NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al v. THE NORTH CAROLINA STATE BOARD OF ELECTIONS, et al

Filing 77

MEMORANDUM OPINION AND ORDER. Signed by JUDGE LORETTA C. BIGGS on 9/26/2017, that the Cumberland Defendants' Motion to Dismiss, (ECF No. 59 ), is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that any claims made b y Individual Plaintiffs and the Moore NAACP against Cumberland Defendants are DISMISSED; and the motion is DENIED as to all other claims. The Moore Defendants' Motion to Dismiss Complaint, (ECF No. 61 ), is GRANTED IN PART AND DENIED IN PART . The motion is GRANTED to the extent that any claims made against the Moore Defendants by Individual Plaintiffs Arthur, Hardison and Cox are DISMISSED; and the motion is DENIED as to all other claims. The Beaufort Defendants' Motion to Dismiss, (ECF No. 56 ), is DENIED in its entirety.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA STATE CONFERENCE
OF THE NAACP, MOORE COUNTY BRANCH
OF THE NAACP, JAMES EDWARD ARTHUR,
SR., JAMES MICHAEL BROWER, GRACE
BELL HARDISON, and JAMES L. COX,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
)
THE NORTH CAROLINA STATE BOARD
)
1 A. GRANT WHITNEY,
OF ELECTIONS,
)
JR., in his official capacity as
)
Chairman of the State Board of
)
Elections, RHONDA K. AMOROSO, in
)
her official capacity as Secretary )
of the State Board of Elections,
)
KIM WESTBROOK STRACH, in her
)
official capacity as Executive
)
Director of the State Board of
)
Elections, JOSHUA D. MALCOLM in his )
official capacity as Member of the )
State Board of Elections, JAMES
)
BAKER, in his official capacity as )
Member of the State Board of
)
Elections, MAJA KRICKER, in her
)
Official capacity as Member of the )
State Board of Elections, et al.,
)
)
Defendants.
)

1:16cv1274

MEMORANDUM OPINION AND ORDER

While this action remained pending, the North Carolina General Assembly
enacted legislation that creates a “Bipartisan State Board of Elections and
Ethics Enforcement” to assume the functions of the North Carolina State Board
of Elections.
S. 68, 2017 Gen. Assemb., Reg. Sess. (N.C. 2017).
No board
members have been appointed to oversee this new agency, as litigation concerning
this legislative enactment remains pending before the North Carolina Supreme
Court. See Cooper v. Berger, 801 S.E.2d 637 (N.C. 2017) (mem.). Accordingly,
this Court will not order the substitution of any parties pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure at this time.
1

Loretta C. Biggs, District Judge.
Before the Court are three motions to dismiss Plaintiffs’
Complaint.

The first is brought by the Beaufort County Board of

Elections, its
Board,

each

Chairman, Secretary, Director, and a Member of the

named

in

their

official

capacities

(collectively

“Beaufort Defendants”), (ECF No. 56); the second by the Cumberland
County Board of Elections, its Chairperson, Secretary, Director,
and a Member of the Board, each named in their official capacities
(collectively “Cumberland Defendants”), (ECF No. 59); and the
third by the Moore County Board of Elections, its

Chairman,

Secretary, Director, and a Member of the Board, each named in their
official capacities (collectively “Moore Defendants”), (ECF No.
61).

Each county’s motion is brought pursuant to Federal Rule of

Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction.
For the reasons that follow, the Cumberland and Moore Defendants’
motions are granted in part and denied in part; and the Beaufort
Defendants’ motion is denied in its entirety.
I.

BACKGROUND
Plaintiffs, the North Carolina State Conference of the NAACP

and

the

Moore

County

Branch

of

the

NAACP

(collectively

“Organizational Plaintiffs”), as well as James E. Arthur, Sr.,
James M. Brower, Grace B. Hardison, and James L. Cox (collectively
“Individual

Plaintiffs”),

commenced

this

action

seeking

declaratory and injunctive relief, alleging violations of Section

2

8 of the National Voter Registration Act, (the “NVRA”), 52 U.S.C.
§ 20507(a), the Voting Rights Act, 52 U.S.C. § 10301, and the Equal
Protection Clause of the Fourteenth Amendment.
79.)

(ECF No. 1 ¶¶ 5,

The Complaint alleges that the Beaufort, Cumberland, and

Moore

Defendants,

(collectively

“County

Boards”),

cancelled

thousands of voter registrations based on a single mailing sent to
each of the voters, which was returned as undeliverable.
3.)

(Id. ¶

Further, Plaintiffs allege that “[i]n many cases, voters

purged by [the County Boards] still reside at the addresses where
they are registered to vote, or have moved within the county and
remain eligible to vote there.”

(Id.)

On October 31, 2016, Plaintiffs filed an Amended Application
for Temporary Restraining Order, (ECF No. 21), requesting that
this

Court

cancelling

enjoin
the

Defendants

registration

from,
of

among

voters

other

through

things:
the

“(1)

challenge

procedure set forth in N.C.G.S. § 163-85 and § 163-86, when those
challenges are based on change of residency and the State has
neither received written confirmation from the voter of a change
in residence outside of the county, nor complied with the NVRA’s
notice requirement and two-election cycle waiting period; (2) using
the challenge procedure set forth in N.C.G.S. § 163-85 and § 16386 to remove voters from the rolls based on change of residency
information in the 90 days preceding a federal election; and (3)
holding hearings or taking any other actions to process challenges

3

filed under those provisions in the circumstances identified.”
(ECF No. 21-1 at 31.)

