SmileDirectClub, LLC v. Georgia Board Of Dentistry et al
Filing
146
ORDER granting 121 Motion to Dismiss. SDC may seek leave to file an amended complaint in compliance with this Order. If, after 14 days, SDC does not file a motion for leave to amend its complaint, the dismissal will be considered with prejudice and the Clerk of Court may close the case at that time. Discovery shall be stayed until such time as the Court resolves any motion for leave to amend the complaint.terminating H. Bert Yeargan, Rebecca B. Bynum and Tracy Gay. Signed by Judge Steven D. Grimberg on 07/15/2022. (jkb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SMILEDIRECTCLUB, LLC,
Plaintiff,
v.
TANJA D. BATTLE, et al.,
Defendants.
Civil Action No.
1:18-cv-02328-SDG
OPINION AND ORDER
This matter is before the Court on Defendants’ motion to dismiss [ECF 121].
After careful consideration and with the benefit of oral argument, their motion is
GRANTED, and the case is DISMISSED WITHOUT PREJUDICE.
I.
Background
The following well-pled facts are taken as true.1 Plaintiff SmileDirectClub,
LLC (SDC) is a self-described dental services organization that provides support
services to contractually affiliated dental practices that offer at-home teledentistry
aligner treatment for mild to moderate malocclusion.2 Put plainly, SDC is in the
teeth straightening business.
1
Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 (11th Cir. 1999) (“At the motion
to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable
inferences therefrom are construed in the light most favorable to the
plaintiff.”).
2
ECF 1, ¶¶ 3, 20.
As its “support services” pertain to this case, SDC operates “SmileShops,”
brick-and-mortar storefronts where SDC technicians employ iTero scanner
devices to take thousands of images of a patient’s teeth.3 With these images, SDC
creates a 3D digital model of a patient’s mouth and a “treatment plan” (the
scanning business).4 SDC sends these items to a Georgia-licensed dentist or
orthodontist for review and evaluation.5 If the patient is deemed a good candidate
for treatment, the dentist or orthodontist prescribes an SDC aligner.6
Enter Defendants and the Georgia Board of Dentistry (the Board). The
Board, under the authority of the Georgia Dental Practice Act (the Act),7 regulates
the practice of dentistry in the State of Georgia, including the duties of support
personnel falling within the Act’s scope.8 Pursuant to its purported authority
under the Act, the Board approved an amendment to Rule 150-9-.02 on January
24, 2018. The disputed amendment, Rule 150-9-.02(3)(aa) (the Rule) added
“[d]igital scans for fabrication [of] orthodontic appliances and models” to the list
3
Id. ¶ 25.
4
Id. ¶¶ 26–28.
5
Id. ¶¶ 27, 31.
6
Id. ¶¶ 28, 29, 31.
7
O.C.G.A. § 43-11-1, et seq.
8
Id. § 43-11-9; see also ECF 1, ¶ 4.
of “expanded” duties licensed dental practitioners may delegate to dental
assistants meeting certain criteria.9
Following the promulgation of the Rule, SDC initiated this lawsuit on May
21, 2018.10 SDC avers that the Board exceeded its authority under the Act in
promulgating the Rule (Count I),11 and that Defendants violated the Sherman
Antitrust Act, 15 U.S.C. § 1, and SDC’s rights under the Fourteenth Amendment’s
Due Process and Equal Protection Clauses (Counts II–IV).12 For Count I, brought
against the Board only, SDC sought a declaratory judgment that the Rule is an
invalid exercise of the Board’s authority, and an injunction prohibiting the Board
from enforcing the Rule against SDC.13 SDC’s principal argument related to that
claim, which underpins each of its claims, is that, “[a]s written, [the Rule] will
require digital scans in Georgia to be made in a dentist’s office under the direct
supervision of a licensed dentist . . . [and] severely impair[s] SDC’s ability to
deliver . . . products and services . . . without making costly and prohibitive
9
ECF 1, ¶ 38.
10
See generally id.
11
Id. ¶¶ 81–88.
12
Id. ¶¶ 89–99 (Count II: Violation of 15 U.S.C. § 1), 100–106 (Count III: Equal
Protection Violation), 107–113 (Count IV: Due Process Violation).
