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Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.

Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:

1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.

2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.

3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.

4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by  delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.

Posted by Howard Wasserman on July 6, 2015 at 02:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Be sure to demand only $20 in damages, or else the 7th Amendment would allow the defendants to ask for a jury trial (assuming this is a suits "at common law."

Posted by: Ed Still | Jul 10, 2015 3:54:21 PM

This is interesting. In patent cases, where you commonly see plaintiffs pull out before trial, courts have held that the motion to dismiss and then dismissal with prejudice is sufficient to constitute being a prevailing party. In other words (and contrary to my argument on mootness before), if the state voluntarily complies after being sued, plaintiffs should seek a dismissal with prejudice, not a dismissal for mootness.

Posted by: Michael Risch | Jul 8, 2015 3:25:26 PM

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