UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA
ELLEN W. GERBER; PEARL BERLIN; LYN MCCOY; JANE BLACKBURN; ESMERALDA MEJIA; CHRISTINA GINTER-MEJIA, for herself and as guardian ad litem for J.G.-M., a minor;
CIVIL ACTION NO. 1:14-cv-299
COMPLAINT Plaintiffs, v. ROY COOPER, in his official capacity as the Attorney General of North Carolina; JEFF THIGPEN, in his official capacity as the Register of Deeds for Guilford County; DONNA HICKS SPENCER, in her official capacity as the Register of Deeds for Catawba County; JOHN W. SMITH, in his official capacity as the Director of the North Carolina Administrative Office of the Courts; AL JEAN BOGLE, in her official capacity as the Clerk of the Superior Court for Catawba County. Defendants.
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INTRODUCTION 1. Plaintiffs are three North Carolina families. In each family, the adults are loving, committed same-sex couples who seek to have their legal out-of-state marriages recognized as lawful marriages in North Carolina. In addition, one couple is raising a child together, and seeks to ensure that both his parents have legally recognized parent-child relationships. Because North Carolina law does not respect their legal marriages, and in the case of the family raising a child, bars one parent from legalizing her relationship with her child, plaintiffs bring this suit alleging violations of the U.S. Constitution. 2. Plaintiffs Berlin, Blackburn, and Mejia have serious, life-threatening medical issues that make it likely that they and their families will suffer irreparable harm unless the state recognizes their legal out-of-state marriages. There is also an imminent risk of potential harm to child plaintiff J.G.-M.. 3. The adult plaintiffs seek to have their marriages from other jurisdictions recognized in North Carolina because of the numerous financial, psychological and social benefits that flow from a legally recognized marriage. Having their out-of-state marriages recognized by North Carolina will address the regular deprivations and indignities—economic, psychological and otherwise—the adult plaintiffs face each day. 4. Because of the gender and sexual orientation of the adult plaintiffs, they are denied the freedom to marry in North Carolina, and their out-of-state marriages are deemed invalid by North Carolina law, which specifies that the plaintiffs‟ marriages are not “valid or recognized in the State.” N.C. Const. art. XIV, § 6 (as amended).
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5. In addition, to secure similar benefits that flow from a legally recognized parent-child relationship, Ms. Mejia and Ms. Ginter-Mejia want to establish, via adoption, a full, legal parental relationship between their child J. G.-M. and his second parent. Specifically, Ms. Mejia, who is the non-legal parent, wishes to apply to adopt J.G.-M. whom she is currently raising with Ms. GinterMejia, J.G.-M.‟s legal parent. This adoption process is often referred to as “second parent adoption.”
6. North Carolina law prevents Ms. Mejia from forming such a legal relationship in the only way she can—through application for adoption—also because of her sexual orientation.
7. Plaintiffs bring this action (“Action”) to challenge the constitutionality of North Carolina‟s laws that exclude same-sex couples from marrying and that effectively void the marriages of same-sex couples lawfully entered into in other jurisdictions. In addition, Ms. Mejia and Ms. Ginter-Mejia challenge the constitutionality of North Carolina‟s adoption laws that prevent J.G.-M., the child plaintiff, from having a legal relationship with both of his parents.
8. The adult plaintiffs seek the same legal recognition of their family relationships afforded to heterosexual married spouses and their families for the same reason all families seek such relationships: so the members of each of the plaintiff couples can publicly declare their love and commitment before their friends, family and community, so each family member can achieve the benefits, security and protection that only a legal marriage and a legal adoption can provide, and so each family member can avoid the numerous psychological, social and financial detriments that arise from the lack of a legally recognized marriage or a legally recognized relationship between a parent and child.
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Marriage 9. Like other couples who have made a lifetime commitment to each other, the adult plaintiffs, Esmeralda Mejia and Christina Ginter-Mejia, Ellen W. Gerber and Pearl Berlin, and Lyn McCoy and Jane Blackburn, are spouses in every sense except that North Carolina law will not permit them to marry or recognize their marriages from other jurisdictions. 10. The adult plaintiffs wish to have their out-of-state marriages recognized in North Carolina. 11. North Carolina‟s exclusion of same-sex couples from marital recognition deprives plaintiffs and similar couples from many legal protections available to married spouses, including (without limitation) benefits available under tax laws; inheritance laws; retirement benefits; and insurance laws and contracts. Moreover, depriving same-sex couples of marital recognition undermines those couples‟ financial security and their ability to achieve life goals as couples, and deprives them of the immensely important dignity and status of marriage. 12. If plaintiffs Mejia and Ginter-Mejia‟s valid marriage were recognized in North Carolina, they would then qualify for the same stepparent adoption process available to heterosexual married parents without amendment or change to North Carolina‟s existing adoption laws.
Adoption 13. Absent the recognition of marriage for same sex couples, a second parent adoption is the only way that a family in North Carolina with gay or lesbian parents can ensure (i) that both parents have a legal relationship with their child and (ii) that the child receives the many protections and benefits of a legally cognizable parent-child relationship with both parents. A child who is
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prevented from having such a legally recognized relationship with both parents suffers numerous deprivations as a result, including exclusion from private health insurance benefits, public health benefits, veterans‟ benefits, disability benefits, social security benefits, life insurance benefits and workers‟ compensation, as well as uncertainty about the ability to continue his or her relationship with the second parent if something should happen to the legal parent. While many other states grant second parent adoptions when they are in a child‟s best interests, under North Carolina law, as authoritatively construed by the North Carolina Supreme Court in Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010),1 second parent adoptions are categorically prohibited.
14. Ms. Mejia and Ms. Ginter-Mejia therefore bring this action because North Carolina‟s categorical prohibition on second parent adoption violates the constitutional rights and protections of their child, J.G.-M., who faces direct and substantial deprivations—legal, psychological, financial, and otherwise—simply because he is being raised by lesbian parents, and violates the rights of his parents, who face similar direct and substantial burdens on their rights simply because they are lesbians.
15. There is no basis for the state automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents—without even considering what is best for the child—while simultaneously adjudicating any stepparent adoption petition by a heterosexual stepparent on its merits, according to what is in the child‟s best interest and otherwise consistent with established procedures.

1

Further references to North Carolina’s adoption statutes herein are a reference to those statutes as construed

by the North Carolina Supreme Court in Boseman.

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CONSTITUTIONAL VIOLATIONS 16. By depriving the plaintiffs of marital recognition and respect, North Carolina stigmatizes the adult plaintiffs and relegates them to second-class status. The laws forbidding marital recognition and preventing a parent from establishing a legal relationship with her child tell the plaintiffs that their relationships are less worthy, humiliating each plaintiff and denigrating the integrity and closeness of their family. 17. North Carolina‟s exclusion of same-sex couples from marriage and adoption of the children they raise are both independently unconstitutional because such prohibitions infringe on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Each prohibition is subject to heightened scrutiny because (a) it discriminates against a suspect class and (b) it burdens several fundamental rights, including the right to marry and the right of parents to make decisions about the care and nurturing of their children and the integrity of their families. Furthermore, the challenged laws cannot stand under any level of scrutiny, because the exclusions do not rationally further any legitimate government interest. They serve only to disparage and injure lesbian and gay couples and their families. 18. As a basis for their Action, plaintiffs respectfully allege as follows on the basis of their personal knowledge and otherwise on the basis of information and belief:
NATURE OF THE ACTION 19. This Action is brought under 42 U.S.C. § 1983 against state actors who, acting in their official capacity under color of state law, are responsible for making and enforcing state policies and laws that directly infringe plaintiffs‟ constitutional rights under the Fourteenth Amendment to the United States Constitution.
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JURISDICTION AND VENUE 20. Plaintiffs bring this Action pursuant to 42 U.S.C. § 1983. 21. This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3)-(4). 22. All defendants are located, or otherwise are present and conducting business, within the state of North Carolina. 23. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b). A substantial part of the events and omissions that give rise to the plaintiffs‟ claims occurs in this judicial district.
THE NORTH CAROLINA MARRIAGE LAWS North Carolina Marriage Statutes
24. North Carolina statutory law defines marriage as being between one man and one woman, thereby prohibiting marriage by persons of the same sex. North Carolina Gen. Stat. § 51-1 provides in relevant part: “A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other . . . .”
25. North Carolina statutory law explicitly provides that marriages by persons of the same gender are not valid. North Carolina Gen. Stat. § 51-1.2 provides: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.”
The North Carolina Anti-Marriage Amendment (“Amendment One”) 26. On May 8, 2012, Section 6 of Article XIV of the North Carolina Constitution was amended to exclude same-sex couples from the freedom to marry in North Carolina and to bar
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within North Carolina any recognition of the lawful marriages of same-sex couples from other jurisdictions. See 2011 North Carolina Laws S.L. 2011-409 (S.B. 514).
27. Amendment One provides: Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts. N.C. Const. art. XIV, § 6 (as amended). 28. Many of the justifications offered by public officials and others in support of Amendment One and excluding same-sex couples from marrying were based on animus toward gay and lesbian individuals because of their intimate and familial relationships. Statements in support of Amendment One included the following:
a. “[Y]ou cannot construct an argument for same sex-marriage that would not also justify philosophically the legalization of polygamy and adult incest”; “In countries around the world where they legitimized same-sex marriage, marriage itself is delegitimized.”2
b. “We need to reach out to them and get them to change their lifestyle back to the one we accept”; “[The City of Asheville, North Carolina is] a cesspool of sin.”3
c. “[Y]ou don‟t rewrite the nature of God‟s design for marriage based on the demands of a group of adults.”4

2

Paige Lavender, Paul Stam, North Carolina GOP Representative: Gay Marriage Leads to Polygamy,

Incest, Huffington Post (Aug. 31, 2011, 12:23 PM), available at http://www.huffingtonpost.com/2011/08/31/gay-

marriage- north-carolina_n_943336.html.

3

Statement of James Forrester, North Carolina Senator. Rob Schofield, Anti-gay lawmakers speak their

(very troubled) minds, The Progressive Pulse (Sept. 9, 2011), available at

http://pulse.ncpolicywatch.org/2011/09/09/anti-gay-lawmakers-speak-their-very-troubled-minds/.

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d. Marriage by same-sex individuals “undermines the marriage culture by making marriage a meaningless political gesture, rather than a child-affirming social construct”; “We will have an inevitable increase in . . . all of the documented social ills associated with children being raised in a home without their married biological parents.”5
e. North Carolina residents were urged “to contribute money, „so we can confront the devils against us on the other side.‟”6 29. As a result of Amendment One and the North Carolina marriage statute, N.C. Gen. Stat. §§ 51-1, 51-1.2, the adult plaintiffs‟ legal marriages conferred by other states are not valid or recognized in North Carolina. See N.C. Gen. Stat. § 51-1.2 (“Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.”). 30. While North Carolina gives effect to and recognizes marriages of heterosexual spouses from other jurisdictions, see, e.g., Parker v. Parker, 46 N.C. App. 254, 257 (1980), Amendment One forbids giving effect to or recognizing marriages of same-sex spouses that were first solemnized and recognized in another state.

4

Statements of Tami Fitzgerald, Head of Vote For Marriage NC. CNN Wire Staff, North Carolina passes

same-sex marriage ban, CNN projects, CNN (May 11, 2012, 11:01 AM), available at

http://www.cnn.com/2012/05/08/politics/north-carolina-marriage.

5

Vote FOR Marriage NC, The Threat to Marriage, Honest NC (Jan. 25, 2012), available at

http://honestnc.com/in-their-own-words-the-threat-to-marriage/#more-1165.

6

Statement of Jim Jacumin, former state Senator, speaking at a public forum hosted by Vote for Marriage

NC. Craig Jarvis, Marriage amendment galvanizes activists, newsobserver.com (Mar. 29, 2012), available at

http://www.newsobserver.com/2012/03/29/1965637/pro-marriage-amendment-rallies.html.

