DE LA FUENTE v. STATE OF NORTH CAROLINA et al

Filing 19

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 10/11/2016, for the reasons stated, the court finds that De La Fuente has not met his burden of demonstrating that he has standing to bring his claim and that this court therefore lacks juris diction over the subject matter of this action, that Defendants' motion to dismiss (Doc. 11 ) is GRANTED and that this action is DISMISSED WITH PREJUDICE. FURTHER ORDERED that De La Fuente's requests for leave to amend his complaint (Doc. 15 at 5-6, 8), even if construed as a proper motion, are DENIED. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROQUE "ROCKY" DE LA FUENTE,
Plaintiff,
v.
STATE OF NORTH CAROLINA;
RHONDA K. AMOROSO, in her
official capacity as Secretary
of the North Carolina State
Board of Elections; and DOES
1-20 inclusive,
Defendants.

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1:16-cv-470

MEMORANDUM ORDER
Before the court is Defendants’ motion to dismiss Plaintiff
Roque (a/k/a Rocky) De la Fuente’s amended complaint seeking
placement of his name as a candidate for President on North
Carolina’s ballot for the November 2016 general election.
11.)

The motion is briefed and ready for decision.

(Doc.

For the

reasons set forth below, the motion will be granted and the action
dismissed.
I.

BACKGROUND
Plaintiff

De

La

Fuente

contends

he

is

a

candidate

for

President of the United States and seeks to be listed on North
Carolina’s ballot for the 2016 presidential election.

(Doc. 5 at

1.) 1

He previously appeared on North Carolina’s 2016 primary

ballot as a Democratic candidate for President and lost.
at 3-4.)

(Doc. 15

By his own admission (Doc. 5 at 1; Doc. 15 at 3-4, 7–

8), he has failed to meet North Carolina’s statutory requirements
to appear on the general election ballot by failing to garner the
required number of signatures on a petition to the State and by
failing to submit such a petition before the statutory deadline.
See N.C. Gen. Stat. § 163-122(a)(1).
court

to

declare

these

provisions

De La Fuente now asks this
unconstitutional,

which

he

contends will then permit his name to be placed on the November
ballot.
It is clear, however, that including De La Fuente on the
ballot would violate North Carolina’s “sore loser” statute, which
prevents a candidate who lost a primary contest from running as an
unaffiliated candidate for the same office in the same year.
id. § 163-122(a).

See

Consequently, the court concludes that it lacks

subject matter jurisdiction over this action because De La Fuente
lacks standing. 2

Defendants’ motion will therefore be granted.

1

De La Fuente is apparently also a candidate for U.S. Senate in the
State of Florida as a member of the Democratic Party. (Doc. 12 at 3,
9.)

2

The State of North Carolina also seeks dismissal on the grounds that
it is immune from suit under the Eleventh Amendment. De La Fuente does
not contest this ground (Doc. 15 at 5), and the action against the State
is dismissed on that ground as well. Defendants further argue that the
amended complaint should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Although the court does not need to reach this

2

II.

ANALYSIS
Confronted with a motion to dismiss under Federal Rule of

Civil

Procedure

12(b)(1),

De

La

Fuente

bears

the

burden

of

establishing his standing to bring his claim; that is, injury in
fact; causation; and redressability.

White Tail Park, Inc. v.

Stroube, 413 F.3d 451, 458-59 (4th Cir. 2005).

Because standing

is “an indispensable part of the plaintiff’s case,” De La Fuente
must support each element “in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages of
litigation.”

Id. at 459 (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 561 (1992)).
allegations
suffice.”

of

injury

At the pleading stage, “general factual
resulting

from

defendant’s

Id. (quoting Lujan, 504 U.S. at 561).

conduct

may

In deciding a

motion to dismiss under Rule 12(b)(1), this court may consider
evidence

outside

the

pleadings.

Id.

(citing

Richmond,

argument, it is noteworthy that the Fourth Circuit has rejected similar
constitutional challenges to North Carolina’s signature requirements,
see McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1226 (4th Cir.
1995) (upholding North Carolina’s signature requirement for new parties,
which is identical to the requirement for unaffiliated candidates);
Greene v. Bartlett, No. 10-2068, 2011 WL 4842634, at *1 (4th Cir. Oct.
13, 2011) (concluding that Ҥ 163-122(a)(2) does not run afoul of either
the First Amendment or the Equal Protection Clause”), and petition
deadlines, Pisano v. Strach, 743 F.3d 927 (4th Cir. 2014) (upholding
North Carolina’s petition deadline for new parties, which is earlier
than the deadline for unaffiliated candidates). Because the court is
dismissing De La Fuente’s claims on the grounds set forth, it need not
reach any of these additional grounds raised by Defendants.

