1 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

_______________________________________ 

 ) 

STOP RECKLESS ECONOMIC ) Civ. No. 1:14-397 (AJT-IDD) 

INSTABILITY CAUSED BY DEMOCRATS, ) 

NIGER INNIS, NIGER INNIS FOR ) 

CONGRESS, TEA PARTY LEADERSHIP ) 

FUND, and ALEXANDRIA REPUBLICAN ) 

CITY COMMITTEE, ) 

 ) 

Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_______________________________________) 

 

PLAINTIFFS’ MOTION PURSUANT TO FED. R. CIV. P. 41(a)(2) TO VOLUNARILY 

DISMISS PLAINTIFFS NIGER INNIS AND NIGER INNIS FOR CONGRESS 

. 

 Plaintiffs respectfully move this Court to dismiss Plaintiffs Niger Innis and Niger Innis 

for Congress without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). A Memorandum in Support 

of Plaintiffs’ Motion, Proposed Order, and Notice of Hearing are attached. 

 Plaintiffs met and conferred by telephone on July 3, 2014. Defendant Federal Election 

Commission has refused to consent to this motion, unless Niger Innis and Niger Innis for 

Congress agree to continue to be treated as plaintiffs for discovery purposes throughout this 

litigation, and that the dismissal of their claims be with prejudice. Plaintiffs do not agree to such 

conditions. 

 The parties agree that no hearing or oral argument is required on this motion. 

Dated this 3rd day of July 2014. 

 

 Respectfully submitted, 

Case 1:14-cv-00397-AJT-IDD Document 35 Filed 07/03/14 Page 1 of 2 PageID# 272
2 

 /s/ Michael T. Morley 

 Michael T. Morley, Esq. 

 Virginia State Bar # 65762 

 COOLIDGE-REAGAN FOUNDATION

 1629 K Street, Suite 300 

 Washington, DC 20006 

 Phone: (202) 603-5397 

 Fax: (202) 331-3759 

 E-mail: Morley@coolidgereagan.org 

 /s/ Dan Backer 

 Dan Backer, Esq. 

 Virginia State Bar # 78256 

 DB CAPITOL STRATEGIES PLLC 

 203 South Union Street, Suite 300 

 Alexandria, VA 22314 

 Phone: (202) 210-5431 

 Fax: (202) 478-0750 

 E-mail: DBacker@DBCapitolStrategies.com

Attorneys for Plaintiffs 

 

CERTIFICATE OF SERVICE

 I, Dan Backer, hereby certify that on this 3rd day of July 2014, I did cause a true and 

complete copy of the foregoing Plaintiffs’ Motion Pursuant to Fed. R. Civ. P. 41(a)(2) to 

Voluntarily Dismiss Plaintiffs Niger Innis and Niger Innis for Congress, supporting 

memorandum, and proposed order to be electronically filed with the Clerk of Court using the 

CM/ECF system, which will effect service on the following counsel for the plaintiff: 

 Kevin Deeley 

 Harry J. Summers 

 Holly J. Baker 

 Kevin P. Hancock 

 Esther D. Gyory 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

 /s/ Dan Backer 

 Dan Backer 

 Virginia State Bar # 78256 

Attorney for Plaintiffs

Case 1:14-cv-00397-AJT-IDD Document 35 Filed 07/03/14 Page 2 of 2 PageID# 273
1 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

______________________________________ 

 ) 

STOP RECKLESS ECONOMIC ) Civil Action No. 1:14-397 (AJT-IDD) 

INSTABILITY CAUSED BY DEMOCRATS, ) 

NIGER INNIS, NIGER INNIS FOR ) 

CONGRESS, TEA PARTY LEADERSHIP ) 

FUND, and ALEXANDRIA REPUBLICAN ) 

CITY COMMITTEE, ) 

 ) 

Plaintiffs, ) NO HEARING REQUESTED 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

______________________________________ ) 

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ 

MOTION TO DISMISS PLAINTIFFS NIGER INNIS AND 

NIGER INNIS FOR CONGRESS PURSUANT TO FED. R. CIV. P. 41(a)(2) 

 Plaintiffs respectfully move pursuant to Fed. R. Civ. P. 41(a)(2) to voluntarily dismiss the 

claims of Niger Innis (“Innis”) and Niger Innis for Congress (“NIFC”) (collectively, “the Innis 

Plaintiffs”) without prejudice, and to dismiss the Innis Plaintiffs from this case without further 

conditions. The FEC has refused to consent to this motion, unless: (i) Innis and NIFC agree to 

continue to be treated as plaintiffs for discovery purposes throughout the course of this litigation, 

and (ii) this Court dismisses their claims with prejudice. 