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OTHER BARRIERS TO MARRIAGE HAVE BEEN STRUCK DOWN 31. As recently as the 1960s, many states prohibited marriage between people of different races. The Supreme Court struck down that prohibition in Loving v. Virginia, 388 U.S. 1, 2 (1967), which declared that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Id. at 12. 32. Our courts and our society have discarded, one by one, marriage laws that violated the Constitution‟s mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves. History has taught that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional impediments to marriage has enhanced the institution. Ending the exclusion of gay and lesbian couples from marriage is no different. Indeed, same-sex couples are marrying in 17 states and the District of Columbia, and the institution of marriage continues to thrive. Moreover, the Supreme Court held in United States v. Windsor, 133 S. Ct. 2675 (2013) that the failure of the federal government to recognize state- sanctioned marriages of gay and lesbian couples deprived those couples of their constitutional rights. 33. This is because, at heart, marriage is both a personal and a public commitment of two people to one another, licensed by the state. Through marriage, North Carolina recognizes a couple‟s decision to establish a family unit together and support one another and any children and other family members. 34. Marriage contributes to the happiness and security of countless people, but it also contributes to society. North Carolina, like other states, encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange,
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North Carolina receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic well-being of the State.
35. The prohibition against recognition of out-of-state marriages for same-sex couples in North Carolina is not closely tailored to serve an important government interest or substantially related to an exceedingly persuasive justification. In fact, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to either any legitimate justifications that were offered in support of it when Amendment One became law or any legitimate interest of North Carolina that defendants might now offer as a basis for denying same-sex couples the freedom to marry in North Carolina.
36. Neither tradition nor moral disapproval of same-sex relationships or marriage for lesbian and gay couples is a legitimate basis for unequal treatment under the law. The fact that discrimination is long-standing does not immunize it from constitutional scrutiny. The Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, 133 S. Ct. 2675 at 2693 (an “interest in protecting traditional moral teachings reflected in heterosexual-only marriage laws” was not a legitimate justification for the federal Defense of Marriage Act) (internal quotation marks and citation omitted).
37. North Carolina cannot justify its refusal to recognize the valid marriages of gay and lesbian couples by claiming an interest in preserving public fiscal resources or the coffers of private business. Saving money is not a justification for excluding a group from a government benefit without an independent rationale for why the cost savings ought to be borne by the particular group
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denied the benefit. Moreover, the evidence will show that there is no factual basis for the notion that recognizing the marriages of same-sex couples will burden North Carolina financially or constitute a burden on business.
38. North Carolina‟s ban on marriage by same-sex couples is not rationally related to child welfare concerns. The government has a vital interest in protecting the well-being of children, but the refusal to recognize the marriages of gay couples in North Carolina bears no relation to this interest. To the contrary, it harms children in North Carolina.
39. Excluding same-sex couples from marriage has no conceivable benefit to children of heterosexual couples. Denying recognition of the marriages of same-sex couples does not encourage opposite-sex couples who have children to marry or stay married for the benefit of the children. Regardless of whether marriages of same sex couples are respected, the children of opposite-sex spouses will continue to enjoy the same benefits and protections that flow from their parents‟ marriage.
40. Excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples by denying their families significant benefits and by branding their families as inferior and less deserving of respect and, thus, encouraging private bias and discrimination.
41. The Supreme Court has called marriage “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an “expression[] of emotional support and public commitment.” Turner v. Safley, 482 U.S. 78, 95 (1987). This is as true for same-sex couples as it is for opposite-sex couples.
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42. Same-sex couples such as the plaintiff couples are similarly situated to opposite-sex couples in all of the characteristics relevant to marriage.
43. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness.
44. Same-sex couples seeking to have their marriages recognized by the state have already assumed the obligations of marriage, despite not having their marriages recognized by the state.
45. The plaintiff couples and other same-sex couples in North Carolina, if permitted to marry or have their marriages recognized by the state, would benefit no less than opposite-sex couples from the many legal protections and social recognition afforded to married couples.
46. There was a time when an individual‟s sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives, but not vice versa, and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical.
47. Regardless of whether they are provided the numerous benefits of marriage afforded to heterosexual couples, the adult plaintiffs will continue their committed relationships as spouses, albeit absent the numerous benefits that would come with marriages recognized in North Carolina.
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ANY ALLEGED STATE INTEREST IN FORBIDDING MARRIAGE IS SUBJECT TO HEIGHTENED SCRUTINY
48. In the twentieth century and continuing to the present, gay and lesbian individuals have experienced a history of unequal treatment in the United States because of their sexual orientation.
49. In the twentieth century and continuing to the present, gay and lesbian individuals have been discriminated against in the United States because of their sexual orientation.
50. In the twentieth century and continuing to the present, gay and lesbian individuals have been discriminated against in the United States because of perceived stereotypes associated with being gay or lesbian.
51. In the twentieth century and continuing to the present, gay and lesbian individuals have been harassed in the United States because of their sexual orientation.
52. In the twentieth century and continuing to the present, gay and lesbian individuals have been subject to violence in the United States because of their sexual orientation.
53. Discrimination against gay and lesbian individuals has, historically, given them limited ability to protect their interests through the legislative process.
54. In terms of population share, openly gay and lesbian individuals are underrepresented in federal and state elected office and in the judiciary.
55. The majority of people in North Carolina in particular, and in the United States generally, do not identify as gay or lesbian. Gay and lesbian persons are therefore a minority population.
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56. Gay and lesbian individuals have comparatively little ability to protect their interests through the normal political process.
57. Other groups that face discrimination in society, such as women and racial minorities, have been able to secure statutory protections against such discrimination through federal civil rights legislation.
58. With the sole exception of the federal Hate Crimes Act, passed in 2009, gay and lesbian individuals have secured no such federal non-discrimination protection, even today.
59. Instead, the rights of gay and lesbian individuals have been voted on at the ballot box repeatedly, with the vote going against the gay and lesbian rights position almost every single time.
60. For many gay and lesbian individuals, their sexual identity is a core part of their identity.
61. Efforts to change a person‟s sexual orientation through interventions by medical professionals have not been shown to be effective.
62. A person‟s sexual orientation — heterosexual or homosexual — bears no relation to his or her ability to participate in or contribute to society.
63. North Carolina‟s categorical ban on second parent adoptions and Amendment One perpetuate historical discrimination against gay and lesbian persons whose sexual orientation is immutable and a core part of their identity.
64. Amendment One also discriminates on the basis of gender, as each adult plaintiff is denied the right to marry her spouse or have her marriage recognized based solely on her gender.
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In fact, Amendment One limits marriage to a relationship based wholly on the gender of the spouses. See also N.C. Gen Stat. §§ 51-1, 51-1.2.
THE NORTH CAROLINA ADOPTION STATUTES 65. North Carolina law permits an unmarried individual person to adopt children and does not distinguish, for purposes of approving or denying an adoption, among individuals who are gay, lesbian or heterosexual. 66. Nevertheless, gay and lesbian parents cannot petition for adoption jointly (i.e., as a couple), because N.C. Gen. Stat. § 48-2-301(c) provides that “[i]f the individual who files [an adoption] petition is unmarried, no other individual may join in [that] petition.” 67. The parent who is prevented from having a legal relationship with her child (the “second parent”) cannot file for an adoption as an individual unless the existing legal parent agrees to give up all of his or her existing parental rights. Specifically, under N.C. Gen. Stat. § 48-3-606(9), an adoption petition must include a written consent to the adoption by any existing legal parent, and the existing legal parent must acknowledge that granting the adoption will result in the termination of his or her existing parental rights. Similarly, under N.C. Gen. Stat. § 48-1-106(c), “[a] decree of adoption severs the relationship of parent and child between the individual adopted and that individual‟s biological or previous adoptive parents” and relieves the former parents “of all legal duties and obligations due from them to the adoptee.” 68. Thus, as a result of operation of the law — specifically that cited in paragraphs 24 through 26 above and the North Carolina Supreme Court‟s decision in Boseman — Ms. Mejia and Ms. Ginter-Mejia are precluded from having both parents be recognized simultaneously as legal parents to their child, J.G.-M.
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69. Adoptions by a parent‟s legal spouse — a stepparent — are exempt from the termination requirement of N.C. Gen. Stat. § 48-1-106. “A stepparent may file a petition under this Article to adopt a minor who is the child of the stepparent‟s spouse if . . . [t]he parent who is the spouse has legal and physical custody of the child, and the child has resided primarily with this parent and the stepparent during the six months immediately preceding the filing of the petition.” N.C. Gen. Stat. § 48-4-101. Notably, according to N.C. Gen. Stat. § 48-1-106(d), adoption by a stepparent does not have “any effect on the relationship between the child and the parent who is the stepparent‟s spouse.”
70. N.C. Gen. Stat. § 48-1-101(18) defines “Stepparent” to mean “an individual who is the spouse of a parent of a child, but who is not a legal parent of the child.”
71. North Carolina does not recognize a marriage “between individuals of the same gender.” N.C. Gen. Stat. § 51-1.2; see also N.C. Const. art. XIV, § 6; N.C. Gen. Stat. § 51-1, 51-1.2.
72. Because Ms. Mejia is not considered to be the “spouse” of Ms. Ginter-Mejia under North Carolina law, Ms. Mejia is unable to use the stepparent adoption statute to adopt J.G.-M., the child she is raising with her legal spouse under Maryland law, without terminating the parental rights of Ms. Ginter-Mejia.
73. Prior to December 20, 2010—when the North Carolina Supreme Court decided Boseman—the North Carolina District Court in Durham County entered adoption decrees allowing unmarried second parents to adopt children without terminating the parental rights of the legal parent.
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74. As discussed in greater detail below, the granting of such adoptions was consistent with actions of courts in numerous other states construing their own statutes, which are similar to North Carolina‟s. Those courts have recognized that second parent adoption can be granted to unmarried individuals without terminating the legal parent‟s rights.
75. Under the practice that existed prior to Boseman, adoption decrees allowing unmarried, second parents to adopt children without terminating the parental rights of the legal parent “effect[ed] a complete substitution of families for all legal purposes and establishe[d] the relationship of parent and child . . . between . . . [the non-biological parent] and the individual being adopted,” while at the same time “not sever[ing] the relationship of parent and child between the individual adopted and that individual‟s biological mother.” Boseman, 704 S.E.2d at 497.
76. In Boseman, the Supreme Court of North Carolina held that the district court lacked subject matter jurisdiction to issue the adoption decree because the type of adoption sought, allowing a legal parent‟s same-sex partner to become a second legal parent, was not permitted under North Carolina law. Id. at 505.
OTHER STATES GRANT SECOND PARENT ADOPTION, RECOGNIZING THAT SUCH ADOPTIONS ARE IN THE BEST INTERESTS OF CHILDREN
77. Courts in many other jurisdictions with adoption statutes similar to North Carolina‟s permit second parent adoption by gay and lesbian parents.
78. For example, courts in California, Indiana, New Jersey, New York, Vermont, the District of Columbia, Delaware, Illinois, Massachusetts, Pennsylvania and Maine have held that their adoption statutes permit second parent adoption without regard to the parents‟ marital status, and
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have explicitly recognized that permitting second parent adoption furthers the best interests of children. See, e.g., Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003); In re Jacob, 660 N.E.2d 397 (N.Y. 1995); In re Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993); In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004); In re Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995); In re M.M.D., 662 A.2d 837, 862 (D.C. 1995); In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001); In re Petition of K.M., 653 N.E.2d 888 (Ill. App. Ct. 1995); Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); In re Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002); In re Adoption of M.A., 930 A.2d 1088 (Me. 2007).
79. In addition, the laws of Connecticut, Colorado and Vermont expressly authorize second parent adoption. Conn. Gen. Stat. § 45a-724(3); Colo. Rev. Stat. § 19-5-203(d.5)(I); and Vt. Stat. Ann. Tit. 15A, § 1-102(b).
80. In summarizing the benefits of second parent adoption, the Indiana Court of Appeals found that “[a]llowing a second parent to share legal responsibility for the financial, spiritual, educational, and emotional well-being of the child in a stable, supportive, and nurturing environment can only be in the best interest of that child.” In re Adoption of M.M.G.C., 785 N.E.2d 267, 270-71 (Ind. Ct. App. 2003).
81. Other state courts have found that, because second parent adoption furthers the same purpose as stepparent adoptions, statutes like North Carolina‟s that expressly permit stepparent adoptions should be broadly construed in furtherance of the goal of the statute to permit second parent adoption. See, e.g., In re Adoption of Two Children by H.N.R., 666 A.2d at 539 (“[W]here the mother‟s same-sex partner has, with the mother‟s consent, participation and cooperation, assumed a full parental role in the life of the mother‟s child, and where the child is
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consequently bonded to the partner in a loving, functional parental relationship, the stepparent provision of [the New Jersey termination statute] should not be narrowly interpreted so as to defeat an adoption that is clearly in the child‟s best interests.”); In re Hart, 806 A.2d at 1186-88 (reading Delaware stepparent exception broadly to further the best interests of the children); In re M.M.D., 662 A.2d at 860-61 (D.C. 1995) (same).
82. Altogether, 22 states plus the District of Columbia currently permit gay and lesbian parents to obtain second parent or stepparent adoptions, without regard to the parents‟ marital status.
WHILE NORTH CAROLINA PROHIBITS ADOPTION BY SECOND PARENTS, NORTH CAROLINA LAWS AND POLICIES OTHERWISE RECOGNIZE THE VALUE THAT GAY AND
LESBIAN COUPLES PROVIDE AS PARENTS Minimum Standards for Family Foster Homes 83. There are many ways in which North Carolina law currently recognizes the legitimacy of lesbian and gay parents and does not prevent gay or lesbian persons from being recognized as parents. 84. North Carolina‟s Division of Social Services (“DSS”) has the authority to enact foster and adoptive parent eligibility requirements, and has enacted such regulations, which are contained in the Minimum Standards for Family Foster Homes (“Foster Care Standards”). 85. The Foster Care Standards articulate the official state policy as to the placement of children in state-licensed foster care. Such licensure is, as a practical matter, a prerequisite to adoption of any children from the state foster care system. 86. The Foster Care Standards state, that as a matter of official North Carolina state policy, “Foster parents shall be persons whose behaviors, circumstances and health are conducive
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to the safety and well being of children.” DSS, Foster Home Licensing § VII. Section 1100 D (A) (rev. March 2013), available at http://info.dhhs.state.nc.us/olm/manuals/dss/csm-94/man/.
87. In certifying individuals for foster or adoptive placements, DSS requires that a home study be conducted to determine whether a particular placement would be in the child‟s best interests. See Foster Home Licensing § IV (rev. Mar. 2013). This home study includes an assessment of whether other individuals who are currently in the home, including an unmarried partner, would be suitable caretakers for the children. § IV.B(3)
88. As described below, DSS places children in the homes of same-sex couples after determining that those placements would be in the best interests of the children.
89. Adoptions by gay or lesbian individuals in committed long-term relationships are granted in North Carolina after a judicial finding that a life with those parents would be in the best interests of the child. However, as a result of North Carolina law, the second parent within any particular home cannot petition to become another legal parent alongside his or her same-sex partner.
De Facto Parent Doctrine 90. Notwithstanding the prohibition on petitions for second parent adoption, North Carolina recognizes a limited de facto parent doctrine, which allows a judge to award certain limited rights, such as custody and visitation, to a non-legal parent based on that parent‟s role in the child‟s life. 91. A “de facto parent” is generally defined to be an “adult who (1) is not the child‟s legal parent, (2) has, with the consent of the child‟s legal parent, resided with the child for a significant period, and (3) has routinely performed a share of the caretaking functions at least as great as that
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of the parent who has been the child‟s primary caregiver without any expectation of compensation for this care.” Black‟s Law Dictionary 1222 (9th ed. 2009); see also Boseman, 704 S.E.2d at 50304.
92. Under North Carolina law, a de facto parent may have standing in certain circumstances to seek visitation or custody of a child. See N.C. Gen. Stat. § 50-13.1(a) (conveying standing to initiate a custody proceeding to any “other person . . . claiming the right to custody of a minor child”).
93. North Carolina courts have awarded joint custody to gay or lesbian second parents under the de facto parent doctrine. See Mason v. Dwinnell, 660 S.E.2d 58, 63 (N.C. Ct. App. 2008) (affirming award of custody to de facto parent); Boseman, 704 S.E.2d at 505 (same). Courts have done so in recognition of the significance of the second parent‟s role in their child‟s life. See, e.g., Boseman, 704 S.E.2d at 503 (nonparent may become a de facto parent “when a parent brings a nonparent into the family unit, represents that the nonparent is a parent, and voluntarily gives custody of the child to the nonparent without creating an expectation that the relationship would be terminated”).
94. A court may even award full custody to a de facto parent if, in such circumstance, it would be in the best interest of the child. Id. at 503-04 (“As a result of the parties‟ creation, the nonparent became the only other adult whom the child considers a parent.”).
95. Despite the recognition through the de facto parent doctrine of a second parent‟s significant role in the life of a child, de facto parent status does not create a full parent-child relationship. While a de facto parent may be permitted to make custodial decisions, he or she
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cannot access and does not receive any of the other attendant rights, privileges and responsibilities that flow automatically from legal parent status.
96. Moreover, de facto parentage can be recognized only by a judicial decision in the context of a custody dispute, and is therefore unavailable to plaintiffs Mejia and Ginter-Mejia.
FORBIDDING APPLICATIONS FOR SECOND PARENT ADOPTION ADVANCES NO COMPELLING OR EVEN LEGITIMATE STATE PURPOSE 97. North Carolina‟s categorical ban on second parent adoption serves no compelling or even legitimate government purpose or interest. 98. Any valid interest of the state can be fully vindicated through the current adoption process that applies to all applicants, including stepparents. 99. The question of whether an adoption by a second parent is in an individual child‟s best interest can be determined only through an individualized review process, not through categorical bans such as that applied in North Carolina. 100. North Carolina‟s current foster care and adoption policies do not deny that gay and lesbian individuals are suitable parents. 101. There is a consensus in the scientific literature that children raised by same-sex couples are just as well-adjusted as children raised by heterosexual couples. 102. North Carolina‟s ban on second parent adoption does not affect the number of children raised by either same-sex or heterosexual couples. 103. Ms. Ginter-Mejia and Ms. Mejia will continue raising their child regardless of whether the parent-child relationship between J.G.-M. and Ms. Mejia is legally validated, albeit absent numerous benefits that would come through legal recognition of the parent-child relationship.
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104. A categorical ban on second parent adoption does not eliminate the possibility of custody disputes in families headed by same-sex couples, because second parents who have developed a parent-child relationship already have standing to petition for custody or visitation as de facto parents.
PARTIES PLAINTIFFS Esmeralda Mejia, Christina Ginter-Mejia, and J.G.-M. 105. Plaintiffs Esmeralda (“Esme”) Mejia and Christina Ginter-Mejia are residents of Hickory, North Carolina. They have a son, plaintiff J.G.-M., who is six years old. 106. Ms. Mejia is 57 years old. She was commissioned as an officer in the United States Army in 1979 and served until 1993, when she retired as a major. During her service, Ms. Mejia earned the Bronze Star, four Meritorious Awards for outstanding performance in her duties, two Army Commendation Medals for initiative and technical knowledge, two Army Achievement Awards, a medal from the Country of Kuwait and a medal from Southwest Asia Service. During her career as an officer, Ms. Mejia commanded paratrooper units along with other specialized roles. 107. As a result of medical conditions resulting from her service to her country in Operation Desert Storm, Ms. Mejia was determined to be 100% disabled under the Veteran Administration‟s standards. She is now a stay-at-home mom. 108. Christina Ginter-Mejia is 53 years old and an occupational therapist for a state earlyintervention program, working with children. 109. Ms. Mejia and Ms. Ginter-Mejia met while they were in college at the University of Wisconsin at Madison. They stayed in touch after college and when Ms. Mejia retired from the
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military in 1993, she visited Ms. Ginter-Mejia, who was living in Asheville. They began dating at that time, and have been in a committed relationship since then.
110. Ms. Mejia and Ms. Ginter-Mejia were legally married in Maryland on August 21, 2013, after being in a committed relationship for approximately 20 years. Their marriage, however, is not recognized by the State of North Carolina.
111. Because their marriage is not recognized in North Carolina, Ms. Mejia and Ms. Ginter-Mejia have been deprived of many of the benefits and subject to many of the deprivations set out in paragraph 151 (a)-(q), infra.
112. Among other things, because their marriage is not recognized by the State of North Carolina:
a. Ms. Mejia and Ms. Ginter-Mejia cannot file a joint state tax return and avail themselves of the tax benefits that the State of North Carolina confers upon married couples. Moreover, Ms. Mejia‟s and Ms. Ginter-Mejia‟s ability to plan for their family‟s financial future is negatively impacted by the uncertainty over whether they may file a joint federal tax return in light of the State of North Carolina‟s refusal to recognize their marriage.
b. Ms. Mejia and Ms. Ginter-Mejia are at risk that North Carolina‟s inheritance laws would affect them negatively if one of them predeceases the other.
c. Ms. Mejia and Ms. Ginter-Mejia are at risk that they will receive significantly fewer benefits from state-sponsored or private retirement plans, which they would otherwise be afforded if North Carolina recognized their marriage. Even if North Carolina someday recognizes same-sex marriages, if such recognition were to occur after one spouse predeceases the other, they also worry that the surviving spouse might not be
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entitled to the same survivor‟s benefits that would have been available if their marriage had been recognized during their lifetimes.
d. Ms. Mejia and Ms. Ginter-Mejia constantly fear being denied access and decision-making ability during a crisis; for example, if a medical professional should deny one of them access to the other, or to their child, in a medical emergency. 113. In 1992, Ms. Mejia was diagnosed with cervical cancer and had a hysterectomy. Four years later, in 1996, doctors found a Pancoast tumor in her left lung. She underwent surgery to remove the upper lobe of her lung and three ribs and disconnect her T1 nerve root, as well as chemotherapy and radiation. As a result of these treatments, she suffered from chronic pain for several years. 114. In 2008, Ms. Mejia suffered acute liver failure, which was later determined to have been caused by her radiation treatments in 1996. Until Ms. Mejia was able to receive a liver transplant, she suffered acute symptoms of liver failure, including temporary cortical blindness and coma. 115. During the entire course of Ms. Mejia‟s treatment, Ms. Ginter-Mejia was not granted family or medical leave to which she would have been entitled had she and Ms. Mejia been permitted to marry or have their marriage recognized in North Carolina. 116. Ms. Mejia‟s health has been a concern since her first cancer diagnosis in 1992, but it has become a heightened concern since her liver transplant. She is currently on immunosuppressant medication and has developed a condition that results in necessary trips to the hospital emergency room on a regular basis. In addition, she has constrictive lung disease, which makes her more susceptible to flu and other viruses.
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117. Ms. Mejia and Ms. Ginter-Mejia wanted to have children for many years. They first tried to adopt a child from the state foster care system in 2005, but were told they were being denied because they were lesbians.
118. When they decided to pursue adoption again, the director of a local organization that serves Latino families introduced Ms. Mejia and Ms. Ginter-Mejia to J.G.-M.‟s biological mother.
119. Ms. Ginter-Mejia adopted J.G.-M., but, because of North Carolina‟s ban on second parent adoption, Ms. Mejia was not able to adopt J.G.-M. without forfeiting Ms. Ginter-Mejia‟s parental rights.
120. Because of their proven ability to provide a permanent home for, care for, and enrich the life of a child who has been put up for adoption or foster care, Ms. Mejia and Ms. GinterMejia hope to adopt again, and have submitted their paperwork to apply for a state foster care license.
121. J.G.-M. is developing mentally and physically as a healthy, well-adjusted child. 122. Their loving, supportive family serves the best interests of J.G.-M. 123. Despite the fact that both Ms. Mejia and Ms. Ginter-Mejia participate equally in all aspects of raising their child, under North Carolina law, only Ms. Ginter-Mejia is recognized as a legal parent to J.G.-M. 124. Under North Carolina‟s adoption statutes, Ms. Mejia could adopt J.G.-M. only if Ms. Ginter-Mejia signed away her own parental rights. Thus, North Carolina law bars both mothers from being simultaneously recognized as their children‟s legal parents.
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125. Nonetheless, if Ms. Mejia were able to file a petition for a second parent adoption of J.G.-M., and the petition was considered pursuant to other existing law and regulation, on information and belief, the petition would be granted as in the child‟s best interests.
126. If Ms. Ginter-Mejia were to die or become incapacitated, both parents believe it would be in their child J.G.-M.‟s best interests for Ms. Mejia to continue to raise J.G.-M.
127. Absent a legal relationship with J.G.-M. there is no way for Ms. Mejia to ensure that she would be legally permitted to continue to raise J.G.-M.
128. Because of the uncertainty inherent in the status of a second parent in North Carolina, Ms. Mejia and Ms. Ginter-Mejia worry that if something were to happen to the other, either individuals or state actors might seek to challenge the second parent‟s parental status or guardianship.
129. If Ms. Mejia were to die or become incapacitated, both parents believe it would be in their child J.G.-M.‟s best interests for Ms. Ginter-Mejia, and J.G.-M. as their child, to receive or continue receiving military benefits to which they would be entitled as the spouse or child of a disabled veteran, described in paragraphs 151, 153, and 177-178, infra.
130. The granting of Ms. Mejia‟s petition would prevent these plaintiffs from suffering the harms set out in this Complaint.
131. A petition has been submitted for Christina Ginter-Mejia to be appointed guardian ad litem for J.G.-M. in this Action.
132. In the event that the court approves the petition, Christina Ginter-Mejia will appear in this Action in her capacity as guardian ad litem for J.G.-M.
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Ellen W. Gerber and Pearl Berlin 133. Plaintiffs Ellen (“Lennie”) W. Gerber and Pearl Berlin are residents of High Point, North Carolina. Ms. Gerber is 78 years old, and Dr. Berlin is 89 years old. They were both born and raised in Brooklyn, New York in Jewish families. They went to Boston University as undergraduates and went on to pursue academic careers in the field of physical education, but they did not meet, or even know of each other, until the early 1960s. They celebrate as their anniversary June 2, 1966, the day that they committed to living together, thus joining their lives. 134. Ms. Gerber and Dr. Berlin moved to North Carolina in 1971 after Dr. Berlin was offered a position as the head of the University of North Carolina at Greensboro‟s new Ph.D. program in the physical education program. Ms. Gerber had hoped to get a job in the physical education department alongside Dr. Berlin, but the head of the department had remarked to someone that Ms. Gerber and Dr. Berlin were “too open,” and that Ms. Gerber would not be offered any job there. 135. Dr. Berlin worked at UNC-Greensboro until she retired in 1985. Ms. Gerber attended law school at the University of North Carolina at Chapel Hill, and then worked at Legal Aid Society of Northwest North Carolina in Winston-Salem. Although Ms. Gerber retired as an attorney in December 2012, she continues to volunteer three days per week, helping individuals at the public library prepare their taxes—something she has been doing for 22 years. 136. Dr. Berlin is 89 years old and her health is steadily deteriorating. She has a condition that causes complex partial seizures, for which she takes medication that makes her very weak and affects her balance, making her more prone to falling. In a recent fall, Dr. Berlin hit her head, suffered internal bleeding, and broke three ribs. In addition, Dr. Berlin is prone to suffering
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from blood clots, but the doctors are worried about prescribing blood thinners, since that could cause Dr. Berlin to bleed severely if she falls again. Dr. Berlin has also been hospitalized for pneumonia within the last two years.
137. After being in a committed relationship for approximately 47 years, Ms. Gerber and Dr. Berlin were legally married in Maine on September 10, 2013. They also had a ceremony under a traditional Jewish chuppah at Beth David Synagogue in Greensboro, North Carolina on June 2, 2013 (their 47th anniversary) in front of family and friends. The State of North Carolina, however, does not recognize their marriage.
138. Because their marriage is not recognized in North Carolina, Ms. Gerber and Dr. Berlin have been deprived of many of the benefits and subject to many of the deprivations set out in paragraph 151 (a)-(q), infra.
139. Among other things, because their marriage is not recognized by the State of North Carolina:
a. Ms. Gerber and Dr. Berlin cannot file a joint state tax return and avail themselves of the tax benefits that the State of North Carolina confers upon married couples. Moreover, Ms. Gerber‟s and Dr. Berlin‟s ability to plan for each other‟s financial future is negatively impacted by the uncertainty regarding the validity and significance of a joint federal tax return in light of the State of North Carolina‟s refusal to recognize their marriage.
b. Ms. Gerber and Dr. Berlin are at risk that, if one of them predeceases the other, North Carolina‟s inheritance laws would affect them disparately to the way it would affect a heterosexual married couple.
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c. Ms. Gerber and Dr. Berlin constantly fear being denied access and decisionmaking ability during a crisis; for example, if a medical professional should deny one of them access to the other in a medical emergency.
d. Ms. Gerber and Dr. Berlin are also worried that they will not receive each other‟s Social Security benefits, or that the benefits they do receive will be treated disparately under North Carolina law to the benefits afforded to heterosexual married spouses.
e. Perhaps worst of all, they dread the emotional impact of their marriage not being recognized on a death certificate, an obituary, a funeral home, or a cemetery. Lyn McCoy and Jane Blackburn 140. Plaintiffs Lyn McCoy and Jane Blackburn are residents of Greensboro, North Carolina. Ms. McCoy was born and raised in Greensboro. Ms. Blackburn was born and raised in Falls Church, Virginia. 141. Ms. McCoy and Ms. Blackburn met in 1991, and have been in a committed relationship since that time. 142. In 1993, two years into their relationship, Ms. McCoy was offered a job working in an overseas staff position for the Peace Corps, so the couple moved to Moldova, where they lived for two and a half years. They subsequently returned to Northern Virginia, and moved to Greensboro in 2008. 143. Ms. McCoy and Ms. Blackburn were married on August 27, 2011 in Washington, D.C. after being in a committed relationship for approximately 20 years. Their families attended the wedding, and remain supportive of Ms. McCoy‟s and Ms. Blackburn‟s relationship.
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144. In early 2012, Ms. Blackburn was diagnosed with breast cancer and underwent aggressive chemotherapy, surgery, and radiation. Ms. Blackburn recovered well, but in February 2013, after she began having difficulty walking and pain in her hips, doctors discovered that the cancer had spread to her bones.
145. Ms. Blackburn currently has Stage IV cancer. Although she is undergoing chemotherapy and hyperbaric treatment, Ms. Blackburn‟s physicians have determined that her cancer is not curable.
146. Because their marriage is not recognized in North Carolina, Ms. McCoy and Ms. Blackburn have been deprived of many of the benefits and subject to many of the deprivations set out in paragraph 151 (a)-(q), infra.
147. Among other things, because their marriage is not recognized by the State of North Carolina:
a. Ms. McCoy and Ms. Blackburn cannot file a joint state tax return and avail themselves of the tax benefits that the State of North Carolina confers upon married couples. Moreover, their ability to plan for each other‟s financial future is negatively impacted by the uncertainty over whether they may file a joint federal tax return in light of the State of North Carolina‟s refusal to recognize their marriage.
b. Ms. McCoy and Ms. Blackburn are at risk that North Carolina‟s inheritance laws would affect them negatively if one of them predeceases the other.
c. Ms. McCoy and Ms. Blackburn receive significantly fewer benefits from statesponsored or private retirement plans, which they would otherwise be afforded if North Carolina recognized their marriage. Even if North Carolina someday recognizes same-sex
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marriages, if such recognition were to occur after one spouse predeceases the other, they also worry that the surviving spouse might not be entitled to the same survivor‟s benefits that would have been available if their marriage had been recognized during their lifetimes.
d. Ms. McCoy and Ms. Blackburn constantly fear being denied access and decision-making ability during a crisis; for example, if a medical professional should deny one of them access to the other in a medical emergency.
e. Ms. McCoy and Ms. Blackburn are also worried that they will not receive each other‟s Social Security benefits, or that the benefits they do receive will be treated disparately under North Carolina law to the benefits afforded to heterosexual married spouses.
HARMS SUFFERED BY PLAINTIFFS AS A RESULT OF BEING DENIED THE FREEDOM TO MARRY 148. Plaintiffs are harmed in numerous ways by the exclusion of same-sex couples from the freedom to marry in North Carolina or have their marriages recognized and respected in North Carolina. 149. Marriage plays a unique and central social, legal and economic role in American society. Being married reflects the commitment that a couple makes to one another, as well as representing a public acknowledgement of the value, legitimacy, depth and permanence of the married couple‟s private relationship. Marriage is the sole legal institution in North Carolina through which couples can create a complete family unit that the state recognizes and protects. 150. Conversely, denial to some couples of the status of being married in the eyes of the state conveys the state‟s view that the couple‟s private relationship is of lesser value and unworthy
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of legal recognition and support. This public rejection of what is among the adult plaintiffs‟ most significant relationships creates psychological and dignitary harm, invites and facilitates private discrimination against them, and promotes the view that their relationships and families are inferior to those of other committed couples.
151. By refusing to recognize the out-of-state marriages of same-sex couples, Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 deprive same-sex couples of numerous legal protections that are available to heterosexual couples in North Carolina by virtue of their marriages. By way of example only:
a. In North Carolina, both parties to a married couple may jointly petition to be an adoptive parent. N.C. Gen. Stat. § 48-2-301(b). Same-sex couples are prohibited from jointly filing a petition for adoption, because North Carolina law prohibits any other person from joining an unmarried person‟s adoption petition. N.C. Gen. Stat. § 48-2-301(c).
b. If a heterosexual married person becomes incapacitated without a health care power of attorney or guardian, his or her spouse is first authorized to make decisions regarding the spouse‟s care. See N.C. Gen. Stat. § 90-322(b). A same-sex partner‟s parents, children and siblings are consulted first. See id. The same-sex partner would only be consulted after these individuals and would be subjected to requirements not placed on the spouse, parent, children or sibling. See id.
c. In North Carolina, a spouse cannot be compelled to disclose confidential communications made by one to another during their marriage. N.C. Gen. Stat. § 8-57(c). The same privilege does not protect the communications of same-sex spouses or partners.
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d. Married students are eligible for larger loans under the Scholarship Loan Fund for Prospective College Teachers. N.C. Gen. Stat. § 116-73(2). Students with a same-sex spouse or partner would receive a smaller loan.
e. A nonresident military spouse with a valid driver‟s license in another state who is residing in North Carolina because of military orders is not required to maintain a North Carolina license. N.C. Gen. Stat. § 20-8. A same-sex spouse or partner would be required to obtain a North Carolina license.
f. The North Carolina Constitution provides that a heterosexual married couple‟s home shall remain exempt from a spouse‟s debts even after the spouse‟s death. See N.C. Const. Art. X, Sec. 2. The death of a same-sex spouse or partner would subject the property to creditors.
g. A surviving spouse is the first person who may authorize the type, method, place and disposition of the body of a decedent spouse who did not have a will. N.C. Gen. Stat. § 130A-420(b)(1). A surviving same-sex spouse or partner could only do so after the decedent‟s children, parents, siblings, grandchildren, great-grandchildren, great- great grandchildren, nieces, nephews, grandnephews, grandnieces, uncles, aunts, children of aunts and uncles, grandchildren of aunts and uncles, and grandparents are first consulted. See N.C. Gen. Stat. §§ 130A-420(b)(5), 29-15.
h. Under the North Carolina Workers‟ Compensation Act, a heterosexual surviving spouse is entitled to receive benefits under the Act. N.C. Gen. Stat. §§ 97-2(14)-(15), 9739. A same-sex spouse or partner is not entitled to any benefits.
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i. A surviving spouse in North Carolina is entitled to receive up to one-half of the property of the decedent who passes without a will. N.C. Gen. Stat. § 29-14. A same-sex spouse or partner would receive nothing.
j. Surviving spouses in North Carolina also receive a number of benefits even if the dying spouse had a will that does not provide such benefits. For instance, a surviving spouse is entitled to one-half of the community property of the couple. N.C. Gen. Stat. § 31C-3. A surviving spouse also has a right to an elective share of up to one-half the total assets of the decedent or a one-third life estate in all of the decedent‟s real estate holdings. N.C. Gen. Stat. §§ 29-30, 30-3.1. A surviving spouse is entitled to a year‟s allowance of up to $30,000. N.C. Gen. Stat. § 30-15. These benefits are not available to same-sex spouses or partners.
k. Disabled veterans and their surviving spouses receive property tax exclusions under North Carolina law. See N.C. Gen. Stat. § 105-277.1C. These exclusions are not available to same-sex surviving spouses or partners.
l. Spouses of members of the North Carolina National Guard receive the pension and benefits of a member who dies in service. N.C. Gen. Stat. § 127A-108. A surviving same-sex spouse or partner does not.
m. Surviving spouses of North Carolina law enforcement officers, firefighters and other first responders killed in the line of duty receive up to $70,000 of financial assistance. N.C. Gen. Stat. § 143-166.3. This assistance is not provided to same-sex spouses or partners.
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n. A number of special license plates are available to surviving spouses of qualifying members, such as Prisoner of War, Retired Law Enforcement Officer and Retired State Highway Patrol. N.C. Gen. Stat. § 20-79.4(b)(183), (192), (194). Surviving same-sex spouses or partners are not eligible for license plates recognizing their loved ones‟ sacrifice.
o. Surviving spouses of members of the North Carolina State, city and county lawenforcement agencies killed in the line of duty receive the badge worn or carried by the decedent. N.C. Gen. Stat. § 20-187.2. Same-sex spouses or partners would not receive this emblem of their partners‟ service.
p. A surviving spouse is entitled to refunds of certain overpayment of income tax by the decedent spouse. N.C. Gen. Stat. § 28A-15-8. The same refund is not provided to same-sex spouses or partners.
q. North Carolina laws promote the stability of marriages through rules such as a year-long mandatory waiting period prior to divorce. N.C. Gen. Stat. § 50-6. The divorce laws, including these provisions, do not apply to same-sex spouses or partners. 152. Same-sex couples are excluded from these and many other legal protections provided for married couples under North Carolina law. 153. In addition, because Ms. Ginter-Mejia is not recognized as Ms. Mejia‟s “spouse” in North Carolina, there are military benefits that Ms. Ginter-Mejia is not currently eligible to receive, and may not ever be able to receive, if Ms. Mejia dies before such time as their marriage is recognized by the state. For example:
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154. In state government hiring of employees, the state of North Carolina gives preference to veterans, the surviving spouses of deceased veterans, and the spouses of disabled veterans, without regard to age, provided they are otherwise qualified.
155. The U.S. armed forces provide Dependency and Indemnity Compensation (“DIC”) to survivors of a veteran whose death resulted from a service-related injury or disease, or a veteran who received VA compensation for a service-connected disability that was categorized as totally disabling.
156. The U.S. armed forces provide a death pension to the surviving spouse and children of certain veterans, including if the deceased veteran was discharged from service under other than dishonorable conditions and served 90 days or more of active duty with at least one day during a period of war, and the survivor‟s income is below a set limit.
157. The exclusion of same-sex couples from marriage also denies them eligibility for numerous federal protections afforded to married couples, including in the areas of immigration and citizenship, taxes, and social security. Some of these federal protections for married couples are only available to couples if their marriages are legally recognized in the state in which they live. See, e.g., 42 U.S.C. § 416(h)(1)(A)(i) (marriage for eligibility for social security benefits based on law of the state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same for Family Medical Leave Act). Thus, although all the adult plaintiffs were legally married in another state, they cannot access such protections as long as North Carolina refuses to recognize their marriages.
158. The exclusion from marriage also harms same-sex couples and their families in many other ways.
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159. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms “married” and “spouse” have universally understood meanings that command respect for a couple‟s relationship and the commitment they have made.
160. The exclusion from the esteemed institution of marriage demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by married opposite-sex couples.
161. The impact of the exclusion from marriage on same-sex couples and their families is extensive and real. The denial of the freedom to marry causes these couples and their families to suffer significant emotional, physical and economic harms.
162. The plaintiff couples recognize that marriage entails both benefits to, and obligations on, the partners and they welcome both.
163. The plaintiff couples suffer from an emotional toll due to the possibility that one partner may die before the couple can be legally married, thereby forever prohibiting each couple from ever having their relationship legally recognized.
HARMS SUFFERED AS A RESULT OF NORTH CAROLINA’S CATEGORICAL PROHIBITION AGAINST SECOND PARENT ADOPTION 164. Legal recognition of a parent-child relationship gives rise to numerous benefits for both the child and the parent that are not available otherwise. 165. Legal recognition of the parent-child relationship provides rights, benefits, privileges and entitlements that may come from federal, state, local or private sources.
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166. Legal recognition also increases the strength and stability of the parent-child bond and enhances the security of the relationship.
167. Legal recognition of the parent-child bond strengthens the whole family. 168. Legal recognition of the parent-child bond ensures that the child and surviving parent will remain together even in the event of death or incapacity of one legal parent, or in the unlikely event that a child‟s two parents separate. 169. Ms. Mejia and Ms. Ginter-Mejia have a son J.G.-M., who is the legal child of Ms. Ginter-Mejia. Ms. Mejia and Ms. Ginter-Mejia want Ms. Mejia to be able to adopt J.G.-M. through second parent adoption. Ms. Mejia, Ms. Ginter-Mejia, and J.G.-M. are each harmed and made less secure by North Carolina‟s prohibition on second parent adoption, and they suffer injury as a result of being deprived of protections they otherwise would receive but for North Carolina‟s prohibition. 170. J.G.-M., the Child Plaintiff, suffers direct and immediate harm as a result of defendants‟ categorical rejection of any petition for second parent adoption and is denied many public and private rights and privileges that flow from a legally recognized parent-child relationship, including the benefits set out below. 171. For example, under North Carolina law, only a legal parent can consent to medical treatment for a minor child. See N.C. Gen. Stat. § 90-21.1. Even when a Second Parent Plaintiff holds a power of attorney permitting him or her to make decisions on behalf of the Legal Parent Plaintiff, a medical care provider could rely on the plain language of N.C. Gen. Stat. § 90-21.1 and either refuse to permit Ms. Mejia, the second parent, from making important medical decisions concerning J.G.-M., or refuse to permit her from remaining with J.G.-M. during a medical procedure or medical emergency—a time when the child needs his parents most.
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172. Serious harm to a child can result at any moment if one of his or her parents and caretakers is unable to give instructions to health care providers or consent to emergency medical treatment.
173. In addition, through the federal Social Security Insurance program, upon the death of a qualifying wage-earner, a surviving spouse and/or dependent legal child or children can collect survivor benefits that generally equal between 150% and 180% of the deceased family member‟s Social Security benefit amounts.
174. Survivor benefits under the Social Security program are available to legal spouses and children, or other dependents with a legally formalized relationship to the decedent. They are not available between family members like the one here, who do not have a formal legal relationship between one of the parents and the child.
175. Under the Social Security Insurance program, J.G.-M., the child plaintiff, is currently unable to collect survivor benefits, and other federal government benefits that are available to legal children whose parents become disabled or retire, from his second parent.
176. Under North Carolina law, children of an injured employee may claim the parentemployee‟s compensation payments in the event of that parent‟s death. See N.C. Gen. Stat. § 9739. North Carolina defines “child” to include “a child legally adopted prior to the injury of the employee.” N.C. Gen. Stat. § 97-2(12).
177. Because Ms. Mejia cannot adopt J.G.-M., he will be ineligible to collect these worker compensation benefits if Ms. Mejia dies.
178. Under North Carolina law, children of veterans are entitled to a four-year scholarship at state universities and colleges within North Carolina. J.G.-M. is not currently eligible to receive
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this benefit because he lacks a legal relationship with Ms. Mejia. Furthermore, if Ms. Mejia were to die before obtaining a legal parent-child relationship with J.G.-M., he might never be eligible to receive this benefit to which he otherwise would have been entitled if North Carolina had recognized a legal parent-child relationship with Ms. Mejia during her lifetime.
179. Similarly, there are military benefits that J.G.-M. is not currently eligible to receive because he lacks a legal relationship with Ms. Mejia. If Ms. Mejia were to die before obtaining a legal parent-child relationship with J.G.-M., he would never become eligible to receive benefits to which he otherwise would have been entitled if North Carolina had recognized a legal parent-child relationship with Ms. Mejia during her lifetime. For example, the Dependency and Indemnity Compensation and the death pension, described supra paragraphs 155-156, would not be available to J.G.-M.
180. Under North Carolina intestacy law, the property of a deceased parent passes to biological children or adopted children. See N.C. Gen. Stat. §§ 29-16, 29-17. North Carolina intestacy law makes no provision for property to pass from a deceased parent to a non-legal child.
181. Because Ms. Mejia cannot adopt J.G.-M., her property would not pass to him if she dies intestate or has her will declared invalid.
182. This problem is magnified because intestacy laws affect inheritances from a spectrum of relatives, including grandparents, aunts and uncles. J.G.-M. is therefore also ineligible to inherit, through intestacy law, from grandparents and other relatives of Ms. Mejia. While it may be burdensome for Ms. Mejia to carry papers such as a power of attorney with her at all times, it is virtually impossible for her or Ms. Ginter-Mejia to ensure that various relatives maintain and update their wills.
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183. Similarly, J.G.-M. would be ineligible to be a beneficiary of trusts put in place by Ms. Mejia‟s parents (i.e., non-legal grandparents) or other family members who died before ever knowing that J.G.-M. would become part of their family through the Second Parent Plaintiff, if the writings governing those trusts conferred benefits upon “issue,” “grandchildren,” or were not otherwise specifically drafted to contemplate a bequest to J.G.-M.
184. Under North Carolina law, damages from an action brought for wrongful death flow to a decedent‟s estate and are distributed to the beneficiaries of that estate. See N.C. Gen. Stat. § 28A-18-2. Because Ms. Mejia cannot adopt J.G.-M., should a wrongful death action be brought by her estate, J.G.-M. would not be deemed a beneficiary of any damages from such action.
185. For those harms described in paragraphs 173-184 that depend on future events, there is no action that the plaintiffs can take to cure (or even mitigate) those harms once those future events have occurred. These harms would then be immediate and irremediable.
186. For example, some of the harms described in paragraphs 173-184 are precipitated by Ms. Mejia‟s death. Once Ms. Mejia dies, she will never be able to formalize a legal parent-child relationship with J.G.-M. through second parent adoption or otherwise. Thus, any benefits to which J.G.-M. would have been entitled had he been legally adopted by Ms. Mejia will be irretrievably lost at the moment of Ms. Mejia‟s death.
187. In addition to being deprived of rights and benefits, Ms. Mejia, Ms. Ginter-Mejia, and J.G.-M. also suffer emotional harm and fear as a result of North Carolina‟s ban on second parent adoption.
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188. Once J.G.-M. is old enough to understand that he does not have a legal relationship with one parent, upon information and belief, he will suffer anxiety from the uncertainty that accompanies that lack of legal relationship.
189. For example, when J.G.-M. is old enough to understand the differences in the legal statuses of his parents, he will face uncertainty regarding where he will live, or with whom he will live, should his legal parent die or become incapacitated.
190. Both Ms. Mejia and Ms. Ginter-Mejia suffer anxiety and worry because they know that if Ms. Ginter-Mejia were to die or become incapacitated, Ms. Mejia‟s ability to continue caring for J.G.-M. would be subject to challenge precisely at the time when the child would be most vulnerable and emotionally fragile, and most in need of continuing stability in Ms. Mejia‟s and Ms. Ginter-Mejia‟s domestic life.
191. The harms to Ms. Mejia, the second parent plaintiff, range from the mundane (e.g., being unable to consent to school activities for their children), to the life-threatening (e.g., being unable to consent to medical treatment), to the emotional (e.g., feeling that her parental role is less legitimate because it is not legally recognized by the state).
192. Conversely, Ms. Ginter-Mejia, the Legal Parent Plaintiff, is harmed by having all legal responsibility fall on her shoulders, and is deprived of the joy of sharing legal parentage with her spouse, partner, and co-parent. Ms. Mejia and Ms. Ginter-Mejia share in all aspects of raising their child, but in the eyes of the law, only Ms. Ginter-Mejia, the Legal Parent Plaintiff, is responsible for decision-making and support concerning J.G.-M.
193. Ms. Ginter-Mejia would like to share legal responsibility for J.G.-M. with Ms. Mejia, and they both know it is in the best interests of their child to do so. By categorically prohibiting Ms.
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Mejia from formalizing her parental relationship with J.G.-M., North Carolina prevents Ms. Mejia and Ms. Ginter-Mejia from fully asserting parental authority and responsibility to act in the best interests of their child.
194. The effects of the harms set out above are current and real, as they affect planning, budgets and other current and real financial decisions. Such denials also cause current psychological and emotional harm that would not arise but for North Carolina law.
DEFENDANTS 195. Defendant Roy Cooper is the Attorney General of North Carolina. In that capacity, it is his duty to appear on behalf of the state in any court or tribunal in any cause or matter, civil or criminal, in which the state may be a party or interested. N.C. Gen. Stat. § 114-2. It is the duty of Defendant Cooper to defend and enforce the laws of North Carolina. 196. Additionally, in that capacity, and among other relevant opinions, Defendant Cooper has advised that “a register of deeds would violate North Carolina law in issuing a marriage license to persons of the same gender. If, in issuing such a license, the register of deeds operates in bad faith he may subject himself to [certain civil and criminal] penalties . . . .” Re: Advisory Opinion: Issuance of Marriage Licenses to Individuals of Same Gender; Penalties, N.C. Op. Att‟y Gen., 2004 WL 871437, at *2 (2004). 197. Defendant Cooper and his successors are sued in their official capacity only. 198. Defendant Jeff Thigpen is the Register of Deeds for Guilford County. . In that capacity, he is entrusted with the authority to carry out certain laws of the state, including recognizing out-of-state marriage licenses and issuing death certificates.
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199. Specifically, Defendant Thigpen presides over whether a death certificate will list the spouse of an individual, including by recognizing an out-of-state marriage license, which is crucial for certain tangible benefits and social recognition.
200. Defendant Thigpen and his successors are sued in their official capacity only. 201. Defendant Donna Hicks Spencer is the Register of Deeds for Catawba County. In that capacity, she is entrusted with the authority to carry out certain laws of the state, including recognizing out-of-state marriage licenses and issuing death certificates. 202. Specifically, Defendant Spencer presides over whether a death certificate will list the spouse of an individual, including by recognizing an out-of-state marriage license, which is crucial for certain tangible benefits and social recognition. 203. Defendant Spencer and her successors are sued in their official capacity only. 204. Defendant John W. Smith is the Director of the North Carolina Administrative Office of the Courts (“AOC”), which, on information and belief, has the responsibility for promulgating rules, policies and procedures to control or advise North Carolina clerks of county courts who apply the North Carolina adoption laws when considering whether to accept or reject petitions for adoption. 205. In particular, the AOC has the responsibility and authority to instruct the Clerks of the Superior Court in the 100 counties of North Carolina regarding proper and lawful application of North Carolina law. 206. He and his successors are sued in their official capacity only. 207. Defendant Al Jean Bogle is the Clerk of the Superior Court for Catawba County. In that capacity, she is entrusted with the authority to carry out certain laws of the state, including the adoption statutes described herein.
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208. Specifically, Defendant Bogle presides over adoption proceedings in Catawba County, adjudicating individual petitions for adoption and ultimately deciding whether any particular adoption is in the best interests of the child.
209. Defendant Bogle and her successors are sued in their official capacity only. 210. Defendants‟ actions constitute actions under color of law.
FUTILITY 211. Amendment One bars the adult plaintiffs from marrying their spouse in North Carolina or having their out-of-state marriage recognized in North Carolina. See N.C. Const. art. XIV, § 6; N.C. Gen. Stat. §§ 51-1, 51-1.2. 212. The adult plaintiffs would seek recognition of their marriage under North Carolina laws were such recognition available. 213. Because the laws of the State of North Carolina categorically prohibit gays and lesbians from marrying or the state from recognizing out-of-state marriages of gays and lesbians, it would be futile for the adult plaintiffs to seek to marry or have their out-of-state marriages recognized in North Carolina. 214. In addition, Plaintiff Mejia is categorically excluded from consideration for a second parent adoption by the laws of North Carolina. 215. Under North Carolina law, as definitively interpreted by the North Carolina Supreme Court, the courts of North Carolina have no jurisdiction to hear such a petition for a second parent adoption. See Boseman, 704 S.E.2d 494. 216. Defendant Roy Cooper, the Attorney General, Defendants Al Jean Bogle and other Clerks of the Superior Court, and Defendants Jeff Thigpen, Donna Hicks Spencer, and other
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Registers of Deeds, and Defendant John W. Smith, the Director of the North Carolina Administrative Office of the Courts, are required to follow the laws of the State of North Carolina cited in this Action as definitively interpreted by the North Carolina Supreme Court.
217. A Clerk of the Superior Court following North Carolina law necessarily would reject any petition for a second parent adoption that Ms. Mejia filed.
218. Ms. Mejia would seek a second parent adoption were such adoptions available. 219. Because the laws of the State of North Carolina, as definitively interpreted by the North Carolina Supreme Court, categorically prohibit second parent adoption under the circumstances described above, it would be futile for Ms. Mejia to seek a second parent adoption.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (BY THE ADULT PLAINTIFFS) (DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983) 220. Plaintiffs repeat and reallege paragraphs 1 to 229 as if set forth in full. 221. Defendants‟ enforcement, under color of state law, of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 by refusing to deem valid or recognize the out-of-state marriages of the adult plaintiffs—while North Carolina recognizes the out-of-state marriages of heterosexual couples—discriminates against these plaintiffs on the basis of their sexual orientation and sex. As a result of such discrimination, the adult plaintiffs are deprived of the many benefits afforded heterosexual couples whose out-of-state marriages are recognized in North Carolina and who can then avoid the deprivation experienced by the Married Plaintiffs as a result of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2.
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222. Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 are unconstitutional on their face and as applied to the adult plaintiffs because the amendment and statutes violate the Equal Protection Clause of the United States Constitution by categorically depriving these plaintiffs of the recognition of their marriage in North Carolina.
223. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest.
224. Defendants‟ enforcement of Amendment One, under color of state law, deprives these plaintiffs of their constitutional right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution.
225. Defendants‟ deprivation of these plaintiffs‟ constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983.
226. These plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
227. Unless defendants are enjoined, they will apply and/or cause to be applied Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2.
SECOND CLAIM FOR RELIEF (BY THE MARRIED PLAINTIFFS) (EQUAL PROTECTION CLAUSE UNDER THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983) 228. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 229. Defendants‟ enforcement, under color of state law, of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 refusing to recognize out-of-state marriages of same-sex couples denies
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these plaintiffs the fundamental right to marriage protected by the Due Process Clause of the United States Constitution.
230. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest.
231. Defendants‟ enforcement of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2, under color of state law, deprives these plaintiffs of their constitutional right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution.
232. Defendants‟ deprivation of these plaintiffs‟ constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983.
233. These plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
234. Unless defendants are enjoined, they will apply and/or cause to be applied Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2.
THIRD CLAIM FOR RELIEF (BY PLAINTIFF J.G.-M.)
(EQUAL PROTECTION CLAUSE UNDER THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983)
235. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 236. Defendants‟ enforcement, under color of state law, of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 to prevent J.G.-M‟s parents from having their out-of-state marriage recognized in North Carolina discriminates against J.G.-M. on the basis of his parents‟ sexual orientation and sex, and deprives J.G.-M. of the benefits enumerated above and causes the
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deprivations enumerated above because his parents cannot have a marriage recognized in North Carolina.
237. The damages and deprivations to J.G.-M. caused by Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 are separate and distinct from the damages and deprivations to the adult plaintiffs caused by Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2.
238. North Carolina would recognize and allow the marriage of heterosexual parents. 239. J.G.-M. is thus denied legal protections and subject to deprivations as a result of circumstances that are beyond his control and flow solely from the status of his parents. 240. Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 create a class of children who cannot have married parents or parents whose marriages are recognized in North Carolina. 241. Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 are thus unconstitutional on their face and as applied to J.G.-M., who is deprived of the benefits of having recognized married parents. 242. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest. 243. Defendants‟ enforcement of Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2, under color of state law, deprives J.G.-M. of his constitutional right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution. 244. Defendants‟ deprivation of J.G.-M.‟s constitutional right violates the Civil Rights Act, 42 U.S.C. § 1983.
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245. J.G.-M. has no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
246. Unless defendants are enjoined, they will apply and/or cause to be applied Amendment One and N.C. Gen Stat. §§ 51-1, 51-1.2.
FOURTH CLAIM FOR RELIEF (BY PLAINTIFF J.G.-M.)
(J.G.-M.’S RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983)
247. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 248. North Carolina‟s categorical refusal to permit applications for second parent adoption petitions by same-sex couples and evaluate those petitions in accordance with other existing law and regulations creates an absolute barrier to creating a legal parent-child relationship with both parents, and is unconstitutional on its face and as applied to J.G.-M. because it discriminates against him on the basis of his parents‟ sexual orientation and/or sexual orientation and marital status. 249. Specifically, the state prohibits J.G.-M. from receiving the benefits of a legal parentchild relationship with the woman who raises him and his legal parent‟s spouse. 250. North Carolina, unlike many other states, does not permit gay or lesbian second parents to adopt. As a result, J.G.-M. cannot be recognized as the lawful child of Ms. Mejia unless Ms. Ginter-Mejia terminates her own parental rights. 251. North Carolina law, however, allows similarly situated children of heterosexual couples to be adopted by their second parent, provided that their second parent becomes their stepparent through marriage, and lives with them for six months.
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252. J.G.-M. is thus being denied legal protections as a result of circumstances that are beyond his control and flow solely from the status of his parents.
253. North Carolina‟s statutory scheme for adoption of children, as definitively interpreted by the North Carolina Supreme Court, creates a class of children who cannot be adopted by their second parent under any circumstances. The statutory scheme is unconstitutional on its face and as applied to J.G.-M., who is deprived of the many protections, rights and privileges that flow to other children for no reason other than the fact that their parents are in a same-sex relationship, while children whose parents are heterosexual can be, and often are, adopted by stepparents.
254. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest.
255. Defendants‟ enforcement, under color of state law, of North Carolina‟s adoption laws, including the categorical prohibition against second parent adoption by same-sex couples, deprives J.G.-M. of his constitutional right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.
256. Defendants‟ deprivation of J.G.-M.‟s constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983.
257. J.G.-M. has no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
258. Unless defendants are enjoined, they will apply and/or cause to be applied North Carolina‟s categorical prohibition against second parent adoption.
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FIFTH CLAIM FOR RELIEF (BY PLAINTIFFS MEJIA AND MEJIA-GINTER) (PARENTS’ RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983) 259. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 260. North Carolina‟s categorical refusal to permit applications for second parent adoption by same-sex couples discriminates against those parents on the basis of their sexual orientation. In doing so, it deprives Ms. Mejia, the second parent plaintiff, of an opportunity to secure the benefits of a legal parent-child relationship, while those benefits would inure to similarly situated parents who are heterosexual. Relatedly, the denial of second parent adoption deprives Ms. Ginter-Mejia of the protection of having her co-parent also be legally responsible for caring for their child, whom Ms. Mejia and Ms. Ginter-Mejia are raising together. 261. Ms. Mejia is denied an opportunity to secure the benefits of a legal parent-child relationship because the state does not permit gay or lesbian second parents to adopt, while heterosexual second parents can apply to adopt as stepparents. 262. North Carolina‟s statutory scheme for adoption of children, as definitively interpreted by the North Carolina Supreme Court, is unconstitutional on its face and as applied to Ms. Mejia because it violates the Equal Protection Clause of the United States Constitution by categorically depriving her of the ability to create a legal parent-child relationship on no basis other than the fact that she is a lesbian. 263. North Carolina‟s adoption laws further burden Ms. Ginter-Mejia by placing sole legal responsibility for J.G.-M. on her shoulders, without allowing her to share that responsibility with a
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second parent, while heterosexual parents are able to share legal parenting responsibility by consenting to adoption by a stepparent.
264. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest.
265. Defendants‟ enforcement, under color of state law, of North Carolina‟s adoption laws, including the categorical prohibition against second parent adoption by same-sex couples, deprives both Ms. Mejia and Ms. Ginter-Mejia of their constitutional right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.
266. Defendants‟ deprivation of Ms. Mejia‟s and Ms. Ginter-Mejia‟s constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983.
267. Ms. Mejia and Ms. Ginter-Mejia have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
268. Unless defendants are enjoined, they will apply and/or cause to be applied North Carolina‟s categorical prohibition against second parent adoption.
SIXTH CLAIM FOR RELIEF (BY PLAINTIFF GINTER-MEJIA) (GINTER-MEJIA’S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983) 269. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 270. Defendants‟ enforcement, under color of state law, of North Carolina‟s adoption laws, including the categorical prohibition against consideration of applications for second parent
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adoption by same-sex couples, violates Ms. Ginter-Mejia‟s fundamental right to parental autonomy protected by the Due Process Clause of the United States Constitution, by improperly burdening her fundamental right to make decisions concerning the care, custody and control of her child.
271. North Carolina adoption law prevents Ms. Ginter-Mejia from making fundamental decisions about her children that are central to her status as a parent. These decisions include: (i) the ability to take steps to have the family she has created become legally recognized; (ii) the ability to take steps to support an application for Ms. Mejia to apply to be the legal second parent of the child already within Ms. Ginter-Mejia‟s custody; (iii) the ability to support and contribute to the making of a legally certain determination of who will receive custody of her child in the event of Ms. Ginter-Mejia‟s death or incapacitation; (iv) the ability to support and contribute to the making of a legally certain determination of who will have the unquestioned ability to make decisions regarding her child‟s medical care; and (v) other decisions central to her child‟s health and well-being.
272. This categorical exclusion is not narrowly tailored to further any compelling government interest and, in fact, is not even rationally related to the furtherance of any legitimate government interest.
273. Defendants‟ deprivation of Ms. Ginter-Mejia‟s constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983.
274. Ms. Ginter-Mejia has no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
275. Unless defendants are enjoined, they will apply and/or cause to be applied North Carolina‟s categorical prohibition against second parent adoption.
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SEVENTH CLAIM FOR RELIEF (BY PLAINTIFFS GINTER-MEJIA, MEJIA AND J.G.-M.) (DUE PROCESS CLAUSE UNDER THE UNITED STATES
CONSTITUTION, 42 U.S.C. § 1983) 276. Plaintiffs repeat and reallege paragraphs 1 to 219 as if set forth in full. 277. Defendants‟ enforcement, under color of state law, of North Carolina‟s adoption laws, including the categorical prohibition of second parent adoption by same-sex couples, will deprive Ms. Mejia, Ms. Ginter-Mejia, and J.G.-M. of their constitutional right to family integrity protected by the Due Process Clause of the United States Constitution. 278. North Carolina‟s adoption laws categorically prohibit Ms. Mejia from securing a legally recognized adoption of J.G.-M. This deprivation in turn prevents all three family members from enjoying other protections, rights and benefits enumerated above, to which they would otherwise be entitled. 279. By withholding from this family the protections that flow from legal recognition of the parent-child relationship that exists between Ms. Mejia and J.G.-M., the state burdens their constitutionally protected family integrity by creating uncertainty and insecurity, and denying these important legal protections and rights. 280. Defendants‟ deprivation of Ms. Mejia, Ms. Ginter-Mejia, and J.G.-M.‟s constitutional rights violates the Civil Rights Act, 42 U.S.C. § 1983. 281. The plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm. 282. Unless defendants are enjoined, they will apply and/or cause to be applied North Carolina‟s categorical prohibition against second parent adoption.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for:
283. A declaration that Amendment One and N.C. Gen. Stat. §§ 51-1, 51-1.2 violate plaintiffs‟ rights to due process and equal protection under the United States Constitution and 42 U.S.C. § 1983, and that such laws are thus void and unenforceable.
284. A declaration that the adoption provisions of North Carolina General Statutes §§ 481-100 et seq., including N.C. Gen. Stat. §§ 48-1-106, 48-3-202, 48-4-100-103, as construed by the North Carolina Supreme Court violate plaintiffs‟ rights to due process and equal protection under the United States Constitution and 42 U.S.C. § 1983, and that such laws are thus void and unenforceable.
285. An order enjoining defendants and those acting in concert with them from enforcing and/or applying restrictions against (a) marriages of same-sex couples either now or at any time in the future; and (b) second parent adoption by same-sex couples.
286. An order directing defendants and those acting in concert with them to recognize and deem valid out-of-state marriages of same-sex couples to the same extent that out-of-state marriages of heterosexual couples are recognized and deemed valid.
287. An order directing defendants to accept applications for adoption from the Second Parents and to process such applications consistently with stepparent adoption applications, or by any other procedure determined by defendants that provides a path for the Second Parents to secure second parent adoption consistent with that currently provided to stepparents.
288. An order enjoining defendants from enforcing, under color of state law, Amendment One and/or N.C. Gen. Stat. §§ 51-1, 51-1.2 to refuse to recognize their out-of-state marriages.
Page 58 of 60
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289. An order awarding plaintiffs their costs, including their reasonable attorneys‟ fees pursuant to 42 U.S.C. § 1988, to the extent permitted by law.
290. An order awarding such other and further relief as the Court deems just and proper.
Page 59 of 60 Case 1:14-cv-00299-UA-JEP Document 1 Filed 04/09/14 Page 59 of 60

