CARCANO et al v. MCCRORY, et al

Filing 44

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 06/06/2016; that the proposed intervenors' motion to intervene (Doc. 33 ) is GRANTED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOAQUÍN CARCAÑO, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
PATRICK McCRORY, et al.,
Defendants.

1:16CV236

MEMORANDUM ORDER
Before

the

constitutional

court

and

is

a

statutory

motion
challenge

to
to

intervene

in

portions

of

this
North

Carolina’s Public Facilities Privacy & Security Act, 2016 N.C.
Sess. Laws 3, commonly known as House Bill 2 (“HB2”).

Acting in

their official capacities, Phil Berger, the President pro tempore
of the North Carolina Senate, and Tim Moore, the Speaker of the
North

Carolina

House

of

Representatives

(collectively,

the

“proposed intervenors”), seek intervention as of right pursuant to
Federal Rule of Civil Procedure 24(a), or, in the alternative,
permissive intervention pursuant to Rule 24(b).

(Doc. 33.)

For

the reasons set forth below, the motion will be granted, and the
legislators will be permitted to intervene permissively.
I.

BACKGROUND
The North Carolina General Assembly passed HB 2 on March 23,

2016, and Governor Patrick L. McCrory signed the bill into law
later that day.

2016 N.C. Sess. Laws 3.

Among other things, HB2

states that multiple occupancy bathrooms and changing facilities,
including those managed by local boards of education, must be
“designated for and only used by persons based on their biological
sex.”

Id.

The

law

also

sets

statewide

nondiscrimination

standards, preempting local and municipal ordinances that conflict
with these standards.

Id.

Almost immediately, HB2 sparked multiple overlapping federal
lawsuits.

On March 28, 2016, the American Civil Liberties Union

of North Carolina, Equality North Carolina, and several individual
plaintiffs filed this action, alleging that HB2 discriminates
against transgender, gay, lesbian, and bisexual individuals on the
basis

of

sex,

sexual

orientation,

and

transgender

status

in

violation of Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681 et seq. (“Title IX”), as well as the Equal Protection
and Due Process clauses of the Fourteenth Amendment to the United
States Constitution.

(Doc. 1.) 1

On May 9, 2016, the United States filed a lawsuit in this
court

against

capacity),

the

the

State,

North

Governor

Carolina

McCrory

Department

(in
of

his
Public

official
Safety

(“NCDPS”), the University of North Carolina, and the University of
North Carolina Board of Governors, seeking a declaration that
compliance with HB2’s provisions relating to multiple-occupancy

1

Plaintiffs filed an amended complaint on April 21, 2016.

2

(Doc. 9.)

bathrooms and changing facilities constitutes sex discrimination
in

violation

of

Title

IX,

the

Violence

Against

Women

Reauthorization Act of 2013, 42 U.S.C. § 13925(b)(13) (“VAWA”),
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et

seq.

(“Title

VII”),

enforcement of the law.

and

requesting

an

injunction

against

(Doc. 1 in case no. 1:16CV425 (the “425

case”).)
That same day, State officials filed two separate declaratory
actions in the Eastern District of North Carolina.

Governor

McCrory and NCDPS filed an action against the United States and
the

United

States

Department

of

Justice

(“DOJ”),

seeking

a

declaration that HB2 does not violate Title VII or VAWA (case no.
5:16cv238 (the “238 case”).

Meanwhile, the proposed intervenors

filed their own lawsuit against DOJ, seeking a declaration that
HB2 does not violate Title VII, Title IX, or VAWA, as well as
declarations

that

DOJ

had

violated

both

the

Administrative

Procedure Act and various constitutional provisions (case no.
5:16cv240

(the

“240

case”).

Finally,

on

May

10,

2016,

an

organization named North Carolinians for Privacy filed its own
action in support of HB2 in the Eastern District of North Carolina,
seeking declaratory and injunctive relief against DOJ and the
United States Department of Education related to Title IX and VAWA
(case no. 5:16cv245 (the “245 case”).

On May 17, 2016, Governor

McCrory and NCDPS moved to transfer their lawsuit (the 238 case)
3

to this court.

The proposed intervenors and North Carolinians for

Privacy then moved to consolidate their cases (the 240 and 245
cases, respectively) with Governor McCrory and NCDPS’ case (the
238 case).
On May 16, 2016, Plaintiffs filed a motion for a preliminary
injunction in the present case.

(Doc. 21.)

On May 25, 2016, the

proposed intervenors filed the instant motion to intervene.
33.)

(Doc.

At present, the federal court in the Eastern District has

conditionally

granted

the

proposed

intervenors’

motion

to

consolidate the 238 and 240 cases, but it has not ruled on North
Carolinians for Privacy’s motion to consolidate the 238 and 245
cases or Governor McCrory and NCDPS’ motion to transfer the 238
case.

As a result, five separate lawsuits involving HB2 remain

pending: two before this court, and three before two different
judges in the Eastern District.
II.

ANALYSIS
The proposed intervenors seek to intervene as defendants in

this case pursuant to Federal Rule of Civil Procedure 24(a) and
(b).

(Doc. 33.)