This Court held a hearing on Plaintiffs’

request on November 2, 2016.
On November 4, 2016, this Court entered a Memorandum Opinion,
(ECF No. 42), concluding that Defendants’ actions as alleged by
Plaintiffs had likely violated the NVRA (ECF No. 42 at 21),2 and
simultaneously entered a Preliminary Injunction,3 (ECF No. 43).
The injunction ordered, among other things, that (1) Defendants
shall “restore the voter registrations that were canceled during
the 90-day period preceding the November 8, 2016” general election
“through application of the challenge procedure set forth in N.C.
Gen. Stat. §§ 163-85 and 163-86, and . . . ensure that those voters
are able to vote” in that election; (2) Defendants were “enjoined
and restrained from canceling the registration of voters through
the challenge procedures set forth in N.C. Gen. Stat. §§ 163-85
and 163-86” when officials had not complied with the NVRA; and (3)
“Defendant Strach shall take all reasonable and necessary steps to

Only the alleged NVRA violations were the subject of Plaintiffs’ request for
a temporary restraining order. (ECF No. 21-1 at 17–27.)
2

Plaintiffs moved for a temporary restraining order, however the Court
“treat[ed] the motion as a request for a preliminary injunction” because
opposing parties had notice of the Plaintiffs’ motion and had the opportunity
to be present and present evidence at the hearing on the motion.
Planned
Parenthood of Wis., Inc. v. Van Hollen, 963 F. Supp. 2d 858, 864–65 (W.D. Wis.
2013); see U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 284 (4th
Cir. 2006) (concluding that the defendant “had a fair opportunity to oppose the
injunction and that the district court did not abuse its discretion in electing
to enter a preliminary injunction in lieu of a TRO”).
3

4

ensure statewide compliance with the NVRA consistent” with the
Court’s Opinion.

(ECF No. 43 at 3–5 (emphasis omitted).)

The County Boards’ motions to dismiss were filed on January
26, 2017.

(ECF Nos. 56, 59, 61.)

The Cumberland and Moore

Defendants argue that Plaintiffs lack standing in each of their
respective motions; while in all three motions, the County Boards
each contend that Plaintiffs’ claims are now moot.
at 10–17; 60 at 4–19; 62 at 6–19.)

(ECF Nos. 57

In addition to Plaintiffs

filing a Consolidated Opposition to County Defendants’ Motions to
Dismiss, (ECF No. 69), Defendant the North Carolina State Board of
Elections,

its

Chairman,

Secretary,

Executive

Director,

and

Members of the Board, each named in their official capacities
(collectively “State Defendants”), filed an Opposition to Motions
to Dismiss by County Defendants, (ECF No. 65).
II.

LEGAL STANDARD
A motion under Rule 12(b)(1), which governs dismissals for

lack

of

subject-matter

jurisdiction,

raises

the

question

of

“whether [the plaintiff] has a right to be in the district court
at all and whether the court has the power to hear and dispose of
[the] claim.”

Holloway v. Pagan River Dockside Seafood, Inc., 669

F.3d 448, 452 (4th Cir. 2012). The burden of establishing subjectmatter jurisdiction is on the plaintiff.
Co., 166 F.3d 642, 647 (4th Cir. 1999).

Evans v. B.F. Perkins
At the pleading stage, a

plaintiff can survive a motion to dismiss while asserting only

5

“general

factual

allegations

of

injury

resulting

from

the

defendant’s conduct” because at this stage of a case, courts
“presume that general allegations embrace those specific facts
that are necessary to support the claim.”

Beck v. McDonald, 848

F.3d 262, 270 (4th Cir.), cert. denied, 137 S. Ct. 2307 (2017)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
When, as here, a defendant brings a factual challenge to the
court’s subject-matter jurisdiction, “the defendant argues ‘that
the jurisdictional allegations of the complaint [are] not true,’
providing the [district] court the discretion to ‘go beyond the
allegations

of

the

complaint.’”

Id.

(first

alteration

in

original). The court should grant the motion “only if the material
jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.”

Evans, 166 F.3d at 647.

III. DISCUSSION
The County Boards’ arguments in support of their motions to
dismiss for lack of subject-matter jurisdiction are grounded in
Article III’s case-or-controversy requirement.

Article III of the

Constitution “limits the jurisdiction of federal courts to ‘Cases’
and ‘Controversies,’” Beck, 848 F.3d at 269 (quoting U.S. Const.
art. III, § 2), and the doctrines of standing and mootness derive
from that limitation, White Tail Park, Inc. v. Stroube, 413 F.3d
451, 458 (4th Cir. 2005).
focused

on

whether

the

The standing determination “remains
party

invoking

6

jurisdiction

had

the

requisite stake in the outcome when the suit was filed.”
FEC, 554 U.S. 724, 734 (2008).

Davis v.

In contrast, “[a] case becomes

moot . . . ‘when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’”
Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013).
A.

Standing

Standing ensures that a plaintiff has “a personal stake in
the outcome of the controversy” that is sufficient to warrant the
“invocation of federal-court jurisdiction.”
Island Inst., 555 U.S. 488, 493 (2009).
standing

at

the

motion

to

dismiss

Summers v. Earth

To establish Article III

stage,

“a

plaintiff

must

plausibly allege that: ‘(1) it has suffered an injury in fact that
is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.’”

Liberty Univ., Inc. v. Lew, 733 F.3d

72, 89 (4th Cir. 2013) (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000)).

When

a plaintiff seeks redress for a prospective harm, the plaintiff
can demonstrate that an alleged injury is sufficiently imminent
for standing purposes by showing that the harm is “certainly
impending” or that the plaintiff faces a “substantial risk” of its
occurrence.

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

7

2341 (2014).

The requirement that a plaintiff have standing to

sue applies to both individuals and organizations.
Park, Inc., 413 F.3d at 458.

White Tail

An organization can demonstrate

standing to sue in two ways: on its own behalf (organizational
standing) or on behalf of its members (representational standing).4
See id.
A plaintiff can establish organizational standing “when it
seeks redress for an injury suffered by the organization itself.”
Id. An injury is cognizable, for organizational standing purposes,
when the plaintiff alleges that “a defendant’s practices have
hampered

an

organization’s

stated

objectives

organization to divert its resources as a result.”

causing

the

Action NC v.

