There is no other court in Texas that has seen the evidence that this Court has reviewed on this immediate subject matter. The plaintiffs are the same. The defendant is the same. The facts are largely the same. More to the point, no other court in Texas is as intimately involved with the court-ordered interim maps, which form the basis for PLAN H 358 and PLAN C 235, the newly enacted districting plans for the state house and Texas delegation to the United States House of Representatives. There is clearly sound discretion for allowing the amendment of pleadings to include challenges to the new maps. There has been no bad faith or delay by the plaintiffs. The factual events and substantive legal changes that have given rise to the need to amend the pleadings has only just occurred. There will be no undue delays associated with the allowance to amend pleadings, as a new 3 Fed. R. Civ. P. 15(a(2 4 Ward v. Am. Red Cross, 3:13-CV-1042-L, 2013 WL (N.D. Tex. June 14, 2013 (citing Foman v. Davis, 371 U.S. 178, 182 (U.S Id. (again citing Foman v. Davis, 371 U.S. 178, 182 (U.S

4 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 4 of 6 complaint on this same issue may also be filed. In fact, amended pleadings may offer efficiencies in judicial economy that may actually reduce delay. The interests of justice and judicial economy will undoubtedly be served by having all allegations properly before the Court as in the proposed amended complaint. The amendments are narrowly tailored to reflect the present circumstances and Plaintiff s present understanding of the law associated with voting rights and the ever-changing landscape of Texas redistricting. If the amendment is allowed, then this action can more effectively proceed on the merits and come to a timely end without any electoral delays. Defendants will not suffer any undue prejudice by virtue of the Court s allowance of the proposed amendment. The determination of whether prejudice would occur often includes assessing whether allowing an amendment would result in additional discovery, cost, and preparation to defend against new facts or new theories. The proposed amended complaint does not involve the addition of any new defendants not previously involved in the 2011 round of redistricting. Defendants cannot be prejudiced, or caught off guard, by the new facts alleged by MALC in the proposed amendment, since the Defendants fully expect to defend these maps in this court or another. No redistricting in Texas history has escaped judicial or administrative review. The newly enacted maps will be subject to discovery and will require legal defense whether these pleadings are amended or not. Granting the amendment only ensures efficient review of these maps by a Court deeply acquainted with the record, facts, and process of recent Texas redistricting. In the interest of justice, this Court should grant Plaintiff s motion for leave to file the proposed amended complaint. To date, there has been no statement by the defendant that allowing amendment would prejudice the Defendant's interest. There is only the vague assertion 4

5 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 5 of 6 as to the mootness of the claims, which has been denied by this court. There is more work for this Court to consider on the plans adopted in 2011 and on the maps adopted in Clearly, the facts have changed. Even the law has changed. But, the need to combat the poor process and the maps enacted by this legislature has not ended. These issues belong in front of this Court, which has already heard the testimony and begun to make credibility determinations based on the record. In short, this case belongs here. CONCLUSION For the reasons identified above, MALC requests that the Court grant Plaintiff s motion for leave to file the proposed amended complaint. DATED: July 12, 2013 Respectfully submitted, /s/ Jose Garza JOSE GARZA Texas Bar No Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas ( garzpalm@aol.com JOAQUIN G. AVILA LAW OFFICE P.O. Box Seattle, Washington Texas State Bar # ( ( (fax jgavotingrights@gmail.com Ricardo G. Cedillo State Bar No Mark W. Kiehne State Bar No DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite E. Mulberry Avenue San Antonio, Texas

6 Case 5:11-cv OLG-JES-XR Document 779 Filed 07/12/13 Page 6 of 6 Tel.: ( Fax: ( rcedillo@lawdcm.com mkiehne@lawdcm.com CERTIFICATE OF CONFERENCE ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REP. (MALC I hereby certify that pursuant to L.R. CV-7(h I have conferred with Angela V. Colmenero, counsel for the Defendants and have been informed that Defendants oppose this motion. /s/ Jose Garza Jose Garza CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of July, 2013, I electronically filed the foregoing using the CM/ECF system which will send notification of such filing to all counsel of record who have registered with this Court s ECF system, and via first class mail to those counsel who have not registered with ECF. /s/ Jose Garza JOSE GARZA 6