 Plaintiffs do not believe such conditions are proper, especially given: 

 (i) the FEC’s contention in prior briefing that this Court may lack subject-matter 

jurisdiction over Innis’ claim; 

 (ii) that Innis lost the intervening primary election, eliminating the Innis Plaintiffs’ 

reason for participating in this case and potentially undermining their standing; 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 1 of 11 PageID# 274
2 

 (iii) the early stage of the case (neither side has yet propounded any discovery requests 

or made initial disclosures, and the discovery conference is scheduled for July 9, 2014); and 

 (iv) the Innis Plaintiffs’ lack of any independent activity in this case, and consequent 

lack of prejudice to the FEC from having had Innis and NIFC listed as plaintiffs on previous 

filings. 

 “At bottom, [the FEC’s] opposition to [this] motion is nothing more than an effort to 

preserve a perceived tactical advantage, and that is an insufficient justification” for refusing to 

allow the Innis Plaintiffs to be dismissed without prejudice and without further precondition. 

Blanzy v. Griffin Pipe Prods. Co., No. 6:11-CV-00050, 2012 U.S. Dist. LEXIS 42293, at *14 

(W.D. Va. Mar, 28, 2012). Thus, this Court should dismiss the Innis Plaintiffs’ claims without 

imposing further conditions. 

 Concomitantly with this motion, Plaintiffs Stop Reckless Economic Insanity Caused by 

Democrats (“Stop PAC”), Tea Party Leadership Fund (“the Fund”), and Arlington Republican 

City Committee (“ARCC”) are separately moving to file an Amended Complaint. The proposed 

Amended Complaint omits Innis and NIFC as plaintiffs, and does not seek to add any new 

candidates or candidate committee plaintiffs. It discusses the candidate contribution(s) Stop 

PAC made to candidates other than Innis after the original Complaint was filed, as well as 

additional contribution(s) Stop PAC wishes to make to such candidates that are prohibited by 

federal law. 

Background

 This case presents an as-applied constitutional challenge to provisions in federal 

campaign finance law that impose differing contribution limits on materially indistinguishable 

political committees that have received more than 50 contributions, and have contributed to five 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 2 of 11 PageID# 275
3 

or more federal candidates, based solely on whether the committee has been registered with the 

FEC for more than six months. See 2 U.S.C. § 441a(a)(4). Such committees that have been 

registered for less than six months are treated as “persons,” and may contribute $2,600 per 

election to a federal candidate, $10,000 annually to a state political party committee and its local 

affiliates, and $32,400 annually to a national political party committee. 2 U.S.C. § 441a(a)(1); 

see also 79 Fed. Reg. 7,190, 7,192 (Feb. 6, 2014) (adjusting for inflation limits on contributions 

to local, state, and national political party committees). 

 Once a political committee that has received 50 contributions and contributed to five or 

more candidates has been registered for more than six months, it qualifies as a multicandidate 

political committee (“MPC”), and the amount it may contribute to each candidate per election 

increases to $5,000, see 2 U.S.C. § 441a(a)(2)(A). In contrast, the amount it may contribute to 

local and state political party committees decreases to $5,000 annually, id. § 441a(a)(2)(C), and 

the amount it may contribute to a national political party committee decreases to $15,000 

annually, id. § 441a(a)(2)(B). 

 Plaintiff Stop PAC has received more than 50 contributions (over 1400 contributions to 

date), and contributed to five or more federal candidates, but has been registered with the FEC 

for less than six months. See Complaint, Doc. #1, ¶¶ 20-21 (Apr. 14, 2014). It therefore may 

contribute no more than $2,600 per election to each candidate. Plaintiff Innis was a candidate for 

the Republican nomination for Congress from Nevada’s fourth congressional district in the June 

2014 primary election; Plaintiff NIFC is his candidate committee. Id. ¶¶ 4-5. 