Strach, 216 F. Supp. 3d 597, 616 (M.D.N.C. 2016) (citing Havens
Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
A plaintiff can establish “representational standing” to sue
on its members’ behalf when “(1) its own members would have
standing

to

sue

in

their

own

right;

(2)

the

interests

the

organization seeks to protect are germane to the organization’s
purpose; and (3) neither the claim nor the relief sought requires

Consistent with a recent discussion of the Fourth Circuit, this Court will
refer to the theory of standing doctrine where an organization seeks to
establish standing on the basis of injuries suffered by its members as
“representational standing.” See S. Walk at Broadlands Homeowner’s Ass’n, Inc.
v. OpenBand at Broadlands, LLC, 713 F.3d 175, 183–85 (4th Cir. 2013). In other
cases, representational standing is termed “associational standing.” See, e.g.,
Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Landsdowne, LLC,
713 F.3d 187, 198 n.6 (4th Cir. 2013); White Tail Park, 413 F.3d at 458.
4

8

the participation of individual members in the lawsuit.”

S. Walk

at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 184 (4th Cir. 2013).

Applying Supreme Court

precedent, the Fourth Circuit has held that the first requirement
of representational standing—demonstrating that an organization’s
members would have standing to sue in their own right—requires an
organization to “make specific allegations establishing that at
least one identified member had suffered or would suffer harm.”
Id. (quoting Summers, 555 U.S. at 498).
Only

the

Cumberland

and

Moore

Defendants

challenge

Court’s subject-matter jurisdiction on standing grounds.

this

(ECF No.

60 at 4-15; ECF No. 62 at 15–19.)
1. Cumberland Defendants
The Cumberland Defendants make three arguments in support of
their contention that Plaintiffs lack standing to bring any claim
against the Cumberland Defendants.

The Cumberland Defendants

argue that (1) Plaintiffs lack standing to sue the individual
Cumberland County officials who are being sued in their official
capacities on the ground that the challenged actions can only be
taken by county boards of elections, and not by individual members
of those boards, (ECF No. 60 at 14–15); (2) no Individual Plaintiff
has an injury that is fairly traceable to the conduct of the
Cumberland Defendants because “each individual plaintiff could
only have been subject to the conduct of the Board of Elections in

9

the county in which the individual plaintiff was registered,” (id.
at 6–7); and (3) the Organizational Plaintiffs have not pled
sufficient

allegations

to

establish

standing

arising

from

cognizable harm suffered by the organizations themselves or a
specific, identified member, (id. at 7–14).
The Cumberland Defendants’ first two arguments require very
little discussion.

As to the first contention that Plaintiffs

lack standing to sue individual county officials in their official
capacities, the Cumberland Defendants cite no legal authority to
support this argument and this Court finds none.

“[O]fficial-

capacity suits ‘generally represent only another way of pleading
an action against an entity of which an officer is an agent.’”
Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000) (quoting Kentucky
v. Graham, 473 U.S. 159, 165 (1985)).

“As long as the government

entity [involved] receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity.” Graham, 473 U.S. at 166.
Consequently, this first argument fails.
Defendants’

second

argument—that

As to the Cumberland

Individual

Plaintiffs

lack

standing to bring claims against them since no Individual Plaintiff
alleges that he or she was a registered voter in Cumberland County—
Plaintiffs do not dispute the Cumberland Defendants’ contention.
(See

generally

ECF

No.

69.)

Therefore,

to

the

extent

that

Individual Plaintiffs Arthur, Brower, Hardison, and Cox, assert

10

claims against Cumberland Defendants, the Cumberland Defendants’
motion is allowed.
The

Cumberland

Defendants’

third

argument

requires

an

examination of the allegations in the Complaint in greater detail.
The

Cumberland

Defendants

Organizational

Plaintiff

challenge
on

the

both

standing

of

each

organizational

and

representational standing grounds. (ECF No. 60 at 7–14.) However,
these Plaintiffs do not contest that the Moore NAACP has standing
to sue the Cumberland Defendants.

Plaintiffs do argue, however,

that the North Carolina NAACP has representational standing to
bring

claims

arising

from

the

harm

to

its

members

organizational standing to bring claims on its own behalf.
No. 69 at 23–29.)

and
(ECF

The Court will therefore only examine whether

the North Carolina NAACP has standing to assert claims against the
Cumberland Defendants.
The North Carolina NAACP disputes the Cumberland Defendants’
contention that its representational standing claim fails because
the North Carolina NAACP cannot identify one specific member whose
voter registration was purged.

(ECF No. 69 at 25–29.)

Plaintiffs

argue that they have specifically identified one member, Mr.
Brower, who was injured by Defendants’ challenged conduct.
at 25.)

(Id.

However, Plaintiffs do not contend that Mr. Brower’s

injury resulted from, or is traceable to, the challenged conduct
of

the

Cumberland

Defendants.

Rather,

11

Plaintiffs’

Complaint

alleges that all of Mr. Brower’s injuries result from the conduct
of the Moore Defendants.

(ECF No. 1 ¶ 13.)

Therefore, the North

Carolina NAACP cannot rely on Mr. Brower’s injuries to establish
representational standing to sue the Cumberland Defendants.
The North Carolina NAACP next argues, in the alternative,
that

it

can

establish

representational

standing

to

sue

the

Cumberland Defendants on the ground that all of its members are
likely to be harmed.

(ECF No. 69 at 27.)

Specifically, Plaintiffs

contend that the North Carolina NAACP “has plausibly alleged that
all of its members are likely to suffer future harm if Defendants’
unlawful

conduct

is

not

enjoined,

and

that

allegation

independently sufficient for [representational] standing.”

is

(Id.)

There is a “limited exception” to the identification requirement,
which applies

only

when “all members of an

organization are

harmed.” S. Walk, 713 F.3d at 184 (citing Summers, 555 U.S. at
499); however, the evidence in this case does not support the
application of this exception here.
To demonstrate the limited nature of this exception, the
Supreme Court, in Summers v. Earth Island Institute, cited NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), as an example
of a case where an organization could demonstrate that all of its
members would be harmed by challenged activity.
U.S. at 499.

See Summers, 555

In NAACP v. Alabama, the national NAACP petitioned

for certiorari to review a contempt order issued against it by an

12

Alabama state court.

NAACP v. Alabama, 357 U.S. at 454.

The

Alabama court issued the contempt order because the NAACP refused
to comply with an earlier order, which required the NAACP to
produce membership lists “containing the names and addresses of
all Alabama ‘members’ and agents’ of the [NAACP].”
(emphasis added).

