Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 1 of 6

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1 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. DEFENDANTS MOTION TO STAY PROCEEDINGS Defendants Rick Perry, in his official capacity as Governor, Hope Andrade, in her official capacity as Secretary of State, and the State of Texas (collectively, Defendants ) respectfully move to stay the above-captioned proceedings. Plaintiffs claims challenging senate district 10 in Plan S148 arrived late and rest on unsupported legal theories. 1 For this reason, Defendants have moved to dismiss most of the claims brought by the LULAC Plaintiffs. See Defendants Motion to Dismiss and for Judgment on the Pleadings (Doc. 40). Defendants simultaneously moved for judgment on the pleadings as to most claims brought by the Davis Plaintiffs. See id. In addition, Defendants have advised the Court that Plaintiffs untimeliness violates the doctrine 1 Plaintiffs in this case include two plaintiffs groups. The Davis Plaintiffs are Wendy Davis, Marc Veasey, Roy Brooks, Vicky Bargas, Pat Pangburn, Frances Deleon, Dorothy Debose, and Sarah Joyner. The LULAC Plaintiffs are LULAC and Domingo Garcia. DEFENDANTS MOTION TO STAY PAGE 1

2 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 2 of 6 of laches and precludes Plaintiffs from equitable relief with respect to 2011 and 2012 election deadlines. See Defendants Advisory to the Court (Doc. 35). Discovery in this case has become an unnecessary diversion from ongoing proceedings in companion cases that predate Plaintiffs complaints by several months. For instance, Plaintiffs have requested that Defendants produce witnesses for deposition next week on Wednesday, October 26, Next week, most of Defendants counsel who are familiar with redistricting matters will be in Washington, D.C., taking and defending depositions in the preclearance proceedings. These scheduling conflicts were the inevitable and foreseeable result of Plaintiffs decision to bifurcate their Texas Senate challenge from their Texas House and congressional challenges. The circumstances presented here provide the Court with ample justification to stay proceedings pending judgment from the United States District Court for the District of Columbia on preclearance. It has long been recognized that a district court has the inherent power to control its own docket, including the power to stay proceedings. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Managing the Court s docket calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Id In determining whether to stay proceedings, courts consider: (1) whether a stay will unduly prejudice or present a clear tactical disadvantage to the nonmoving party, (2) whether a stay will simplify the issues in question and trial of the case, and (3) whether discovery is complete and whether a trial date has been set. Soverain Sofnvare LLC v. Amazon.com, Inc., 356 F. Supp. 2d 660, 662 (E.D. Tex. 2005). All three factors relevant to the stay inquiry favor granting a stay here. A stay will not unduly prejudice Plaintiffs; to the contrary, Plaintiffs decision to delay their claims has unduly DEFENDANTS MOTION TO STAY PAGE 2

3 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 3 of 6 prejudiced Defendants, this Court, state and local election officials, potential candidates, and voters. Neither party will obtain a tactical advantage from the stay, but a stay will prevent concurrent discovery and other preparations in three separate redistricting matters. A stay will also likely prevent Plaintiffs from obtaining relief as to the 2011 and 2012 election cycle, but Plaintiffs delay already jeopardized any relief they might have obtained for these elections. A stay will also simplify Plaintiffs claims because a ruling on preclearance will resolve whether Plaintiffs malapportionment claims are viable. A preclearance ruling will likewise resolve whether Plaintiffs are entitled to injunctive relief for Defendants failure to obtain a preclearance ruling. Discovery is not yet complete in this matter, and avoiding concurrent discovery obligations lies at the heart of Defendants request for a stay. The Court has set a trial date in this case on an expedited basis, but this case has been pending for approximately one month. No inequity would result if trial were continued or delayed to accommodate any discovery that Plaintiffs may require upon resolution of the preclearance proceedings. PRAYER For the foregoing reasons, Defendants respectfully request that the Court stay these proceedings pending a judgment by the United States District Court for the District of Columbia on preclearance and pending this Court s decision on Defendants Motion to Dismiss and Motion for Judgment on the Pleadings. Dated: October 24, 2011 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DEFENDANTS MOTION TO STAY PAGE 3

4 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 4 of 6 BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ David J. Schenck DAVID SCHENCK Deputy Attorney General for Legal Counsel Texas Bar No ANGELA COLMENERO Assistant Attorney General Texas Bar No MATTHEW H. FREDERICK Special Counsel to the Attorney General Texas Bar No ANA MARIE JORDAN Assistant Attorney General Texas Bar No BRUCE D. COHEN Special Assistant to the Attorney General Texas Bar No P.O. Box 12548, Capitol Station Austin, TX (512) (512) (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND HOPE ANDRADE DEFENDANTS MOTION TO STAY PAGE 4

5 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 5 of 6 CERTIFICATE OF CONFERENCE I hereby certify that, on October 21, 2011, counsel for the Defendants State of Texas, Rick Perry, and Hope Andrade requested that Plaintiffs in this matter indicate whether they oppose or do not oppose this motion. Plaintiffs have not indicated whether or not they oppose the motion, and Defendants assume that they oppose. /s/ David J. Schenck DAVID SCHENCK Deputy Attorney General for Legal Counsel DEFENDANTS MOTION TO STAY PAGE 5

6 Case 5:11-cv OLG-JES-XR Document 41 Filed 10/24/11 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent via the Court s electronic notification system to the following counsel of record on October 24, 2011: David Richards Richards, Rodriguez and Skeith 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com Attorney for Davis Plaintiffs Donna García Davidson Attorney at Law P.O. Box Austin, TX Donna@dgdlawfirm.com Attorney for Defendant Steve Munisteri Chad Dunn Brazil & Dunn 4201 FM 160 West, Suite 530 Houston, Texas chad@brazilanddunn.com Attorney for Defendant Boyd Richie J. Gerald Hebert Attorney at Law 191 Somervelle Street, #405 Alexandria, VA Hebert@voterlaw.com Attorney for Davis Plaintiffs Eric Opiela Attorney at Law 1122 Colorado, Suite 2301 Austin, TX eopiela@ericopiela.com Attorney for Defendant Steve Munisteri Luis Vera 1325 Riverview Towers 111 Soledad San Antonio, Texas Lrvlaw@sbcglobal.net Attorney for LULAC Plaintiffs /s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel DEFENDANTS MOTION TO STAY PAGE 6

7 Case 5:11-cv OLG-JES-XR Document 41-1 Filed 10/24/11 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. ORDER GRANTING DEFENDANTS MOTION TO STAY PROCEEDINGS Before the Court is Defendants Motion to Stay Proceedings. After considering the motion, the Court is of the opinion that, for the reasons stated therein, it should be GRANTED. IT IS THEREFORE ORDERED that Defendants Motion to Stay is hereby GRANTED. IT IS FURTHER ORDERED that proceedings in this matter shall be stayed until the United States District Court for the District of Columbia issues a judgment on preclearance and this Court renders a decision on Defendants Motion to Dismiss and Motion for Judgment on the Pleadings. DATED:

8 Case 5:11-cv OLG-JES-XR Document 41-1 Filed 10/24/11 Page 2 of 2 UNITED STATES DISTRICT JUDGE