IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN 

E. HUMPHREY, 

)

)

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 14-0424-CG-C

)

STATE OF ALABAMA, )

)

Defendant. )

ORDER

This matter is before the court on Plaintiffs’ emergency motion for leave to 

file an amended complaint and for preliminary injunction and/or temporary 

restraining order (Doc. 43), and the response thereto of Attorney General Strange 

(Doc. 44). For the reasons explained below, the court finds that Plaintiffs’ 

emergency motion for leave to amend should be granted and that a hearing should 

be set on Plaintiffs’ motion for preliminary injunction.

I. Motion to Amend

Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings 

“shall be freely given when justice so requires.” See Fed. R. Civ. P. 15(a). The 

Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court’s 

discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir. 

2005). “Unless a substantial reason exists to deny leave to amend, the discretion of 

the District Court is not broad enough to permit denial.” Florida Evergreen Foliage 

v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation 

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omitted). That said, leave to amend can be properly denied under circumstances of 

“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, [or] futility of 

amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape 

Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted). 

Plaintiffs Strawser and Humphrey, who until recently had proceeded pro se, 

are now represented by counsel and wish to clarify their causes of action and add 

new parties. Plaintiffs’ motion to amend seeks to add three additional same-sex 

couples as plaintiffs and to add Don Davis as a defendant in his official capacity as 

Probate Judge of Mobile County, Alabama. The current Defendant, Attorney 

General Luther Strange does not oppose Plaintiffs’ request for leave to file an 

amended complaint. (Doc. 43). The same-sex couples Plaintiffs wish to add live in 

Alabama and like Strawser and Humphrey have allegedly been denied the basic 

rights, privileges, and protections of marriage for themselves and their children. 

Plaintiffs seek to join Judge Davis as a defendant because he allegedly refused to 

issue marriage licenses to all of the Plaintiffs’ named in the proposed Amended 

Complaint, despite this court having granted a preliminary injunction to Strawser 

and Humphrey (Doc. 29) and despite this court’s ruling in Searcy v. Strange, SDAL 

Civil Action No. 14-00208-CGN, that Alabama’s laws prohibiting and refusing to 

recognize same-sex marriage are unconstitutional. The proposed amendment will 

not cause undue delay or prejudice, there is no indication of any bad faith or 

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dilatory motive on the part of the movants, and the amendment does not appear to 

be futile. There being no substantial reason to deny leave to amend, the court must 

allow the amendment. Accordingly, Plaintiffs’ motion for leave to file an amended 

complaint is hereby GRANTED.

II. Motion for Preliminary Injunction

After reviewing Plaintiff’s motion, the court finds it appropriate to set a 

preliminary injunction hearing. A hearing on Plaintiffs’ motion for preliminary 

injunction is hereby set for February 12, 2015, at 1:00 p.m., in Courtroom 2B, 

United States Courthouse, Mobile, Alabama.

Counsel for plaintiffs has averred that his co-counsel has spoken with Joseph 

Michael Druhan, Jr., counsel for Judge Don Davis, and that Mr. Druhan agreed to 

accept service by e-mail of the motion to amend the complaint and associated 

papers. (Doc. 43-2). The clerk of court is directed to provide Mr. Druhan, a member 

of the bar of this court, with a copy of this Order.

The court notes that Attorney General Luther Strange is already subject to 

an injunction from this court which prohibits him from enforcing Alabama’s 

marriage laws to the extent they prohibit same-sex marriage or the recognition of 

same-sex marriages legally performed in other states. Accordingly, Attorney 

General Strange’s presence is not required at the preliminary injunction hearing set 

above.

DONE and ORDERED this 10th day of February, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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