Plaintiffs generally do not oppose the proposed

intervenors’ motion, subject to a few caveats discussed below.
(See Doc. 41 at 1.)
should

be

granted

Because the court concludes that the motion
under

Rule

24(b)’s

permissive

intervention

standards, there is no need to address the proposed intervenors’
arguments that they are entitled to intervention as a matter of
4

right under Rule 24(a).
Under Rule 24(b) the court may permit anyone who “has a claim
or defense that shares with the main action a common question of
law or fact” to intervene on timely motion.
24(b)(1)(B).

“In

exercising

its

discretion,

Fed. R. Civ. P.
the

court

must

consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.”
P. 24(b)(3).

Fed. R. Civ.

Thus, where a movant seeks permissive intervention

as a defendant, the movant must satisfy three requirements: (1)
the motion is timely; (2) the defenses or counterclaims have a
question of law or fact in common with the main action; and (3)
intervention will not result in undue delay or prejudice to the
existing parties.

See Wright v. Krispy Kreme Doughnuts, Inc., 231

F.R.D. 475, 479 (M.D.N.C. 2005); Solo Cup Operating Corp. v. GGCY
Energy LLC, Civil No. WDQ-12-3194, 2013 WL 2151503, at *2 (D. Md.
May 15, 2013); Shanghai Meihao Elec., Inc. v. Leviton Mfg. Co.,
223 F.R.D. 386, 387 (D. Md. 2004). 2

Trial courts are directed to

construe

allow

Rule

appropriate.

24

liberally

to

intervention,

where

Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986)

(noting that “liberal intervention is desirable to dispose of as

2

Intervention may also be denied when the intervening party would deprive
the court of subject matter jurisdiction.
See, e.g., Radchyshyn v.
Allstate Indem. Co., 311 F.R.D. 156, 158–61 (W.D.N.C. 2015). This is
not an issue in this case because all of Plaintiffs’ and proposed
intervenors’ claims appear to rely on federal question jurisdiction.
(See Doc. 9 at 6–7; Doc. 36.)

5

much of a controversy involving as many apparently concerned
persons

as

is

compatible

with

efficiency

and

due

process”)

(citations and internal quotation marks omitted); Capacchione v.
Charlotte-Mecklenburg Bd. of Educ., 179 F.R.D. 505, 507 (W.D.N.C.
1998) (same).
Here, there is no dispute the motion is timely.

The proposed

intervenors filed their motion on May 25, 2016, before any of the
original Defendants made any filings in the case and just nine
days

after

Plaintiffs

injunction.

filed

their

motion

for

preliminary

See, e.g., United States v. Virginia, 282 F.R.D. 403,

405 (E.D. Va. 2012) (holding that a motion to intervene is timely
where a case has not progressed past the pleadings stage); cf.
MacGregor

v.

Farmers

Ins.

Exch.,

No.

2:10–cv–03088,

2012

WL

5380631, at *2 (D.S.C. Oct. 31, 2012) (motion to intervene untimely
when filed more than five months after the passage of the court’s
deadline to join parties and amend the pleadings).

Similarly,

there is no dispute that the proposed intervenors’ defenses and
counterclaims share common questions of law and fact with the main
action

in

contemplated

this

case.

pleading

Indeed,
raises

the

factual

proposed
allegations

intervenors’
and

legal

arguments arising out of the same subject matter – passage of HB2
and its application – as Plaintiffs’ amended complaint.
Finally, the addition of the proposed intervenors will not
cause undue delay or prejudice to the original parties in this
6

case.

Because

the

proposed

intervenors’

defenses

and

counterclaims largely overlap with the legal and factual issues
that are already present in the main action, the addition of the
proposed intervenors is not likely to significantly complicate the
proceedings or unduly expand the scope of any discovery in this
case.

In addition, the proposed intervenors have already filed

their proposed answer and counterclaims (Doc. 36), and the deadline
for responses to the Plaintiffs’ motion for preliminary injunction
has not yet passed. Thus, the addition of the proposed intervenors
should not significantly delay proceedings in this case.
Although Plaintiffs do not oppose the proposed intervenors’
motion, they do express concern that the addition of the proposed
intervenors will delay resolution of their motion for preliminary
injunction.

(Doc. 41 at 2–3.)

Yet, the proposed intervenors

currently do not seek additional time to respond to the Plaintiffs’
motion.

The

court

will

therefore

permit

the

legislators

to

intervene, and the intervenors will be subject to the same schedule
as the original Defendants.

Similarly, Plaintiffs contend that

the proposed intervenors should not be permitted to file an answer
asserting

counterclaims

for

declaratory

relief

because,

they

argue, the legislators lack standing to bring their own claims
and, in any event, such claims are merely duplicative as a “mirror
image of Plaintiffs’ claims in this action.”

(Id. at 3–5.)

These

issues have not been fully briefed, and the court declines to
7

address them at this time. The court will consider any appropriate
subsequent motions if and when they are presented.
III. CONCLUSION
IT IS THEREFORE ORDERED that the proposed intervenors’ motion
to intervene (Doc. 33) is GRANTED.

/s/
Thomas D. Schroeder
United States District Judge
June 6, 2016

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