Id. at 453–54

The challenged activity in that case, i.e. the

Alabama court order requiring the production of records containing
the names and addresses of all of the NAACP’s Alabama members,
thus affected all of the national NAACP’s members in that state.
See id.

In this case, by contrast, while the record suggests that

a small number of individuals are availing themselves of N.C. Gen.
Stat. §163-855 to bring en masse challenges to large numbers of
voters, (see ECF No. 1 ¶ 47), there is no evidence that suggests
that all of the members of the North Carolina NAACP—or even all of
its members in Cumberland County—have been or will be affected by

The legislative enactment that creates the earlier discussed “Bipartisan State
Board of Elections and Ethics Enforcement” also directs the North Carolina
Revisor of Statutes to recodify Chapter 163 of the North Carolina General
Statutes into a new chapter of the general statutes. S. 68, 2017 Gen. Assemb.,
Reg. Sess. (N.C. 2017).
The Court will discuss statutes affected by this
recodification as if they remain located within Chapter 163, as it appears that
the recodification has not yet been completed, while litigation concerning the
underlying legislative enactment remains ongoing. See Cooper v. Berger, 801
S.E.2d 637 (N.C. 2017) (mem.).
5

13

the

challenged

activity

of

the

Cumberland

Defendants.

6

Accordingly, the Court concludes that Plaintiff North Carolina
NAACP has failed to demonstrate representational standing to sue
the Cumberland Defendants.7
However, the North Carolina NAACP’s inability to establish
representational standing is not fatal to its claims because it
can satisfy the requirements of organizational standing.

As

earlier stated, an organization can establish standing to sue “on
its own behalf when it seeks redress for an injury suffered by the
organization itself.”

White Tail Park, 413 F.3d at 458.

The North

Carolina NAACP alleges that it “has been forced to divert its
valuable and limited resources away from its core mission and
planned voter-mobilization, voter-protection, and voter-education

Plaintiffs cite four cases from outside of the Fourth Circuit to support their
contention that the alleged statistical likelihood that all of the North
Carolina NAACP’s members will be harmed in the future is sufficient to establish
standing, independently of the requirement that it identify a specific member
who will be harmed. (ECF No. 69 at 27–28 (first citing Arcia v. Fla. Sec’y of
State, 772 F.3d 1335 (11th Cir. 2014); then citing Fla. State Conference of the
NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008); then citing Nat’l Council of
La Raza v. Cegavske, 800 F.3d 1032 (9th Cir. 2015); and then citing Sandusky
Cty. Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004)). The Supreme
Court, however, has rejected this approach. See Summers, 555 U.S. at 497–99
(“The dissent proposes a hitherto unheard-of test for organizational standing
[herein referred to as “representational standing”]: whether . . . there is a
statistical probability that some of those members are threatened with concrete
injury. . . . This requirement of naming the affected members has never been
dispensed with in light of statistical probabilities, but only where all the
members of the organization are affected by the challenged activity.”).
6

While this Court in its Memorandum Opinion in support of its Preliminary
Injunction concluded that “the NAACP has . . . sufficiently pled associational
standing [herein referred to as “representational standing”] on behalf of its
members,” (ECF No. 42 at 23 n.15), the Court has concluded upon closer
examination here that the North Carolina NAACP has not established
representational standing as to the Cumberland Defendants.
7

14

activities . . . in order to investigate, respond to, mitigate,
and address the concerns of its members resulting from Defendants’
unlawful en masse voter challenge and purging practices.”
No. 1 ¶ 89.)

(ECF

The North Carolina NAACP has, therefore, established

a cognizable injury by alleging that Defendants’ “practices have
hampered

[its]

stated

objectives

causing

[it]

to

divert

its

resources as a result,” see Action NC, 216 F. Supp. 3d at 616.
Further, the North Carolina NAACP has not only plausibly
alleged but has also provided evidence to show that these injuries
are fairly traceable to the conduct of the Cumberland Defendants.
(See ECF No. 69 at 20–21.)

Specifically, Plaintiffs point out

that North Carolina NAACP President Rev. Dr. William J. Barber II
sent multiple letters to the State Board concerning the conduct of
the Cumberland Defendants.

(ECF No. 5 ¶¶ 16, 19.)

Plaintiffs

also assert that other staff members and volunteers communicated
with NAACP members, including some from Cumberland County, who
were concerned that their voter registrations might be challenged
or purged.

(ECF No. 69 at 21.)

In addition, Plaintiffs contend

that after learning of the conduct of the Cumberland Defendants,
the North Carolina NAACP began an investigation that “included
interviews,

reviews

of

publicly

available

information,

and

requests for further information from individuals with first-hand
knowledge of the challenges.”

(Id. at 20.)

15

The Court, therefore,

concludes that the North Carolina NAACP has standing to pursue its
claims against the Cumberland Defendants.
The Court is not persuaded by the Cumberland Defendants’
arguments

that

the

North

organizational standing.
the

many

of

the

“conclusory.”
concludes

North

Carolina

NAACP

the

establish

The Cumberland Defendants contend that
Carolina

NAACP’s

allegations

(ECF No. 60 at 9, 10, 13.)

that

cannot

North

Carolina

NAACP

are

too

However, the Court
has

satisfied

the

requirements of standing doctrine on the basis of the factual
allegations

and

evidence

discussed

above.

The

Cumberland

Defendants also argue that the North Carolina NAACP’s diversion of
resources is too insubstantial to establish a cognizable injury.
(ECF No. 60 at 11–12.)

However, the Cumberland Defendants cite no

case to support this argument, while a number of courts have
concluded that resource diversions similar to the North Carolina
NAACP’s were sufficient to establish cognizable injuries.

E.g.,

Arcia, 772 F.3d at 1341–42 (finding a cognizable injury where an
“organization expended resources to locate and assist the members
to ensure that they were able to vote”); Nnebe v. Daus, 644 F.3d
147, 156–57 (2d Cir. 2011) (finding a cognizable injury where an
organization “expended resources to assist its members . . . by
providing initial counseling,” explaining rules, and helping them
finding attorneys); Fair Emp’t Council of Greater Wash., Inc. v.
BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (concluding

16

a cognizable injury was established where the challenged conduct
“might increase the number of people in need” of the organization’s
services).