 Stop PAC contributed the maximum statutorily permitted amount of $2,600 to Innis in 

connection with the June 2014 primary, and wished to contribute an additional $2,400 in 

connection with that race (which it presently has in its account), for a total of $5,000. Id. ¶¶ 22-

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 3 of 11 PageID# 276
4 

26. Innis wished to accept those additional funds as a way of associating with Stop PAC. Id. ¶ 

27. These Plaintiffs challenged the constitutionality of 2 U.S.C. § 441a(a)(1)(A) and (a)(2)(A)’s 

discriminatory limits on contributions to candidates, as applied to political committees with more 

than 50 contributors that have contributed to five or more candidates. Id. ¶¶ 39-51 (Counts I-II).1

 

 Relatively little has occurred in this case since the Complaint was filed. In early May, 

Plaintiffs moved for summary judgment, asking this Court to adjudicate their claims as a matter 

of law. See Motion for Summary Judgment, Doc. #6 (May 6, 2014). Rather than responding on 

the merits, the FEC filed a motion under Rule 56(d), asking this Court to deny the motion and 

proceed to discovery. See FEC’s Motion to Allow Time for Discovery Under Rule 56(d), Doc.

#27 (May 23, 2014). This Court granted the FEC motion without oral argument. See Order, 

Doc. #33 (June 18, 2014). The FEC filed its Answer on June 16, 2014, see Answer, Doc. #31 

(June 16, 2014), and the parties filed a joint discovery plan yesterday, on July 2, 2014, see 

Report of Rule 26(f) Planning Meeting (July 2, 2014). No discovery has yet been propounded by 

either side, no other substantive motions have been filed, and no hearings have been held. 

 This Court may take judicial notice of the fact that Innis lost the June 2014 primary. See

Nev. Sec’y of State Ross Miller, Silver State Election Night Results 2014, available at

http://www.silverstateelection.com/USCongress/#race1945. As Innis is no longer a candidate for 

 

1 Plaintiff Stop PAC argues that the Government does not have a constitutionally sufficient 

basis for requiring political committees that have received more than 50 contributions, and 

contributed to five or more candidates, to wait six months before being able to contribute the 

maximum statutorily authorized amount of $5,000 to a federal candidate. See Complaint, Doc. 

#1, ¶¶ 43-45. Such a waiting period especially cannot be reconciled with the fact that, once such 

a committee has been registered for more than six months, the amounts it may contribute to 

local, state, and national political party committees are dramatically reduced. Id. ¶¶ 18-19. 

 Plaintiffs ARCC and the Fund are challenging the discriminatory reductions in the 

amounts that political committees that have received more than 50 contributions and contributed 

to five or more candidates may contribute to local, state, and national political party committees, 

that occur once those political committees have been registered for six months. See 2 U.S.C. 

§ 441a(a)(1)(B), (D), 441a(a)(2)(B)-(C). 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 4 of 11 PageID# 277
5 

federal office, Innis and NIFC seek to be dismissed from this case. The FEC has refused to 

consent to their dismissal, unless this Court: (i) orders that Innis and NIFC be treated as plaintiffs 

for discovery purposes throughout the course of this litigation, and (ii) dismisses the claims of 

Innis and NIFC with prejudice. Plaintiffs ask that this Court dismiss Innis and NIFC without 

prejudice, and treat them as ordinary third parties for discovery purposes. 

Innis and NIFC Should Be Dismissed and

Treated as Third Parties for Discovery Purposes 

 Plaintiffs respectfully request that this Court grant their motion, dismiss Innis and NIFC 

and their claims from this case, and treat Innis and NIFC as third parties for discovery purposes, 

rather than continuing to subject them to the discovery burdens of party litigants. Rule 41(a)(2) 

provides that, once an answer has been filed, “an action may be dismissed at the plaintiff’s 

request only by court order, on terms that the court considers proper. . . . Unless the order states 

otherwise, a dismissal . . . is without prejudice.” Fed. R. Civ. P. 41(a)(2). 

 The purpose of Rule 41(a)(2) is to “freely allow voluntary dismissals unless the parties 

will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987) 

(emphasis added). “A plaintiff’s motion under Rule 41(a)(2) for dismissal without prejudice 

should not be denied absent substantial prejudice to the defendant.” Andes v. Versant Corp., 

788 F.2d 1033, 1036 (4th Cir. 1986) (emphasis added). Although the court may impose 

conditions on the dismissal to protect a defendant from prejudice, “defendants are entitled to 

protection [only] from legal prejudice, and not from mere inconvenience or tactical 

disadvantage.” RMD Concessions, L.L.C. v. Westfield Corp., 194 F.R.D. 241, 243 (E.D. Va. 

2000) (emphasis added); see also Teck Gen. Pshp. v. Crown Cent. Petroleum Corp., 28 F. Supp. 

