FARM LABOR ORGANIZING COMMITTEE et al V. ROY COOPER, ET AL.
Filing
75
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/17/2019, that the Court deny the Reconsideration Motion (Docket Entry 64 ). (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
FARM LABOR ORGANIZING
COMMITTEE, et al.,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
JOSHUA STEIN,
Defendant.
1:17cv1037
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
Magistrate
comes
Judge
for
before
a
the
undersigned
recommendation
on
United
the
States
“Motion
for
Reconsideration by North Carolina Farm Bureau Federation, Inc.”
(Docket Entry 64) (the “Reconsideration Motion”).
For the reasons
that follow, the Court should deny the Reconsideration Motion.
BACKGROUND
I.
Procedural History
Asserting constitutional and statutory violations, the Farm
Labor Organizing Committee (“FLOC”), Victor Toledo Vences, and
Valentin
Alvarado
Hernandez
(collectively,
the
“Plaintiffs”)
initiated this lawsuit against Roy Cooper, in his official capacity
as Governor of the State of North Carolina, and Marion R. Warren,
in
his
official
capacity
as
Director
Administrative Office of the Courts.
of
the
North
Carolina
(See Docket Entry 1 (the
“Complaint”), ¶¶ 1, 2, 7, 8.) The following week, Plaintiffs filed
a
motion
for
preliminary
injunction.
(See
Docket
Entry
7.)
Shortly thereafter, the North Carolina Department of Justice (at
times, the “NC DOJ”) filed notices of appearance on behalf of
Governor Cooper (see Docket Entry 12) and Warren (see Docket Entry
14), after which Governor Cooper and Warren moved to dismiss the
Complaint
(see
Docket
Entries
24,
27)
on
eleventh-amendment
immunity and standing grounds (see Docket Entries 25, 27, 28).
That same day, the North Carolina Farm Bureau Federation, Inc. (the
“Farm Bureau”) filed a motion to intervene as a defendant in this
action (see Docket Entry 21) pursuant to Rule 24 of the Federal
Rules of Civil Procedure (the “Rules”).
Rather than attach a
proposed answer to its intervention motion, the Farm Bureau instead
submitted
a
proposed
motion
to
dismiss
(Docket
Entry
21-1).
(See Docket Entries 21-1 to 21-6.)
Plaintiffs then filed an amended complaint, which replaced
Governor Cooper as a defendant with Joshua Stein, in his official
capacity as Attorney General of the State of North Carolina.
Docket
Entry
31
(the
“Amended
Complaint”),
¶¶
(identifying Stein and Warren as defendants).)
filed
an
amended
preliminary
injunction
7,
8,
(See
12,
13
Plaintiffs also
motion,
seeking
“to
preliminar[ily] enjoin Section 20.5 of the North Carolina General
2
Assembly Session Law 2017-108, SB 615 (‘the Farm Act’ or ‘the
Act’).”
(Docket Entry 34 at 1.)1
In response, the NC DOJ filed a notice of appearance on
Stein’s behalf (see Docket Entry 36),2 Stein and Warren moved to
dismiss the Amended Complaint (Docket Entries 39, 44), and they
opposed Plaintiffs’ preliminary injunction request (see Docket
Entries
41,
injunction
46).
Stein’s
opposition
dismissal
relied
immunity and standing grounds.
on
motion
and
preliminary
eleventh-amendment
sovereign
(See generally Docket Entries 45,
46; see also, e.g., Docket Entry 45 at 7 (summarizing dismissal
argument as follows:
“Plaintiffs’ Amended Complaint should be
dismissed because the Eleventh Amendment bars all the claims
brought against Attorney General Stein in this case, and as a
result, this court lacks jurisdiction over him.
Moreover, the
Amended Complaint should be dismissed because Plaintiffs[] have
failed to demonstrate that they have suffered an injury-in-fact and
that any alleged injuries are traceable to the Attorney General,
and
as
a
result,
lawsuit.”).)
on
the
[Farm
Plaintiffs
lack
standing
to
bring
this
Governor Cooper, Warren, and Stein took “no position
Bureau’s
intervention]
motion,”
but
“Plaintiffs
1 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
2
More specifically, the NC DOJ lawyer who previously
represented Governor Cooper now represents Stein. (Compare Docket
Entry 12 at 1, with Docket Entry 36 at 1.)