The Cumberland Defendants finally argue that the North

Carolina NAACP’s injuries are not particularized.
10–11.)

(ECF No. 60 at

The Cumberland Defendants cite no case to support this

argument and the Court concludes that it lacks merit.
2. The Moore Defendants
The Moore Defendants contend that the Individual Plaintiffs
lack standing to bring claims against them because none of the
Individual

Plaintiffs

alleged

a

cognizable

fairly traceable to the Moore Defendants.
Specifically, they

injuries

that

are

(ECF No. 62 at 17–18.)

argue that Mr. Brower is the only Individual

Plaintiff in this case that has a connection to Moore County; and
that Mr. Brower never suffered a cognizable injury since the
challenge to his voter registration status was dismissed and he
was therefore never removed from the voter rolls.8
18.)

(Id. at 17–

Plaintiffs contend that Mr. Brower “suffered an injury-in

fact fairly traceable to the unlawful conduct of Moore County
Defendants, and thus he has standing.”

(ECF No. 69 at 30.)

Plaintiffs also argue that “a voter need not actually have been

The Moore Defendants also argue that “[t]he NVRA does not prohibit voter
challenges,” (ECF No. 62 at 18); however, the question of whether the NVRA
prohibits voter challenges pertains to the merits of the case and not to the
standing inquiry. See Cooksey v. Futrell, 721 F.3d 226, 239 (4th Cir. 2013)
(“[F]or purposes of standing, we must assume the Plaintiffs’ claim has legal
validity.”).
8

17

purged from the rolls or prevented from voting” to satisfy the
injury-in-fact requirement.

(Id. at 25.)

This Court agrees with Plaintiffs’ argument that Mr. Brower
did not need to be “purged from the rolls or prevented from voting”
to demonstrate injury, (see id.).

See Charles H. Wesley Educ.

Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (“A
plaintiff need not have the franchise wholly denied to suffer
injury.”).

Further, in addition to alleging that Mr. Brower was

harmed when his right to remain registered to vote was challenged
before the 2016 election, Plaintiffs’ Complaint also alleges that
Mr. Brower remained at risk of being harmed by the Defendants in
a

similar

manner

in

future

elections.

(ECF

No.

1

¶

80.)

Specifically, the Complaint states that “Defendants’ practice of
permitting

and

enabling

challengers

to

bring

systematic,

coordinated, en masse challenges to large numbers of registered
voters . . . subject[s] [Plaintiffs] to a real and imminent risk
that they will be unlawfully purged from the voter rolls and
consequently denied their right to vote in the upcoming November
8, 2016 general election, as well as in subsequent elections.”
(Id. ¶¶ 79, 80.)

The Court concludes that Mr. Brower has plausibly

alleged that he suffered a cognizable injury—in the form of his
substantial risk of future harm—that is traceable to the challenged
conduct of the Moore Defendants.
sue the Moore Defendants.

Thus, Mr. Brower has standing to

The Court further concludes, however,

18

that

no

other

Individual

Plaintiff

sufficiently

alleged

any

similar injury resulting from the conduct of the Moore Defendants.9
Therefore, to the extent the Complaint alleges claims brought
against Moore Defendants by Plaintiffs Arthur, Hardison, and Cox,
the Moore Defendants’ motion is allowed.
The Moore Defendants also contend that the North Carolina
NAACP and the Moore NAACP lacked standing to bring their claims.
(ECF

No.

62

at

18–19.)

The

Moore

Defendants

support

this

contention by arguing that the Organizational Plaintiffs did not
“identify any harm to the Plaintiffs”; failed to specifically
identify any of their members who were injured; and pled conclusory
allegations

supported

by

facts

substantiate those allegations.
The

Organizational

that

were

insufficient

to

(Id.)

Plaintiffs

identify

one

specific

individual whose injury results from the challenged conduct of the
Moore Defendants, i.e. Mr. Brower.

(ECF Nos. 1 ¶ 13; 69 at 25.)

As discussed earlier, Mr. Brower has adequately demonstrated that
he has standing to sue the Moore Defendants as an individual.
supra.

See

The Organizational Plaintiffs cannot establish standing on

the basis of Mr. Brower’s injury, however, as the Complaint does
not allege that Mr. Brower was a member of the North Carolina NAACP

Of the four Individual Plaintiffs in this lawsuit, Mr. Brower is the only
resident of Moore County; the three remaining Individual Plaintiffs are
residents of Beaufort County. (ECF No. 1 ¶¶ 12–15.)
The Beaufort Defendants
have not challenged the standing of these residents.
9

19

or the Moore NAACP at the time the Complaint was filed.

See Davis,

554 U.S. at 734 (noting that “the standing inquiry remains focused
on whether the party invoking jurisdiction had the requisite stake
in the outcome when the suit was filed”).

Rather, the Complaint

alleges that “Mr. Brower has been a member of the Moore County
NAACP within the last five years and is currently renewing his
membership.”10

(ECF No. 1 ¶ 13 (emphasis added).)

Consequently,

the Organizational Plaintiffs cannot establish representational
standing against the Moore Defendants on the basis of Mr. Brower’s
injuries because their Complaint does not identify Mr. Brower as
a

member

of

commenced.

either

organization

Further,

the

at

the

Organizational

time

the

litigation

Plaintiffs

cannot

demonstrate that all of their members in Moore County will be
affected by the challenged activity of the Moore Defendants for
the same reasons that the North Carolina NAACP is unable to satisfy
this exception with respect to the conduct of the Cumberland
Defendants.

See supra.

The North Carolina NAACP and the Moore NAACP, however, can
establish organizational standing to sue the Moore Defendants.

