IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER, et al., )

)

)

Plaintiffs, )

)

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

)

LUTHER STRANGE, in his official 

capacity as Attorney General for 

the State of Alabama, DON DAVIS, 

in his official capacity as Probate 

Judge of Mobile County, Alabama,

) 

) 

) 

) 

)

)

Defendants. )

ORDER

This action is before the court on Plaintiffs’ motion for (1) leave to file second 

amended complaint adding additional parties and plaintiff and defendant classes 

(Doc. 76), Defendant Luther Strange’s response in opposition to the motion (Doc. 

78), and Defendant Don Davis’ opposition to the motion (Doc. 90). For the reasons 

explained below, the court finds that Plaintiffs’ motion for leave to amend should be 

granted.

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 

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

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).

Defendant Strange contends that this court should deny the motion for leave 

to amend and take no further action in this case because this lawsuit has been 

pending for many months as a suit between individual Plaintiffs and Defendants 

and those Plaintiffs have achieved that relief. Attorney General Strange argues 

that Plaintiffs cannot now convert this lawsuit into a class action between an illdefined class of plaintiffs and a class of 68 defendants, very few of which reside 

within the Southern District of Alabama. Strange contends that the court should 

wait until June when the United States Supreme Court will resolve the 

constitutionality of same-sex marriage. However, as this court recently ruled with 

regard to a motion by Judge Davis, the Defendants in this case have not shown that 

a stay is warranted. Defendant Strange has also failed to provide any authority 

showing why this court cannot or should not allow Plaintiffs to amend their 

complaint to add parties and assert class allegations. Although Defendant Strange 

objects to the amendment “at this late date,” this case has only progressed to the 

preliminary injunction stage and although the current Plaintiffs have apparently all

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received marriage licenses the licenses are of little value if they are not recognized 

as valid in Alabama. Under the circumstances, allowing the amendment is not 

likely to significantly delay resolution of the case for the current parties. The 

requested amendment will not disturb any schedule set by the Court in this case.

Judge Davis asserts that the court should not allow the addition of the new 

Plaintiffs and further asserts that Plaintiffs have not met the requirements for class 

certification. Joinder of additional plaintiffs is permitted 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 or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

FED. R. CIV. P. 20(a)(1). Courts are encouraged to entertain “...the broadest possible 

scope of action consistent with fairness to the parties; joinder of claims, parties and 

remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 

715, 724, (1966). “Rule 20 permits ‘the joinder of a person who has some interest in 

an action ..., even when that interest is not so strong as to require his joinder’ under 

Rule 19.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (citing Field v. 

Volkswagenwerk AG, 626 F.2d 293, 299 (3d Cir. 1980)). In the instant case, the 

proposed new plaintiffs, like the current plaintiffs, are same-sex couples that seek 

to marry and have their marriages recognized. Their claims present the common 

legal question of whether Defendants’ enforcement of Alabama’s laws excluding 

same-sex couples from marriage and refusing to recognize their marriages violate 

the Fourteenth Amendment to the United States Constitution. As such, the court 

finds that joinder of the new Plaintiffs is appropriate.

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As to Judge Davis’ argument that Plaintiffs have not met the requirements 

for class certification, the court finds that Plaintiffs have asserted sufficient 

allegations for the court to allow the amendment. To the extent Judge Davis’

objection to class certification is offered in opposition to Plaintiffs’ motion to amend, 

Davis’ argument is essentially that the amendment would be futile. An amendment 

is futile when a claim as proposed would be subject to dismissal. See Hall v. United 

Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.2004). To survive a motion to dismiss 

for failure to state a claim, “a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). 

It is well-settled that a plaintiff bears the burden of establishing all 

prerequisites under the Federal Rules of Civil Procedure before a class action is 

proper in the district court. Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984)

(citations omitted). “Mere repetition of the language of Rule 23(a) is not sufficient.

There must be an adequate statement of the basic facts to indicate that each 

requirement of the rule is fulfilled.” In re Am. Med. Sys. Inc., 75 F.3d 1069, 1079 

(6th Cir.1996) (citation omitted). However, the Plaintiffs’ motion for class 

certification is not yet ripe. Under Plaintiffs’ motion to amend, the court need only 

consider whether Plaintiffs have sufficiently alleged class claims. Thus, although 

the court may dismiss class allegations “[w]here it is facially apparent from the 

pleadings that there is no ascertainable class,” John v. Nat'l Sec. Fire & Cas. Co., 

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501 F.3d 443, 445 (5th Cir.2007), the court finds that the Plaintiffs in this case have 

alleged adequate facts to support a potential class claim and the court will not 

engage in a detailed and rigorous analysis of the class claims until all of the current 

parties have had the opportunity to oppose or support the motion for class 

certification.1

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

allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second 

amended complaint (Doc. 76) is hereby GRANTED.

DONE and ORDERED this 18th day of March, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

 

1 Attorney General Strange has been given until Monday, March 23, 2015 to 

respond to Plaintiffs’ motion to certify class (Doc. 89).

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