2d 989, 991 (E.D. Va. 1998) (noting that a defendant may not prevent dismissal on the grounds 

that “plaintiff will gain a tactical advantage”). 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 5 of 11 PageID# 278
6 

 In determining whether dismissal will prejudice a defendant, the Fourth Circuit requires 

district courts to consider factors such as: “‘[1] the opposing party’s effort and expense in 

preparing for trial, [2] excessive delay and lack of diligence on the part of the movant, and 

[3] insufficient explanation of the need for a voluntary dismissal, as well as [4] the present stage 

of litigation.’” Howard v. Inova Health Care Servs., 302 F. App’x 166, 179 (4th Cir. 2008) 

(quoting Miller v. Terramite Corp., 114 F. App’x 536, 540 (4th Cir. 2004)); accord Teck Gen. 

Pshp., 28 F. Supp. at 991 (citing Gross v. Spies, 133 F.3d 914 (4th Cir. 1998)). All of these 

factors favor dismissing Innis’ and NIFC’s claims in this case, without prejudice and without 

further precondition (such as the FEC’s demand they be treated as party litigants). 

First, the FEC has not been required to expend substantial additional effort as a result of 

the Innis Plaintiffs’ inclusion as plaintiffs in this case. The Fourth Circuit held a defendant is not 

prejudiced by dismissal of a plaintiff where the defendant faced “similar claims by another 

party” in the suit, and would have filed substantially the same papers, even had that plaintiff not 

participated in the first place. Bridge Oil, 321 F. App’x 244, 245 (4th Cir. 2008) (per curiam). 

As discussed earlier, the Innis Plaintiffs pursued the same constitutional challenge as Plaintiff 

Stop PAC. Thus, virtually all the FEC’s efforts to date in this case would have been necessary in 

response to Stop PAC’s claims, even if the Innis Plaintiffs had never been included as party 

litigants. Their dismissal cannot be deemed prejudicial. See also In re Columbia Leasing, L.L.C. 

v. Mullen, No. 2:12-CV-678, 2014 U.S. Dist. LEXIS 22083, at *11 (E.D. Va. Feb. 20, 2014) 

(holding a plaintiff’s Rule 41(a)(2) motion not prejudicial where defendant can “easily carr[y] 

over” to other litigation “the work and resources [it] expended” against that plaintiff). 

Second, Plaintiffs have not unduly delayed in bringing this motion. Innis’ primary 

occurred less than four weeks ago, on June 10, and a portion of his time since was spent 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 6 of 11 PageID# 279
7 

investigating legal options for contesting the results. Plaintiffs filed this motion shortly after he 

decided to withdraw from the race and cease being a candidate. The Innis Plaintiffs have not 

unreasonably delayed in filing this motion. 

Third, there are numerous legitimate reasons for dismissing Innis and NIFC from the 

case, some of which render the FEC’s conditions not only inappropriate as a discretionary 

matter, but arguably improper as a matter of law: 

 ● Most basically, Innis lost the June primary. As Innis is no longer a candidate for 

federal office, the Innis Plaintiffs no longer wish to pursue this litigation, which concerns the 

constitutionality of federal campaign finance laws. Innis’ loss in the intervening primary 

constitutes “a legitimate explanation for the need to dismiss,” Blanzy, 2012 U.S. Dist. LEXIS 

42293, at *7, and does not warrant the imposition of additional preconditions (such as the FEC’s 

demand that the Innis Plaintiffs continue to be treated as party litigants for discovery purposes). 

 ● The FEC challenged this Court’s jurisdiction over Innis’ claims under 2 U.S.C. § 

437h. See FEC’s Memo. in Support of Motion to Allow Time for Discovery Under Rule 56(d), 

Doc. #27-1, at 7 n.9, (May 23, 2013) (hereafter, “FEC Rule 56(d) Brief”); see also Declaration of 

Kevin P. Hancock, Doc. #27-2, ¶ 8(a), at 8-9 (May 23, 2013) (hereafter, “Hancock Decl.”). 

Section 437h provides “any individual eligible to vote in any election for the office of President 

may institute such actions in the appropriate district court of the United States . . . as may be 

appropriate to construe the constitutionality of any provision” of the Federal Election Campaign 

Act (“FECA”) of 1971, Pub. L. No. 92-225, 86 Stat. 3 (Feb. 7, 1972). 2 U.S.C. § 437h. Pursuant 

to the provision, a district court lacks jurisdiction to itself adjudicate challenges to FECA, but 

instead must “certify all questions of [FECA’s] constitutionality . . . to the United States court of 

appeals for the circuit involved, which shall hear the matter sitting en banc.” Id. 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 7 of 11 PageID# 280
8 