3
oppose[d] th[e] motion.”
(Docket Entry 21 at 2; see also Docket
Entries dated Jan. 25, 2018, to present (containing responses to
intervention motion and Reconsideration Motion from Plaintiffs, but
not Governor Cooper, Warren, or Stein).)
Thereafter, the undersigned recommended that the Court dismiss
Warren from the lawsuit, deny Stein’s dismissal motion, deny the
Farm
Bureau’s
preliminary
intervention
injunction
request,
motion.
“Recommendation”) at 79-80.)
and
(See
grant
Docket
Plaintiffs’
Entry
56
(the
In so doing, the Recommendation
concluded:
Plaintiffs possess standing to pursue this action,
but sovereign immunity shields Warren from suit.
Conversely, the Ex parte Young exception applies to
Stein, rendering him a proper defendant. Further, the
Farm Bureau has not shown entitlement to intervention of
right or circumstances warranting permissive intervention
as a defendant in this action. Finally, Plaintiffs have
established entitlement to issuance of an injunction
without posting a bond.
(Id.
at
79.)
Neither
Recommendation.
20, 2018.)
Plaintiffs
nor
Stein
objected
to
the
(See Docket Entries dated Aug. 21, 2018, to Sept.
The Farm Bureau, however, filed objections (see Docket
Entry 59), to which it attached a proposed answer (see Docket Entry
59-1) (the “Answer”).
Plaintiffs responded in opposition to the
Farm Bureau’s objections (see Docket Entry 61), but Stein again
declined to either endorse or oppose the Farm Bureau’s position
(see
Docket
Entries
dated
Sept.
4,
(containing no response from Stein)).
4
2018,
to
Sept.
20,
2018
The Court (per United States District Judge Loretta C. Biggs)
“appropriately reviewed the Magistrate Judge’s Recommendation and
. . . made a de novo determination in accord with the Magistrate
Judge’s Recommendation.”
(Docket Entry 62 (the “Order”) at 1.)
Thus,
the
the
Court
adopted
Recommendation,
granted
Warren’s
dismissal request, denied Stein’s dismissal request, denied the
Farm
Bureau’s
intervention
request,
and
issued
a
preliminary
injunction enjoining Stein “from enforcing the Farm Act.”
(Id.)
Twenty-eight days later, the Farm Bureau filed the Reconsideration
Motion. (See Docket Entry 64.)
The following day, the Farm Bureau
filed a notice of appeal from the Order to the United States Court
of Appeals for the Fourth Circuit.
II.
(See Docket Entry 66 at 1.)3
Reconsideration Motion
According to the Reconsideration Motion, a week after the
Court issued the Order,
the North Carolina Attorney General’s Office posted on
its official Twitter account (@NCAGO) a photograph of
Defendant Stein addressing a local labor union, with a
quote from his remarks. The quote reads, “Unions provide
a critical voice to the workers they represent, which
benefits both employees and employers. That’s why I have
been fighting in the courts to protect your rights.”
(Emphasis added.)
(Docket Entry 64, ¶ 9 (emphasis in original).)
That same day, the
Reconsideration Motion alleges, “Stein made the exact same post to
3
The notice of appeal “becomes effective to appeal [the
Order]” once the Court resolves the Reconsideration Motion. Fed.
R. App. P. 4(a)(4)(B)(i).
5
his personal Twitter account.”
(Id., ¶ 10.)
In the Farm Bureau’s
view,
Stein’s recent statements and waiver of certain appellate
rights have undermined the basis of this Court’s Order
denying [the] Farm Bureau’s Motion to Intervene.
He
publicly stated, in both his official capacity as the
Attorney General of North Carolina and in his personal
capacity, that he is presently fighting in court for
union rights.
Moreover, shortly before making those
statements
he
chose
not
to
object
to
the
[Recommendation], thereby voluntarily waiving any right
to appeal certain issues raised therein and allowing the
injunction of [the Farm Act]. These actions underscore
that [the] Farm Bureau’s interests have not been and will
not be adequately represented by Defendant Stein, the
only remaining defendant in this case.