In his supplemental declaration, Mr. Brower appears to confirm that he was
not a member of either the North Carolina NAACP or the Moore NAACP at the time
the Complaint was filed.
(See ECF No. 69-2 at 2.)
In pertinent part, Mr.
Brower states that: “I first joined the Moore County Branch of the NAACP and
became a member of the North Carolina NAACP some years ago. When I realized my
membership lapsed recently, I sought to renew my North Carolina NAACP
membership. Sometime in or around January 2017, I submitted my payment and
application to restart my NAACP membership.” (Id.)
10

20

Contrary to the Moore Defendants’ contention, both Organizational
Plaintiffs have asserted that they were harmed in the form of
resource diversion.
already

concluded

(ECF. No 69 at 19–23, 30–31.)
that

the

North

diversion is a cognizable injury.

Carolina

The Court has

NAACP’s

See supra.

resource

Further, this

resource diversion of the North Carolina NAACP is fairly traceable
to the challenged conduct of the Moore Defendants.
19–23.)

Similarly,

the

Moore

NAACP

has

also

(ECF. No 69 at
demonstrated

cognizable injury, in the form of resource diversion, that is
fairly traceable to the conduct of the Moore Defendants.
ECF Nos. 7 ¶ 24; 69 at 31.)

(See

Specifically, the Moore NAACP asserts

that its “staff members spent [time] researching and investigating
the purges, requesting information from . . . and writing letters
to the [Moore County Board of Elections],” in response to the Moore
Defendants’ Conduct.

(ECF Nos. 7 ¶ 24; 69 at 31.)

Further, the

Moore NAACP asserts that this time “would have [been] spent instead
on disseminating information about Early Voting opportunities,
publicizing the Moore County NAACP Branch’s Rides-to-the-Polls
program, and recruiting and training volunteer[s]” for “get-outthe-vote efforts.”

(ECF Nos. 7 ¶ 24; 69 at 31.)

21

Accordingly, the

Court

concludes

that

both

Organizational

Plaintiffs

have

established standing to sue the Moore Defendants.11
B.

Mootness

The Court next turns to the arguments made by the County
Boards that Plaintiffs’ claims against them are moot.
The requirement of Article III that limits the jurisdiction
of federal courts to “cases or controversies” must continue to be
satisfied at all stages of a case.
358, 363 (4th Cir. 2017).

Porter v. Clarke, 852 F.3d

Even when a plaintiff satisfies the

requirements of standing doctrine when litigation commences, a
federal court may cease to have jurisdiction when subsequent events
render a claim moot.

Pashby, 709 F.3d at 316.

Mootness is

sometimes described as “standing set in a time frame,” but as the
Supreme

Court

comprehensive.”

has

explained,

that

description

Laidlaw, 528 U.S. at 190.

“is

not

Exceptions to the

mootness doctrine exist that allow claims to remain live even when
events occur after litigation commences that would deprive a
plaintiff of standing to bring those claims at the outset of a
suit.

See id.

The Court is not persuaded by the Moore Defendants’ contention that
Organizational Plaintiffs pled conclusory allegations supported by facts that
were insufficient to substantiate those allegations. (ECF No. 62 at 18–19.)
The allegations in the Complaint and the evidence before the Court are
sufficiently factual and specific to establish a cognizable injury at this stage
of the proceedings. See Beck, 848 F.3d at 270.
11

22

One

exception

to

mootness

occurs

when

a

defendant’s

challenged conduct is “capable of repetition, yet evading review.”
Id.

Conduct is capable of repetition yet evades review “when ‘(1)

the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration; and (2) there is a
reasonable expectation that the same complaining party will be
subject to the same action again.’”

Lux v. Judd, 651 F.3d 396,

401 (4th Cir. 2011) (quoting FEC v. Wis. Right to Life, Inc., 551
U.S. 449, 462 (2007)).

Claims that challenge conduct related to

the administration of elections satisfy the first of the two
requirements and therefore fall within this exception to mootness
doctrine

“when

‘there

is

a

reasonable

expectation

that

the

challenged provisions will be applied against the plaintiffs again
during future election cycles.’”
A

second

exception

to

Id.

mootness

occurs

when

voluntarily ceases the challenged conduct at issue.

a

defendant
Voluntary

cessation of challenged conduct “does not deprive a federal court
of its power to determine the legality of the practice,” Porter,
852 F.3d at 363 (quoting City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 289 (1982)), because if that were so, courts
would necessarily “permit a resumption of the challenged conduct
as soon as the case is dismissed,” Knox v. Serv. Emps. Int’l Union,
Local 1000, 132 S. Ct. 2277, 2287 (2012).

A party who contends

that a claim is moot on the basis of voluntary cessation “bears

23

the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to
recur.” Porter, 852 F.3d at 364 (quoting Laidlaw, 528 U.S. at 190).
The County Boards make numerous arguments as to why they
believe the claims brought against them by Plaintiffs are moot.
Because these defendants make essentially the same or overlapping
arguments

related

to

mootness,

the

Court

will

address

arguments as those of the County Boards, collectively.

these

While a

number of these arguments have no bearing on the issue of mootness,
the court has consolidated what appear to be the County Boards’
major arguments as follows: (1) all injunctive relief requested
has been granted by the Court, the November 8, 2016 election has
passed and “[t]he only relief left for consideration by the Court
seeks to change an interpretation of North Carolina election laws
which is not within the control of the various County [Boards],”
(ECF No. 62 at 8; see ECF Nos. 56 at 1; 59 at 2–3, 60 at 15–16);
(2) the State Board controls the conduct of the County Boards and
will continue to be a party to the action and subject to any order
issued by the Court and thus the allegedly wrongful conduct by the
County Boards cannot reasonably be expected to recur,

(ECF Nos.

57 at 15; 62 at 7); and (3) the County Boards are not proper
parties to this lawsuit because the State Board controls the

24

interpretation and enforcement of all of North Carolina’s election
laws, (ECF Nos.

57 at 11–14; 62 at 7, 10–15).12

Plaintiffs respond to County Boards’ arguments of mootness
first and foremost by asserting that their claims against the
County Boards remain live.

(ECF. No. 69 at 15–17.)