This the 9th day of April, 2014.
Rose A. Saxe James D. Esseks American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004-2400 Telephone: (212) 549-2500 Facsimile: (212) 549-2646 rsaxe@aclu.org jesseks@aclu.org
Elizabeth O. Gill American Civil Liberties Union Foundation 39 Drumm Street San Francisco, California 94111-4805 Telephone: (415) 343-1237 Facsimile: (415) 255-1478 egill@aclunc.org
Christopher Brook N.C. State Bar No. 33838 ACLU of North Carolina P.O. Box 28004 Raleigh, North Carolina 27611-8004 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 cbrook@acluofnc.org

/s/ Jonathan D. Sasser Jonathan D. Sasser N.C. State Bar No. 10028 Jeremy M. Falcone N.C. State Bar No. 36182 Ellis & Winters LLP P.O. Box 33550 Raleigh, North Carolina 27636 Telephone: (919) 865-7000 Facsimile: (919) 865-7010 jon.sasser@elliswinters.com jeremy.falcone@elliswinters.com
Garrard R. Beeney David A. Castleman C. Megan Bradley William R.A. Kleysteuber Michael P. Reis Tina Gonzalez Barton Rachel S. Harris Christopher Hazlehurst Hilary R. Huber Kerri-Ann Limbeek Sarah E. Nudelman Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004-2498 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 beeneyg@sullcrom.com castlemand@sullcrom.com bradleyc@sullcrom.com kleysteuberr@sullcrom.com
Attorneys for Plaintiffs

Page 60 of 60 Case 1:14-cv-00299-UA-JEP Document 1 Filed 04/09/14 Page 60 of 60

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ELLEN W. GERBER, et al., Plaintiffs,
v. ROY COOPER, et al.
Defendants.

)

)

)

)

)

1:14CV299

)

)

)

)

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants’ Motions [Doc. #23, #30] to stay further

proceedings in this case pending a ruling by the Court of Appeals for the Fourth Circuit in

Bostic v. Schaefer, Case No. 14-1167. Also pending is a Motion for Preliminary Injunction

[Doc. #3] by Plaintiffs, as well as Defendants’ Motion to Dismiss [Doc. #37]. The Complaint

in this case challenges North Carolina statutory and constitutional provisions that define

marriage as exclusively being a legal union between one man and one woman, as well as the

North Carolina statutes that prohibit “second-parent” adoption. Plaintiffs ultimately seek a

declaration that North Carolina General Statutes § 51-1, § 51-1.2, § 48-1-100 et seq., and section

6 of Article XIV of the North Carolina Constitution (Amendment One) violate Plaintiffs’

constitutional rights and are void and unenforceable. Plaintiffs specifically seek an order

directing the state to recognize out-of-state marriages of same-sex couples and to accept

adoption applications from same-sex couples. In the pending Motion for Preliminary

Injunction, Plaintiffs seek a preliminary injunction “ordering all Defendants to cease enforcing

section 6 of Article XIV of the North Carolina Constitution, N.C. Gen. Stat. § 51-1, and any

Case 1:14-cv-00299-WO-JEP Document 49 Filed 06/02/14 Page 1 of 5

other source of state law that operates to deny recognition of the marriages of same-sex couples validly contracted in another jurisdiction.”
Prior to the filing of the Complaint in the present case, a similar challenge was filed in Virginia. A motion for preliminary injunction was filed in that case in September 2013, and an Order was entered in February 2014, finding Virginia’s marriage laws facially unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the extent that those laws deny the rights of marriage to same-sex couples or deny recognition of lawful marriages between same-sex couples that are validly entered into in other jurisdictions. That decision was immediately appealed to the Fourth Circuit in the case of Bostic v. Schaefer, and the Fourth Circuit is presently considering that case on an expedited basis, with oral argument already held on May 13, 2014.
With respect to the present Motions to Stay, Defendants contend that consideration of Plaintiffs’ claims, including consideration of the recent request for a preliminary injunction and the pending motion to dismiss, should be stayed pending the Fourth Circuit’s decision in Bostic. Having considered this request, the Court concludes that a stay is appropriate for two reasons. First, the decision of the Fourth Circuit in Bostic will provide the controlling legal principles for this Court to apply in evaluating the motion to dismiss and in determining whether Plaintiffs have demonstrated a likelihood of success on the merits in support of their request for preliminary injunctive relief. Any decision by this Court in this case prior to Bostic would need to be reconsidered in light of the decision ultimately issued in Bostic, which would result in
2
Case 1:14-cv-00299-WO-JEP Document 49 Filed 06/02/14 Page 2 of 5

significant inefficiency and uncertainty with regard to the effect of any decision rendered in the interim.
Moreover, and most significantly, any decision by this Court to allow immediate injunctive relief would be stayed pending appellate review. See Herbert v. Kitchen, 134 S. Ct. 893 (2014) (staying district court’s injunction in similar case in Utah, pending appeal to the Tenth Circuit); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (staying injunction in similar case in accordance with Herbert v. Kitchen); DeLeon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) (same); Love v. Beshear, No. 3:13CV750 (W.D. Ky. Mar. 19, 2014) (granting a stay and noting that “the Supreme Court has sent a strong message by its unusual intervention and order” in Herbert v. Kitchen); see also Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va. 2014) (granting preliminary injunction but staying the injunction pending appeal to the Fourth Circuit). Thus, even if this Court heard and considered the present case and attempted to apply the appropriate legal framework prior to guidance from the Fourth Circuit in Bostic, and even if the Court concluded and recommended that relief should be granted and an injunction should be issued, that relief would not immediately take effect in any event, and would be stayed pending appeal to the Fourth Circuit.
In the circumstances, the Court concludes that there is no basis to proceed to issuance of an opinion that would be immediately stayed and of no practical effect, and that would be subject to potential reconsideration under the Fourth Circuit’s decision in Bostic in the next few weeks. The Court has discretionary authority to stay proceedings “incidental to the power
3
Case 1:14-cv-00299-WO-JEP Document 49 Filed 06/02/14 Page 3 of 5

inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). In exercising that discretion and balancing the competing interests in the present case, the Court finds that there are clear and convincing circumstances that outweigh any potential harm caused by a stay, in light of the expedited review of the important issues raised in this case already underway in the Fourth Circuit in Bostic, and in light of the Supreme Court’s intervention and stay of relief in Herbert v. Kitchen pending resolution of these issues by the appellate courts, as discussed above. In reaching this conclusion, the Court notes that other district courts in this circuit have already begun following this approach in similar cases. See Harris v. Rainey, No. 5:13cv77, 2014 WL 1292803 (W.D. Va. Mar. 31, 2014) (staying all further proceedings pending resolution of Bostic in the Fourth Circuit); McCrory v. North Carolina, No. 14-cv-65, 2014 WL 2048068 (W.D.N.C. May 19, 2014) (same). Indeed, in McCrory, the United States District Court for the Western District of North Carolina stayed further proceedings in a case raising challenges to many of the same provisions at issue in the present case, based on the pendency of the appeal in Bostic. This Court finds these cases persuasive and recommends that the same approach be followed here.
IT IS THEREFORE RECOMMENDED that the Motions to Stay [Doc. #23, #30] be GRANTED, that all proceedings in this case, including consideration of Defendants’ pending Motion to Dismiss and Plaintiffs’ Motion for Preliminary Injunction, be stayed pending the Fourth Circuit’s decision in Bostic v. Schaefer, Case No. 14-1167 (4th Cir. 2014), and that the
4
Case 1:14-cv-00299-WO-JEP Document 49 Filed 06/02/14 Page 4 of 5

parties be directed to notify the Court in writing of their position on the course of future proceedings within 10 days following issuance of a decision by the Court of Appeals for the Fourth Circuit in Bostic.
This, the 2nd day of June, 2014. /s/ Joi Elizabeth Peake
United States Magistrate Judge
5 Case 1:14-cv-00299-WO-JEP Document 49 Filed 06/02/14 Page 5 of 5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SMITH, in his official )

capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

)

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROY COOPER, et al.,

)

)

Defendants.