13
Id. at 36.
changes to SDC’s current business model.”14 SDC further avers that the Board
exceeded its rulemaking authority because the scanning business does not
constitute the practice of dentistry under the Act.15
On November 21, 2018, the Board and Defendants moved to dismiss the
Complaint. On May 8, 2019, U.S. District Court Judge William M. Ray, II denied
the motion (the Order) as to SDC’s Sherman Act, Equal Protection, and Due
Process claims against Defendants (the Board members) in their official capacities.
He determined that SDC had alleged a plausible antitrust claim and that it was
premature to rule on the question of state-action immunity.16 However, Judge Ray
dismissed SDC’s declaratory judgment claim against the Board itself, holding that
enactment and promulgation of the Rule was not outside the Board’s authority.17
He concluded that “taking digital scans of a patient’s mouth for the purpose of
having a dentist or orthodontist approve of a treatment plan for correcting a
malposition of the patient’s teeth falls squarely within the definition of dentistry
as set forth in [the Act].”18 The Board was therefore terminated from this case on
14
Id. ¶¶ 38, 42–43.
15
Id. ¶¶ 49–52.
16
See generally ECF 51.
17
Id.
18
Id. at 6 (citing O.C.G.A. § 43-11-1(6); O.C.G.A. § 43-11-17(a)(2) and (a)(5)).
May 8, 2019, and on June 5, the parties jointly moved to dismiss their non-equitable
claims for damages with prejudice.19
Defendants appealed on June 7, 2019.20 SDC did not appeal the dismissal of
its claims against the Board. The Eleventh Circuit panel affirmed with respect to
SDC’s antitrust claims on August 11, 2020.21 On July 20, 2021, after reconsidering
the case en banc, the Eleventh Circuit dismissed the appeal for lack of appellate
jurisdiction.22 The mandate issued on August 18.23 On November 22, Defendants
moved to dismiss the remaining claims in the Complaint for lack of Article III
standing.24
II.
Discussion
A.
The Law on Standing and Jurisdiction
Standing is jurisdictional. Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys.,
Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (quoting Cone Corp. v. Fla. Dep’t of Transp.,
921 F.2d 1190, 1203 n.42 (11th Cir. 1991)). Challenging a plaintiff’s standing to
19
ECF 55. On December 12, 2019, this Court granted the motion and dismissed
SDC’s non-equitable claims. ECF 83.
20
ECF 57.
21
ECF 94.
22
ECF 104.
23
ECF 106.
24
ECF 121.
bring a case is akin to seeking dismissal for lack of subject matter jurisdiction. Id.
Defendants’ motion advances a facial attack on the Complaint. Id. (discussing the
differences between facial and factual attacks on subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1)). As with any facial attack on a complaint, Defendants’
motion requires the Court to accept SDC’s allegations as true and determine
whether, considering those facts, SDC has sufficiently alleged a basis for standing.
Id. In other words, the Court must determine whether SDC has pleaded: (1) an
actual or imminent injury in fact, (2) a causal connection between the injury and
the conduct complained of, and (3) the likelihood that the injury can be redressed
by the Court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
B.
Defendants’ Redressability Challenge
Of the standing elements, Defendants’ motion only contests redressability—
to wit, whether it is “‘likely’ as opposed to merely ‘speculative,’ that the injury will
be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561 (citation omitted).
SDC’s remaining claims (for injunctive relief under Counts II–IV) seek to enjoin
enforcement of the Rule, not the Act. Defendants correctly point out that, when a
plaintiff’s conduct is prohibited by two laws, and the plaintiff only challenges one
of them, its alleged injury is not redressable. KH Outdoor, L.L.C. v. Clay Cnty., Fla.,
482 F.3d 1299, 1304 (11th Cir. 2007). So, while SDC’s ultra vires argument goes to
whether its conduct can properly be restricted by the Rule, its contention that its
scanning business is not the practice of dentistry under the Act affects whether
that business is subject to regulation by the Board at all. As Defendants’ argument
goes, SDC’s alleged injuries cannot be redressed by disposal of the Rule alone—
because SDC would still be subject to regulation under the Act—thus SDC has no
standing to assert its claims, and the Court has no jurisdiction to evaluate them.25
SDC raises two counterarguments. First, it insists that the Order did not
conclude that SDC’s scanning business constitutes the practice of dentistry under
the Act—and that no party raised this issue before now.26 Second, SDC maintains
that the Rule, not the Act, targets SDC’s scanning business, so SDC’s alleged injury
is redressable.27 The Court addresses each point in turn.