Specifically,

Plaintiffs argue that: (1) a preliminary injunction does not moot
a complaint for permanent injunctive relief; (2) the County Boards
did not voluntarily cease their offending conduct but instead
“ceased only in response to the preliminary injunction,” which
does not moot the case; and (3) the County Boards are proper
parties

“as

statutes.

the

entities

implementing”

the

voter

challenge

(Id. at 11–12, 15–17.)

The Court begins with the County Boards’ argument that because
all injunctive relief requested by the Plaintiffs has been granted
and

the

November

2016

election

has

passed

that

the

case

or

The County Boards raise additional arguments that the Court finds unpersuasive
and irrelevant to the issue of mootness, including those stating that (a) the
“surviving portion of the Order . . . is mooted as to the counties by a separate
surviving portion of the Order that orders” the State Board “to take all steps
to ensure statewide compliance with the NVRA consistent with the Court’s Order,”
(ECF No. 60 at 16–18); (b) “[P]laintiffs have not alleged any facts that forecast
a reasonable expectation that any of the defendants will violate the orders set
out in the Preliminary Injunction,” (ECF Nos. 60 at 19; 62 at 11); and (c)
Plaintiffs have not alleged “that any of the defendants failed to comply with
the orders directed to the November 8, 2016, general election,” (ECF Nos. 60 at
19; 62 at 11). Mootness addresses whether the claims remain live—not whether
preliminary injunctive relief has been satisfied, complied with, or violated.
Marie v. Mosier, 122 F. Supp. 3d 1085, 1102 (D. Kan. 2015) (“‘Compliance with
the provisions of a preliminary injunction . . . does not render moot
[plaintiffs’] underlying claims’ because ‘if the injunction is dissolved without
a decision on the merits, there is nothing to keep defendants from resuming the
activity that had been restrained by the preliminary injunction.’”).
12

25

controversy that connects the County Boards to this lawsuit is
extinguished.

The County Boards argue that as a result of these

events, “[t]he only relief left for consideration by the Court” is
the Plaintiffs’ request “to change an interpretation of North
Carolina election laws.”

(ECF No. 62 at 8.)

The premise of this

argument—that all injunctive relief requested by the Plaintiffs
has been granted—is simply not correct.

Plaintiffs also seek a

permanent injunction against the County Boards, in addition to
declaratory relief.13

(ECF No. 1 at 38–39.)

In addition, while

the emergency relief provided by the preliminary injunction may,
in large part, have been directed at ensuring that Plaintiffs were
not deprived of their franchise during the then-impending November
2016

election,

neither

Plaintiffs’

alleged

injuries,

nor

the

relief they seek against the County Boards, are limited to that
election only.

Plaintiffs have clearly alleged future harm.

No.

80.)

1

¶¶

79,

Further,

the

Court

only

considered

(ECF
the

Plaintiffs’ NVRA claims at the preliminary injunction stage of
these proceedings; Plaintiffs have also alleged that the conduct
of County Boards violates the Voting Rights Act as well as the
Equal Protection Clause of the Fourteenth Amendment.

(Id. ¶ 79.)

There has been no ruling on the merits of Plaintiffs’ claims. This Court
granted preliminary injunctive relief for the limited purpose of preserving the
status quo so as to prevent irreparable harm during the course of the litigation.
(ECF No. 42 at 22, 28.)
13

26

Accordingly, this argument advanced by County Boards woefully
fails to demonstrate that Plaintiffs’ claims are moot.
Next, the Court will address the County Boards’ argument that
the

allegedly

wrongful

conduct

by

the

County

Boards

cannot

reasonably be expected to recur because the State Board will
continue to be a party to this action and thus subject to any order
issued by the Court; and because the State Board controls the
conduct of the County Boards and can thus direct their compliance.14
To provide some context to this argument, the Court will briefly
summarize the respective roles of the State Board and county boards
of elections in hearing voter challenges as set forth under North
Carolina law.
“When a challenge is made [under N.C. Gen. Stat. § 163-85],
the county board of election shall schedule a preliminary hearing
on the challenge,” and conduct the hearing, including taking
testimony and receiving evidence.

N.C. Gen. Stat. § 163-85(d).

The State delegates authority to the county boards of elections to
decide on each voter challenge, id. § 163-86(c), and that decision
shall be appealed to the state superior court, id. § 163-90.2(d).

County Boards appear to ground this and other arguments in the voluntary
cessation doctrine. The facts of this case could not be clearer that County
Boards ceased the challenged conduct in response to this Court’s Order. The
law is likewise clear, as two of the County Boards acknowledge in their briefs,
that “[a]bating challenged activity pursuant to a court order moots a
plaintiff’s claims only if it is ‘absolutely clear,’ absent the injunction,
that the allegedly wrongful behavior could not reasonably be expected to recur,”
(ECF Nos. 57 at 11; 62 at 10 (quoting Vitek v. Jones, 445 U.S. 480, 487 (1980))
(emphasis added)).
That is not the case here.
Accordingly, the voluntary
cessation doctrine does not apply.
14

27

As a general matter, the State Board retains general supervisory
authority over county boards of elections, the power to appoint
members to those boards, and the power to regulate primary and
general elections in a manner that “do[es] not conflict with any
provisions” of the chapter setting forth the respective duties of
the county and state boards, which includes the statutes that set
forth the voter challenge procedures.
generally id. §§ 163-84–163-90.

Id. § 163-22(a), (c).

See

The State Board’s power also

includes the authority to “compel observance of the requirements
of the election laws by county boards of elections and other
election officers,” id. § 163-22(c), and to promulgate directives
“as it may deem necessary for the guidance of election officers
and voters,” id. § 163-33(1).
The County Boards, while acknowledging that compliance with
a

preliminary

injunction

does

not

ordinarily

moot

underlying

claims, argue that this case is exceptional because not only is
there

a

court

order

that

enjoins

them

from

engaging

in

the

allegedly wrongful conduct, but the presence of the State Board in
the suit ensures that the challenged conduct will not recur.
Nos. 57 at 12; 62 at 11–12.)

(ECF

They contend that the State Board’s

compliance with this Court’s preliminary injunction demonstrates
that the challenged conduct of the County Boards is not reasonably
expected to recur because the State Board can direct the County
Boards to comply with any order issued by this Court.