)

1:12CV589 1:14CV299

ORDER On July 30, 2014, this court entered an order requiring the parties in each of these two cases to submit supplemental briefs addressing the opinion of the Fourth Circuit Court of Appeals in Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ____ F.3d ____, 2014 WL 3702493 (4th Cir. July 28, 2014). The parties

Case 1:14-cv-00299-WO-JEP Document 63 Filed 08/27/14 Page 1 of 3

have filed those briefs. All parties suggest that Bostic would control at least some of the issues in each of these two cases.
On August 20, 2014, the Supreme Court issued an order which stayed the mandate of the United States Court of Appeals for the Fourth Circuit in McQuigg v. Bostic, No. 14A196, ____ S. Ct. ____, 2014 WL 4096232 (Mem) (Aug. 20, 2014) (Fourth Circuit Case No. 14-1167). The stay remains pending through disposition of a petition for a writ of certiorari. If the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of the Supreme Court. If the writ is denied, the stay terminates automatically at that time. Id.
Pending before this court in each of these two cases is a Recommendation from the Magistrate Judge recommending that the matters be stayed pending the Fourth Circuit’s decision in Bostic v. Schaefer, No. 14-1167. (No. 1:12CV589, Doc. 97; No. 1:14CV299, Doc. 49.) Plaintiffs objected to the Recommendations in each of these cases. (No. 1:12CV589, Doc. 99; No. 1:14CV299, Doc. 52.)
This court has conducted a de novo review of the matters to which objections were made and finds that the Recommendations should be adopted and these matters stayed. In light of the Supreme Court’s stay of the Fourth Circuit’s mandate, this court
- 2 -
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modifies the Recommendations to stay these matters pending termination of the stay granted in McQuigg v. Bostic, No. 14A196 (Fourth Circuit Case No. 14-1167). The parties are directed to notify this court within twenty (20) days of the denial of the petition for a writ of certiorari or the sending down of the judgment of the Supreme Court.
IT IS SO ORDERED. This the 27th day of August, 2014.
_______________________________________ United States District Judge
- 3 Case 1:14-cv-00299-WO-JEP Document 63 Filed 08/27/14 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SMITH, in his official )

capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

)

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROY COOPER, et al.,

)

)

Defendants.

)

1:12CV589 1:14CV299

ORDER This court previously entered an order staying further proceedings in these cases pending termination of the stay granted in McQuigg v. Bostic, No. 14A196 (Fourth Circuit Case No. 14-1167). This court directed the parties to “notify the court within twenty (20) days of the denial of the petition for a writ of certiorari or the sending down of the judgment of the

Case 1:14-cv-00299-WO-JEP Document 66 Filed 10/06/14 Page 1 of 4

Supreme Court.” (1:12CV589 (Doc. 108 at 3); 1:14CV299 (Doc. 63 at 3).) This court is aware that the Supreme Court has issued an order denying the petition for a writ of certiorari in McQuigg v. Bostic, No. 14-251, ____ S. Ct. ____, 2014 WL 4354536 (Mem) (Oct. 6, 2014) (Fourth Circuit Case No. 14-1167). As a result, notification from the parties is not necessary, and the parties are relieved of that obligation.
The parties have previously filed briefs in response to this court’s July 30, 2014 order requesting briefing as to the effect of the Fourth Circuit’s opinion in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) and appear to agree the opinion in Bostic will constitute binding precedent in this court. (See, e.g., 1:12CV589 (Doc. 104 at 5); 1:14CV299 (Doc. 57 at 5) (“Given the similarity between these challenged laws, the State Defendants herein have consistently represented to this Court that the Fourth Circuit’s holding in Bostic would likely control the analysis of North Carolina’s marriage laws.”) and 1:12CV589 (Doc. 105 at 1); 1:14CV299 (Doc. 58 at 1) (“[T]he Fourth Circuit’s decision in Bostic v. Schaefer . . . controls the result here. The Virginia marriage ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter . . .”).)
- 2 -
Case 1:14-cv-00299-WO-JEP Document 66 Filed 10/06/14 Page 2 of 4

The Fourth Circuit in Bostic affirmed a Virginia district court order finding that “Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional.” Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va. 2014), aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). The district court then granted Plaintiff’s motion for summary judgment and preliminary injunction, and enjoined enforcement of the designated provisions of Virginia law. Id.
In light of the parties’ prior briefings, it would appear Plaintiffs are entitled to an order granting the pending motions for preliminary injunction (1:12CV589 (Doc. 75); 1:14CV299 (Doc. 3)) as to this issue now that the Fourth Circuit has issued its mandate. However, there are at least two issues that remain for resolution by this court; first, what further action by this court is necessary with respect to those issues arguably resolved by Bostic and second, how this court should proceed with respect to a resolution of the adoption laws at issue in this case.
In light of the foregoing, this court orders that the parties file a status report, without argument, detailing the following matters: (1) whether the parties agree with this
- 3 -
Case 1:14-cv-00299-WO-JEP Document 66 Filed 10/06/14 Page 3 of 4

court’s suggestion as to the effect of Bostic on this case as set out herein; (2) whether any discovery is required as to either of these cases prior to proceeding to summary judgment; (3) what issues remain for resolution by this court in each of these cases with respect to the challenged adoption laws; and (4) what the parties suggest in terms of additional briefing on any remaining issues.
These status reports shall be filed within ten (10) days of the entry of this order. No additional briefing shall be permitted prior to the filing of the status reports unless ordered by this court, and the stay shall remain in place as to all other matters at this time.
IT IS SO ORDERED. This the 6th day of October, 2014.
_______________________________________ United States District Judge
- 4 -
Case 1:14-cv-00299-WO-JEP Document 66 Filed 10/06/14 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SMITH, in his official )

capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

)

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROY COOPER, et al.,

)

)

Defendants.

)

1:12CV589 1:14CV299

ORDER In light of the status reports filed by the State Defendants (Doc. 112 in 1:12CV589; Doc. 67 in 1:14CV299) and Plaintiffs (Doc. 113 in 1:12CV589; Doc. 68 in 1:14CR299), this court finds that the stay should be lifted in each of these cases. This court further finds that this court should enter the consent order reflecting the dismissal of the Attorney

Case 1:14-cv-00299-WO-JEP Document 71 Filed 10/08/14 Page 1 of 3

General Roy Cooper and to allow the Attorney General to appear as an Intervenor on behalf of the State of North Carolina.
IT IS THEREFORE ORDERED that the stay is lifted and State Defendants shall file an Answer to Plaintiffs’ First Amended Complaint in 1:12CV589 (Doc. 40) and to Plaintiffs’ Complaint in 1:14CV299 (Doc. 1).
IT IS FURTHER ORDERED that pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the consent motions of Plaintiffs and Defendant Roy Cooper to amend the caption of the First Amended Complaint to dismiss Mr. Cooper as a PartyDefendant is GRANTED. (Doc. 68 in 1:12CV589; Doc. 69 in 1:14CV299.) The motion for Mr. Cooper to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure is GRANTED, and Mr. Cooper shall appear in this matter, in a representative capacity, as an Intervenor on behalf of the State of North Carolina for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality of North Carolina’s statutes and constitutional amendment challenged in this action.
IT IS FURTHER ORDERED that all prior pending motions (Docs. 63, 65, 84, and 109 in 1:12CV589; Docs. 23, 30, 37, and 64 in 1:14CV299), except the motions for preliminary injunction, in each of these cases are DENIED AS MOOT.
- 2 -
Case 1:14-cv-00299-WO-JEP Document 71 Filed 10/08/14 Page 2 of 3

Upon the filing of an Answer in each of these cases by the State Defendants, Plaintiffs may file any motions they deem appropriate without necessity of an accompanying brief. This court will review the filed pleadings in light of the prior briefs, status reports, and orders of this court.
This the 8th day of October, 2014. _______________________________________ United States District Judge
- 3 Case 1:14-cv-00299-WO-JEP Document 71 Filed 10/08/14 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

1:12CV589

)

JOHN W. SMITH, in his official )

Capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

________________________________ )_______________________________

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

1:14CV299

)

ROY COOPER, et al.,

)

)

Defendants.

)

ORDER OSTEEN, JR., District Judge
Presently before this court is a motion to intervene by two parties, Thom Tillis, Speaker of the North Carolina House of Representatives, and Phil Berger, President Pro Tempore of the North Carolina Senate (collectively “Movants”). (1:12CV589 (Doc. 119); 1:14CV299 (Doc. 75).) In light of the

Case 1:14-cv-00299-WO-JEP Document 90 Filed 10/14/14 Page 1 of 25

positions of the parties and the procedural posture of this case, this court finds no just reason for delay with respect to this ruling. After considering their entitlement to intervention as of right or, alternatively, permissive intervention, this court grants the parties’ Motion to Intervene on the limited terms set forth herein. I. INTERVENTION AS OF RIGHT
In order to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure, a party must (1) make a timely motion to intervene, (2) have an interest in “the subject of the action,” (3) be “so situated that the disposition of the action may . . . impair or impede the applicant's ability to protect that interest,” and (4) show that he is not adequately represented by existing parties. Fed. R. Civ. P. 24(a)(2); Wright v. Krispy Kreme Doughnuts, Inc., 231 F.R.D. 475, 477 (M.D.N.C. 2005).
This court finds the motion to intervene is timely. In determining whether a motion to intervene is sufficiently timely, this court must weigh “how far the suit has progressed,” the “prejudice any resulting delay may cause the other parties,” and “why the movant was tardy in filing its motion.” Alt v. United States Envtl. Prot. Agency, 758 F.3d 588, 591 (4th Cir.
-2-
Case 1:14-cv-00299-WO-JEP Document 90 Filed 10/14/14 Page 2 of 25

2014). The cases in which Movants hope to intervene have been in front of this court for several months and over two years, respectively. Nonetheless, Defendants in both cases have only recently filed Answers, and more importantly, Movants sought to intervene within three days of the Supreme Court denying certiorari in Bostic v. Schaefer. See Schaefer v. Bostic, No. 14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014) (denying certiorari in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)). It was only after the Supreme Court denied the petition in Bostic that Defendants began to concede relief, arguably resulting in Movants’ heightened concern with defense of the North Carolina law. In light of the limited nature of the intervention which will be allowed, the intervention will not substantially delay these proceedings. Therefore, Movants have established that their motion is timely.
Second, this court agrees with Movants that their interest is sufficient in these cases to support intervention. Movants’ interest must be “significantly protectable” to come within the meaning of Rule 24(a)(2), meaning that the interest must be more than a general concern with the subject matter. See Donaldson v. United States, 400 U.S. 517, 531 (1971). Despite the recognition that general concerns are not “significantly
-3-
Case 1:14-cv-00299-WO-JEP Document 90 Filed 10/14/14 Page 3 of 25

protectable,” the Supreme Court has held that “certain public concerns may constitute an adequate ‘interest’ within the meaning of [Rule 24(a)(2)].” Diamond v. Charles, 476 U.S. 54, 68 (1986) (citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135 (1967)).
Courts have recognized that legislators have an interest in defending the constitutionality of legislation passed by the legislature when the executive declines to do so, even when a taxpayer may not have a protectable interest in making the same argument. See, e.g., Revelis v. Napolitano, 844 F. Supp. 2d 915, 924-25 (N.D. Ill. 2012). Similar to the facts in this case, in Revelis, a select group of congressional leaders was authorized by the United States House of Representatives to defend the constitutionality of the Defense of Marriage Act (“DOMA”) after Attorney General Eric Holder declared his intention not to defend DOMA in subsequent legal challenges. Id. The Revelis court found that the legislators’ interest was sufficient to justify intervention as of right. In North Carolina, the General Assembly provides a similar mechanism through which the Speaker of the House and President Pro Tempore of the Senate may defend laws passed by the North Carolina
-4-
Case 1:14-cv-00299-WO-JEP Document 90 Filed 10/14/14 Page 4 of 25

General Assembly. See N.C. Gen. Stat. § 1-72.2. Movants are in front of this court based on rights conferred by that statute.
In determining Movants’ interest, of particular significance to this court is the fact that the issues raised in Bostic and this litigation are not solely same-sex marriage, but include issues with respect to the constitutional relationship between the judiciary, the duly-elected state representatives, and to the vote of the people in a democratic process. That issue is recognized by the dissenting opinions in Bostic and Kitchen. The dissent in Bostic concludes:
The U.S. Constitution does not, in my judgment, restrict the State’s policy choices on this issue. If given the choice, some states will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism. Bostic, 760 F.3d at 398 (Niemeyer, J., dissenting). Similarly, the dissent in Kitchen concludes: Though the Plaintiffs would weigh the interests of the state differently and discount the procreation, childrearing, and caution rationales, that prerogative belongs to the electorate and their representatives. Kitchen v. Herbert, 755 F.3d 1193, 1240 (10th Cir. 2014) (Kelly, J., concurring in part and dissenting in part). As certain as it is that Plaintiffs have the right to advocate for what they believe is just for the individual parties, others may also have a substantial interest in defending that which they believe to
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Case 1:14-cv-00299-WO-JEP Document 90 Filed 10/14/14 Page 5 of 25

be a power and prerogative that belongs to the States, the citizens, and their duly-elected representatives.
Accordingly, this court finds that, as authorized representatives of the legislature, Movants’ desire to defend the constitutionality of legislation passed by the legislature is a protectable interest in the subject matter of this litigation.
The third factor requires this court to determine whether the Movants are “so situated that the disposition of the action . . . may impair or impede the applicant’s ability to protect that interest.” In this case, the interest identified by Movants is affected by the Fourth Circuit’s decision in Bostic, which is the law of the circuit and binding on this lower court in light of the denial of certiorari. The potential for impairment in this district court is neither heightened nor lowered by Movants’ participation or non-participation in light of representation being afforded that interest by North Carolina’s Attorney General, as more fully discussed infra. However, also as more fully discussed infra, preserving the right to appeal this decision does have a direct effect on the Movants’ ability to protect their interest.
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Finally, and critically, Movants must show that they are not adequately represented by an existing party. “Representation is generally considered adequate if no collusion is shown between the representative and an opposing party, if the representative does not represent an interest adverse to the proposed intervenor and if the representative has been diligent in prosecuting the litigation.” Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982).
In both cases before this court, the State Defendants are represented by the North Carolina Attorney General’s Office. Under North Carolina law, it is the duty of the Attorney General:
To defend all actions in the appellate division in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested. N.C. Gen. Stat. § 114-2(1). In their motion to intervene, Movants make no claims of collusion between the Attorney General and an opposing party nor do they claim an adverse interest. Movants claim inadequate representation in part because the Attorney General did not plan to “distinguish Bostic on the grounds that outcome-determinative
-7-
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concessions made by the Attorney General of Virginia in that case have not been made by North Carolina in these cases.” (Proposed Defendant-Intervenors’ Mem. of Law in Supp. of Mot. for Intervention (“Intervenors’ Mem.”) 1:12CV589 (Doc. 120) at 15; 1:14CV299 (Doc. 76) at 15.) The North Carolina statutory and constitutional provisions at issue in the cases before this court are notably similar to the Virginia statutory and constitutional provisions deemed unconstitutional in Bostic. See Bostic, 760 F.3d at 367 n.1. As a result, Bostic is binding precedent on this court.
[T]he doctrine of stare decisis makes a decision on a point of law in one case a binding precedent in future cases in the same court, and such courts as owe obedience to the decision, until such time as the effect of the decision is nullified in some fashion: reversed, vacated, or disapproved by a superior court, overruled by the court that made it, or rendered irrelevant by changes in the positive law. Addison v. Piedmont Aviation, Inc., 745 F. Supp. 343, 349 (M.D.N.C. 1990) (quoting 1B Moore's Federal Practice ¶ 0.402[2] at 25–27.). Although Movants make allegations with respect to the process pursuant to which Bostic was decided, those allegations do not present a substantial justification pursuant to which this court may disregard Bostic. The First Circuit has noted that “there may be occasions when courts can—and should—loosen the iron grip of stare
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decisis.” United States v. Reveron Martinez, 836 F.2d 684, 687, n.2 (1st Cir. 1988). However, any such departure “demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Eulitt v. Maine Dep't of Educ., 307 F. Supp. 2d 158, 161 (D. Me. 2004), aff'd on other grounds sub nom. Eulitt ex rel. Eulitt v. Maine, Dep't of Educ., 386 F.3d 344 (1st Cir. 2004). Special justification arises if a district court “had been faced with a ‘different set of facts’ and ‘newly crafted set of legal rules’ and therefore, the issue was one of ‘first impression’ for the Circuit.” Id. at 161 (citing Gately v. Massachusetts, 2 F.3d 1221, 1228 (1st Cir. 1993)). As stated earlier, the facts and law are virtually indistinguishable between Bostic and the cases before this court. The Court of Appeals for the Fourth Circuit can overrule Bostic, but absent “special justification,” which is not present here, this court cannot.
Furthermore, the record before this court indicates that the Attorney General has in fact vigorously pursued North Carolina’s defense of the laws challenged in this action prior to the decision in Bostic. In opposing Plaintiffs’ motion for a preliminary injunction, Defendants filed extensive briefs and made compelling arguments in those briefs. (See, e.g., State
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Defs.’ Resp. in Opp’n to Movants’ Mot. for Prelim. Inj. 1:12CV589 (Doc. 88) at 6-10; 1:14CV299 (Doc. 33) at 6-10; State Defs.’ Mem. of Law in Supp. of Mot. to Dismiss Complaint (“Defs.’ Mem.”) 1:12CV589 (Doc. 28) at 8-13; 1:14CV299 (Doc. 38) at 8-13.) It appears that each of those briefs appropriately presented and argued the same issues upon which all of the relevant cases relied, including but not limited to, United States v. Windsor, 570 U.S. ____, 133 S. Ct. 2675 (2013); Washington v. Glucksberg, 521 U.S. 702 (1997); and Baker v. Nelson, 409 U.S. 810 (1972). The fact that Bostic has resolved these issues as a matter of law contrary to the State’s position does not diminish the quality of the arguments advanced by the State Defendants.
Movants, whether intending directly or by implication, make a further suggestion with respect to the recent concessions by the State Defendants in their answer. Movants open their brief as follows:
In part based on concessions made by the Attorney General of Virginia after he switched sides in the Bostic case, the Fourth Circuit ruled that Virginia’s marriage laws were unconstitutional, and on October 6, 2014, the Supreme Court denied the three petitions for writ of certiorari that had been filed in the case. Rainey v. Bostic, 2014 WL 3924685 (U.S., Oct. 06, 2014); Schaefer v. Bostic, 2014 WL 4230092 (U.S., Oct. 06, 2014); and McQuigg v. Bostic, 2014 WL 4354536 (U.S., Oct. 06, 2014). On the same day that the ruling
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in Bostic was issued by the Fourth Circuit, the Attorney General of North Carolina — a named defendant and also counsel for the other state defendants in these cases — announced that he would “stop making arguments” in defense of North Carolina’s marriage laws and that “the State of North Carolina will not oppose the case moving forward.” Press Conference of Attorney General Roy Cooper, July 28, 2014, available at http://www.wral.com/ news/state/nccapitol/video/13846923/. (Intervenors’ Mem. 1:12CV589 (Doc. 120) at 6-7; 1:14CV299 (Doc. 76) at 6-7.)1 The suggestion, at least in this court’s opinion, is that Bostic was wrongly decided because the Virginia attorney general improperly conceded important points of law; the structure of the paragraph appears to further imply that North Carolina’s Attorney General is now following a similar path of improperly conceding important points of law. This court disagrees with that implication and is not persuaded that the Attorney General has inadequately represented Movants’ interests thus far. First, it is important to note here that the North Carolina Attorney General’s concession came only after Bostic became final. Prior to that time, the North Carolina Attorney General defended the relevant laws. The Attorney General’s argument in
1 All citations in this Order to documents filed with the court refer to the page numbers located at the bottom right-hand corner of the documents as they appear on CM/ECF.
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support of the motion to dismiss relied upon Baker v. Nelson, 409 U.S. 810 (1972) (see Defs.’ Mem. 1:14CV299 (Doc. 38) at 10), contrary to Movants’ description of the alleged position of the Virginia Attorney General in Bostic (see Intervenors’ Mem. 1:12CV589 (Doc. 120) at 15; 1:14CV299 (Doc. 76) at 15). In this case, the North Carolina Attorney General also cited and relied upon Washington v. Glucksberg, 521 U.S. 702 (1997), as well as a number of other cases in support of the State of North Carolina’s motion to dismiss (see 1:14CV299, Defs.’ Mem. (Doc. 38) at 11), contrary to Movants’ allegations as to the Virginia Attorney General. Thus, here, unlike Movants contend as to Virginia, the Attorney General did assert the defenses which perhaps Virginia did not.
Second, Movants’ challenge to the manner in which the Virginia Attorney General may have argued Bostic fails to recognize the independence of the United States Court of Appeals for the Fourth Circuit and the fact that the Virginia Attorney General was not the only party defending Virginia’s ban. The identification of counsel in Bostic, as appearing in the published opinion, lists a multitude of counsel appearing in various capacities. Counsel for Movants (John C. Eastman, Center for Constitutional Jurisprudence, Chapman University
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Dale E. Fowler School of Law) is listed as appearing on behalf of Amici Virginia Catholic Conference, LLC, and the Center for Constitutional Jurisprudence. The lengthy list of parties and counsel in Bostic suggests to this court that Movants’ argument focusing on one party, as opposed to all of the Virginia ban’s defenders, does not in any way undermine the decision itself nor does it suggest this court should find any circumstance upon which to disregard Bostic.
Movants, as directed by this court, have filed DefendantsIntervenors’ Answer and Defenses (“Intervenors’ Answer”) (1:12CV589 (Doc. 125); 1:14CV299 (Doc. 81)). Movants raise several objections and defenses, including an argument that this court does not have subject-matter jurisdiction as dictated by Baker v. Nelson, 409 U.S. 810 (1972). Movants suggest consideration of a district court opinion that recently upheld a state marriage law, Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014). Movants also cite a recent order from a Supreme Court Justice “staying a Ninth Circuit decision invalidating Idaho’s marriage law after subjecting it to strict scrutiny.” (Intervenors’ Answer 1:12CV589 (Doc. 125) at 7;
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1:14CV299 (Doc. 81) at 7) (citing Otter v. Latta, No. 14A374, 2014 WL 4996356, at *1 (U.S. Oct. 8, 2014) (Kennedy, J.).)2
Baker v. Nelson was specifically addressed and ruled upon by the Fourth Circuit in Bostic. Bostic, 760 F.3d at 372-76. Robicheaux v. Caldwell, addressed elsewhere in this opinion, may be persuasive authority but it does not constitute binding authority. As a result, this court finds that Movants’ allegations do not persuade this court that Bostic is not controlling at present, nor does it persuade this court that Movants’ interests have not been adequately represented.
The issue of preservation of appeal and the implication for a claim of inadequate representation is a more difficult question. In other words, whether Movants’ claimed interest, objecting to application of Bostic and appealing to higher courts, is an interest which may support intervention. Movants argue:
In the event that this Court determines that Bostic nevertheless controls these North Carolina cases, Proposed Defendant-Intervenors will seek to preserve the issue of the constitutionality of North Carolina’s marriage laws for purposes of appeal to the Fourth Circuit, the Fourth Circuit sitting en banc, and ultimately to the Supreme Court if necessary.
2 The application to stay was subsequently denied by the United States Supreme Court on October, 10, 2014.
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(Intervenors’ Mem. 1:12CV589 (Doc. 120) at 7-8; 1:14CV299 (Doc. 76) at 7-8.)
This court requested responses to this argument from Plaintiffs and the North Carolina Attorney General. (See 1:12CV589 (Doc. 127); 1:14CV299 (Doc. 83).) Those responses were timely filed. In his response, the Attorney General cites General Synod of the United Church of Christ v. Cooper, No. 3:14-CV-213 (W.D.N.C. October 10, 2014), and alleges that “[a]lthough the right to any appeal has not been waived, the binding opinion of the Fourth Circuit Court of Appeals in Bostic addressed and rejected viable defenses of North Carolina’s marriage laws.” (See 1:12CV589 (Doc. 132) at 4; 1:14CV299 (Doc. 87) at 4.) This court construes the Attorney General’s response to suggest that perhaps the State does not intend to appeal because of the conclusive nature of the Bostic decision in the circuit court and the Supreme Court. However, that response, without further analysis of the waiver issue particularly in light of the supplemental briefs, does not fully address whether Movants have an interest in preserving the right to appeal and whether those rights will be impaired if intervention is not permitted.
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Plaintiffs have also responded to this court’s inquiry; the
following is their summary of that response:
More specifically and in response to the Court’s questions regarding the Intervention Motion, the Attorney General has not waived his rights to appeal to the Fourth Circuit or to the United States Supreme Court. Instead, in the reasonable exercise of litigation judgment (presumably based, at least in part, on the unanimous view of each of the four courts of appeals which have found discriminatory marriage laws to be unconstitutional), the Attorney General presently has chosen not to waste the state’s limited resources on pursuing what would ultimately be a futile appeal. Putative Intervenors cannot demonstrate that such an exercise of litigation judgment constitutes inadequate representation, especially given the high degree of deference afforded in particular to the litigation judgment of states’ attorneys general.
(Pls.’ Resp. to Court’s Oct. 10 Order (Pls.’ Resp.”) 1:12CV589
(Doc. 131) at 8-9; 1:14CV299 (Doc. 88) at 8-9.) Plaintiffs cite
two circuit cases in support of their argument that the State
has not waived its right to appeal, United States v. Evans, 404
F.3d 227, 236 (4th Cir. 2005) and Wells v. Shriners Hosp., 109
F.3d 198, 199 (4th Cir. 1997). (Id. at 14.) However, neither
of these cases directly addresses the factual and procedural
history present in either of these cases, wherein initial
objections to the requested relief were followed by concessions
(albeit legally defensible concessions) to the requested relief.
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This court called for supplemental briefs from the parties because of the express language of the State Defendants’ concession of relief. That language, quite properly recognizing applicable law, states that “Plaintiffs should be afforded appropriate relief in accordance with the law as described by the Fourth Circuit Court of Appeals in Bostic v. Schaefer.” (State Defs.’ Answer and Defenses 1:12CV589 (Doc. 104) at 16; 1:14CV299 (Doc. 70) at 16).) Movants’ proposed answer, on the other hand, objects to the application of Bostic, arguably expressly preserving an objection to that opinion. Because “the judicial power of federal courts is constitutionally restricted to ‘cases' and ‘controversies,’” Flast v. Cohen, 392 U.S. 83, 94 (1968), this court was uncertain that a case or controversy between the parties would still exist as suggested by Movants once this court grants the requested relief. “[B]ecause [t]his case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate, [l]itigation may become moot during the pendency of an appeal.” United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (alteration in original) (internal quotations marks omitted) (citations omitted).
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Both parties in this case cite this court to the wellreasoned opinion from the Western District of North Carolina addressing similar issues in that case. See General Synod, No. 3:14-CV-213 (W.D.N.C. Oct. 10, 2014). This court agrees with the holding of the General Synod court, and with respect to the waiver issue, finds it compelling. See id. (Doc. 121) at 5 (“[T]he court has considered proposed intervenors’ argument that the Attorney General has improperly given up the right to appeal this court’s final decision; however, the court does not read the pleadings that broadly.”). Although this court is not sufficiently familiar with the underlying pleadings in General Synod to fully determine the applicability of the holding to this case, the pleadings in this case may very well be sufficient to preserve that right as recognized in General Synod. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”). However, in light of the supplemental briefs filed in this case and the presence of what appears to be a recognition by all parties that the State does not intend to appeal, this court is confronted with an additional issue that
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was not presented by the State and the plaintiffs to the court in General Synod. As a result, this court does not find it necessary to resolve the question of whether an appeal has been waived in light of the additional findings hereinafter.
Plaintiffs argue that the “Attorney General’s decision not to pursue a wasteful and futile appeal amounts to mere ‘disagreement over how to approach the conduct of the litigation [and] is not enough to rebut the presumption of adequacy.’ Stuart, 706 F.3d at 353; see also id. at 354.” (Pls.’ Resp. 1:12CV589 (Doc. 131) at 19; 1:14CV299 (Doc. 88) at 19.) Perhaps so. However, in terms of the pending motion to intervene, it may also suggest that Movants are not adequately represented by existing parties, see Fed. R. Civ. P. 24(a)(2); Wright v. Krispy Kreme Doughnuts, Inc., 231 F.R.D. 475, 477 (M.D.N.C. 2005), to the extent Movants intend to exercise whatever remaining right to appeal exists and the Attorney General has concluded the State does not. In allowing intervention in the context of an injunction prohibiting a religious group from displaying a menorah on city property and the city not appealing the decision, the Sixth Circuit found that the “decision not to appeal by an original party to the action can constitute inadequate representation of another party's interest.”
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Ams. United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir. 1990); see also H.L. Hayden Co. of New York v. Siemens Med. Sys., Inc., 797 F.2d 85, 88 (2nd Cir. 1986) (noting, in dicta, “[w]here issues relating to the appellate process create a divergence of interests between the party representing the would-be intervenor's interest and the would-be intervenor, intervention for the purpose of protecting the latter's appellate rights may be appropriate”).
In United States v. American Telephone & Telegraph Co., the Court of Appeals for the District of Columbia Circuit framed the issue as follows: “The decisive question, then, is whether a divergence of interests solely at the appeal stage can justify intervention for the limited purpose of taking an appeal from a lower court ruling. Commentators cite cases going either way on this question, depending on the particular facts.” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1293 (D.C. Cir. 1980). The District of Columbia Circuit concluded that “[u[nder Smuck v. Hobson this divergence of interests, manifested in the Government’s refusal to appeal, is evidence of inadequate representation.” Id. at 1294.
As recognized by the Court of Appeals for the Sixth Circuit:
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[A] decision not to appeal by an original party to the action can constitute inadequate representation of another party's interest. The Secretary of State has not sought interlocutory review of the preliminary injunction as it relates to two of the three temporarily invalidated provisions, and Michigan's attorney general has not appealed at all. While passively tolerating a preliminary injunction pending a final resolution of the merits may serve the interests of the State of Michigan, it cannot be said to represent the Chamber's interests, in view of its concern with timeliness. The decision not to appeal certain aspects of the district court's preliminary injunction may amount to sound litigation strategy and a prudent allocation of Michigan taxpayers' money, but this decision also further illustrates how the interests of the state and of the Chamber diverge. The State of Michigan has already demonstrated that it will not adequately represent and protect the interests held by the Chamber. Accordingly, the Chamber has made a sufficient showing in this regard.
Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir.
1997) (internal quotation marks omitted) (citing Ams. United,
922 F.2d at 306).
Plaintiffs argue this issue is settled and that an appeal
is meritless. (Pls.’ Resp. 1:12CV589 (Doc. 131) at 15;
1:14CV299 (Doc. 88) at 15 (“Bostic unequivocally held that
Virginia’s constitutional and statutory prohibition of same-sex
marriage in Virginia . . . violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the United
States Constitution; there is no argument that this analysis
would not apply to North Carolina’s constitutional and statutory
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prohibition of same-sex marriage.”).) Plaintiff is correct; Bostic resolved the matter in this district court. However, there is still some disagreement between some judges and courts on issues relevant to these cases. The rulings in Bostic and Kitchen, as thoughtful as they are, contain dissenting opinions that also employ careful reasoning and thoughtful analysis on the constitutional issues, including whether strict scrutiny or rational basis review applies and how the courts should weigh the various policy considerations and arguments. In Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014), a district court upheld Louisiana’s same-sex marriage ban in a well-reasoned opinion, concluding in part “that Louisiana’s laws are rationally related to its legitimate state interests.” Id. In Deboer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014), a district court in Michigan struck down Michigan’s same-sex marriage ban, but did so pursuant to a rational basis test without reaching the question of whether strict scrutiny applies. This court does not suggest either position, to appeal or not to appeal, as substantively meritorious, only that the existence of any continuing right may be complicated by whatever continuing force any remaining cases might have as well as applicable jurisdictional and jurisprudential requirements.
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Nevertheless, notwithstanding some of the ongoing cases on a national level, this discussion is merely academic in this court. The United States Court of Appeals for the Fourth Circuit has issued its ruling in Bostic. As recognized by the district court in General Synod, this district court, sitting in North Carolina and the Fourth Circuit, is bound to apply that law. The parties to this case have the right to expect nothing less, whether they agree with the law or not. The issue presently before this court is solely whether to permit intervention for the purpose of preserving and taking an appeal.
Although it is a very close issue, this court concludes that the motion to intervene should be granted, but only for the purpose of lodging an objection and preserving that objection to this court’s application of Bostic. In reaching this conclusion, this court is not expressing an opinion on the relative merits or demerits of any appeal, only that there is an appeal right that a party with arguable standing and interest has sought to preserve.
Intervention will be substantially limited in this court. Specifically, this court will order the filing of the proposed answer (1:12CV589 (Doc. 125); 1:14CV299 (Doc. 81)) setting forth the answer and objections in this case. In light of the clear
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import of Bostic, no further briefing will be permitted with respect to the pending Motion for Judgment on the Pleadings (1:12CV589 (Doc. 116); 1:14CV299 (Doc. 72)) and the response filed by the State of North Carolina (1:12CV589 (Doc. 122); 1:14CV299 (Doc. 78)). Both the motion and response accurately state the law of this circuit, and no further pleadings from Movants will be permitted. III. CONCLUSION
In conclusion, this court finds that Movants’ motion to intervene should be allowed, but only for the limited purposes expressed herein.
IT IS THEREFORE ORDERED that the Motion for Intervention (1:12CV589 (Doc. 75); 1:14CV299 (Doc. 119)) is GRANTED for the limited purposes expressed herein.
IT IS FURTHER ORDERED that Movants’ answers and defenses in each of these two cases are deemed TIMELY FILED.
IT IS FURTHER ORDERED that Movants’ objections to this court’s jurisdiction, to the application of Bostic, and to the grant of the pending motion for judgment on the pleadings are NOTED and OVERRULED.
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This the 14th day of October, 2014. _______________________________________ United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SMITH, in his official )

capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

)

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROY COOPER, et al.,

)

)

Defendants.

)

1:12CV589 1:14CV299

ORDER

Plaintiffs in each of these cases have filed complaints alleging causes of action pursuant to 42 U.S.C. § 1983 challenging the constitutionality of North Carolina’s laws preventing same-sex couples from marrying and prohibiting recognition of same-sex couples’ lawful out-of-state marriages.

Case 1:14-cv-00299-WO-JEP Document 91 Filed 10/14/14 Page 1 of 8

(1:12CV589 (Doc. 40); 1:14CV299 (Doc. 1).) As to each of these cases, an order was entered dismissing the North Carolina Attorney General as a defendant and allowing the State of North Carolina to intervene and appear by and through the Attorney General as counsel of record. (1:12CV589 (Doc. 114); 1:14CV299 (Doc. 71).) An Answer has been filed by Defendants in both cases and on behalf of the State of North Carolina (1:12CV589 (Doc. 115); 1:14CV299 (Doc. 70)); those Answers, inter alia, concede that Plaintiffs are entitled to certain relief.1 Following the filing of those Answers, Plaintiffs in both cases filed Motions for Judgment on the Pleadings (1:12CV589 (Doc. 116); 1:14CV299 (Doc. 72)), and all parties consented (1:12CV589 (Docs. 116 and 117); 1:14CV299 (Docs. 72 and 73)).
In addition to the pleadings described above, Thom Tillis, Speaker of the North Carolina House of Representatives, and Phil Berger, President Pro Tempore of the North Carolina Senate, filed motions to intervene (1:12CV589 (Doc. 119); 1:14CV299 (Doc. 75)) and those motions have been granted on the conditions set forth in that order. (1:12CV589 (Doc. 134); 1:14CV299 (Doc. 90).)
1 The parties are in agreement with respect to the dismissal of certain parties and claims (see 1:12CV589 (Docs. 112, 113, 121; 1:14CV299 (Docs. 67, 68, 77)) and this order addresses without analysis the dismissal of individuals and claims as agreed-upon by the parties.
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The pleadings indicate that Plaintiffs in each of these cases has standing to bring these claims. This court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and § 1343(a)(3)(deprivation under State law of any right secured by the Constitution). Pursuant to Fed. R. Civ. P. 8(b)(6), all allegations not denied are deemed admitted.
In light of briefs and representations of the parties (1:12CV589 (Docs. 103, 104, 105, 106, 112, 113); 1:14CV299 (Docs. 56, 57, 58, 59, 67, 68)), those matters admitted by the State of North Carolina in its Answers, and the holding of the United States Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), this court finds that the relief requested by Plaintiffs in each of these cases should be granted with respect to those matters now ripe for ruling.
Bostic addressed Virginia law and a Virginia constitutional amendment prohibiting same-sex marriages and making same sex marriages invalid. Id. Most importantly here, the Virginia constitutional amendment addressed in Bostic stated “[t]hat only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.” Id. at 368 (quoting Va. Const. art. I, § 15-A). The Fourth Circuit held in Bostic that “we conclude that the Virginia Marriage Laws violate the Due Process and Equal
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Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.” Bostic, 760 F.3d at 384. The Supreme Court of the United States recently denied certiorari, Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014), and the Fourth Circuit Court of Appeals has issued its mandate. Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 4960335 (4th Cir. Oct. 6, 2014).
A decision by a circuit court is binding on this court. See Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3rd Cir. 1979)(“A decision by this court, not overruled by the United States Supreme Court, is a decision of the court of last resort in this federal judicial circuit.”); United States v. Brown, 74 F. Supp. 2d 648, 652 (N.D. W.Va. 1998) (“[A] district court is bound by the precedent set by its Circuit Court of Appeals, until such precedent is overruled by the appellate court or the United States Supreme Court.”). As recognized by another court in this district:
[T]he doctrine of stare decisis makes a decision on a point of law in one case a binding precedent in future cases in the same court, and such courts as owe obedience to the decision, until such time as the effect of the decision is nullified in some fashion: reversed, vacated, or disapproved by a superior court, overruled by the court that made it, or rendered irrelevant by changes in the positive law.
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Addison v. Piedmont Aviation, Inc., 745 F. Supp. 343, 349 (M.D.N.C. 1990)(quoting 1B Moore’s Federal Practice ¶ 0.402[2] at 25-27). See also Alexander v. City of Greensboro, No. 1:09-CV-934, 2011 WL 13857, at *5 n. 5 (M.D.N.C. Jan. 4, 2011); Baldwin v. City of Winston-Salem, 544 F. Supp. 123, 124 (1982), aff’d, 710 F.2d 132 (4th Cir. 1983).
This court has independently reviewed the relevant statutes and state constitutional amendments under both Virginia and North Carolina law. As stated by all parties, including the State of North Carolina, this court finds no substantive distinction between the North Carolina statutes and constitutional amendment and the statutory and constitutional provisions addressed in Bostic v. Schaefer. North Carolina Const. art. XIV, § 6 provides, almost identically to the Virginia constitutional amendment, that “marriage between one man and one woman is the only domestic legal union that shall be
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valid or recognized in this State.”2 As the parties jointly
submit, Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014),
constitutes controlling precedent as to this district court.3
As required by the Fourth Circuit’s precedent in Bostic, by
and with the agreement of Defendants in these cases,
IT IS HEREBY ORDERED that North Carolina Const. art. XIV,
§ 6, N.C. Gen. Stat. § 51-1, and N.C. Gen. Stat. § 51-2 are
declared UNCONSTITUTIONAL to the extent those laws prevent same-
sex couples from marrying and prohibit the State of North
Carolina from recognizing same-sex couples’ lawful out-of-state
marriages.4
2 North Carolina’s amendment contains a provision which states “[t]his section does not prohibit a private party from entering into contracts with another private party . . . .” North Carolina Const. art. XIV, § 6. Although the Virginia amendment does not contain similar language, this contractual language in the North Carolina amendment does not appear to this court, and has not been argued by the parties, to remove the North Carolina amendment and relevant statutes from the broad language of Bostic.
3 Bostic also recognized the similarity of North Carolina’s statutory and constitutional scheme. Bostic, 760 F.3d at 367, n.1 (“Three other states in this Circuit have similar bans: North Carolina, N.C. Const. art. XIV, § 6; N.C. Gen. Stat. §§ 51-1, 51-1.2 . . . .”).
4 Plaintiffs’ proposed order contained different suggested language for this order. The language for this paragraph and the following paragraph is derived from, and in large part is identical to, the language from the Fourth Circuit’s holding in Bostic, 760 F.3d at 384, and this court finds no reason at the present time to modify that language.
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IT IS FURTHER ORDERED that the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina are hereby ENJOINED from implementing or enforcing any provisions of North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51-1, and N.C. Gen. Stat. § 51-2 which prevent same-sex couples from marrying and prohibit the State of North Carolina from recognizing same-sex couples’ lawful out-of-state marriages.
IT IS FURTHER ORDERED that Plaintiffs’ claims (i) concerning the adoption laws of North Carolina (Plaintiffs’ First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher-Borne v. Smith, First Amended Complaint, 1:12CV589 (Doc. 40) (July 19, 2013)); and Plaintiffs’ Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper, Complaint, 1:14CV299 (Doc. 1) (Apr. 9, 2014)), and (ii) against the Clerk of the Superior Court for Guilford County, the Clerk of the Superior Court for Durham County, and the Clerk of the Superior Court for Catawba County, are DISMISSED WITHOUT PREJUDICE as MOOT and/or NOT RIPE.
IT IS FURTHER ORDERED that the pending motions for preliminary injunction (1:12CV589 (Doc. 75); 1:14CV299 (Doc. 3)) are DENIED as MOOT.
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IT IS FURTHER ORDERED that any claim by Plaintiffs for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 is severed and will be considered upon appropriate motions of the parties.
A judgment shall be entered contemporaneously with this Order.
This the 14th day of October, 2014. _______________________________________ United States District Judge
- 8 Case 1:14-cv-00299-WO-JEP Document 91 Filed 10/14/14 Page 8 of 8

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

------------------------------ x

MARCIE FISHER-BORNE, et al.,

:

Plaintiffs,

:

v.

:

JOHN W. SMITH, et al.,

:

Defendants.

:

:

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ELLEN W. GERBER, et al.,

:

Plaintiffs,

:

v.

:

ROY COOPER, et al.,

:

Defendants.

:

:

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

CIVIL ACTION NO. 1:12-cv-00589 CIVIL ACTION NO. 1:14-cv-00299

NOTICE OF STIPULATION AND SETTLEMENT AGREEMENT AS TO COSTS, ATTORNEYS’ FEES AND COSTS

Plaintiffs in the above captioned cases and Intervenor-Defendants Tim Moore speaker of

the North Carolina House of Representatives (automatically substituted as defendant for original

intervernor-defendant Thom Tillis, former Speaker of the North Carolina House of

Representatives), and Phil Berger, President Pro Tempore of the North Carolina Senate

(“Intervenors”), by and through undersigned counsel, provide notice that the parties have reached

agreement to resolve Plaintiffs’ claims for attorneys’ fees and other related costs as prevailing

parties in the litigations from Intervenors.

1 Case 1:14-cv-00299-WO-JEP Document 110 Filed 10/21/15 Page 1 of 3

On October 13, 2015, Plaintiffs’ attorneys filed a Motion for Attorneys’ Fees and Costs with this Court requesting a total award of $56,476.00 from Intervenors.1 However, by mutual agreement and to bring full and final resolution to Plaintiffs’ claims of fees and expenses from Intervenors without the necessity of further litigation, Plaintiffs agree to accept from Intervenors the lesser amount of $44,501.36 as full and final resolution of any and all remaining claims for attorneys’ fees and expenses they may have, or may be entitled to against Intervenors.
With this Notice, the parties file a Full Stipulation and Settlement Agreement. This Notice does not cover Plaintiffs’ claims for attorneys’ fees and other associated costs from the remaining Defendants in the above captioned actions.
1 Plaintiffs also seek $254,720.00 in attorneys’ fees and associated expenses from the remaining Defendants, the North Carolina Department of Justice. This Stipulation and Settlement Agreement does not resolve or otherwise waive Plaintiffs’ claims as to the remaining Defendants.
2
Case 1:14-cv-00299-WO-JEP Document 110 Filed 10/21/15 Page 2 of 3

Dated: October 21st, 2015
Signatures
Attorneys for Plaintiffs
/s/ Amy E. Richardson Amy E. Richardson N.C. State Bar No. 28768 Harris, Wiltshire & Grannis, LLP 2009 Fairview Rd. #6220 Raleigh, NC 27628 Telephone Number: (919) 429-7386 Facsimile: (202) 730-1301 amy.richardson@harriswiltshire.com
Christopher Brook N.C. State Bar No. 33838 ACLU of North Carolina P.O. Box 28004 Raleigh, North Carolina 27611-8004 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 cbrook@acluofnc.org

Attorneys for Intervenors
/s/ Robert D. Potter, Jr. Robert D. Potter, Jr. Attorney at Law 5821 Fairview Road, Suite 207 Charlotte, NC 28209 (704) 552-7742 (704) 552-9287 Fax rdpotter@rdpotterlaw.com
John C. Eastman* Lead Counsel
CENTER FOR CONSTITUTIONAL JURISPRUDENCE c/o Chapman University Fowler School of Law One University Dr. Orange, CA 92866 (877) 855-3330 (714) 844-4817 Fax jeastman@chapman.edu	  

3 Case 1:14-cv-00299-WO-JEP Document 110 Filed 10/21/15 Page 3 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

------------------------------ x

MARCIE FISHER-BORNE, et al.,

:

Plaintiffs,

:

v.

:

JOHN W. SMITH, et al.,

:

Defendants.

:

:

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ELLEN W. GERBER, et al.,

:

Plaintiffs,

:

v.

:

ROY COOPER, et al.,

:

Defendants.

:

:

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

CIVIL ACTION NO. 1:12-cv-00589 CIVIL ACTION NO. 1:14-cv-00299

STIPULATION AND SETTLEMENT AGREEMENT AS TO COSTS, ATTORNEYS’ FEES AND COSTS

Plaintiffs in the above captioned cases and Intervenor-Defendants Tim Moore speaker of

the North Carolina House of Representatives (automatically substituted as defendant for original

intervernor-defendant Thom Tillis, former Speaker of the North Carolina House of

Representatives), and Phil Berger, President Pro Tempore of the North Carolina Senate

(“Intervenors”), by and through undersigned counsel, jointly stipulate and agree as follows:

1. The Plaintiffs and Intervenors enter into this agreement to resolve Plaintiffs’ claims

for attorneys’ fees and other related costs as prevailing parties in the litigations from Intervenors.

2. Plaintiffs are deemed the prevailing parties for purposes of an award of attorneys’

fees and expenses under 42 U.S.C. § 1988 and statutory costs pursuant to Federal Rule of Civil

Procedure 54 following the denial by the United States Supreme Court of Intervenors’ Petition for

Case 1:14-cv-00299-WO-JEP Document 110-1 Filed 10/21/15 Page 1 of 3

Writ of Certiorari and resulting Mandate from the Fourth Circuit on August 12, 2015. Said denial left intact the judgment in favor of Plaintiffs rendered on October 8, 2014.
2. On October 13, 2015, Plaintiffs’ attorneys filed a Motion for Attorneys’ Fees and Costs with this Court requesting a total award of $56,476.00 from Intervenors.1
3. However, by mutual agreement and to bring full and final resolution to Plaintiffs’ claims of fees and expenses from Intervenors without the necessity of further litigation, Plaintiffs agree to accept from Intervenors the lesser amount of $44,501.36 as full and final resolution of any and all remaining claims for attorneys’ fees and expenses they may have, or may be entitled to against Intervenors.
4. Plaintiffs further agree to release and unconditionally discharge Intervenors from all claims, actual, doubtful or disputed for attorneys’ fees and costs recoverable under applicable law in this case through the date of the stipulation and agreement. No attorneys’ fees, costs or any monies other than attorneys’ fees, described in paragraph 3, will be paid in connection with this case, except that this stipulation and agreement does not prevent Plaintiffs from seeking attorneys’ fees and costs in the event of future litigation to enforce this Court’s judgment for work related to such enforcement.
5. It is hereby agreed and stipulated among the parties that all parties are fully competent to agree and subscribe hereto and no person not a party to this agreement has an interest in the subject matter. Each of the attorneys executing this document on behalf of their respective clients further warrants and represents that they have full and binding authority to enter into this agreement and to all terms set forth herein.
1 Plaintiffs also seek $254,720.00 in attorneys’ fees and associated expenses from the remaining Defendants, the North Carolina Department of Justice. This Stipulation and Settlement Agreement does not resolve or otherwise waive Plaintiffs’ claims as to the remaining Defendants.
2
Case 1:14-cv-00299-WO-JEP Document 110-1 Filed 10/21/15 Page 2 of 3

6. Intervenors hereby agree to pay and distribute to Plaintiffs’ undersigned counsel the

total sum of $44,501.36 no later than thirty (30) days after the parties’ full execution of this

agreement.

7. The parties further agree that this Court shall retain jurisdiction in this case in order

to enforce this agreement in the event of non-payment of the full sum within the specific time

period.

Dated: October 21st, 2015

Signatures

Attorneys for Plaintiffs

Attorneys for Intervenors

/s/ Amy E. Richardson Amy E. Richardson N.C. State Bar No. 28768 Harris, Wiltshire & Grannis, LLP 2009 Fairview Rd. #6220 Raleigh, NC 27628 Telephone Number: (919) 429-7386 Facsimile: (202) 730-1301 amy.richardson@harriswiltshire.com
Christopher Brook N.C. State Bar No. 33838 ACLU of North Carolina P.O. Box 28004 Raleigh, North Carolina 27611-8004 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 cbrook@acluofnc.org

/s/ Robert D. Potter, Jr. Robert D. Potter, Jr. Attorney at Law 5821 Fairview Road, Suite 207 Charlotte, NC 28209 (704) 552-7742 (704) 552-9287 Fax rdpotter@rdpotterlaw.com
John C. Eastman* Lead Counsel
CENTER FOR CONSTITUTIONAL JURISPRUDENCE c/o Chapman University Fowler School of Law One University Dr. Orange, CA 92866 (877) 855-3330 (714) 844-4817 Fax jeastman@chapman.edu	  

3 Case 1:14-cv-00299-WO-JEP Document 110-1 Filed 10/21/15 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, for

)

herself and as guardian ad

)

litem for M.F.-B., a minor,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SMITH, in his official )

capacity as the Director of the )

North Carolina Administrative )

Office of the Courts, et al., )

)

Defendants.

)

)

)

ELLEN W. GERBER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROY COOPER, et al.,

)

)

Defendants.

)

1:12CV589 1:14CV299

MEMORANDUM OPINION AND ORDER OSTEEN, JR., District Judge
This matter comes before the court on Plaintiffs’ motions for attorneys’ fees, (1:12CV589 (Doc. 155); 1:14CV299 (Doc. 108)), which have been fully briefed. Upon the filing of this court’s order granting partial relief on the issue of attorneys’ fees, (1:12CV589 (Doc. 165); 1:14CV299 (Doc. 118)), the motions

Case 1:14-cv-00299-WO-JEP Document 125 Filed 07/25/18 Page 1 of 34

were mistakenly terminated on the docket. In March 2018, this court held a telephone conference with the parties and subsequently set aside the termination of those motions. (1:12CV589 (Doc. 169); 1:14CV299 (Doc. 122).) Plaintiffs submitted amended motions on April 3, 2018, relying on the same arguments put forward in the original motions. (1:12CV589 (Doc. 171); 1:14CV299 (Doc. 124).) These motions are ripe for adjudication, and for the reasons stated herein, Plaintiffs’ motions will be granted. In summary, this court generally finds the fees reasonable but has reduced the amounts based on its mathematical adjustments to time and fees stemming from certain specific issues. Because the adjustments differ somewhat from objections specifically raised by the State, this court will stay the Order for ten days to provide the parties an opportunity to file a written objection should they wish to be heard further on the court’s interpretation of the described billing adjustments. I. BACKGROUND
Plaintiffs in each of these cases filed Complaints alleging causes of action pursuant to 42 U.S.C. § 1983, naming as Defendants various government officials and challenging the constitutionality of North Carolina’s laws preventing same-sex couples from marrying and prohibiting recognition of same-sex
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couples’ lawful out-of-state marriages. The complete procedural history of these consolidated cases can be seen in various previously docketed entries. (1:12CV589 (Docs. 97, 108, 114, 138, 139); 1:14CV299 (Docs. 49, 63, 71, 94, 95).)
Ultimately, in October 2014, this court entered an Order and Judgment declaring N.C. Const. art. XIV, § 6, N.C. Gen. Stat. § 51-1, and N.C. Gen. Stat. § 51-1.2 unconstitutional and enjoining the State of North Carolina from implementing or enforcing these laws. (1:12CV589 (Docs. 138, 139); 1:14CV299 (Docs. 94, 95).) Plaintiffs’ other claims were dismissed without prejudice as moot and/or not ripe. (1:12CV589 (Docs. 138, 139); 1:14CV299 (Docs. 94, 95).) On October 9, 2014, certain legislative parties (“Legislative Intervenors”) moved to intervene and on October 14, 2014, were permitted to intervene on behalf of Defendant the State of North Carolina (“Defendant”) on a limited basis. (1:12CV589 (Docs. 119, 134); 1:14CV299 (Docs. 75, 90).)
On October 13, 2015, after consulting with Legislative Intervenors and Defendant in accordance with Local Rule 54.2, Plaintiffs petitioned this court for an award of $311,196 in attorneys’ fees (requesting $254,720 from Defendant and $56,476 from Legislative Intervenors) for 1,053 hours expended, and for
- 3 -
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$6,612.20 in expenses. (See Docs. 155, 157-1.)1 On October 21,

2015, Plaintiffs filed a stipulation and settlement agreement,

reached with Legislative Intervenors for $44,501.36. (Doc.

157-1.) On November 20, 2015, Defendant responded to Plaintiffs’

motion, objecting to the requested attorneys’ fees. (Doc. 161.)

On December 4, 2015, Plaintiffs replied, subtracting time based

on two of Defendant’s objections (but disputing the rest) and

submitting amended documentation. (Docs. 163, 163-1.) The

amended documentation did not exclude the portion of the fee

request that had been settled.

As a result of this court’s direction to the parties to

file a statement as to the fees following the intervenor

settlement, Plaintiffs filed an Amended Motion for Fees. (Doc.

171.) All parties continued to rely on the arguments and

authorities previously filed pertaining to the fee motions.