1.
SDC’s Scanning Business and the Practice of Dentistry
i.
The Dismissal Order
The parties dispute the scope of the Order dismissing Count I of the
Complaint. In that cause of action, SDC sought a declaration that its scanning
business “does not constitute the practice of dentistry or dental hygiene within the
25
ECF 121, at 7.
26
ECF 129, at 14–19.
27
Id. at 19–26.
meaning of the Act.”28 The Board moved to dismiss on Eleventh Amendment
grounds, arguing that sovereign immunity prevented the Court from reaching the
merits of this claim.29 SDC countered that the Board’s actions were ultra vires—that
is, they exceeded the scope of power granted to it by the Georgia General
Assembly pursuant to the Act.30 More specifically, SDC called into question
whether its scanning business constitutes the practice of dentistry under the Act,
and contended the answer to that question required expert discovery.
In the instant motion to dismiss, Defendants maintain the Order necessarily
determined that SDC’s scanning practice constitutes dentistry because SDC
collapsed its ultra vires argument with Count I’s merits.31 In other words, they
maintain that SDC’s ultra vires argument called for the Court to determine the
scope of the Board’s authority, and directed the Court’s focus toward the precise
issue raised by Count I: whether digital scans are dentistry under the Act.32 As
evidence of SDC’s intent that the Order affirmatively answer this question,
Defendants point to the proposed order SDC filed, which would have accepted as
28
ECF 1, ¶ 87 (citations omitted).
29
ECF 29-1, at 10–14.
30
ECF 30, at 12–15.
31
ECF 140, at 8, 26.
32
ECF 135, at 10.
true that SDC’s scanning business does not constitute dentistry under the Act and
held that the Board acted ultra vires in regulating that business.33
SDC responds that the Order did not hold that the Act (independently of
the Rule) prohibits SDC’s scanning business because Defendants and the Board
never raised that issue: “To the contrary, the Court issued its ruling in response to
SDC’s claim seeking a declaratory judgment that the Board’s enactment of the
[Rule] fell outside its authority to regulate the practice of dentistry.”34 In SDC’s
view, the Order “was saying that the [ ] Board has . . . authority under the [ ] Act
to enact rules[,] and [the Court] was not determining for all purposes going
forward in the litigation that in fact what [SDC] is doing is the practice of
dentistry.”35
The best indication of the scope of the Order is what the Order actually says:
[SDC] filed the instant lawsuit against the [Board]
seeking a declaratory judgment that [SDC]’s [scanning
business] does not constitute the practice of dentistry or
dental hygiene within the meaning of O.C.G.A. §§ 43-111(6), 43-11-17(a), and 43-11-74, and is, therefore, outside
the regulatory jurisdiction of the [Board].36
33
Id. (citing ECF 135-4, at 11).
34
ECF 129, at 14 (citing ECF 1, ¶ 87).
35
ECF 140, at 20; see also ECF 129, at 15 (citing ECF 51, at 5–6).
36
ECF 51, at 4 (emphasis added) (citing ECF 1, ¶¶ 82–88). See also id. at 5.
....
[SDC]’s [scanning business] . . . falls squarely within the
definition of the practice of dentistry as set forth in
O.C.G.A. § 43-11-1(6) and O.C.G.A. § 43-11-17(a)(2) and
(a)(5). Accordingly, [SDC] has failed to state a plausible
claim for declaratory relief . . . .37
The Order thus plainly concluded that SDC had made the issue of whether its
scanning business constituted the practice of dentistry central to its Count I cause
of action.
Moreover, as Defendants contend, SDC’s arguments with regard to Count I
did “collapse[ ] the merits with the ultra vires issue.”38 During oral argument before
Judge Ray, SDC’s counsel entangled whether SDC’s scanning business could be
regulated either under the Rule or the Act itself:
MR. CASHDAN: . . . . What we’re saying is that they lack
authority. They do not have authority to be regulating
what they’re regulating here.
THE COURT: Because you say it’s not dentistry.