28

(ECF Nos.

57 at 12–13; 62 at 12.)

This argument is neither compelling, nor

is it relevant to the issue of whether Plaintiffs’ claims are moot.
Moreover, this Court disagrees with the County Boards’ assertion
that the fact that the State Board is also subject to any order
issued by this Court demonstrates that the County Boards would
decline to implement the voter challenge statute in the absence of
an order enjoining them from doing so.

As argued by Plaintiffs,

the failure of the County and State Boards to agree on either the
scope of the Court’s preliminary injunction or the meaning of the
directive issued by the State Board in response, “highlights the
importance of retaining all parties in the litigation.”
69 at 17.)

(ECF No.

The Court agrees.

Next, the Court will discuss the County Boards’ argument that
the claims against them are moot because they are no longer proper
parties to this lawsuit. They argue that plaintiffs can no longer
point

to

any

connection

between

the

implementation of the challenged statute.

County

Boards

and

the

(ECF Nos. 57 at 13–14;

62 at 13–14.)
Contrary to these assertions, the County Boards continue to
be responsible for implementing the voter challenge statutes under
North Carolina law.

As the State Board contends in its brief,

this responsibility falls squarely on the County Boards.
65 at 6–7.)

Further, the State Board

(ECF No.

argues that “the County

[Boards] play a uniquely direct role in challenge proceedings”

29

brought under the pertinent statutes, namely that: (1) decisions
of each County Board regarding voter challenges are appealable,
not to them, but to the state superior court, (id. at 6 (citing
N.C. Gen. Stat. § 163-90.2(d))); (2) “the underlying events on
which Plaintiffs’ claims rely involved actions at the county-level
and hearings held by the County [Boards],” (id.); (3) the voter
challenge statute “specifically task[s] the County [Boards], not
the State BOE, with certain duties,” which include receiving a
challenge, “reviewing a challenge, ensuring compliance with the
statute,

holding

a

preliminary

hearing,

sending

notices,

and

holding a hearing on the challenge,” (id. at 7); and (4) the State
Board “plays no statutory role in these processes,” (id.).

The

Court agrees.
The County Boards rely heavily on two opinions issued by
courts in this state to support their argument that they are no
longer proper parties to this suit, however, the Court finds that
these cases do not support the County Boards’ position.

In both

Republican Party of North Carolina v. Martin, 682 F. Supp. 834
(M.D.N.C. 1988),

and

Brown v. North Carolina State Board of

Elections, 394 F. Supp. 359 (W.D.N.C. 1975), the courts dismissed
county boards of elections from suits where the county boards of
elections

“exercise[d]

virtually

no

discretion

in

the

implementation of state law and act[ed] only in a ministerial
capacity,” Martin, 682 F. Supp. at 835.

30

See Brown, 394 F. Supp.

at 360 (dismissing a suit against a county board of elections
because “the state statute requires that candidates for Congress
file with the State Board of Elections and the County Board has no
authority to accept or reject such applications”).
are simply not applicable here.
[Boards]

processed

evaluated

evidence,

As Plaintiffs argue, the “County

challenges,
and

made

These cases

scheduled
final

and

held

hearings,

determinations

regarding

whether particular individuals would remain registered to vote.”
(ECF No. 69 at 15.)

Further, as detailed above, the County Boards

not only exercise discretion in deciding voter challenges, the
statutes give them both the obligation and authority to implement
the voter challenge process.

See N.C. Gen. Stat. § 163-86(c)

(delegating to county boards of elections the authority to decide
voter challenges).

This can hardly be characterized as acting

“only in a ministerial capacity,” see Martin, 682 F. Supp. at 835.
The

County

Boards

remain

statutorily

responsible

under

North

Carolina law for the implementation of the voter challenge process
that is the subject of this lawsuit and the allegedly wrongful
conduct sought to be abated by Plaintiffs, and they therefore
remain proper parties to this action.
For the reasons outlined above, the County Boards have failed
to establish that Plaintiffs claims against them are moot.

31

CONCLUSION
This Court concludes that the County Boards have failed to
demonstrate that they should be dismissed from this lawsuit or
that Plaintiffs’ claims against them should be dismissed for lack
of standing or mootness, except as outlined in this Opinion.15
Specifically, (a) Cumberland Defendants’ motion to dismiss, (ECF
No. 59), should be allowed based on lack of standing to the extent
that any claims made by Individual Plaintiffs and the Moore County
NAACP are against Cumberland Defendants; and the motion should be
denied as to all other claims; (b) Moore Defendants’ motion to
dismiss, (ECF No. 61), should be allowed based on lack of standing
to the extent any claims are made against them by Individual
Plaintiffs, Arthur, Hardison and Cox; and denied as to all other
claims; and (c) Beaufort Defendants’ motion to dismiss, (ECF No.
56), should be denied in its entirety.
Based on the foregoing, the Court enters the following:
ORDER
IT IS ORDERED as follows:
(a)

that the Cumberland Defendants’ Motion to Dismiss, (ECF

No. 59), is GRANTED IN PART AND DENIED IN PART.

The motion is

GRANTED to the extent that any claims made by Individual Plaintiffs

Because Beaufort Defendants did not challenge the standing of the Individual
Plaintiffs who are residents of Beaufort County, specifically Plaintiffs Arthur,
Hardison and Cox, these Plaintiffs remain in the lawsuit even though the Court
determined that they did not have standing to sue the Cumberland or Moore
Defendants.
15

32

and the Moore NAACP against Cumberland Defendants are DISMISSED;
and the motion is DENIED as to all other claims;
(b)

that the Moore Defendants’ Motion to Dismiss Complaint,

(ECF No. 61), is GRANTED IN PART AND DENIED IN PART.

The motion

is GRANTED to the extent that any claims made against the Moore
Defendants by Individual Plaintiffs Arthur, Hardison and Cox are
DISMISSED; and the motion is DENIED as to all other claims; and
(c)

that the Beaufort Defendants’ Motion to Dismiss, (ECF

No. 56), is DENIED in its entirety.
This, the 26th day of September, 2017.

/s/ Loretta C. Biggs
United District Court Judge

33