Plaintiffs submitted the following updated chart — though not

updated documentation — with these totals:

Original Amount Sought Adjustments in Reply Brief Fees Subject to Intervenor Settlement TOTAL

$311,196 ($44,023) ($56,476) $209,819

1 Counsel for Fisher-Borne Plaintiffs and Gerber Plaintiffs submitted identical briefs and documentation in support of their fee motions. Unless otherwise noted, this court cites to docket entries in the Fisher-Borne case number 1:12CV589 throughout this Memorandum Opinion and Order.
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Defendant objects on several grounds to Plaintiffs’ original requested fee and argues that the fee should be reduced to an amount between $80,541 and $122,032. (Doc. 161 at 20.)2 II. LEGAL STANDARD
A prevailing party in a civil rights action to enforce constitutional rights may recover attorneys’ fees. See 42 U.S.C. § 1988(b). A plaintiff prevails “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per curiam) (quoting Farrar v. Hobby, 506 U.S. 103, 111–12 (1992)). “[A]n injunction or declaratory judgment, like a damages award, will usually satisfy that test.” Id. (citation omitted). Defendant does not dispute that Plaintiffs prevailed in these cases.
As the Fourth Circuit has explained: The proper calculation of an attorney’s fee award involves a three-step process. First, the court must “determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). To ascertain what is reasonable in terms of hours expended and the rate charged, the court is bound to apply the factors set
2 All citations in this Memorandum Opinion and Order to documents filed with the court refer to the page numbers located at the bottom right-hand corner of the documents as they appear on CM/ECF.
- 5 -
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forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Id. at 243–44. Next, the court must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Id. at 244. Finally, the court should award “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Id.
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (footnote
omitted). While “[t]he Supreme Court has indulged a ‘strong
presumption’ that the lodestar number represents a reasonable
attorney’s fee[,]” the Johnson factors3 influence the calculation
and ultimate determination. See id. at 88-90. Counsel is
expected to exercise “billing judgment,” and district courts
should exclude hours that are “excessive, redundant, or
3 These factors are:
(1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.
McAfee v. Boczar, 738 F.3d 81, 88 n.5 (4th Cir. 2013) (citation omitted).
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Case 1:14-cv-00299-WO-JEP Document 125 Filed 07/25/18 Page 6 of 34

otherwise unnecessary[.]” See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Regarding expenses, “[a] prevailing plaintiff in a civil rights action is entitled, under § 1988, to recover ‘those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.’” Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (citations omitted). III. ANALYSIS
Defendant agrees that the hourly rates Plaintiffs seek are reasonable, but raises several objections to the time reasonably expended and also asks for “step two” reductions. (Doc. 161 at 11-20.) Because this court is obliged “to provide a concise but clear explanation of its reasons” for awarding a certain amount of fees, Hensley, 461 U.S. at 437, it will address both the unchallenged reasonableness of the requested hourly rates and the challenged reasonableness of the hours expended.
A. Lodestar Calculation — Reasonable Hourly Rates The fee applicant bears “the burden of establishing the reasonableness” of their rates and “is obliged to show that the requested hourly rates are consistent with ‘the prevailing market rates in the relevant community for the type of work for which [s]he seeks an award.’” McAfee, 738 F.3d at 91 (alteration
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in original) (citation omitted). “The relevant market for determining the prevailing rate is ordinarily the community in which the court where the action is prosecuted sits.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (citation omitted). In certain circumstances, such as when the complexity of the case is such that no attorney with the required skills is available locally, it may be reasonable to retain attorneys from other communities and to consider those higher, out-of-town rates. Id. at 175, 178-79.
Typically, courts look to affidavits4 submitted from “other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community.” Robinson, 560 F.3d at 245 (citation omitted). Affidavits attesting to the applicants’ “own rates, experience, and skills” in addition to those of North Carolina lawyers “familiar both with the skills of some of the applicants and more generally with civil rights litigation” in the state is “sufficient evidence of the prevailing market rates[.]” Id. (citation omitted).
4 Plaintiffs submitted unsworn declarations, made under penalty of perjury, which are permissible in lieu of affidavits. See 28 U.S.C. § 1746; see also Willard v. Internal Revenue Serv., 776 F.2d 100, 102 n.3 (4th Cir. 1985) (citing § 1746 in the context of declarations attached to a motion for summary judgment).
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Plaintiffs submitted six declarations from attorneys who worked on one or both of the cases: Christopher Brook, legal director of the ACLU of North Carolina (“ACLU-NC”); Jeremy Falcone and Jonathan D. Sasser, both partners at Ellis & Winters LLP; Garrard R. Beeney, a partner at Sullivan & Cromwell LLP (“S&C”) (Beeney’s declaration also provides information for S&C associates W. Rudolph Kleysteuber and Kerri-Ann Limbeek); and Patrick O’Donnell and Amy E. Richardson, both partners at Harris, Wiltshire & Grannis, LLP. (Docs. 156-5, 156-6, 156-7, 156-8, 156-9, 156-10.) Plaintiffs seek the following hourly rates: $250 for Mr. Brook, $287.50 for Mr. Falcone, $430 for Mr. Sasser, $440 for Mr. Beeney, $290 for Mr. Kleysteuber, $220 for Ms. Limbeek, $370 for Mr. O’Donnell, and $287 for Ms. Richardson. (Pls.’ Mem. of Law in Supp. of Mot. For Attorneys’ Fees (Doc. 156) at 17 & n.7.)
Each declaration thoroughly described the attorney’s own qualifications and experience. Of the attorneys based in North Carolina, Mr. Brook declared the reasonableness of his own requested rate based on consulting “with attorneys who practice in the Middle District of North Carolina and the Fourth Circuit.” (Doc. 156-7 ¶ 7.) Mr. Falcone and Mr. Sasser, based in Raleigh, North Carolina, both declared that their requested rate here is below their normally charged rate and that they maintain
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busy practices for which the hours devoted to these cases reduced time that would otherwise be spent on clients paying their customary fees. (Docs. 156-5, 156-8.) Ms. Richardson is based in Raleigh, North Carolina, and shared responsibility for preparing Plaintiffs’ fee motion. She declared that she is “familiar with the market rate” for attorneys litigating civil rights issues in North Carolina and that counsel’s rates are reasonable. (Doc. 156-9.) She also declared that her requested rate is “substantially below” her normal rate and that the hours devoted to this case would otherwise have been spent on clients paying her customary fee. (Id.)
Plaintiffs also submitted a declaration and an affidavit, respectively, from two North Carolina licensed attorneys, Robert M. Elliot and Mark Sigmon, who have litigated complex civil rights cases in this district and are familiar with the work of Mr. Brook and Mr. Sasser. (Docs. 156-3, 156-4.) Mr. Elliot and Mr. Sigmon attested to the reasonableness of all of counsel’s rates, including those based in North Carolina and those outside North Carolina. Both opined that the ACLU-NC, having typically only one and never more than two attorneys practicing in North Carolina during this litigation, “could not have handled” this complex litigation without engaging additional litigation assistance. (Id.) Plaintiffs have demonstrated with this
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uncontested evidence that the North Carolina attorneys’ rates are reasonable.
As to the out-of-state attorneys, Mr. Beeney, a New York attorney who represented Plaintiffs pro bono, declared that the requested rates for himself and two associates, Mr. Kleysteuber and Ms. Limbeek, are substantially below the “effective hourly rate paid by [his firm’s] clients” for his and his associates’ time. (Doc. 156-6.) Mr. Beeney also declared that he and the associates maintain a busy practice and that the hours devoted to this case would otherwise have been spent on other, paying clients. Mr. O’Donnell, based in the District of Columbia, shared with Ms. Richardson responsibility for preparing Plaintiffs’ fee motion and declared that his requested rate is substantially below his normal rate and that the hours worked in these cases would have otherwise been spent on clients paying his customary fee. (Doc. 156-10.)
These cases presented complex constitutional issues in a quickly evolving area of law, justifying the services of skilled, experienced counsel. Plaintiffs’ declarations show their North Carolina-based counsel were amply qualified, so it is not true that no qualified attorney was available locally. Nonetheless, the declarations support and this court finds that the out-of-state attorneys were reasonably engaged as necessary
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additional resources to help prosecute the case and that their requested rates are reasonable in this community for the type of civil rights litigation undertaken here.
Therefore, this court adopts the unchallenged rates without adjustment. This determination satisfies the “reasonable hourly rate” component of the lodestar analysis and considers the skill required to properly perform the legal services rendered, the attorney’s opportunity costs in pressing the instant litigation, the customary fee for like work, the attorney’s expectations at the outset of the litigation, and the experience, reputation, and ability of each attorney.
B. Lodestar Calculation — Reasonable Time Spent This court now turns to “the number of hours reasonably expended by [the movant’s] lawyers.” McAfee, 738 F.3d at 89. In an exercise of billing judgment, Plaintiffs state that although additional attorneys worked on these cases, they submitted fee requests for hours from only six “core timekeepers” plus the two attorneys who worked on the fee motion. (See Doc. 156 at 18.) Documentation was submitted in the form of line item entries, each labeled by timekeeper and including a date, hours spent, rate, a total amount equaling the hours spent times the rate, a narrative description, and a time period/category label. The starting point for Plaintiffs’
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original fee petition is $311,011.70 for 1,052.6 hours expended
and $6,612.20 in expenses.5 From this starting point, the
following several adjustments must be made before the
reasonableness of the hours is assessed.
First, Plaintiffs voluntarily “opted to write off all of
their counsels’ time prior to July 19, 2013,” the date of the
filing of the Fisher-Borne Amended Complaint. (See Doc. 156 at
18.) In response to Defendant pointing out that Plaintiffs
included time prior to this date,6 Plaintiffs conceded the error
and provided an amended submission, withdrawing fees before
July 19, 2013, and stating that $44,023 worth 170.50 hours was
subtracted for this reason. (See Doc. 163 at 10, Doc. 163-1 at
3, 7.) However, the amended submission still contains line items
5 Plaintiffs listed their original request as $311,196.00 or $311,196.20 for 1,053 hours expended and $6,612.20 in expenses. (See Docs. 155, 156.) The slight difference between this court’s starting point and Plaintiffs’ is due to rounding and several instances where a line item total does not equal the actual total of the hours logged multiplied by the hourly rate. For example, an entry from Mr. Sasser dated October 10, 2014, lists 4.90 hours at a rate of $430, which equals $2,107, but the entry’s total is listed as $2,143.75. (Doc. 163-1 at 29.) All of these entries will ultimately be excluded for other reasons described herein.
6 Defendant framed this objection as objecting to time spent on unsuccessful claims unrelated to successful claims. (Doc. 161 at 18-20.) Because Plaintiffs concede their error, which substantially affects Defendant’s argument, this court will address the adjustment as an initial matter and consider Defendant’s argument as to what remains in section III.C.
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for work undertaken prior to July 19, 2013. (See, e.g., Table 5 Total Time included in Amended Fee Petition, Doc. 163-1 at 10 (including but not limited to line items for timekeeper Mr. Brook dated 6/30/2013, 7/1/2013, 7/2/2013, 7/3/2013, 7/4/2013, 7/8/2013, 7/9/2013, 7/10/2013, 7/11/2013, 7/11/2013, and 7/12/2013).) Totaling these line items (and not counting three hours of media-related work falling pre-July 19, 2013, that will be excluded as described below), work undertaken prior to July 19, 2013, totals 233.5 hours and $66,895.25 in fees, and Plaintiffs’ amended submission should have reflected as much.
Second, Plaintiffs seek to add 14.5 hours and $6,294 for time spent on the fee motion. (Id. at 9.) However, these new entries are billed at higher rates than what was requested in Plaintiffs’ motion, brief, and supporting documentation — $540 per hour for Mr. O’Donnell instead of the requested $370 and $300 per hour for Ms. Richardson instead of the requested $287. The court concludes this is another error; if not, Plaintiffs have submitted no evidence as to the reasonableness of these higher rates. Therefore, these entries have been corrected to reflect the originally requested rates. Once corrected, the total of requested fees for the additional fee petition work is $4,667.80.
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Third, Plaintiffs divided their records as of October 9, 2014, the date Legislative Intervenors intervened, to show litigation efforts against the State by and through the Attorney General and those against the Legislative Intervenors. Plaintiffs suggested that the “fee liability be apportioned among individual defendants on that basis.” (See Doc. 156 at 25.) Therefore, Plaintiffs’ settlement with Legislative Intervenors covers all time spent from October 9, 2014, until the settlement was submitted on October 13, 2015. This timeframe includes counsel’s initial work on the fee petition and excludes the fee work added in Plaintiffs’ response. Because Plaintiffs’ amended submission does not reflect the exclusion of this time, (Doc. 163-1), this court has manually subtracted these hours. While Plaintiffs state that the value of the settlement is $56,476, (Docs. 157-1, 171 at 2), Plaintiffs did not provide documentation showing the hours making up this value. This court finds the actual total of entries submitted from October 9, 2014, until October 13, 2015, is 227.15 hours and $68,582.45. These totals are what will be subtracted from Plaintiffs’ fee request.
Finally, Defendant asks for between ten and twenty hours of media-related endeavors to be subtracted. (Doc. 161 at 15.)
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Plaintiffs agreed to exclude 20.7 hours of media-related work

for a total of $7,172.25. (Doc. 163 at 10.)

To reiterate, Plaintiffs’ amended fee request is for

$209,819. (Doc. 171.) Based on the review described above, this

court determines that the total amount Plaintiffs seek after all

agreed-upon adjustments is actually $173,029.55 for 585.75 hours

and $6,612.20 in expenses.

Initial Request (-) Pre-July 19, 2013
(-) Settlement (October 9, 2014 - October 13, 2015) (+) Work on Fee Motion (Work Since October 13, 2015) (-) Media Total Adjusted Request

Hours 1,052.6 233.5 227.15
14.5
20.7 585.75

Fee Requested $311,011.70 $66,895.25 $68,582.45
$4,667.80
$7,172.25 $173,029.55

Expenses $6,612.20 N/A N/A
N/A
N/A $6,612.20

Defendant lodges several additional objections to

Plaintiffs’ requested hours, which are discussed below.

1. Block Billing, Large Billing Increments, and Vague Billing

Defendant objects to Plaintiffs’ use of block-billing and

billing increments of fifteen minutes, which it contends should

result in an unspecified “significant reduction of fees

awarded.” (Docs. 161 at 12-13; 161-1; 161-2.)

Defendant points to 235.20 hours’ worth of entries by

Mr. Beeney, Mr. Falcone, Mr. Kleysteuber, Ms. Limbeek, and

Mr. Sasser as problematically block billed. (Doc. 161-1.) After

removing entries already withdrawn by Plaintiffs and five

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entries from Defendant’s exhibit not found in Plaintiffs’ submissions, fifty-five allegedly block-billed entries remain, totaling 148.95 hours and $47,728.75.
“Block billing” occurs when “multiple tasks are put together in the same billing entry.” Supler v. FKAACS, Inc., No. 5:11-CV-229-FL, 2013 WL 6713120, at *4 (E.D.N.C. Dec. 19, 2013). Block billing, while not prohibited, is “disfavored by federal courts.” Lamonaca v. Tread Corp., 157 F. Supp. 3d 507, 519 (W.D. Va. 2016) (citation omitted). The practice may inhibit a court’s effort to “discern with precision how . . . hours were billed and precisely why those hours were needed.” See Dyer v. City of Gastonia, DOCKET NO. 3:15-cv-00033-MOC-DCK, 2016 WL 4443190, at *5 (W.D.N.C. Aug. 19, 2016). In the presence of block billing, district courts may exercise their discretion to determine whether to reduce a fee award, typically by a fixed percentage. See, e.g., Jones v. Southpeak Interactive Corp. of Delaware, Civil Action No. 3:12cv443, 2014 WL 2993443, at *9 (E.D. Va. July 2, 2014), aff’d, 777 F.3d 658 (4th Cir. 2015). However, “[t]he relevant question is whether the documentation of hours is adequate.” Supler, 2013 WL 6713120, at *4 (citing Hensley, 461 U.S. at 433). “Block-billing . . . does not necessarily require denial or reduction of fees." Id. (collecting cases); see also Stuart v. Walker-McGill, 1:11-CV-804, 2016 WL 320154,
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at *11–12 (M.D.N.C. Jan. 25, 2016) (declining to reduce fee
award for “bundled” entries when the entry descriptions did not
make it difficult for the “reviewing court to identify excessive
hours” or group compensable and non-compensable tasks together).
Here, with a few small exceptions described infra, the
challenged entries, “viewed individually and in the context of
entries by the same attorney and by other attorneys within the
same time frame, do not reflect the expenditure of unreasonable
amounts of time, considering the specific tasks detailed.”
Stuart, 2016 WL 320154, at *12 (citing Aventis CropScience, N.V.
v. Pioneer Hi-Bred Int’l, Inc., No. 1:00CV463, 2010 WL 2306677,
at *7 (M.D.N.C. June 8, 2010)). For example, a July 26, 2013
entry accounting for 1.2 hours reads:
Review of memo from Chris Brook re legislation granting House Speaker and Senate Pro Tem standing; review of memo from Sarah Kaufman re service on Willie Covington; memos to and from Sarah Kaufman re service on Willie Covington; memo to TPA Team re service of TPA complaint; review of memo from Elizabeth Gill re service on Durham Register of Deeds; review of memo from David Castleman re service; conference call re service on Willie Covington; review of statement from Ryan Kurtz re service on Willie Covington; review of memos from Sarah Kaufman and Jeremy Falcone re service on John Smith; call to Dixie Wells re amendment of complaint; review of draft email from Chris Brook to Mr. Siler re service on Willie Covington; review of memo from Dixie Wells re amendment in Middle District.
(Doc. 163-1 at 22.) While block billing is disfavored by federal
courts generally and by this court specifically, these tasks and
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the time spent on them is reasonable in the context of the litigation. Moreover, no specific facts prevent this court from making such a determination regarding the reasonableness of the time spent. Therefore, this court declines to apply a percentage reduction to the total fee award in these cases.
Defendant also objects to the fifteen-minute billing increments used by Mr. Beeney, Mr. Kleysteuber, and Ms. Limbeek, claiming that the large billing increments “frequently overlap” with the allegedly block-billed entries. (Docs. 161 at 13; 161-2.) While fifteen-minute increment billing may lead to overbilling, courts have rejected the notion that merely billing in fifteen-minute increments is a sufficient basis to reject those entries. See, e.g., E. Associated Coal Corp. v. Dir., Office of Workers’ Comp. Programs, 724 F.3d 561, 576 (4th Cir. 2013); Md. Elec. Indus. Health Fund v. MESCO, Inc., Civil Action No. ELH-12-505, 2014 WL 4660813, at *13 (D. Md. Sept. 16, 2014). Here, after reviewing the challenged entries that were attributed to the three attorneys who billed in fifteen-minute increments, this court finds that these entries do not inhibit the court’s ability to determine the reasonableness of the time and labor expended. Therefore, no further reduction is warranted on this ground.
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Defendant further objects to “vague billing,” for example, entries for strategy calls or weekly calls, asking for an unspecified percentage reduction. (Docs. 161 at 13-14; 161-3.) Using “excessively vague time descriptions” is another disfavored billing practice. Lamonaca, 157 F. Supp. 3d at 520. The Fourth Circuit has “frequently exhorted counsel to describe specifically” all performed tasks. Rum Creek, 31 F.3d at 180. “Nonetheless, a prevailing party can recover fees for such time if the hours were necessary to prosecute the case and a court can be confident there was not unacceptable duplication.” Stuart, 2016 WL 320154, at *12 (citing Rum Creek, 31 F.3d at 180).
Here, five challenged entries have been withdrawn as falling before July 19, 2013.7 Approximately fifty-nine hours’ worth of the remaining challenged entries pertain to litigation strategy, team meetings, and calls relating to various stages of the litigation, (see, e.g., Doc. 161-3 at 1), which this court finds to be reasonable given the complexity of the cases. While some of the remaining challenged entries, particularly those of
7 The court notes that Defendant’s vagueness objection also contains discrepancies. For example, Defendant objects to an entry by Mr. Beeney dated August 23, 2014, for 0.25 hours with the description “Email DC[,]” (Doc. 161-3 at 4), but Plaintiffs submitted no entry for Mr. Beeney on that date nor any entry on any date with that description.
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Mr. Beeney, could certainly stand to be more detailed, this court does not find them to reflect unreasonable amounts of time, especially given that each entry is keyed to a specific category such as “PI Mtn, Stay Mtns” or “Opp. State 2nd MTD.” For example, an entry by Mr. Beeney dated March 31, 2014, for one hour labeled “Edit affidavits, conf. Mr. Kleysteuber, emails Ms. Limbeek” keyed to “PI Mtn, Stay Mtns[,]” (see id. at 6), is reasonable, especially when compared to surrounding entries by Ms. Limbeek, who seems to have taken the lead on drafting affidavits during this stage of the litigation, (see Doc. 163-1 at 30-31). One entry by Mr. Falcone dated April 15, 2014, relating to “efforts regarding representation generally; revise amicus brief” will be excluded (1.5 hours total) as the court is unable to determine the reasonableness of this entry and declines to apply a percentage reduction here. (See Doc. 161-3 at 3.) Otherwise, this court finds the challenged hours were reasonably expended.
2. Preliminary Injunction and Stay As Defendants note, Fisher-Borne Plaintiffs moved for a preliminary injunction on April 9, 2014. (Doc. 75.) Gerber Plaintiffs filed their Complaint as well as a motion for a preliminary injunction that same day. (1:14CV299 (Docs. 1, 3).) In response to motions for expedited consideration, Magistrate
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Judge Joi Peake, on April 11, directed the parties to address whether consideration of the motions “should be stayed pending the Fourth Circuit’s resolution of Bostic v. Schaefer, Case No. 14-1167 (4th Cir.) (set for oral argument on May 13, 2014).” (Doc. 83.) Defendant moved to stay the Fisher-Borne proceedings that same day and the Gerber proceedings on April 17. (1:12CV589 (Doc. 84) at 14-15; 1:14CV299 (Doc. 23).) Defendant objects to the time entries relating to the preliminary injunction sought by Plaintiffs and Plaintiffs’ opposition to the motions to stay. Specifically, Defendant claims that “the precedential value of Bostic facilitated an expedient and successful outcome for Plaintiffs” and seeks a 50% reduction of the approximately 400 hours logged in these two categories. (Doc. 161 at 14-15.)
While Defendant correctly notes that the resolution of Bostic indeed facilitated Plaintiffs’ eventual success in these cases, this court finds the time expended on filing the preliminary injunction motions and opposing the stay motions was not unreasonable. Defendant’s cited authority, Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 7245631 (D. Idaho Dec. 19, 2014), does not compel a different conclusion. There, the stay was on appeal, not in proceedings before the district court, and the plaintiffs conceded that the fees were not recoverable. Latta, 2014 WL 7245631, at *6.
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Given the context of the entire litigation and the fact that the cases presented evolving and unsettled complex questions of constitutional law, Plaintiffs will not be penalized for their reasonable efforts to secure preliminary relief for their clients. Counsel’s time is still compensable though it was unsuccessful at securing the preliminary injunctions and at opposing the stays. See Air Transp. Ass’n of Can. v. Fed. Aviation Admin., 156 F.3d 1329, 1335 (D.C. Cir. 1998) (citation omitted) (noting that a plaintiff “who is unsuccessful at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage”). The court therefore declines to apply Defendant’s suggested percentage reduction to these hours.
3. Excessive and Duplicative Hours Defendant argues that Plaintiffs submitted excessive hours given the scope of the litigation (with “only a limited substantive briefing round on the State’s motions to dismiss and Plaintiffs’ motions for preliminary injunction”). (See Doc. 161 at 17.) The excessive hours, Defendant claims, is the result of Plaintiffs “working by committee,” i.e., billing duplicative hours. (Id. at 16-17.) Defendant asserts that the litigation here is analogous to McGee v. Cole, 115 F. Supp. 3d 765 (S.D.W. Va. 2015), where the
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district court awarded attorneys’ fees of less than one-third of the requested amount. The court in McGee noted that “[t]here was no discovery, only one brief hearing, and only two rounds of substantial briefing for early motions to dismiss and later cross-motions for summary judgment.” McGee, 115 F. Supp. 3d at 776. There, attorneys from each of the three involved firms billed “for a large number of hours with respect to each major activity. Apparently, each firm undertook a supervisory role in most aspects of the Plaintiffs’ case, though all of the substantive work of subordinates was already reviewed by a senior attorney.” Id. at 774, 776. The court reduced the hours because of the lawyers’ failure to delegate the workload.
“[D]uplicative, excessive, or redundant hours should not be compensated under § 1988.” Trimper v. City of Norfolk, 58 F.3d 68, 76 (4th Cir. 1995). But, “the work of more than one attorney on the same litigation task does not automatically mean overstaffing has occurred.” Abusamhadaneh v. Taylor, No. 1:11cv939 (JCC/TCB), 2013 WL 193778, at *22 (E.D. Va. Jan. 17, 2013). Defendant points to no specific examples of Plaintiffs’ counsel “working by committee” and points only to the similar procedural posture of this case and McGee.
After review of the submitted billing entries, the court finds that, unlike in McGee, each firm involved did not bill
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“for a large number of hours with respect to each major activity.” McGee, 115 F. Supp. 3d at 776. For example, Plaintiffs requested approximately 134.95 hours of fees for work related to two motions to dismiss in Fisher-Borne. (See Doc. 163-1 at 11-16, 18-19, 23-24, 27, 29, 33-34.) Over three quarters of the hours logged come from the three S&C timekeepers, including drafting and cite checking the briefs. Fee requests from the remaining attorneys logging time on these tasks were limited mostly to reviewing changes and edits to the briefing or other discrete tasks related to this stage of the litigation. Moreover, Plaintiffs argue, and this court finds, that Plaintiffs have already shown billing judgment and discretion by excluding collateral timekeepers from their request. (Doc. 163 at 8.) Therefore, this court declines to exercise its discretion to apply a percentage reduction to these hours as suggested by Defendant.
4. Miscellaneous Exclusions In a footnote, Defendant raises several additional objections to Plaintiffs’ “insufficient documentation” for tasks such as work related to discovery and summary judgment, work related to amicus briefing, out-of-state counsel’s travel to North Carolina, work related to “clerical and secretarial tasks[,]” and miscellaneous “seemingly unrelated entries[.]”
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(Doc. 161 at 17 n.4.) Defendant does not point out specific entries. After reviewing all of Plaintiffs’ submitted entries within the agreed-upon window (excluding, for example, alreadywithdrawn travel-related entries prior to July 19, 2013) and based on this court’s knowledge of the particular nature and circumstances of this litigation, discussed supra, this court finds these hours were reasonably expended and are compensable, with the following exceptions described below.
First, “intervention-related fees and expenses . . . are not recoverable under 42 U.S.C. § 1988 by a prevailing plaintiff against a losing defendant.” Rum Creek, 31 F.3d at 178. While most intervention-related entries were settled with Legislative Intervenors, a few remain: Mr. Beeney logged 2.5 hours total for intervention-related tasks dated 9/21/2013 and 5/9/2014. (Doc. 163-1 at 14-15.) Mr. Brook logged 0.6 hours on August 8, 2013. (Id. at 11.) These hours will be excluded. Mr. Beeney on two occasions (totaling 1.5 hours) and Mr. Sasser on two occasions (totaling 3.5 hours) lumped compensable tasks with at least one task pertaining to intervention. (Id. at 15, 22, 28.) This court will exercise its discretion to reduce these entries by 20%. See Design Res., Inc. v. Leather Indus. of Am., 1:10CV157, 2016 WL 5477611, at *11 (M.D.N.C. Sept. 29, 2016) (collecting cases reducing fee awards on block billing grounds).
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Second, Plaintiffs submitted several entries relating to amicus briefing. (Doc. 163-1 at 25-26, 31.) These hours appear to relate to an amicus brief filed on behalf of the Fisher-Borne Plaintiffs in the Bostic case. See Brief for Amici Curiae Marcie and Chantelle Fisher-Borne et al., Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (Nos. 14–1167, 14–1169, 14–1173).
The Fourth Circuit has upheld a district court’s exclusion of time spent “on an amicus brief for clients who were not prevailing parties in [the] litigation.” Rum Creek, 31 F.3d at 178. Unlike in Rum Creek, the Fisher-Borne Plaintiffs are prevailing parties. Lacking on point precedent in the Fourth Circuit, a district court in this circuit has noted that, when the client is a prevailing party, “whether to allow attorneys’ fees for time spent dealing with amici appears to be a matter committed to the sound discretion of the [district court].” E.E.O.C. v. Freeman, 126 F. Supp. 3d 560, 577 (D. Md. 2015). Moreover, the entries here present a somewhat different situation: rather than consulting with external amici to potentially file a supportive brief, Plaintiffs’ counsel acted as amici in a pending case that could have potentially resulted (and, in fact, did result) in a precedential ruling that facilitated Plaintiffs’ victory. This court does not conclude that such efforts were unreasonably expended.
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Third, Ms. Limbeek spent fifteen hours on tasks relating to discovery, which never commenced in these cases, and several attorneys spent a total of 24.7 hours on entries with tasks relating to an unfiled summary judgment motion. (Doc. 163-1 at 12, 16, 27, 30-32.) Although the Fourth Circuit does not appear to have squarely addressed the issue, courts have held that time spent on unfiled motions may be compensable where a plaintiff shows that the motion was prepared to advance the litigation. See, e.g., Alvarez v. Haywood, 1:06-CV-745(FJS/DRH), 2011 WL 13130851, at *10-11 (N.D.N.Y. Aug. 29, 2011) (excluding time spent on the unfiled motion because it did not advance the litigation). The burden is on the plaintiff to show that the time expended was reasonable “with the case in the posture it was in[.]” Supler, 2013 WL 6713120, at *3.
Here, the work relating to discovery took place between December 5, 2013, and January 2, 2014. No pretrial conference was set nor is there evidence that the parties conferred under Federal Rule of Civil Procedure 26(f)(1). The work relating to summary judgment took place mainly in August 2014, after the second round of motion to dismiss briefing had been completed — but not yet ruled upon — and the parties were briefing motions for a preliminary injunction and a motion to stay. These hours may have been reasonably expended, but Plaintiffs have provided
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no basis or context to allow the court to make such a determination in light of the procedural posture of the cases at the time the work was performed. Therefore, the fifteen hours for the discovery work will be excluded. For the summary judgment work, 16.70 hours will be excluded completely. Five entries totaling eight hours include block-billed entries with summary judgment-related tasks and will be reduced by 20% as an exercise of the court’s discretion.
Fourth, Mr. Beeney logged two entries related to moots and moot court (1.25 hours total), when no oral arguments were scheduled in these cases. (See Doc. 163-1 at 15.) These hours were not reasonably expended and will be excluded.
After excluding hours for the reasons described in section III.B.1-4 and considering the time and labor expended, novelty and difficulty of the questions raised, and time limitations imposed by the client or circumstances, the total time spent — the “reasonable time spent” component of the lodestar analysis — equals 548.95 hours in these cases.
C. Potential Further Adjustments This court must now “determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” McAfee, 738 F.3d at 88 (citation omitted). The
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“reasonable hours” multiplied by each “reasonable rate” is as

follows:

Attorney
Mr. Beeney Mr. Brook Mr. Falcone Mr. Kleysteuber Ms. Limbeek Mr. O’Donnell Ms. Richardson Mr. Sasser

Rate
$440 $250 $287.50 $290 $220 $370 $287 $430

Adjusted Requested Hours
76.5 41.2 35.7 66.5 267.75 6.1 8.4 83.6

Total Hours After Exclusions 72.50 39.1 35.7 65.75 238 6.1 8.4 83.4
Lodestar:

Total8
$31,746 $9,775 $10,263.75 $18,835.50 $52,195 $2,257 $2,410.80 $35,561 $163,044.05

Considering the remaining Johnson factors, this court finds

that the amount in controversy and results obtained and

attorneys’ fee awards in similar cases warrant further

discussion. Here, Plaintiffs achieved their desired result,

culminating in this court’s declaration that certain North

Carolina state laws were unconstitutional. Plaintiffs provide

several examples of fee awards (awarded by courts or reached by

settlement) in constitutional challenges to state same-sex

marriage bans, ranging from $298,742.77 to $1,055,000. (See

Docs. 156 at 19, 156-11, 156-12, 156-13, 156-14.)