MR. CASHDAN: Because it’s not dentistry. And that’s a
combination of law and fact. We agree with that. But
we’ve alleged facts as to why it’s not the practice of
dentistry, and that’s the issue that the parties should be
37
Id. at 6 (emphasis added).
38
ECF 140, at 8; see also id. at 28.
addressing. We don’t get to decide that factual question
by looking beyond the complaint’s allegations.39
Even assuming the Complaint’s well-pleaded facts support the reasonable
inference that the iTero scanner is safer than typical dentistry accouterment, or that
SDC’s scanning business requires a less skilled hand or less supervision than
typical dental practice and is therefore atypical of dentistry, no court is required
to accept as true a party’s legal conclusion. Specifically, while it relies on an
assessment of the well-pleaded facts, the ultimate question of whether SDC’s
scanning business is the practice of dentistry within the meaning of the Act is a
legal one. This is despite the language in the Complaint, which “couched [it] as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). And this is especially true
considering (1) SDC’s factual allegations (discussed below) that belie its
conclusion that its scanning practice does not constitute dentistry, and (2) that SDC
conceded the question of whether its scanning practice constituted dentistry was
a mixed question of law and fact.
Though SDC suggested discovery was necessary, the Order examined the
face of the Complaint, accepted SDC’s well-pleaded facts as true, and concluded
39
ECF 49, at 39.
that SDC’s scanning business does constitute the practice of dentistry. Given the
language of the Order itself and the Court’s colloquy with SDC’s counsel at oral
argument, the determination of whether SDC’s scanning business constitutes the
practice of dentistry under the Act was plainly a predicate to the Order’s
conclusion about whether the Board’s action in adopting the Rule was ultra vires—
and that the facts as pleaded were sufficient to answer that blended question.
In any case, if the Order ruled on a question that the parties did not then
raise, it was incumbent upon them to seek reconsideration. Fed. R. Civ. P. 54(b);
NDGa, LR 7.2(E). At this juncture, however, the Order’s predicate holding—that
SDC’s scanning practice constitutes dentistry—is indivisible from the conclusion
that Count I should be dismissed. The Order speaks for itself, and this Court will
not abjure its plain language absent persuasive proof that doing so furthers the
administration of justice. See, e.g., United States v. Williams, 728 F.2d 1402, 1406 (11th
Cir. 1984) (citation omitted) (“It is recognized that when cases are transferred from
one judge to another judge in the same court, the transfer should not be treated as
an opportunity to relitigate all the questions decided by the first judge.”); Abshire
v. Seacoast Prod., Inc., 668 F.2d 832, 837–38 (5th Cir. 1982) (citations omitted) (“The
general rule is that when a district judge has rendered an order or judgment and
the case is then transferred to the calendar of another judge, the successor judge
should not overrule the earlier order or judgment.”).
ii.
The Practice of Dentistry Under the Act
Notwithstanding SDC’s contention that Defendants never raised the issue
of whether SDC’s scanning business constitutes dentistry as a matter of law, the
parties now unmistakably raise it. Regardless of the reasons for this,40 it is
irrelevant: Standing and jurisdiction cannot be waived. In re Heatherwood Holdings,
LLC, 746 F.3d 1206, 1216 (11th Cir. 2014) (“[P]arties cannot waive subject matter
jurisdiction, and we may consider subject matter jurisdiction claims at any time
during litigation.”) (citations omitted). Assessing the Complaint within the
framework of the Act, SDC’s scanning business inarguably constitutes the practice
of dentistry.
The Act prohibits the unlicensed practice of dentistry. It expansively defines
dentistry as “evaluation, diagnosis, prevention, or treatment . . ., whether using
surgical or non-surgical procedures, of diseases, disorders, or conditions . . . of the
oral cavity, maxillofacial area, or the adjacent and associated structures . . .
including, but not limited to, the acts specified in Code Section 43-11-17.” O.C.G.A.
40
SDC hints that gamesmanship is afoot. ECF 135, at 6 (discussing Defendants’
efforts to raise and re-raise their standing defense).