3

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991)).
De La Fuente lacks standing to bring his claim because he
fails to demonstrate that a favorable decision would be likely to
redress his alleged injuries.

See Lujan, 504 U.S. at 561.

In

particular, even if this court held unconstitutional the portions
of

§ 162-122(a)(1)

he

challenges,

De

La

Fuente

would

not

be

included on North Carolina’s presidential ballot because he is not
a member of a registered political party and, because he lost in
the primary on the Democratic ticket, fails to comply with North
Carolina’s sore loser statute.
Like many other States, North Carolina has a sore loser
statute, N.C. Gen. Stat. § 163-122(a), that prevents a candidate
who previously ran but lost in a primary contest from running as
an unaffiliated candidate for the same office in the same year.
De La Fuente does not challenge this provision or seek leave to
amend his complaint to do so. 3
Instead, De La Fuente offers new information that the Reform
Party nominated him as its presidential candidate on August 9,
2016, and contends that since he is the Reform Party’s nominee, he
is not an “unaffiliated” candidate and thus falls outside § 163-

3

The Supreme Court and Fourth Circuit have upheld similar statutes. See
Storer v. Brown, 415 U.S. 724, 736 (1974); Backus v. Spears, 677 F.2d
397, 399 (4th Cir. 1982) (referring to a post-Storer challenge to South
Carolina’s sore loser statute as “frivolous”).

4

122(a)’s scope.

(Doc. 15 at 7–8.)

Of course, if this were true,

his challenges to § 163-122(a)’s other provisions would be moot,
since those provisions apply only to unaffiliated candidates.
Regardless, the Reform Party does not qualify as a political party
for

North

Carolina

election

law

purposes.

As

Defendants

demonstrate (Doc. 16-1), the Reform Party has not satisfied North
Carolina’s requirements to become a new political party.
Gen. Stat. § 163-96.

See N.C.

As such, De La Fuente remains unaffiliated

and, consistent with the rest of his claims, is subject to § 163122(a).
Therefore, even if this court ruled in De La Fuente’s favor
and declared unconstitutional the challenged provisions of § 163122(a)(1), North Carolina’s sore loser statute would prevent his
inclusion on the ballot.

Thus, De La Fuente has failed to

demonstrate that a favorable decision could redress his alleged
injuries, and his claims fail for lack of standing.

Accord Fuente

v. Illinois, No. 16-cv-06984, 2016 WL 5720349 (N.D. Ill. Oct. 3,
2016) (dismissing a similar complaint for lack of standing based
on Illinois’s sore loser statute).
In his opposition to the motion to dismiss, De La Fuente
argues that he should be given leave to amend his complaint again
to name the remaining members of the State Board of Elections as
well as its executive director and to include information about De
La Fuente’s nomination from the Reform Party.
5

(Doc. 15 at 5-8.)

While courts should give leave freely “when justice so requires,”
Fed. R. Civ. P. 15(a), they may deny it as futile “when the proposed
amendment is clearly insufficient or frivolous on its face.” Anand
v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 200 (4th Cir. 2014)
(quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.
1986)).

Here, De La Fuente has not filed a formal motion for leave

to amend, nor has he attached a copy of a proposed amended
complaint required by this court’s local rules.

See L.R. 15.1.

But there is no need to put De La Fuente to this extra burden
because none of the proposed amendments saves his claims.

The

additional parties will not cure the redressability problem, and
the Reform Party information sought to be added, if taken as true
(as it has been here), would not lead to a different outcome for
the reasons noted.

The proposed amendment would therefore be

futile and would be denied.
III. CONCLUSION
For the reasons stated, the court finds that De La Fuente has
not met his burden of demonstrating that he has standing to bring
his claim and that this court therefore lacks jurisdiction over
the subject matter of this action.
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss
(Doc. 11) is GRANTED and that this action is DISMISSED WITH
PREJUDICE.

6

IT IS FURTHER ORDERED that De La Fuente’s requests for leave
to amend his complaint (Doc. 15 at 5-6, 8), even if construed as
a proper motion, are DENIED.

/s/
Thomas D. Schroeder
United States District Judge
October 11, 2016

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