(Id., ¶ 11.)4
Stein filed no response to the Reconsideration Motion.
Docket Entries dated Oct. 18, 2018, to present.)
(See
However, in
response to an order scheduling a hearing on the Reconsideration
Motion (see Text Order dated Nov. 26, 2018), Stein stated, in part,
that
[he] disagrees with the Farm Bureau’s contention
that he cannot adequately defend the lawsuit and notes
that he has vigorously defended the Farm Act in this
lawsuit to date and intends to continue to do so as this
litigation progresses. Accordingly, [Stein] continues to
take no position on the Farm Bureau’s motion to
reconsider its motion to intervene, other than to dispute
[the] Farm Bureau’s characterizations of the interests of
[Stein] in his official capacity.
4 The Reconsideration Motion fails to identify any specific
“appellate rights” or “issues raised” in the Recommendation that
Stein allegedly waived. (See generally Docket Entries 64, 65.)
6
(Docket Entry 72 at 3 n.2; see also id. at 8 (explaining that Stein
continued
to
intervention
“t[a]k[e]
request,
no
but
position”
“dispute[s
on
the
the]
Farm
Farm
Bureau’s
Bureau’s
mischaracterizations of [Stein’s] ability to continue to adequately
defend the lawsuit”).)
In addition, Plaintiffs filed a response in opposition to the
Reconsideration Motion.
(See Docket Entry 69.)
In particular,
Plaintiffs maintain that “[t]he ‘new evidence’ that the Farm Bureau
presents — a tweet by Defendant Stein and Stein’s strategic choice
not to object to [the] Recommendation — does not provide a reason
for the Court to reconsider intervention by the Farm Bureau.” (Id.
at 4.)
Plaintiffs further contend that “[t]he rule that the Farm
Bureau urges — that adversity of interest exists any time a
government defendant expresses generalized support for a non-party
that shares some characteristics with the plaintiff — would be
unworkable in practice,” as it “would open the door to intervention
by third parties in any case concerning a wide variety of topics
and entities about which Defendant Stein has publicly spoken.”
(Id. at 8-9.)
Finally, Plaintiffs argue:
[T]o the extent that Defendant Stein’s position in this
lawsuit can be discerned from vague commitments and
expressions of support contained in his speeches, the
Farm Bureau need not worry about adequate representation.
A video posted to the Farm Bureau’s own YouTube site
shows that in 2015 Defendant Stein, then a state senator
and a candidate for attorney general, addressed the Farm
Bureau’s Annual Meeting. See Ex. 2 (also available at
https://www.youtube.com/watch?v=3s5yhkbsHCQ). Introduced
by a Farm Bureau representative as a “friend” of the Farm
7
Bureau, Defendant Stein told the audience that “there is
no more important industrial sector in North Carolina
than agriculture.”
Id.
He described his close
relationship with the [Farm] Bureau and pledged that,
“just [as] I have sought out and benefitted from the
wisdom of the Farm Bureau as a state senator, I will seek
out the wisdom of the Farm Bureau as your attorney
general.” Id. Defendant Stein’s expressed belief in the
importance of agriculture, followed by a pledge to work
in collaboration with the Farm Bureau as attorney
general, is similar to the language with which the Farm
Bureau takes issue from Defendant Stein’s 2018 tweet.
Unlike the tweet, however, Stein’s 2015 speech directly
addresses and aligns his future political office with a
would-be party to this litigation. In light of Defendant
Stein’s prior public statements of strong support for the
Farm Bureau (amplified by the Farm Bureau on its own
social media), the Court should reject the Farm Bureau’s
contention of adversity of interest.
(Docket Entry 69 at 9-10 (final set of brackets in original)
(citing Docket Entry 69-2).)5
III.
Reconsideration Motion Hearing
Thereafter,
the
Court
(per
the
hearing on the Reconsideration Motion.
undersigned)
conducted
a
(See Minute Entry dated
5
When introducing Stein, the Farm Bureau representative
stated that “he’s a friend of ours” and “a legislator with whom
we’ve worked closely over the years.” NC Farm Bureau, State Sen.
