UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP
MARCIE FISHER-BORNE, et al.;
Plaintiffs,
vs.
JOHN W. SMITH, et al.;
Defendants.
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STATE DEFENDANTS’ REPLY
TO PLAINTIFFS’ OBJECTION TO
MAGISTRATE JUDGE’S
RECOMMENDATION DATED
JUNE 2, 2014
Plaintiffs filed this action initially as a to challenge North Carolina’s adoption laws. With the
consent of the State Defendants, Plaintiffs amended their lawsuit by adding Equal Protection and Due
Process challenges to North Carolina’s marriage laws. [DE 40]. Approximately two years after the filing
of the original complaint, Plaintiffs Shana Carignan and Megan Parker filed a motion for a preliminary
injunction on April 9, 2014. [DE 75]. Defendants JOHN W. SMITH, in his official capacity as the
Director of North Carolina Administrative Office of the Courts; THE HONORABLE DAVID L.
CHURCHILL, in his official capacity as Clerk of the Superior Court for Guilford County; THE
HONORABLE ARCHIE L. SMITH III, in his official capacity as Clerk of the Superior Court for Durham
County; ROY A. COOPER, in his official capacity as the North Carolina Attorney General , (collectively
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referred to as the “State Defendants”), moved to dismiss Plaintiffs’ Amended Complaint, filed a
response in opposition to Plaintiffs’ motion for preliminary injunction, and filed a motion to stay the
Pending before the court is the parties' proposed consent order that reflects the dismissal of the
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Attorney General as a named party-defendant, and a contemporaneous agreement to amend the case
caption to include the Attorney General as an Intervenor on behalf of the State of North Carolina.
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proceedings pending an opinion of the Fourth Circuit Court of Appeals in the case of Bostic v.
Schaefer. [DE 65, 66, 84, 85, 88]. Plaintiffs responded by opposing the State Defendants’ motion to
stay. [DE 91]. On June 2, 2014, United States Magistrate Judge Joi Elizabeth Peake issued a
Recommendation that the State Defendants’ Motion to Stay be granted. [DE 97]. Judge Peake
emphasized two of the more compelling justifications for a recommended stay: (1) “the decision of the
Fourth Circuit in Bostic will provide the controlling legal principles for this Court to apply in evaluating
the motions 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,” and (2) “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 a district court’s injunction in similar case in Utah, pending an
appeal to the Tenth Circuit).” [DE 97 p 3] (emphasis added). See also, Kitchen v. Herbert, No. 13-
4178 (10th Cir. June 25, 2014) (Slip Op pp 64-65, fn 14, 15) (staying the Circuit Court’s order that
Utah’s same-sex marriage ban is unconstitutional under strict scrutiny analysis “pending the disposition
of any subsequently filed petition for writ of certiorari”).
Plaintiffs objected to the Recommendation on June 13, 2014. [DE 99]. By and through the
undersigned attorneys, the State Defendants now submit the following Reply, ask the Court to adopt
the Magistrate Judge’s Recommendation, and stay all proceedings herein pending the Fourth Circuit’s
opinion in Bostic. In addition to the argument infra, the State Defendants also rely on the arguments
that have been propounded in their motion to dismiss and supporting brief, their response in opposition
to Plaintiffs’ motion for preliminary injunction, their motion to stay proceedings and attendant supporting
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brief, which are incorporated herein by reference. [DE 65, 66, 84, 85, 88].
ARGUMENT
Plaintiffs argue that this Court should reject the Magistrate Judge’s Recommendation because
(1) the Judge erred by failing to order an immediate grant of the preliminary injunction requested by
Plaintiffs, and (2) the Judge erred by failing to consider the balancing factors in ruling on a Motion to
Stay . [DE 99 pp 15-27]. The Magistrate Judge’s Recommendation concluding that the stay be granted
is correct, appropriate, and should be adopted by the Court.
I. STANDARD OF REVIEW.
A magistrate judge’s order on nondispositive matters is modified or set aside by the district judge
only when it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P., Rule 72 (a). That standard is
deferential, as the district court should overturn a recommended order when it “is left with the definite
and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564,
573 (1985); Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). Ordinarily, orders
on motions to stay would be deemed nondispositive, and are consequently reviewable by the district
court judge for clear errors of law only. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A);
PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010). State Defendants contend that “clearly
erroneous” is the appropriate standard of review for Judge Peake’s Recommendation to grant a stay
dated June 2, 2014.
On the other hand, with respect to dispositive motions, the district court reviews ,de novo, those
portions of magistrate judge’s report to which a party has filed written objections. Fed. R. Civ. P. 72(b).
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Pursuant to 28 U.S.C.S. § 636(b)(1), a magistrate judge’s recommended ruling to grant or deny a motion
for preliminary injunction is subject to a de novo review by the district judge.
II. THE MAGISTRATE JUDGE’S RECOMMENDATION GRANTING THE STATE DEFENDANTS’
MOTION TO STAY DOES NOT AMOUNT TO A DENIAL OF A PRELIMINARY INJUNCTION.
Plaintiffs argue that Judge Peake’s recommendation of a stay in this matter “effectively denied
the Preliminary Injunction Motion.” [DE 99 p 15]. That argument is incorrect.