The D.C. Circuit, in Wagner v. FEC, 717 F.3d 1007, 1011, 1016 (D.C. Cir. 2013), held 

that “the plain text of section 437h grants exclusive merits jurisdiction” over constitutional 

challenges to FECA “to the en banc court of appeals,” and the parties listed in § 437h “may bring 

actions challenging FECA's constitutionality only under that section.” In this case, the FEC has 

questioned whether, under Wagner’s construction of § 437h, this Court has jurisdiction over 

Innis’ claims. FEC Rule 56(d) Brief, Doc. #27-1, at 7 n.9; Hancock Decl., Doc. #27-2, ¶ 8(a), at 

8-9.2 The Fourth Circuit has yet to rule on whether individuals challenging FECA provisions are 

required to proceed under § 437h, which would require the en banc court of appeals to determine 

their constitutionality. And the parties have not briefed as to whether this challenge should be 

viewed as an attack on FECA, which would be subject to § 437h, or instead is partially or wholly 

a challenge to subsequent amendments made in the Bipartisan Campaign Reform Act (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81 (Mar. 27, 2002), which contains a different judicial review 

provision, see BCRA, § 403, 116 Stat. at 113, codified at 2 U.S.C. § 437h note. Voluntary 

dismissal without precondition is appropriate given the open questions concerning this Court’s 

possible lack of subject-matter jurisdiction over Plaintiff Innis’ claims. 

 ● As mentioned above, Innis lost the June primary. He therefore is no longer a 

candidate for federal office; the Innis Plaintiffs’ standing to pursue these claims therefore may be 

undermined. Cf. Maupin v. Yamamoto, No. 3:97-CV-00038, 2000 U.S. Dist. LEXIS 18598, at 

*5-6 (W.D. Va. Dec. 19, 2000) (holding that courts lack discretion to deny Rule 41(a)(2) motions 

where the plaintiff lacks standing). 

Fourth, this case remains in an early stage. The FEC has filed an Answer, prevailed on 

its Rule 56(d) motion and, along with Plaintiffs, filed a joint discovery plan. Cf. Jones v. Hill, 

 

2

 Because 2 U.S.C. § 437h does not provide special procedures for constitutional challenges 

brought by political committees or political party committees, any jurisdictional uncertainty does 

not extend to the other Plaintiffs’ claims. 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 8 of 11 PageID# 281
9 

No. 95-6356, 1995 U.S. App. LEXIS 34422, at *4 (4th Cir. Dec. 7, 1995) (“The mere filing of an 

answer or motion for summary judgment, without more, cannot be the basis for refusing to 

dismiss without prejudice.”). That is all. “[N]o discovery whatsoever ha[s] been undertaken.” 

Fidelity Bank PLC v. Northern Fox Shipping N.V., 242 F. App’x 84 (4th Cir. 2007) (affirming 

district court’s conclusion that Rule 41(a)(2) dismissal was appropriate because the case was “at 

an early stage”) (quotation marks omitted); see also McCoy v. Delhaize Am., Inc., No. 2:12-CV415, 2012 U.S. Dist. LEXIS 146806, at *6 (E.D. Va. Oct. 11, 2012) (granting Rule 41(a)(2) 

motion where “[t]his case is at the very earliest stages of litigation—little or no discovery has 

taken place, and there are no motions for summary judgment pending”). 

 A motion for dismissal has been held prejudicially untimely, in contrast, when it was 

filed “after the close of discovery, after defendants had already filed their motion for summary 

judgment, and within three weeks of the scheduled trial date.” Seligman v. Tenzer, 173 F. App’x 

280, 283 (4th Cir. 2006); see also Nesari v. Taylor, 806 F. Supp. 2d 848, 861 (E.D. Va. 2011) 

(quotation marks omitted) (holding that voluntary dismissal was inappropriate “where discovery 

has closed and defendants have filed a compelling motion for summary judgment that is ripe for 

adjudication”). The timing of this motion strongly favors dismissing the Innis Plaintiffs without 

prejudice or precondition. 

 In short, dismissing the Innis Plaintiffs will not cause any legally cognizable prejudice to 

the FEC The simple fact that the FEC might be able to obtain broader discovery from the Innis 

Plaintiffs if they remain, or are treated as, party litigants does not make their dismissal 

prejudicial to the FEC. See also McCoy, 2012 U.S. Dist. LEXIS 146806, at *6 (E.D. Va.)