Josh Stein 2015 Annual Meeting, YOUTUBE (Dec. 15, 2015),
https://www.youtube.com/watch?v=3s5yhkbsHCQ, at 0:15, 0:21-0:24.
The representative further noted that, “during his four terms in
the legislature, [Stein] has consistently supported [the] Farm
Bureau and Farm Bureau backed legislation.” Id. at 0:56-1:04. In
turn, Stein thanked the Farm Bureau for its “partnership” and
stated that “the work you all do in the General Assembly is
extremely important.” Id. at 1:32-1:37. He further noted that, as
state senator, he had “worked closely with [the Farm Bureau] on
issues that are a priority to the Farm Bureau,” id. at 5:27-5:41,
and specifically emphasized that he had conferred with the Farm
Bureau regarding, and “[was] proud to have supported strongly[,]
the North Carolina Farm Act of 2015, 2014, and 2013,” id. at 6:096:29.
8
Dec. 7, 2018.)
At the hearing, the Farm Bureau “freely concede[d]
that” Stein and his NC DOJ counsel “are capable of defending the
[Farm Act].”
(Hearing Recording at 3:37; see also id. (stating
that Stein and the NC DOJ “will do a fine job of defending the
law”).)6
However, the Farm Bureau contended “that North Carolina
Agriculture has a unique perspective and a unique voice” that the
Farm Bureau can bring to the litigation, explaining that it “would
like to work with the Attorney General’s Office to kind of bring to
their
defense
abilities.”
[the
Farm
Bureau’s]
(Id. at 2:50-51.)
unique
perspective
and
Although it acknowledged that it
did not need party status to achieve those ends, the Farm Bureau
lamented that as a non-party, it “can’t file motions, [it] can’t
participate in discovery, [and it] can’t appeal an adverse ruling.”
(Id. at 2:54.)
In the Farm Bureau’s view, its knowledge of the
agriculture industry would enable it to engage in more effective
discovery than Stein, although it might not involve any different
witnesses.
(See id. at 2:57-3:00.)
The Farm Bureau also conceded that (1) it “ha[s] no reason to
believe that the Attorney General’s Office wouldn’t take [its] call
and [(2) it] ha[s] no concerns with the[] abilities or the[]
motivations [of that Office].”
(Id. at 3:00.)
Nevertheless,
6
The Clerk’s Office created a contemporaneous audio
recording of the hearing. (See Minute Entry dated Dec. 7, 2018.)
For readability purposes, this Opinion omits vocal fillers in all
quotations from the hearing.
9
although the Farm Bureau did not believe that “anything untoward”
occurred regarding Stein’s statement, the Farm Bureau’s “position
was, if the Attorney General’s Office is fighting in court for
union rights, who’s fighting in court for North Carolina farmers’
rights,” as “in this particular case, those two things are arguably
opposed.”
(Id. at 2:49.)
The Farm Bureau further expressed
concern that “the policy position announced on behalf of the North
Carolina Department of Justice . . . may limit the Attorney
General’s Office going forward.
If they have a tough choice to
make or a close call to make in discovery about whether to pull a
punch, . . . they may be influenced by the fact that they’ve
previously articulated a priority or preference for fighting for
union rights in a way that [the Farm Bureau is] not.”
(Id. at
3:01.)
The Farm Bureau could not, however, identify any concrete
action that Stein would do or fail to do as a consequence of this
alleged limitation nor could it identify any specific issue that
Stein waived by not objecting to the Recommendation.
2:45-3:02, 3:37-3:43.)
(See id. at
Further, although the Farm Bureau “would
have objected” to the Recommendation regarding the preliminary
injunction
motion,
it
“understands
that
it
was
consideration that [the NC DOJ] made” not to object.
3:42.)
a
tactical
(Id. at 3:41-
In sum, the Farm Bureau stands “ready to be the voice for
North Carolina Ag in this case, and [the Farm Bureau] think[s its
10
members] deserve and have a right to a seat at the table.”
(Id. at
2:51.)
In response to the Farm Bureau’s concerns, Stein and the NC
DOJ confirmed that the specified tweets “had nothing to do with
this case.”