§ 43-11-1(6) (emphasis added). And if that nonexclusive list were not enough to
capture SDC’s scanning business, Code Section 43-11-17 includes, as an example,
the “examin[ation of] any human oral cavity, teeth, gingiva, alveolar process,
maxilla, mandible or associated structures, or associated contiguous masticatory
structures or . . . an impression thereof for the purpose of diagnosing, treating, or
operating upon the same,” O.C.G.A. § 43-11-17(a)(5), as well as “attempts to
correct a malposition thereof.” O.C.G.A. § 43-11-17(a)(2).
The nonexclusive list set out in Code Section 43-11-17 does not expressly
include taking “digital scans,” but such specificity is not required given the Act’s
open-ended and inclusive construction. Arby’s Rest. Grp., Inc. v. McRae, 292 Ga.
243, 245 (2012) (noting courts interpreting Georgia statutes are to “presume that
the General Assembly meant what it said and said what it meant.”) (citation
omitted); Aimwell, Inc. v. McLendon Enters., Inc., 318 Ga. App. 394, 397 (2012)
(noting that the court must “avoid constructions that make some language mere
surplusage or meaningless, construe a statute in relation to other statutes of which
it is a part, and construe together and harmonize all statutes relating to the same
subject-matter wherever possible.”) (citation omitted) (cleaned up). Following the
canons of construction, the Court need not strain to compare SDC’s scanning
business to a “radiograph,” O.C.G.A. § 43-11-17(a)(8), an “impression,” id. § 43-11-
17(a)(5), or any other example expressly listed by the Georgia General Assembly
as constituting prima facie evidence of the practice of dentistry. The Complaint
makes clear that SDC’s scanning business is nothing if not the “examin[ation of]
any human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible . . . for
the purpose of diagnosing, treating, or operating upon the same,” consistent with
the Act’s definition of dentistry. Id. § 43-11-17(a)(5).
To relieve any doubt, the Court looks to the face of the Complaint and
accepts its allegations as true. In short, SDC technicians “take thousands of
photographs of a customer’s teeth and gums.”41 “The digital scan consists of
thousands of photographs, which generate a 3D model of the patient’s maxillary
and mandibular dentition, along with the attached gingiva and supporting oral
mucosa . . . .”42 SDC “create[s] a model treatment plan,” which a Georgia-licensed
dentist or orthodontist reviews.43 Importantly, SDC’s scanning business is
admittedly “necessary for SDC’s licensed dentists and orthodontists to provide
41
ECF 1, ¶ 26.
42
Id. ¶ 27.
43
Id. ¶ 26.
aligner treatment . . . .”44 Under these facts, the Court has no qualm in reaffirming
that SDC’s scanning business constitutes the practice of dentistry under the Act.
2.
The Rule, the Act, and Redressability
The parties next dispute if the Court can determine at the motion to dismiss
stage whether the Rule and Act regulate the same conduct such that SDC’s
remaining claims (Counts II–IV) are not redressable because of their failure to
challenge the Act. Because the Rule and the Act each prohibit SDC’s scanning
business, no additional discovery is necessary to resolve SDC’s remaining claims.
The Rule prohibits SDC’s conduct as alleged. As the Eleventh Circuit panel
decision noted, the “practical effect of the [Rule] w[as] . . . to require that digital
scans, like the ones [performed] by [SDC] at [its locations,] only take place when a
licensed dentist is physically in the building where the scans are taking place, and
to prohibit them otherwise.” SmileDirectClub, LLC v. Battle, 969 F.3d 1134, 1137
(11th Cir. 2020). Although that appellate order has been vacated, SmileDirectClub,
LLC v. Battle, 981 F.3d 1014 (11th Cir. 2020), this conclusion remains sound.
The Act independently prohibits the unlicensed practice of dentistry.
O.C.G.A. § 43-11-50. As SDC alleges, an unlicensed and unsupervised “technician
44
Id. ¶ 25.
or assistant” performs each scan.45 So, SDC’s scanning business, which amounts to
the unlicensed practice of dentistry under the Act, is precluded by the Act.