Defendant cites to McGee v. Cole, 115 F. Supp. 3d 765

(S.D.W. Va. 2015), where the court awarded $92,125. (Doc. 161 at

8 These amounts include the minor block-billing reductions previously described for specific entries by Mr. Beeney, Mr. Kleysteuber, Ms. Limbeek, and Mr. Sasser.
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16.) As previously explained, the reductions applied in McGee are not applicable here. Based on the procedural posture of these cases when Plaintiffs ultimately prevailed, this court finds the lodestar to be well within a reasonable range for cases similarly situated. Therefore, considering all the remaining Johnson factors, there is no reason to depart in this case from the “strong presumption” that the lodestar is reasonable. See McAfee, 738 F.3d at 88-89.
1. Unsuccessful Claims Unrelated to Successful Claims
Defendant next contends that the lodestar should be further reduced for Plaintiffs’ work related to claims over the constitutionality of North Carolina’s adoption laws, which were mooted by this court’s declaration of the constitutionality of the same-sex marriage ban. (Doc. 161 at 18.) Defendant notes that Plaintiffs billed hours from 2012 and early 2013 prior to the filing of the Amended Complaint, which presumably included work on the adoption laws as these were raised in the initial Complaint. (Id. at 18-19.) Defendant asks for at least a 10% reduction in fees based on this issue. (Id. at 19-20.)
However, “[f]ederal courts . . . allow[] a prevailing party to recover fees for unsuccessful claims where the entire case ‘involve[s] a common core of facts or . . . related legal theories.’” Zoroastrian Ctr. & Darb-E-Mehr of Metro. Washington,
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D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739, 754 n.8 (4th Cir. 2016) (quoting Hensley, 461 U.S. at 435). Here, all hours prior to July 19, 2013, have been excluded from the lodestar calculation. As to the remaining disputed hours, in these cases, this court agrees with Plaintiffs that the adoption claims were based on “the same core set of facts: North Carolina’s exclusion of same-sex couples from marriage, and the related and consequent exclusion of same-sex couples from adoption.” (Doc. 163 at 4.) The claims in this litigation are not analogous to those in Defendant’s cited authority, McGee v. Cole, 115 F. Supp. 3d 765 (S.D.W. Va. 2015), where the plaintiffs’ unsuccessful claim was dismissed for lack of standing and plaintiffs concurred that the hours should be excluded. McGee, 115 F. Supp. 3d at 770, 776. Therefore, this court declines to apply a percentage reduction for the adoption claims because they were based on the same core set of facts as Plaintiffs’ ultimately successful claims.
2. Award Some Percentage of the Remaining Amount, Depending on the Degree of Success Enjoyed
Finally, Defendant argues that no additional adjustment be made under the third step of the calculation. (See Doc. 161 at 20.) The court should reduce the award “if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.” Hensley, 461 U.S. at 440. The court may
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increase the award in the “rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).
Here, Plaintiffs successfully obtained a declaration that N.C. Const. art. XIV, § 6, N.C. Gen. Stat. § 51-1, and N.C. Gen. Stat. § 51-1.2 are unconstitutional and an injunction against enforcing or implementing these laws. This judgment affected not only the specific Plaintiffs in these cases but many additional same-sex couples as well. This court finds that this injunctive and declaratory relief is not “limited in comparison to the scope of the litigation as a whole,” nor is this the “rare circumstance” where the lodestar does not equal a reasonable fee. Therefore, no further adjustment will be made.
D. Expenses Plaintiffs seek $6,612.20 in expenses, (Doc. 156-6), which Defendant does not challenge, for items such as courier services, filing fees, printing, and travel. This court finds the expenses were reasonably incurred and that Plaintiffs are entitled to reimbursement for these expenses. IV. CONCLUSION For the reasons set forth herein, IT IS HEREBY ORDERED that the Motions for Attorneys’ Fees (1:12CV589 (Docs. 155, 171);
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1:14CV299 (Docs. 108, 124)) are GRANTED and Defendant shall pay the following amounts to the following Plaintiffs’ counsel:
1. To ACLU-NC: $9,775 (for work by Christopher Brook); 2. To Sullivan & Cromwell LLP: $109,388.70 ($102,776.50 for work by Garrard R. Beeney, W. Rudolph Kleysteuber, and Kerri-Ann Limbeek, and $6,612.20 in expenses); 3. Ellis & Winters LLP: $45,824.75 (for work by Jeremy Falcone and Jonathan Sasser); and 4. Harris, Wiltshire & Grannis, LLP: $4,667.80 (for work by Patrick O’Donnell and Amy Richardson). This order is STAYED for a period of ten (10) days to allow the parties an opportunity to review and file a written objection should they wish to be heard further on the court’s interpretation of specifically raised billing adjustments. This the 25th day of July, 2018.
____________________________________ United States District Judge
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 18BC,APPEAL,MEDIATION,SO30
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:14−cv−00299−WO−JEP

GERBER et al v. COOPER, et al Assigned to: CHIEF JUDGE WILLIAM L. OSTEEN JR. Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Case in other court: 14−02230
14−02279 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/09/2014 Date Terminated: 10/14/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

ELLEN W. GERBER

represented by AMY E. RICHARDSON WILTSHIRE & GRANNIS LLP 2009 FAIRVIEW ROAD, #6220 RALEIGH, NC 27628 919−429−7386 Fax: 202−730−1301 Email: amy.richardson@wiltshiregrannis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

CHRISTOPHER A. BROOK AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611−8004 919−834−3466 Fax: 866−511−1344 Email: cbrook@acluofnc.org ATTORNEY TO BE NOTICED

DAVID A. CASTLEMAN SULLIVAN & CROMWELL LLP 125 BROAD ST. NEW YORK, NY 10004−2498 212−558−4038 Fax: 212−291−9701 TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED

ELIZABETH O. GILL AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 DRUMM ST. SAN FRANCISCO, CA 94111 415−621−2493 Fax: 415−255−8437 Email: egill@aclunc.org ATTORNEY TO BE NOTICED

GARRARD R. BEENEY SULLIVAN & CROMWELL LLP 125 BROAD ST. NEW YORK, NY 10004 212−558−3737 Fax: 212−291−9007 Email: beeneyg@sullcrom.com ATTORNEY TO BE NOTICED

JEREMY M. FALCONE ELLIS & WINTERS, LLP

Case: 1:14-cv-299 document<docnum> filed <datefiled> 1 of 19

Plaintiff PEARL BERLIN

POB 33550 RALEIGH, NC 27636 919−865−7097 Fax: 919−865−7010 Email: jfalcone@elliswinters.com ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL HARRIS, WILTSHIRE & GRANNIS 1919 M STREET, NW WASHINGTON, DC 20036 202−730−1300 Fax: 202−730−1301 Email: podonnell@hwglaw.com ATTORNEY TO BE NOTICED
ROSE A. SAXE AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST., 18TH FLOOR NEW YORK, NY 10004−2400 212−549−2605 Fax: 212−549−2650 Email: rsaxe@aclu.org ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER SULLIVAN & CROMWELL LLP 125 BROAD ST. NEW YORK, NY 10004−2498 212−558−7226 Fax: 212−291−9261 Email: KleysteuberR@sullcrom.com ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER ELLIS & WINTERS, LLP POB 33550 RALEIGH, NC 27636 919−865−7002 Fax: 919−865−7010 Email: jon.sasser@elliswinters.com ATTORNEY TO BE NOTICED
represented by AMY E. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) ATTORNEY TO BE NOTICED
DAVID A. CASTLEMAN (See above for address) TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED
ELIZABETH O. GILL (See above for address) ATTORNEY TO BE NOTICED
GARRARD R. BEENEY

Case: 1:14-cv-299 document<docnum> filed <datefiled> 2 of 19

Plaintiff LYN MCCOY

(See above for address) ATTORNEY TO BE NOTICED
JEREMY M. FALCONE (See above for address) ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL (See above for address) ATTORNEY TO BE NOTICED
ROSE A. SAXE (See above for address) ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER (See above for address) ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER (See above for address) ATTORNEY TO BE NOTICED
represented by AMY E. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) ATTORNEY TO BE NOTICED
DAVID A. CASTLEMAN (See above for address) TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED
ELIZABETH O. GILL (See above for address) ATTORNEY TO BE NOTICED
GARRARD R. BEENEY (See above for address) ATTORNEY TO BE NOTICED
JEREMY M. FALCONE (See above for address) ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL (See above for address) ATTORNEY TO BE NOTICED
ROSE A. SAXE (See above for address) ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER (See above for address) ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER (See above for address)

Case: 1:14-cv-299 document<docnum> filed <datefiled> 3 of 19

Plaintiff JANE BLACKBURN
Plaintiff ESMERALDA MEJIA

ATTORNEY TO BE NOTICED
represented by AMY E. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) ATTORNEY TO BE NOTICED
DAVID A. CASTLEMAN (See above for address) TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED
ELIZABETH O. GILL (See above for address) ATTORNEY TO BE NOTICED
GARRARD R. BEENEY (See above for address) ATTORNEY TO BE NOTICED
JEREMY M. FALCONE (See above for address) ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL (See above for address) ATTORNEY TO BE NOTICED
ROSE A. SAXE (See above for address) ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER (See above for address) ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER (See above for address) ATTORNEY TO BE NOTICED
represented by AMY E. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) ATTORNEY TO BE NOTICED
DAVID A. CASTLEMAN (See above for address) TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED
ELIZABETH O. GILL (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-299 document<docnum> filed <datefiled> 4 of 19

Plaintiff
CHRISTINA GINTER−MEJIA for herself and as guardian ad litem for J.G.−M., a minor

GARRARD R. BEENEY (See above for address) ATTORNEY TO BE NOTICED
JEREMY M. FALCONE (See above for address) ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL (See above for address) ATTORNEY TO BE NOTICED
ROSE A. SAXE (See above for address) ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER (See above for address) ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER (See above for address) ATTORNEY TO BE NOTICED
represented by AMY E. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTOPHER A. BROOK (See above for address) ATTORNEY TO BE NOTICED
DAVID A. CASTLEMAN (See above for address) TERMINATED: 10/14/2014 ATTORNEY TO BE NOTICED
ELIZABETH O. GILL (See above for address) ATTORNEY TO BE NOTICED
GARRARD R. BEENEY (See above for address) ATTORNEY TO BE NOTICED
JEREMY M. FALCONE (See above for address) ATTORNEY TO BE NOTICED
PATRICK P. O'DONNELL (See above for address) ATTORNEY TO BE NOTICED
ROSE A. SAXE (See above for address) ATTORNEY TO BE NOTICED
WILLIAM R. A. KLEYSTEUBER (See above for address) ATTORNEY TO BE NOTICED
JONATHAN DREW SASSER

Case: 1:14-cv-299 document<docnum> filed <datefiled> 5 of 19

V. Defendant ROY COOPER in his official capacity as the Attorney General of North Carolina TERMINATED: 10/08/2014
Defendant JEFF THIGPEN in his official capacity as the Register of Deeds for Guilford County
Defendant DONNA HICKS SPENCER in her official capacity as the Register of Deeds for Catawba County
Defendant JOHN W. SMITH in his official capacity as the Director of the North Carolina Administrative Office

(See above for address) ATTORNEY TO BE NOTICED
represented by OLGA E. VYSOTSKAYA DE BRITO NORTH CAROLINA DEPARTMENT OF JUSTICE POST OFFICE BOX 629 RALEIGH, NC 27602 919−716−0185 Fax: 919−716−6759 Email: ovysotskaya@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHARLES GIBSON WHITEHEAD Midkiff. Muncie & Ross, P.C. 1511 Sunday Drive, Suite 308 RALEIGH, NC 27607 984−232−0201 Fax: 984−232−0307 Email: cwhitehead@midkifflaw.com TERMINATED: 03/30/2018 ATTORNEY TO BE NOTICED
represented by JOHN MARK PAYNE GUILFORD COUNTY ATTORNEY'S OFFICE 301 W. MARKET ST., 3RD FLOOR GREENSBORO, NC 27401 336−641−3852 Email: mpayne@co.guilford.nc.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID WALLACE HOOD PATRICK HARPER & DIXON, LLP POB 218 HICKORY, NC 28603 828−322−7741 Fax: 828−485−3213 Email: dhood@phd−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL J. BARNETT PATRICK HARPER & DIXON, LLP POB 218 HICKORY, NC 28603 828−322−7741 Fax: 828−485−3213 Email: mbarnett@phd−law.com ATTORNEY TO BE NOTICED
represented by OLGA E. VYSOTSKAYA DE BRITO (See above for address) LEAD ATTORNEY

Case: 1:14-cv-299 document<docnum> filed <datefiled> 6 of 19

of the Courts
Defendant AL JEAN BOGLE in her official capacity as the Clerk of Superior Court for Catawba County V. Intervenor Defendant THOM TILLIS North Carolina Speaker of the House of Representatives
Intervenor Defendant PHIL BERGER President Pro Tempore of the North Carolina Senate

ATTORNEY TO BE NOTICED
CHARLES GIBSON WHITEHEAD (See above for address) TERMINATED: 03/30/2018 ATTORNEY TO BE NOTICED
represented by OLGA E. VYSOTSKAYA DE BRITO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOHN C. EASTMAN CENTER FOR CONSTITUTIONAL JURISPRUDENCE CHAPMAN UNIVERSITY FOWLER SCHOOL OF LAW ONE UNIVERSITY DR. ORANGE, CA 92866 877−855−3330 ext. 2 Fax: 714−844−4817 Email: jeastman@chapman.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOSEPH A. VANDERHULST ACTRIGHT LEGAL FOUNDATION 209 W. MAIN ST. PLAINFIELD, IN 46168 317−203−5599 Fax: 888−815−5641 Email: jvanderhulst@actrightlegal.org ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. ATTORNEY AT LAW 5821 FAIRVIEW RD., STE. 207 CHARLOTTE, NC 28209 704−552−7742 Fax: 704−552−9287 Email: rdpotter@bellsouth.net ATTORNEY TO BE NOTICED
represented by JOSEPH A. VANDERHULST (See above for address) ATTORNEY TO BE NOTICED
NOEL H. JOHNSON ACTRIGHT LEGAL FOUNDATION 209 W. MAIN ST. PLAINFIELD, IN 46168 317−203−5599 Fax: 888−815−5641 Email: njohnson@actrightlegal.org ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR.

Case: 1:14-cv-299 document<docnum> filed <datefiled> 7 of 19

Intervenor
ROY COOPER Pursuant to Order filed 10/8/2014, appearing in a Representative capacity on behalf of State of North Carolina

(See above for address) ATTORNEY TO BE NOTICED
represented by OLGA E. VYSOTSKAYA DE BRITO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/09/2014
04/09/2014
04/09/2014 04/09/2014
04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/09/2014
04/09/2014 04/09/2014 04/09/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0418−1491388.), filed by Christina Ginter−Mejia, Lyn McCoy, Pearl Berlin, Jane Blackburn, Ellen W Gerber, Esmeralda Mejia.(SASSER, JONATHAN) (Entered: 04/09/2014)
2 Motion for Guardian Ad Litem re 1 Complaint filed by Plaintiffs Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia. (Attachments: # 1 Text of Proposed Order)(SASSER, JONATHAN) Modified on 6/2/2014 to correct event used (Garrett, Kim). (Entered: 04/09/2014)
3 MOTION for Preliminary Injunction by Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia. Responses due by 5/5/2014 (SASSER, JONATHAN) (Entered: 04/09/2014)
4 BRIEF re 3 MOTION for Preliminary Injunction by Plaintiffs Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia filed by Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia. (SASSER, JONATHAN) (Entered: 04/09/2014)
5 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Ellen W Gerber. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
6 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Pearl Berlin. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
7 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Lyn McCoy. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
8 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Jane Blackburn. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
9 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Esmeralda Mejia. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
10 AFFIDAVIT in Support re 3 MOTION for Preliminary Injunction filed by Christina Ginter−Mejia. Replies due by 4/28/2014. (SASSER, JONATHAN) (Entered: 04/09/2014)
11 MOTION to Expedite by Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia. (Attachments: # 1 Text of Proposed Order)(SASSER, JONATHAN) (Entered: 04/09/2014)
12 BRIEF re 11 MOTION to Expedite by Plaintiffs Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia filed by Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia. (SASSER, JONATHAN) (Entered: 04/09/2014)
13 NOTICE of Appearance by attorney JEREMY M. FALCONE on behalf of Plaintiffs Pearl Berlin, Jane Blackburn, Ellen W Gerber, Christina Ginter−Mejia, Lyn McCoy, Esmeralda Mejia (FALCONE, JEREMY) (Entered: 04/09/2014)
CASE REFERRED to Standing Order 30 (Powell, Gloria) (Entered: 04/09/2014)
Motion Referred: re: 11 MOTION to Expedite, to MAG/JUDGE JOI ELIZABETH PEAKE (Welch, Kelly) (Entered: 04/09/2014)

Case: 1:14-cv-299 document<docnum> filed <datefiled> 8 of 19

04/10/2014 04/10/2014 04/10/2014 04/11/2014
04/11/2014 04/14/2014 04/15/2014 04/15/2014 04/15/2014 04/16/2014 04/16/2014 04/16/2014 04/17/2014 04/17/2014 04/17/2014 04/21/2014

14 Summons Issued as to AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH, DONNA HICKS SPENCER, JEFF THIGPEN. (Attachments: # 1 Summons to Jeff Thigpen, # 2 Summons to Donna Hicks Spencer, # 3 Summons to John W. Smith, # 4 Summons to Al Jean Bogle) (Garland, Leah) (Entered: 04/10/2014)
CASE REFERRED to Mediation pursuant to Local Rule 83.9b of the Rules of Practice and Procedure of this Court. Please go to our website under Attorney Information for a list of mediators which must be served on all parties. (Garland, Leah) (Entered: 04/10/2014)
15 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Garland, Leah) (Entered: 04/10/2014)
16 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 4/11/2014, that Plaintiffs' Motion to Expedite Briefing (doc. 11 ) is GRANTED IN PART to the extent that Defendants' response to Plaintiffs' Motion for Preliminary Injunction must be filed on or before April 28, 2014, and Plaintiffs' reply must be filed on or before May 5, 2014. As noted above, the briefs should specifically address whether consideration of Plaintiffs' Motion for Preliminary Injunction should be stayed pending the Fourth Circuit's decision in Bostic v. Schaefer, Case No. 14−1167 (4th Cir. 2014). (Lloyd, Donna) (Entered: 04/11/2014)
Reset Response Deadline as to 3 MOTION FOR PRELIMINARY INJUNCTION: Responses due by 4/28/2014. (See 16 Order for Court's ruling.) (Lloyd, Donna) (Entered: 04/11/2014)
17 NOTICE of Appearance by attorney CHRISTOPHER A. BROOK on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (BROOK, CHRISTOPHER) (Entered: 04/14/2014)
18 ACCEPTANCE OF SERVICE of summons and complaint by counsel on behalf of ROY COOPER and JOHN W. SMITH on 04/15/2014. (VYSOTSKAYA DE BRITO, OLGA) (Entered: 04/15/2014)
19 NOTICE of Appearance by attorney OLGA E. VYSOTSKAYA DE BRITO on behalf of Defendants ROY COOPER, JOHN W. SMITH. (VYSOTSKAYA DE BRITO, OLGA) (Entered: 04/15/2014)
Answer as to ROY COOPER due 5/6/2014; Answer as to JOHN W. SMITH due 5/6/2014. (Lloyd, Donna) (Entered: 04/16/2014)
20 NOTICE of Appearance by attorney JOHN MARK PAYNE on behalf of Defendant JEFF THIGPEN (PAYNE, JOHN) (Entered: 04/16/2014)
21 NOTICE of Appearance by attorney CHARLES GIBSON WHITEHEAD on behalf of Defendant ROY COOPER (WHITEHEAD, CHARLES) (Entered: 04/16/2014)
22 NOTICE of Appearance by attorney CHARLES GIBSON WHITEHEAD on behalf of Defendant JOHN W. SMITH (WHITEHEAD, CHARLES) (Entered: 04/16/2014)
23 MOTION TO STAY PROCEEDINGS − EXPEDITED REVIEW REQUESTED by ROY COOPER, JOHN W. SMITH. Responses due by 5/12/2014. (VYSOTSKAYA DE BRITO, OLGA) Modified on 4/18/2014 to edit text. (Lloyd, Donna) (Entered: 04/17/2014)
24 BRIEF IN SUPPORT OF 23 MOTION TO STAY PROCEEDINGS − EXPEDITED REVIEW REQUESTED. (VYSOTSKAYA DE BRITO, OLGA) Modified on 4/18/2014 to edit text. (Lloyd, Donna) (Entered: 04/17/2014)
25 Additional Attachment to 24 BRIEF IN SUPPORT OF 23 MOTION TO STAY PROCEEDINGS − EXPEDITED REVIEW REQUESTED. (VYSOTSKAYA DE BRITO, OLGA) Modified on 4/18/2014 to edit text. (Lloyd, Donna) (Entered: 04/17/2014)
26 NOTICE of Appearance by attorney AMY E. RICHARDSON on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (RICHARDSON, AMY) (Entered: 04/21/2014)

Case: 1:14-cv-299 document<docnum> filed <datefiled> 9 of 19

04/23/2014 04/24/2014 04/24/2014 04/25/2014
04/25/2014 04/25/2014 04/25/2014 04/25/2014 04/28/2014
04/28/2014 04/29/2014 05/02/2014 05/02/2014 05/05/2014 05/05/2014
05/06/2014
05/06/2014
05/08/2014

Telephone Notice on 4/23/2014 to Counsel for Defendant Olga DeBrito re: submission of a proposed order for 23 Motion to Stay Proceedings. (Williamson, Wanda) (Entered: 04/24/2014)
27 NOTICE of Appearance by attorney OLGA E. VYSOTSKAYA DE BRITO on behalf of Defendant AL JEAN BOGLE (VYSOTSKAYA DE BRITO, OLGA) (Entered: 04/24/2014)
Motion Referred: re: 23 MOTION to Stay (Expedited Review Requested) to MAG/JUDGE JOI ELIZABETH PEAKE (Welch, Kelly) (Entered: 04/24/2014)
TEXT ORDER by MAG/JUDGE JOI ELIZABETH PEAKE on 04/25/14. The Court will consider the State Defendants' 23 Motion to Stay Proceedings after the Plaintiffs have had an opportunity to respond and the matter has been fully briefed.(Garrett, Kim) (Entered: 04/25/2014)
28 NOTICE of Appearance by attorney DAVID WALLACE HOOD on behalf of Defendant DONNA HICKS SPENCER. (HOOD, DAVID) (Entered: 04/25/2014)
29 NOTICE of Appearance by attorney MICHAEL J. BARNETT on behalf of Defendant DONNA HICKS SPENCER. (BARNETT, MICHAEL) (Entered: 04/25/2014)
30 MOTION to Stay Proceedings by DONNA HICKS SPENCER. Responses due by 5/19/2014. (HOOD, DAVID) (Entered: 04/25/2014)
31 BRIEF IN SUPPORT OF 30 MOTION to Stay Proceedings by filed by DONNA HICKS SPENCER. (HOOD, DAVID) (Entered: 04/25/2014)
32 RESPONSE in Opposition to 3 MOTION for Preliminary Injunction filed by DONNA HICKS SPENCER. Replies due by 5/5/2014. (HOOD, DAVID) Modified on 4/29/2014 to correct reply deadline. See 16 Order. (Lloyd, Donna) (Entered: 04/28/2014)
33 RESPONSE in Opposition to 3 MOTION for Preliminary Injunction filed by AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH. Replies due by 5/5/2014. (VYSOTSKAYA DE BRITO, OLGA) (Entered: 04/28/2014)
Reset Reply Deadline to 32 RESPONSE to 3 MOTION for Preliminary Injunction: Replies due by 5/5/2014. (See 16 Order.) (Lloyd, Donna) (Entered: 04/29/2014)
34 MOTION for Extension of Time to File Answer by JEFF THIGPEN. (Attachments: # 1 Text of Proposed Order)(PAYNE, JOHN) (Entered: 05/02/2014)
ORDER granting 34 Motion for Extension of Time to Answer for JEFF THIGPEN. Answer due by 6/2/2014. Signed by John Brubaker, Clerk of Court, on 5/2/2014. (Brubaker, John) (Entered: 05/02/2014)
35 NOTICE of Change of Address by AMY E. RICHARDSON (RICHARDSON, AMY) (Entered: 05/05/2014)
36 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' 3 MOTION FOR PRELIMINARY INJUNCTION AND IN OPPOSITION TO DEFENDANTS' 23 MOTION TO STAY filed by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (RICHARDSON, AMY) Modified on 5/7/2014 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 05/05/2014)
37 STATE DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' 1 COMPLAINT filed by AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH. Responses due by 5/30/2014. (VYSOTSKAYA DE BRITO, OLGA) Modified on 5/7/2014 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 05/06/2014)
38 STATE DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF 37 MOTION TO DISMISS PLAINTIFFS' 1 COMPLAINT. (VYSOTSKAYA DE BRITO, OLGA) Modified on 5/7/2014 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 05/06/2014)
39 Suggestion of Subsequently Decided Authority by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Exhibit 1 − Baskin v.