(“[T]he possibility that the plaintiff might gain a tactical advantage over the defendant in future 

litigation likewise is not sufficient basis for denying a motion for voluntary dismissal.”). The 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 9 of 11 PageID# 282
10 

gravamen of the FEC’s complaint is that it may suffer “tactical disadvantage” in discovery from 

the Innis Plaintiffs’ dismissal, which is not a basis for opposing, or attempting to impose 

conditions on, a Rule 41(a)(2) motion. Id.; RMD Concessions, 194 F.R.D. at 243 (E.D. Va.); 

Teck Gen Pshp., 28 F. Supp. 2d at 991 (E.D. Va.). Thus, this Court should dismiss the Innis 

Plaintiffs’ claims, and dismiss Innis and NIFC as Plaintiffs from this case, without imposing 

additional conditions on those dismissals.3 

Innis’ and NIFC’s Claims Should Be Dismissed Without Prejudice 

 There is no basis for the FEC’s request that Innis’ and NIFC’s claims be dismissed with 

prejudice. Dismissals under Rule 41(a)(2) are presumptively without prejudice unless the court 

expressly orders otherwise and “supplie[s] [a] rationale for its decision.” Andes, 788 F.2d at 

1037. A dismissal should be “without prejudice” unless the defendant can establish “substantial 

prejudice” from that presumptive remedy. Id. There is nothing unusual about the Innis 

Plaintiffs’ claims that require departure from the default rule of dismissal without prejudice. 

 Dismissing the Innis Plaintiffs’ claims with prejudice would bar them from challenging 

these constitutional provisions in the future (in the event that Innis chooses to become a 

candidate in a future federal election, finds his fundraising hampered by the challenged 

provisions, and decides to subject himself to the burdens and rigors of litigation). Courts have 

uniformly held, however, that a defendant may not insist that a Rule 41(a)(2) dismissal be with 

 

3 In Choice Hotels Int’l, 11 F.3d at 471, the Fourth Circuit held that Rule 41(a)(2) allows a 

district court to dismiss a plaintiffs’ claims either with or without prejudice. The Rule “also 

allows the district court to dismiss the plaintiff’s action without prejudice but with conditions 

that the plaintiff must satisfy, and to specify that the dismissal will become prejudicial if the 

plaintiff fails to satisfy the condition.” Id. Were this Court inclined to agree with the FEC’s 

request that the Innis Plaintiffs continue to be treated as party litigants for discovery purposes 

following their dismissal, the Innis Plaintiffs would respectfully object to such condition. Under 

Choice Hotels Int’l, it appears the most appropriate would be ordering their dismissal with 

prejudice, rather than continuing to enforce the FEC’s requested condition. Thus, at most, this 

Court should dismiss the Innis Plaintiffs with prejudice, without imposing additional 

preconditions concerning discovery. 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 10 of 11 PageID# 283
11 

prejudice to foreclose the possibility of future litigation. Stout v. Lightburn, No. 1:04-CV-00087, 

2005 U.S. Dist. LEXIS 10729, at *2-3 (W.D. Va. June 3, 2005) (“The threat of future litigation 

does not constitute prejudice or hardship sufficient to justify refusing a plaintiff's request for 

voluntary dismissal without prejudice.”). Thus, while the Innis Plaintiffs have no plans to file a 

renewed lawsuit, any dismissal should be without prejudice. 

CONCLUSION

 For these reasons, this Court should GRANT Plaintiffs’ Motion to Voluntarily Dismiss 

Plaintiffs Niger Innis and Niger Innis for Congress pursuant to Fed. R. Civ. P. 41(a)(2). 

Dated July 3, 2014

 Respectfully submitted, 

 

 /s/ Michael T. Morley 

 Michael T. Morley, Esq. 

 Virginia State Bar # 65762 

 COOLIDGE-REAGAN FOUNDATION

 1629 K Street, Suite 300 

 Washington, DC 20006 

 Phone: (202) 603-5397 

 Fax: (202) 331-3759 

 E-mail: Morley@coolidgereagan.org 

 

 /s/ Dan Backer 

 Dan Backer, Esq. 

 Virginia State Bar # 78256 

 DB CAPITOL STRATEGIES PLLC 

 203 South Union Street, Suite 300 

 Alexandria, VA 22314 

 Phone: (202) 210-5431 

 Fax: (202) 478-0750 

 E-mail: DBacker@DBCapitolStrategies.com 

 

 Attorneys for Plaintiffs 

Case 1:14-cv-00397-AJT-IDD Document 35-1 Filed 07/03/14 Page 11 of 11 PageID# 284