3:16.)7
(Id. at 3:15 (emphasis in original); see also id. at
Stein explained that the communications derived from a
speech that he gave to the Teamsters and referred to amicus briefs
that Stein had signed on behalf of North Carolina in two United
States Supreme Court cases, Janus v. American Federation of State,
County, & Municipal Employees, Council 31, __ U.S. __, 138 S. Ct.
2448 (2018), and Epic Systems Corporation v. Lewis, __ U.S. __, 138
S. Ct. 1612 (2018).
(See Hearing Recording at 3:15.)8
Stein’s NC
DOJ counsel further confirmed that he did not perceive “those
tweets as having anything to do with the legal issues involved in
the Farm Act itself, which is a completely separate statute, . . .
7 In addition to the NC DOJ attorney representing Stein in
his official capacity in this litigation, Stein (and his general
counsel) appeared at the hearing. (See Text Orders dated Nov. 26,
2018, and Nov. 29, 2018; see also Minute Entry dated Dec. 7, 2018.)
Both Stein and his NC DOJ counsel addressed the Court and its
questions during the hearing.
(See Hearing Recording at 3:023:20.)
8 The first of those cases involved payment of union agency
fees by public employees, see, e.g., Janus, __ U.S. at __, 138 S.
Ct. at 2460, and the other involved the interplay between class
waivers in employee arbitration agreements and the National Labor
Relations Act, see, e.g., Epic Sys., __ U.S. at __, 138 S. Ct. at
1619.
11
and [they] ha[ve] no bearing in terms of . . . what [he] will do in
terms of defending this case.”
(Id. at 3:16.)
Both Stein and his NC DOJ counsel also stated that any
personal opinion that Stein possessed regarding unions would not
impact the NC DOJ’s career lawyers’ “zealous[] and vigorous[]”
defense of this action.
(Id. at 3:08; see also id. at 3:16-3:18.)
In this regard, the NC DOJ counsel explained that Stein’s personal
preferences do not affect the litigation, as evidenced by the fact
that the NC DOJ counsel decided not to file a response to the
Reconsideration Motion — as he perceived such approach as more
consistent with the NC DOJ’s past practices and prior position of
not responding to the Farm Bureau’s intervention motion (see id. at
3:04-3:06) — even though Stein “was bothered by some of the
assertions that the Farm Bureau made.”
(Id. at 3:17.)
Moreover,
“it’s [the NC DOJ counsel’s] job to defend the statutes that are at
issue,” and, although “[Stein] and his general counsel have been
kept apprised of the case, they have not directed litigation
strategy . . . and the litigation decisions in this case have been
[the NC DOJ’s counsel’s] in consultation with [his] supervisor and
the Chief Deputy and Head of Litigation and . . . in terms of how
[they]’ll proceed going on, the [NC DOJ] Office is fully prepared
to defend this lawsuit.”
(Id. at 3:09.)
The NC DOJ counsel
further disputed the Farm Bureau’s assertion that Stein waived any
appellate rights by the NC DOJ’s “tactical decision” not to object
12
to
the
Recommendation,
explaining
that
Stein’s
standing
sovereign immunity defenses “[a]re not waiveable.”
and
(Id. at 3:12-
3:13.)
In
addition,
important.”
Stein
noted
(Id. at 3:17.)
that
he
“think[s]
farmers
are
He further observed that he has
“spoken to the Farm Bureau and [he] ha[s] talked about ways in
which [he] ha[s] fought for agriculture in North Carolina, and [he]
ha[s] fought for farmers in court, not only in this matter but” in
“other litigation in which . . . the representation of the State is
aligned with theirs.”
(Id.)
Stein “do[es]n’t believe that [his]
view of important institutions within North Carolina, whether it’s
agriculture
or
labor
or
anything
else, are in
conflict, and
certainly the career lawyers in the Office know that they are to
carry out their defense of the State of North Carolina zealously
and do it as they should.”
(Id. at 3:17-3:18.)
Moreover, the NC DOJ confirmed that, although it remained
fully prepared and capable of defending this lawsuit, it welcomed
any help and resources that the Farm Bureau offered.
3:18-3:19.)
(See id. at
The NC DOJ noted that it had already met with the Farm
Bureau and had engaged “in multiple conversations with [the Farm
Bureau].”
(Id. at 3:19.)