The only remaining question is whether, on this record, the Court can
dismiss SDC’s remaining claims for lack of standing because it did not challenge
the Act. The controlling case on this point is KH Outdoor, L.L.C. v. Clay County,
Florida, 482 F.3d 1299 (11th Cir. 2007). There, a billboard company sought to erect
billboards in contravention of an old county sign ordinance. Id. at 1301. The parties
cross-moved for summary judgment, but the district court denied the motions and
dismissed the case as moot, reasoning that a newer sign ordinance superseded the
old sign ordinance, and any allegedly unconstitutional portions of the old
ordinance were either not retained by the new ordinance or, if retained, were
severable from the new ordinance. Id. On appeal, the Eleventh Circuit held that
the billboard company’s injury—the inability to erect signs—was not redressable
because, regardless of the old ordinance, “[the county] could block the proposed
signs by enforcing [the state building code and other state statutes] not
challenged.” Id. at 1304; see also Maverick Media Grp., Inc. v. Hillsborough Cnty., Fla.,
528 F.3d 817, 819 (11th Cir. 2008) (finding an unchallenged county ordinance
45
ECF 1, ¶ 25.
independently prohibited the erection of the plaintiff’s billboards, and thus the
county could have blocked the erection “under an alternative, unchallenged
provision of its sign ordinance”).
KH Outdoor’s significance reaches beyond county sign permitting laws and
regulations. See Tokyo Gwinnett, LLC v. Gwinnett Cnty., Ga., 940 F.3d at 1254
(applying KH Outdoor and Maverick Media to county zoning laws and noting that
“[t]he County is right to say that some cases from our Circuit have concluded that
a plaintiff’s claims were not redressable because a different, unchallenged
provision precluded relief,” but reasoning that those cases “featured no genuine
factual dispute” about whether another unchallenged rule or regulation
prohibited the same conduct at issue); see also Steele v. Nat’l Firearms Act Branch,
755 F.2d 1410, 1415 (11th Cir. 1985) (explaining that the court was “unable to
ascertain from the record whether the relief requested is likely to redress the
alleged injury” because “[t]he challenged regulation is merely a method of
effectuating congressional dictates” and “only the striking down of the statute
itself, a remedy not requested in this complaint, could relieve appellant’s injury”).
The parties agree that the cases controlling this dispute were uniformly
resolved at summary judgment, not on a motion to dismiss. SDC argues that this
counsels against granting Defendants’ motion to dismiss, and that the Court
should allow additional discovery.46 Defendants respond that “not all cases have
genuine factual disputes[,] and [this] case [does not].”47
The Court agrees with Defendants. True, in Tokyo Gwinnett the Eleventh
Circuit cautioned that “to the extent . . . the District Court . . . question[ed] its
jurisdiction, the District Court should have conducted further proceedings, rather
than dismissing the complaint on little more than the [plaintiff]’s bare assertions.”
940 F.3d at 1266. Unlike the trial court in Tokyo Gwinnett, however, this Court has
no such uncertainty about its jurisdiction. As in KH Outdoor and Maverick Media,
this case involves “[an] unchallenged provision[ ] that preclude[s] relief.” Id.
(citing KH Outdoor, 482 F.3d at 1303–04; Maverick Media, 528 F.3d at 821 (holding
14’ x 48’ sign “clearly exceed[ed] the size limitations” in other unchallenged
ordinances)). SDC’s challenge of the Rule alone cannot redress its alleged injury.
Thus, the Court does not have subject matter jurisdiction over SDC’s remaining
claims (Counts II–IV).
46
ECF 140, at 20–22.
47
Id. at 14.
III.
Conclusion
SDC’s Complaint is DISMISSED WITHOUT PREJUDICE. SDC may seek
leave to file an amended complaint in compliance with this Order. If, after 14 days,
SDC does not file a motion for leave to amend its complaint, the dismissal will be
considered with prejudice and the Clerk of Court may close the case at that time.
Discovery shall be stayed until such time as the Court resolves any motion for
leave to amend the complaint.
Further, since the date that SDC initiated this lawsuit, Defendants Tracy
Gay, Rebecca Bynum, and Bert Yeargan have left their positions on the Board and
were replaced by Misty A. Mattingly, Larry W. Miles, Jr., and David A. Reznik. See
Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party
in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending. The officer’s successor is automatically substituted as a party.”).
The Clerk is DIRECTED to SUBSTITUTE these parties accordingly, and to
TERMINATE Tracy Gay, Rebecca Bynum, and Bert Yeargan from this action.
SO ORDERED this 15th day of July, 2022.
Steven D. Grimberg
United States District Court Judge
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