Judge Peake appropriately started her review of the Motion to Stay by pointing out that
“Defendants contend that consideration of Plaintiffs’ claims, including consideration of the recent request
for a preliminary injunction and the pending motions to dismiss, should be stayed pending the Fourth
Circuit’s decision in Bostic.” [DE 97 pp 2-3]. In her recommendation that the requested stay of
proceedings should be granted, Judge Peake emphasized that the stay pending the imminent opinion
in Bostic will guide the Court “in determining whether Plaintiffs have demonstrated a likelihood of
success on the merits in support of their request for preliminary injunctive relief.” [DE 97 p 3]. The plain
reading of Judge Peake’s order reflects an understanding that the merits of the Plaintiffs’ motion for
preliminary injunction should be determined by virtue of the appropriate legal standards that are likely
to be announced by the Fourth Circuit in Bostic.
Despite their objection, Plaintiffs offer no explanation as to why Judge Peake’s recommendation
to stay the proceedings constitutes a denial of their motion for preliminary injunction. Instead, Plaintiffs
simply repeat and recast their previously posed arguments in favor of a preliminary injunction. [DE 99
pp 15-24]. Nevertheless, Plaintiffs’ motion for preliminary injunction has not been denied by the
recommended stay, and the merits of Plaintiffs’ motion should not be addressed and decided through
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their objection to the stay. Moreover, Plaintiffs’ conclusion that a recommendation to stay amounts to
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a denial of the motion for preliminary injunction is inconsistent with the letter and the spirit of Judge
Peake’s order which stressed the temporal nature of the stay, the fact that the Court continues to retain
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jurisdiction of the matter, and intends to consider Plaintiffs’ motion for preliminary injunction in the light
of any binding precedent to emerge from Bostic matter. Plaintiffs objections on that basis should be
overruled.
III. THE MAGISTRATE JUDGE’S REPORT RECOMMENDING A STAY IS FREE OF CLEAR
ERRORS AND SHOULD BE ADOPTED.
Plaintiffs next argue that Judge Peake’s recommended stay is clearly erroneous because “the
Recommendation makes no mention of a ‘clear case of hardship or inequity in being required to go
forward.’” [DE 99 p 25]. That contention is likewise without merit.
First, contrary to Plaintiffs’ argument [DE 99 p 25], Judge Peake’s recommendation properly
referenced the negative effects on judicial economy and the parties if this case were to proceed without
the requested stay: “[a]ny 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 significant
inefficiency and uncertainty with regard to the effect of any decision rendered in the interim.” [DE 97 p
3].
However, to the extent the Court will entertain the merits of that motion in lieu of or
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contemporaneously with the stay, the State Defendants’ position on the Plaintiffs’ motion for preliminary
injunction was fully briefed, and is incorporated herein by reference. [DE 88]
Judge Peake recommended that the parties have “10 days following issuance of a decision by
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the Court of Appeals for the Fourth Circuit in Bostic” “to notify the Court in writing of their position on the
course of future proceedings.” [DE 97 p 5].
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Indeed, the State Defendants fully briefed that issue and other requisite factors which compel a stay in
this matter. Those supporting briefs are incorporated herein by reference. [DE 85, 96]. In summary,
the stay would:
(1) promote judicial efficiency;
(2) avoid overturning the legal status quo in North Carolina by prematurely
voiding a provision of the State Constitution;
(3) avoid the legal and practical consequences associated with a ruling
from this Court that could be inconsistent with the Fourth Circuit’s opinion
in Bostic, including the premature abdication or pursuit of marriage by
Plaintiffs and those who are similarly situated, and possible emergency
intervention by the United States Supreme Court; and,
(4) conserve the resources of the parties and this tribunal.
[DE 85 p 2]. Contrary to Plaintiffs’ contention, Judge Peake indicated that she balanced “the competing
interests in the present case,” and concluded 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.” [DE 97 p 4]. A number of cases referenced by
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Judge Peake, and the most recent Kitchen v. Herbert decision from the Tenth Circuit, adopted a similar
approach and granted stays pending appellate review. Judge Peake correctly recommended that the
Plaintiffs’ reliance on Nat’l Org. For Marriage v. Geiger, No 13A1173, Order in Pending Case
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(U.S. June 4, 2014), [DE 99 p 23], is misplaced. Unlike the scenario in the instant case and in Herbert v.
Kitchen, 134 S. Ct. 893 (2014), where the named State officials sought a stay of proceedings, in Geiger
the Supreme Court denied a stay requested by the third-party, who had no standing to seek a stay as its
motion to intervene in the lawsuit was already denied. See Kitchen v. Herbert, No. 13-4178 (10th Cir. June
25, 2014) (Slip Op pp 65, fn 15).
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stay in this case should be granted.
CONCLUSION
For the foregoing reasons, this Court should overrule Plaintiffs’ objections to Judge
Peake’s Recommendation and order a stay of all proceedings pending the Fourth Circuit’s
opinion in Bostic.
Respectfully submitted, this the 30th day of June, 2014.
ROY COOPER
North Carolina Attorney General
/s/ Amar Majmundar
Amar Majmundar
Special Deputy Attorney General
North Carolina State Bar No. 24668
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-6821
Facsimile: (919) 716-6759
Email: amajmundar@ncdoj.gov
/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito
Special Deputy Attorney General
North Carolina State Bar No. 31846
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-0185
Facsimile: (919) 716-6759
Email: ovysotskaya@ncdoj.gov
/s/ Charles Whitehead
Charles G. Whitehead
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Special Deputy Attorney General
North Carolina State Bar No. 39222
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 716-6840
Facsimile: (919) 716-6758
Email: cwhitehead@ncdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of June, 2014, I electronically filed the
foregoing STATE DEFENDANTS’ REPLY with the Clerk of the Court using the
CM/ECF system which will send notification of such filing to all counsel of record.
/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito
Special Deputy Attorney General
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