Case: 1:14-cv-299 document<docnum> filed <datefiled> 10 of 19

05/12/2014 05/21/2014 05/21/2014 05/21/2014 05/21/2014 05/22/2014
05/23/2014 05/27/2014 05/27/2014 05/30/2014 06/02/2014 06/02/2014
06/02/2014 06/02/2014

Bogan)(RICHARDSON, AMY) Modified on 5/9/2014 to remove duplicate text. (Lloyd, Donna) (Entered: 05/08/2014)
40 NOTICE of Appearance by attorney GARRARD R. BEENEY on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (BEENEY, GARRARD) (Entered: 05/12/2014)
41 Notice to Parties RE: SO30. Responses due by 6/23/2014 (Winchester, Robin) (Entered: 05/21/2014)
42 Suggestion of Subsequently Decided Authority re 36 Memorandum by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Exhibit 1− Evans v. Utah) (RICHARDSON, AMY) (Entered: 05/21/2014)
43 Suggestion of Subsequently Decided Authority re 36 Memorandum by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Exhibit 1− Gieger v. Kitzhaber) (RICHARDSON, AMY) (Entered: 05/21/2014)
44 Suggestion of Subsequently Decided Authority re 36 Memorandum by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Exhibit 1− Whitewood v. Kitzhaber) (RICHARDSON, AMY) (Entered: 05/21/2014)
45 REPLY to 36 RESPONSE IN OPPOSITION TO 23 MOTION TO STAY PROCEEDINGS filed by AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH. (Attachments: # 1 Exhibit A − McCrory v. State, # 2 Exhibit B − Latta v. Otter) (VYSOTSKAYA DE BRITO, OLGA) Modified on 5/27/2014 to edit text. (Lloyd, Donna) (Entered: 05/22/2014)
Motions Referred: re: 3 MOTION for Preliminary Injunction, 23 MOTION to Stay Expedited Review Requested to MAG/JUDGE JOI ELIZABETH PEAKE (Welch, Kelly) (Entered: 05/23/2014)
46 NOTICE of Appearance by attorney WILLIAM R. A. KLEYSTEUBER on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (KLEYSTEUBER, WILLIAM) (Entered: 05/27/2014)
47 NOTICE of Appearance by attorney DAVID A. CASTLEMAN on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (CASTLEMAN, DAVID) (Entered: 05/27/2014)
48 ANSWER to 1 Complaint by JEFF THIGPEN. (PAYNE, JOHN) (Entered: 05/30/2014)
Motions Referred: RE: 2 MOTION for Guardian Ad Litem to MAG/JUDGE JOI ELIZABETH PEAKE (Garrett, Kim) (Entered: 06/02/2014)
49 RECOMMENDATION signed by MAG/JUDGE JOI ELIZABETH PEAKE on 6/2/2014, that the Motions to Stay [Doc. # 23 , # 30 ] be GRANTED, that all proceedings in this case, including consideration of Defendants' pending Motion to Dismiss and Plaintiffs' Motion for Preliminary Injunction, be stayed pending the Fourth Circuit's decision in Bostic v. Schaefer, Case No. 14−1167 (4th Cir. 2014), and that the parties be directed to notify the Court in writing of their position on the course of future proceedings within 10 days following issuance of a decision by the Court of Appeals for the Fourth Circuit in Bostic. (Butler, Carol) (Entered: 06/02/2014)
50 Notice of Mailing Recommendation. Objections to R&R due by 6/19/2014. (Butler, Carol) (Entered: 06/02/2014)
51 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 6/2/2014, that the Petition [Doc. # 2 ] is GRANTED to the extent that Christina Ginter−Mejia is authorized to prosecute this civil action on behalf of minor J. G.−M. (Butler, Carol) (Entered: 06/02/2014)

Case: 1:14-cv-299 document<docnum> filed <datefiled> 11 of 19

06/13/2014
06/16/2014 06/24/2014 06/30/2014 07/10/2014 07/30/2014
08/06/2014 08/13/2014 08/13/2014 08/13/2014
08/14/2014 08/25/2014 08/26/2014 08/27/2014

52 OBJECTION TO 49 RECOMMENDED RULING − MAGISTRATE JUDGE filed by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. Response to Objections to R&R due by 6/30/2014. (RICHARDSON, AMY) Modified on 6/16/2014 to edit text. (Lloyd, Donna) (Entered: 06/13/2014)
53 ANSWER to 1 Complaint entitled "DEFENDANT CATAWBA COUNTY REGISTER OF DEEDS' ANSWER AND AFFIRMATIVE DEFENSES" filed by DONNA HICKS SPENCER. (HOOD, DAVID) Modified on 6/16/2014 to edit text. (Lloyd, Donna) (Entered: 06/16/2014)
Case Reassigned to CHIEF JUDGE WILLIAM L. OSTEEN JR. UNASSIGNED no longer assigned to the case. (Powell, Gloria) (Entered: 06/24/2014)
54 RESPONSE TO 49 OBJECTION to 52 RECOMMENDATION filed by AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH. (VYSOTSKAYA DE BRITO, OLGA) (Entered: 06/30/2014)
CASE REFERRED re: 49 RECOMMENDED RULING − MAGISTRATE JUDGE to CHIEF JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 07/10/2014)
55 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 7/30/2014, that: (1) The parties shall file briefs within fourteen (14) days of the date of this Order stating their respective positions on the course of future proceedings in this action; (2) The briefs shall further address the extent to which Bostic v. Schaefer, Nos. 14−1167, 14−1169, 14−1173, ____ F.3d ____, 2014 WL 3702493 (4th Cir. 2014), applies or does not apply to the challenged North Carolina constitutional and statutory provisions; (3) Each party's brief shall be limited to fifteen (15) pages although two or more parties may file a joint brief (also limited to fifteen (15) pages); (4) No response briefing pursuant to this Order is required or permitted; and (5) This Order shall not affect any pending deadlines in this action. (Butler, Carol) (Entered: 07/30/2014)
56 BRIEF re 55 Order, of Defendant Catawba County Register of Deeds' Brief Stating Her Position on the Course of Future Proceedings Following the Decision of the Court of Appeals for the Fourth Circuit in BOSTIC v. SCHAEFER filed by DONNA HICKS SPENCER. (HOOD, DAVID) (Entered: 08/06/2014)
57 State Defendants' BRIEF re 55 Order, . (VYSOTSKAYA DE BRITO, OLGA) (Entered: 08/13/2014)
58 RESPONSE re 55 Order, of July 30, 2014 filed by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. Replies due by 9/2/2014. (RICHARDSON, AMY) (Entered: 08/13/2014)
59 BRIEF entitled "DEFENDANT JEFF THIGPEN'S BRIEF ON THE GUILFORD COUNTY REGISTER OF DEED'S POSITION ON THE COURSE OF FUTURE PROCEEDINGS FOLLOWING THE DECISION OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN BOSTIC v. SCHAEFER" filed by JEFF THIGPEN. (PAYNE, JOHN) (Entered: 08/13/2014)
60 NOTICE of Intent to File Dispositive Motions by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (RICHARDSON, AMY) (Entered: 08/14/2014)
61 NOTICE of Appearance by attorney ROSE A. SAXE on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (SAXE, ROSE) (Entered: 08/25/2014)
62 NOTICE of Appearance by attorney ELIZABETH O. GILL on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (GILL, ELIZABETH) (Entered: 08/26/2014)
63 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 8/27/2014. This court has conducted a de novo review of the matters to which objections were made and finds that the Recommendations should be adopted and these matters stayed. In

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light of the Supreme Court's stay of the Fourth Circuit's mandate, this court modifies the Recommendations to stay these matters pending termination of the stay granted in McQuigg v. Bostic, No. 14A196 (Fourth Circuit Case No. 14−1167). The parties are directed to notify this court within twenty (20) days of the denial of the petition for a writ of certiorari or the sending down of the judgment of the Supreme Court. Associated Cases: 1:14−cv−00299−WO−JEP. (Butler, Carol) (Entered: 08/27/2014)
Case Stayed Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Powell, Gloria) (Entered: 09/15/2014)
64 MOTION for Reconsideration re 63 Order on Report and Recommendations,, by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. Responses due by 10/6/2014 (RICHARDSON, AMY) (Entered: 09/10/2014)
65 MEMORANDUM filed by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA re 64 MOTION for Reconsideration re 63 Order on Report and Recommendations,, filed by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Exhibit A,)(RICHARDSON, AMY) (Entered: 09/10/2014)
66 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/6/2014, as set out herein. (Butler, Carol) (Entered: 10/06/2014)
67 STATUS REPORT by DAVID L. CHURCHILL, ROY COOPER, ARCHIE L. SMITH, III, JOHN W. SMITH, AL JEAN BOGLE. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(VYSOTSKAYA DE BRITO, OLGA) (Entered: 10/07/2014)
68 STATUS REPORT by TERRI BECK, LEE KNIGHT CAFFERY, SHANA CARIGNAN, DANA DRAA, CHANTELLE FISHER−BORNE. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(RICHARDSON, AMY) (Entered: 10/07/2014)
69 Consent MOTION to Amend Case Caption and to Intervene by ROY COOPER. Responses due by 11/3/2014 (VYSOTSKAYA DE BRITO, OLGA) (Entered: 10/08/2014)
70 STATE DEFENDANTS' ANSWER to 1 Complaint by AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH. (VYSOTSKAYA DE BRITO, OLGA) (Entered: 10/08/2014)
71 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/8/2014, that the stay is lifted and State Defendant's shall file an Answer to Plaintiffs' First Amended Complaint in 1:12CV589 (Doc. 40 ) and to Plaintiffs' Complaint in 1:14CV299 (Doc. 1 ).FURTHER that pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the consent motions of Plaintiff's and Defendant Roy Cooper to amend the caption of the First Amended Complaint to dismiss Mr. Cooper as a Party−Defendant is GRANTED. (Doc. 68 in 1:12CV589; Doc. 69 in 1:14CV299.) The motion for Mr. Cooper to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure is GRANTED, and Mr. Cooper shall appear in this matter, in a representative capacity, as an Intervenor on behalf of the State of North Carolina for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality of North Carolinas statutes and constitutional amendment challenged in this action. FURTHER that all prior pending motions (Docs. 63 , 65 , 84 , and 109 in 1:12CV589; Docs. 23 , 30 , 37 , and 64 in 1:14CV299), except the motions for preliminary injunction, in each of these cases are DENIED AS MOOT. Upon the filing of an Answer in each of these cases by the State Defendant's, Plaintiffs may file any motions they deem appropriate without necessity of an accompanying brief. This court will review the filed pleadings in light of the prior briefs, status reports, and orders of this court. (Butler, Carol) (Entered: 10/08/2014)
72 MOTION for Judgment on the Pleadings by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY. Responses due by 11/3/2014 (Attachments: # 1 Text of Proposed Order Proposed Judgment)(RICHARDSON, AMY) (Entered: 10/08/2014)

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73 NOTICE by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA re 72 MOTION for Judgment on the Pleadings ; Supplemental Notice of Consent (RICHARDSON, AMY) (Entered: 10/09/2014)
74 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/9/2014, as set out herein, to the extent any party should disagree with this court's understanding of the parties respective positions, notice of any such dispute shall be filed with this court on or before 5:00 p.m. today. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP (Butler, Carol) (Entered: 10/09/2014)
75 MOTION to Intervene by THOM TILLIS, PHIL BERGER. Responses due by 11/3/2014 Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(POTTER, ROBERT) (Additional attachment(s) added on 10/9/2014: # 1 Exhibit Proposed Order; NEF Regenerated) (Welch, Kelly). (Entered: 10/09/2014)
76 MEMORANDUM re (119 in 1:12−cv−00589−WO−JEP, 75 in 1:14−cv−00299−WO−JEP) MOTION to Intervene by Intervenor Defendant PHIL BERGER, Select Role Types THOM TILLIS, THOM TILLIS. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(POTTER, ROBERT) (Entered: 10/09/2014)
77 RESPONSE filed by PEARL BERLIN, JANE BLACKBURN, ROY COOPER, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA. Replies due by 10/27/2014. (Attachments: # 1 Text of Proposed Order Modified Proposed Judgment)(RICHARDSON, AMY) (Entered: 10/09/2014)
78 RESPONSE filed by Defendants AL JEAN BOGLE, ROY COOPER, JOHN W. SMITH, Intervenor ROY COOPER re 72 MOTION for Judgment on the Pleadings filed by JANE BLACKBURN, PEARL BERLIN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY filed by AL JEAN BOGLE, ROY COOPER, ROY COOPER, JOHN W. SMITH. (WHITEHEAD, CHARLES) (Entered: 10/09/2014)
79 MOTION for Extension of Time to File Answer re 75 MOTION to Intervene by THOM TILLIS and by PHIL BERGER. (Attachments: # 1 Proposed Order)(POTTER, ROBERT) (Entered: 10/09/2014)
80 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/9/2014 that the motions for extension (1:12CV589 (Doc. 123); 1:14CV299 (Doc. 79 )) are DENIED.This court finds the motion for extension of time should be denied as requested. The motion to intervene is presently under consideration by this court and the Intervenors shall have until 12:00 noon on Friday, October 10, 2014, to file a completed motion to intervene, including a pleading that sets out the claim or defense for which intervention is sought. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Welch, Kelly) (Entered: 10/09/2014)
81 Defendants−Intervenors Answer and Defenses filed by THOM TILLIS, PHIL BERGER. (POTTER, ROBERT) (Entered: 10/10/2014)
82 REQUEST by Intevenors THOM TILLIS, PHIL BERGER for Oral Argument re (119 in 1:12cv589, 75 in 1:14cv299) MOTION to Intervene. (Attachments: # 1 Proposed Order) Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(POTTER, ROBERT) (Entered: 10/10/2014)
83 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/10/2014,this court directs that Plaintiffs in each of these cases and the North Carolina Attorney General respond to the motion to intervene as set out herein no later than Monday, October 13, 2014, at 3:00 p.m. and that Movants' Request for Oral Argument on Motions for Intervention (1:14CV299 (Doc. 82 ); 1:12CV589 (Doc. 126 )) is DENIED. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP (Butler, Carol) (Entered: 10/10/2014)
84 MOTION to Withdraw as Attorney DAVID A. CASTLEMAN on behalf of PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. Responses due by 11/3/2014 (Attachments: # 1 Text of Proposed Order)(RICHARDSON, AMY) (Entered: 10/10/2014)

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85 NOTICE of Appearance by attorney JOSEPH A. VANDERHULST on behalf of Intervenor Defendants PHIL BERGER, THOM TILLIS, PHIL BERGER, THOM TILLIS Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(VANDERHULST, JOSEPH) (Entered: 10/10/2014)
86 NOTICE of Appearance by attorney JOHN C. EASTMAN on behalf of Intervenor Defendants PHIL BERGER, THOM TILLIS Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(EASTMAN, JOHN) (Entered: 10/11/2014)
87 RESPONSE re (83 in 1:14−cv−00299−WO−JEP) Order, filed by ROY COOPER. Replies due by 10/30/2014. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(VYSOTSKAYA DE BRITO, OLGA) (Entered: 10/13/2014)
88 RESPONSE re 83 Order, Plaintiffs' Response to October 10 Order filed by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA. Replies due by 10/30/2014. (Attachments: # 1 Affidavit Declaration of Chris Brooks, # 2 Exhibit Exhibit 1 to Declaration of Chris Brooks)(RICHARDSON, AMY) (Entered: 10/13/2014)
Motions Submitted: (84 in 1:14cv299) MOTION to Withdraw as Attorney DAVID A. CASTLEMAN, (128 in 1:12cv589) MOTION to Withdraw as Attorney DAVID A. CASTLEMAN to CHIEF JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 10/14/2014)
89 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/14/2014, that the motions to withdraw are GRANTED and that Attorney Castleman is hereby terminated as counsel of record for Plaintiffs. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Butler, Carol) (Entered: 10/14/2014)
90 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/14/2014, that the Motion for Intervention (1:12CV589 (Doc. 75 ); 1:14CV299 (Doc. 119 )) is GRANTED for the limited purposes expressed herein. FURTHER that Movants' answers and defenses in each of these two cases are deemed TIMELY FILED. FURTHER that Movants' objections to this court's jurisdiction, to the application of Bostic, and to the grant of the pending motion for judgment on the pleadings are NOTED and OVERRULED. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Butler, Carol) (Entered: 10/14/2014)
91 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/14/2014, that North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−2 are declared UNCONSTITUTIONAL to the extent those laws prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples' lawful out−of−state marriages.4 FURTHER that the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina are hereby ENJOINED from implementing or enforcing any provisions of North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−2 which prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful out−of−state marriages. FURTHER that Plaintiffs' claims (i) concerning the adoption laws of North Carolina (Plaintiffs' First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher−Borne v. Smith, First Amended Complaint, 1:12CV589 (Doc. 40 ) (July 19, 2013)); and Plaintiffs' Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper, Complaint, 1:14CV299 (Doc. 1 ) (Apr. 9, 2014)), and (ii) against the Clerk of the Superior Court for Guilford County, the Clerk of the Superior Court for Durham County, and the Clerk of the Superior Court for Catawba County, are DISMISSED WITHOUT PREJUDICE as MOOT and/or NOT RIPE. FURTHER that the pending motions for preliminary injunction (1:12CV589 (Doc. 75 ); 1:14CV299 (Doc. 3 )) are DENIED as MOOT. FURTHER that any claim by Plaintiffs for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 is severed and will be considered upon appropriate motions of the parties. A judgment shall be entered contemporaneously with this Order. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Butler, Carol) (Entered: 10/14/2014)

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92 JUDGMENT signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/14/2014, for the reasons set forth in the Order filed contemporaneously with this Judgment, that North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−2 are declared UNCONSTITUTIONAL to the extent those laws prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful out−of−state marriages. FURTHER that the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina are hereby ENJOINED from implementing or enforcing any provisions of North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−2 which prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful out−of−state marriages. FURTHER that Plaintiffs' claims (i) concerning the adoption laws of North Carolina (Plaintiffs' First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher−Borne v. Smith, First Amended Complaint, 1:12CV589 (Doc. 40 ) (July 19, 2013)); and Plaintiffs' Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper, Complaint, 1:14CV299 (Doc. 1 ) (Apr. 9, 2014)), and (ii) against the Clerk of the Superior Court for Guilford County, the Clerk of the Superior Court for Durham County, and the Clerk of the Superior Court for Catawba County, are DISMISSED WITHOUT PREJUDICE as MOOT and/or NOT RIPE. FURTHER that the pending motions for preliminary injunction (1:12CV589 (Doc. 75 ); 1:14CV299 (Doc. 3 )) are DENIED as MOOT. Any claim by Plaintiffs for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 is severed and will be considered upon appropriate motions of the parties. Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(Butler, Carol) (Entered: 10/14/2014)
93 NOTICE of Appearance by attorney NOEL H. JOHNSON on behalf of Intervenor Defendants THOM TILLIS, PHIL BERGER Associated Cases: 1:12−cv−00589−WO−JEP, 1:14−cv−00299−WO−JEP(JOHNSON, NOEL) (Entered: 10/14/2014)
94 AMENDED ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/15/2014, that North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−1.2 are declared UNCONSTITUTIONAL to the extent those laws prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful out−of−state marriages. 5 FURTHER that the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina are hereby ENJOINED from implementing or enforcing any provisions of North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−1.2 which prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples' lawful out−of−state marriages. FURTHER that Plaintiffs' claims (i) concerning the adoption laws of North Carolina (Plaintiffs' First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher−Borne v. Smith, First Amended Complaint, 1:12CV589 (Doc. 40 ) (July 19, 2013)); and Plaintiffs' Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper, Complaint, 1:14CV299 (Doc. 1 ) (Apr. 9, 2014)), and (ii) against the Clerk of the Superior Court for Guilford County, the Clerk of the Superior Court for Durham County, and the Clerk of the Superior Court for Catawba County, are DISMISSED WITHOUT PREJUDICE as MOOT and/or NOT RIPE. FURTHER that the pending motions for preliminary injunction (1:12CV589 (Doc. 75 ); 1:14CV299 (Doc. 3 ) are DENIED as MOOT. FURTHER that any claim by Plaintiffs for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 is severed and will be considered upon appropriate motions of the parties. A judgment shall be entered contemporaneously with this Order. (Butler, Carol) (Entered: 10/15/2014)
95 AMENDED JUDGMENT signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 10/15/2014, for the reasons set forth in the Order filed contemporaneously with this Judgment, that North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen.Stat. § 51−1.2 are declared UNCONSTITUTIONAL to the extent those laws prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful out−of−state marriages. FURTHER that the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina are hereby ENJOINED from implementing or enforcing any provisions of North Carolina Const. art. XIV, § 6, N.C. Gen. Stat. § 51−1, and N.C. Gen. Stat. § 51−1.2 which prevent same−sex couples from marrying and prohibit the State of North Carolina from recognizing same−sex couples lawful

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out−of−state marriages. FURTHER that Plaintiffs' claims (i) concerning the adoption laws of North Carolina (Plaintiffs' First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher−Borne v. Smith, First Amended Complaint, 1:12CV589 (Doc. 40 ) (July 19, 2013)); and Plaintiffs' Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper, Complaint, 1:14CV299 (Doc. 1 ) (Apr. 9, 2014)), and (ii) against the Clerk of the Superior Court for Guilford County, the Clerk of the Superior Court for Durham County, and the Clerk of the Superior Court for Catawba County, are DISMISSED WITHOUT PREJUDICE as MOOT, and/or NOT RIPE. FURTHER that the pending motions for preliminary injunction (1:12CV589 (Doc. 75 ); 1:14CV299 (Doc. 3 )) are DENIED as MOOT. Any claim by Plaintiffs for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 is severed and will be considered upon appropriate motions of the parties. (Butler, Carol) (Entered: 10/15/2014)(Butler, Carol) (Entered: 10/15/2014)
96 NOTICE OF APPEAL as to 95 Judgment, 94 Order, 91 Order, 92 Judgment, by THOM TILLIS. Filing fee $ 505, receipt number 0418−1603700. Appeal Record due by 11/20/2014. (POTTER, ROBERT) (Entered: 11/06/2014)
97 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 96 Notice of Appeal. (Butler, Carol) (Entered: 11/07/2014)
98 NOTICE of Receipt of Record on Appeal from USCA re 96 Notice of Appea l filed by THOM TILLIS. USCA Case Number 14−2230. Case Manager: RJ Warren. (Butler, Carol) (Entered: 11/12/2014)
99 NOTICE OF CROSS APPEAL by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA. Filing fee $ 505, receipt number 0418−1607461. Appeal Record due by 12/22/2014. (RICHARDSON, AMY) (Entered: 11/14/2014)
100 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 99 Notice of Cross Appeal. (Butler, Carol) (Entered: 11/19/2014)
101 NOTICE of Docketing Notice of Appeal from USCA re 99 Notice of Cross Appeal filed by JANE BLACKBURN, PEARL BERLIN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA. USCA Case Number: 14−2279. Case Manager: RJ Warren. (Butler, Carol) (Entered: 11/21/2014)
102 USCA ORDER that the court consolidates Case No. 14−2225(L) with Case Nos. 14−2228 and 14−2230. Case Nos. 14−2278 and 14−2279 are consolidated with the lead case as cross appeals. The appellant in Case No. 14−2225(L) shall be considered the appellant for purposes of the consolidated appeals and shall proceed first at briefing and at oral argument. Entry of appearance forms and disclosure statements filed by counsel and parties in the lead case are deemed filed in secondary cases. The court rescinds the current briefing schedules. The clerk shall establish a new cross appeal briefing schedule by separate order. (Butler, Carol) (Entered: 12/05/2014)
103 MOTION to Continue the Deadline for Plaintiffs' Motion for Attorneys' Fees by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Text of Proposed Order)(BROOK, CHRISTOPHER) (Entered: 12/11/2014)
Motion Submitted: 103 MOTION to Continue the Deadline for Plaintiffs' Motion for Attorneys' Fees to CHIEF JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 12/12/2014)
104 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 12/16/2014, that Plaintiffs' Unopposed Motions to Toll the Deadline for Plaintiffs' Motion for Attorneys' Fees (1:12CV589, Doc. 148 ; 1:14CV299, Doc. 103 ) is GRANTED and that Plaintiffs motion to award statutory attorneys fees, if necessary, is due 60 days after the conclusion of any and all appeals associated with this case. (Butler, Carol) (Entered: 12/16/2014)
105 USCA ORDER The court places this case in abeyance pending the United States Supreme Court's decision in Obergefell v. Hodges, No. 14−556, Tanco v. Haslam, No. 14−562, DeDoer v. Synder, No 14−571, and Bourke v. Beshear, No. 14−574.The parties shall immediately notify this court in writing when the Supreme Court has

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11/20/2015 11/25/2015 11/25/2015 12/04/2015 12/07/2015

issued an opinion in these consolidated cases. USCA Case Numbers 14−2225(L), 14−2228, 14−2230, 14−2278 and 14−2279. (Sheets, Jamie) (Entered: 02/11/2015)
106 BILL OF COSTS by Plaintiffs PEARL BERLIN, JANE BLACKBURN. Objection to Bill of Costs due by 9/28/2015. (Attachments: # 1 Exhibit A)(RICHARDSON, AMY) (Entered: 09/14/2015)
107 TAXATION OF COSTS in the amount of $905.00 are allowed and taxed against Defendants. Signed by Clerk of Court, JOHN S. BRUBAKER, on 10/02/2015. (Coyne, Michelle) (Entered: 10/02/2015)
108 MOTION for Attorney Fees by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. Responses due by 11/6/2015 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N)(RICHARDSON, AMY) Modified on 3/29/2018 to mark as pending per the Order 122 (Coyne, Michelle). (Entered: 10/13/2015)
109 MEMORANDUM filed by Plaintiffs ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY re 108 MOTION for Attorney Fees filed by ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(RICHARDSON, AMY) (Entered: 10/13/2015)
110 NOTICE of Settlement by PEARL BERLIN, JANE BLACKBURN (Attachments: # 1 Exhibit Settlement Agreement)(RICHARDSON, AMY) (Entered: 10/21/2015)
111 NOTICE of Appearance by attorney PATRICK P. O'DONNELL on behalf of Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA (O'DONNELL, PATRICK) (Entered: 10/21/2015)
112 Consent MOTION for Extension of Time to File Response/Reply as to 108 MOTION for Attorney Fees by ROY COOPER. (Attachments: # 1 Text of Proposed Order.pdf ver of proposed order)(VYSOTSKAYA DE BRITO, OLGA) (Entered: 10/30/2015)
Motion Submitted: 112 Consent MOTION for Extension of Time to File Response/Reply as to 108 MOTION for Attorney Fees to CHIEF JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 10/30/2015)
113 ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 11/5/2015, that Defendant's motion for extension is GRANTED and that Defendant State of North Carolina shall have up to and including November 20, 2015, in which to file a response to Plaintiffs' motion for attorneys' fees under 42 U.S.C. § 1988. Responses due by 11/20/2015. (Butler, Carol) (Entered: 11/05/2015)
114 RESPONSE in Opposition re 108 MOTION for Attorney Fees filed by ROY COOPER. Replies due by 12/7/2015. (Attachments: # 1 Exhibit State Exh A, # 2 Exhibit State Exh B, # 3 Exhibit State Exh C, # 4 Exhibit State Exh D, # 5 Exhibit State Exh E)(VYSOTSKAYA DE BRITO, OLGA) (Entered: 11/20/2015)
115 Consent MOTION for Extension of Time to File Response/Reply as to 114 Response in Opposition to Motion, for Attorneys' Fees by PEARL BERLIN, JANE BLACKBURN. (Attachments: # 1 Text of Proposed Order)(RICHARDSON, AMY) (Entered: 11/25/2015)
Motion Submitted: 115 Consent MOTION for Extension of Time to File Response/Reply as to 114 Response in Opposition to Motion for Attorneys' Fees, to CHIEF JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 11/25/2015)
116 REPLY, filed by Plaintiffs PEARL BERLIN, JANE BLACKBURN, to Response to 108 MOTION for Attorney Fees filed by PEARL BERLIN, JANE BLACKBURN. (Attachments: # 1 Exhibit A)(RICHARDSON, AMY) (Entered: 12/04/2015)
Motions Submitted: 108 MOTION for Attorney Fees to CHIEF JUDGE WILLIAM L. OSTEEN, JR. (Winchester, Robin) (Entered: 12/07/2015)

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12/10/2015 01/20/2016 08/01/2017 03/26/2018 03/28/2018 03/28/2018
03/29/2018 03/29/2018 03/30/2018
04/03/2018 04/05/2018 07/25/2018

117 ORDER signed by Chief Judge William L. Osteen on 12/10/2015 that Plaintiffs' Motion for Extension 115 is GRANTED and Plaintiffs' Reply is deemed timely filed as of December 4, 2015. (1:12CV589 DOC. 162, 1:14CV299 DOC. 115 ) (Coyne, Michelle) (Entered: 12/10/2015)
118 ORDER re 108 MOTION for Attorney Fees signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 01/20/2016. ( Associated Case: 1:12CV589)(Coyne, Michelle) (Entered: 01/20/2016)
119 Suggestion of Subsequently Decided Authority re 109 Memorandum, by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (Attachments: # 1 Supplement Miller v. Davis)(RICHARDSON, AMY) (Entered: 08/01/2017)
120 REQUEST by Plaintiffs PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA for Status Conference. (RICHARDSON, AMY) (Entered: 03/26/2018)
121 MOTION to Withdraw as Attorney CHARLES GIBSON WHITEHEAD by on behalf of JOHN W. SMITH. Responses due by 4/18/2018 (WHITEHEAD, CHARLES) (Entered: 03/28/2018)
TELEPHONE CONFERENCE held on 3/28/2018 with JUDGE WILLIAM L. OSTEEN, JR., Attorneys Amy E. Richardson and Jonathan Drew Sasser participated on behalf of Plaintiffs, and Attorney Olga E. Vysotskaya de Brito participated on behalf of Defendants. The court advised the parties of the issue which caused the delay in ruling on Plaintiffs' Motion for Attorneys' Fees (1:12CV589 (Doc. 155); 1:14CV299 (Doc. 108)). The court will file an order re−opening the motion. The parties are to file a statement as to the fees following the intervenor settlement. The motion is taken under advisement; the request for a status conference (1:12CV589 (Doc. 167); 1:14CV299 (Doc. 120)) is now MOOT. (Cable, Frances) (Entered: 03/28/2018)
122 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 03/29/2018 that the Clerk is directed to set aside the termination entry and reflect the motions (1:12CV589 155 ; 1:14CV299 108 ) as pending. (Coyne, Michelle) (Entered: 03/29/2018)
Motion Submitted: 121 MOTION to Withdraw as Attorney CHARLES GIBSON WHITEHEAD, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 03/29/2018)
123 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 3/30/2018, that Attorney Whitehead's request to withdraw as counsel for Defendant John W. Smith is GRANTED. Remaining counsel of record for Defendant Smith shall continue as counsel in this matter. Attorney CHARLES GIBSON WHITEHEAD terminated.(Butler, Carol) (Entered: 03/30/2018)
124 Amended MOTION for Attorney Fees Based on Approved Settlement by PEARL BERLIN, JANE BLACKBURN, ELLEN W. GERBER, CHRISTINA GINTER−MEJIA, LYN MCCOY, ESMERALDA MEJIA. (RICHARDSON, AMY) (Entered: 04/03/2018)
Motion Submitted: 124 Amended MOTION for Attorney Fees Based on Approved Settlement, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 04/05/2018)
125 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/25/2018, that the Motions for Attorneys' Fees (1:12CV589; 155,171) (1:14CV299; 108 , 124 ) are GRANTED. This order is STAYED for a period of ten (10) days to allow the parties an opportunity to review and file a written objection should they wish to be heard further on the court's interpretation of specifically raised billing adjustments. (Coyne, Michelle) (Entered: 07/25/2018)

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