Further, the NC DOJ confirmed that “of
course” it remained open to “input from the Farm Bureau even if the
Farm Bureau’s not formally a party,” including any of the Farm
Bureau’s “insights that could be useful in litigating the case,
13
defending the case, getting information from the other side,
putting things that they might ask for or things that they might
assert in context.”
(Id. at 3:18.)
Put simply, the NC DOJ
“recognize[s] that [the Farm Bureau] has an interest in this case,
but [believes that it is] fully able to [provide such assistance
and insights] without intervening as a party.”
(Id. at 3:19.)
Thus, like in other matters where the NC DOJ has “worked with many
interested parties who aren’t necessarily involved as defendants or
named defendants,” the NC DOJ remains willing to work with the Farm
Bureau in this litigation.
(Id.)
Plaintiffs similarly observed that they “will not oppose the
Farm Bureau submitting an amicus brief in this case,” which they
believe “would be sufficient . . . to develop the[ Farm Bureau’s]
arguments against [Plaintiffs’] claim[s].”
(Id. at 3:30-3:31.)
However, Plaintiffs reiterated their concerns regarding the Farm
Bureau’s intervention, including that such intervention will unduly
delay
and
prejudice
the
(See id. at 3:31-3:32.)
adjudication
of
Plaintiffs’
claims.
In particular, Plaintiffs noted that the
Farm Bureau’s proposed Answer “in many instances . . . den[ies]
facts that are not reasonably subject to denial.”
(Id. at 3:32.)
For instance, according to Plaintiffs,
[the Farm Bureau] den[ies] the identity of the
Representative and the Senator that chaired the
conference committees to move the bill through the House
and Senate. That’s a matter of public record . . . .
[The Farm Bureau] den[ies] the date on which the
legislation was moved through the House. Again, seems
14
pretty straightforward. [The Farm Bureau] den[ies] that
FLOC has an office in North Carolina. [The Farm Bureau]
den[ies] that North Carolina is a leading producer of
tobacco.
[The Farm Bureau] den[ies] that FLOC has a
collective bargaining agreement with the North Carolina
Growers’ Association. . . .
(Id.)
That the Farm Bureau “intends to fight [Plaintiffs] on”
such “fairly indisputable facts . . . suggests to [Plaintiffs] that
[the case will] get bogged down in discovery about a lot of facts
that really aren’t reasonably disputable and that will hold back
the progress of this case.”
(Id. at 3:32-3:33.)
As such,
Plaintiffs worry, permitting the Farm Bureau to intervene will
complicate discovery and, as shown by the filings to date, will
result in a multiplicity of duplicative motions.
(See id. at
3:34.)
In response to these concerns, the Farm Bureau maintained that
“[Plaintiffs] have already undertaken to prove the allegations in
their complaint and if they actually end up having to prove them,
that’s no different then whether [the Farm Bureau’s] in or out.”
(Id. at 3:39.)
When pressed by the Court on this point, though,
the Farm Bureau agreed that forcing a party to litigate facts not
reasonably subject to dispute could needlessly drag out a lawsuit.
(See id. at 3:39-3:40.)
The Farm Bureau disputed that any such
situation had arisen here and “stand[s] by the answers in [its]
Answer.”
(Id. at 3:40.)
In addition, the Farm Bureau contended
that, to the extent it denied anything for “lack [of] current
information
[or]
subject
to
further
15
discovery,”
if
“there’s
something in there that’s of particular concern,” Plaintiffs can
“quickly and easily” resolve such denial by “fir[ing] off a set of
written discovery saying, ‘hey, you denied this, but we don’t think
it’s [subject to denial], what’s the deal’” or calling the Farm
Bureau.
(Id.)
DISCUSSION
I.
Preliminary Matters
The Farm Bureau purports to bring the Reconsideration Motion
“[p]ursuant to [Rule] 59(e), and in the alternative Rules 60(b) and
54(b).”
(Docket Entry 64 at 1; see also Docket Entry 65 at 1, 7
nn.6-7.)
Rule
54(b)
authorizes
the
Court
to
“revise[]”
interlocutory orders prior to entry of a final judgment.
Civ. P. 54(b).
Fed. R.
However, an order denying Rule 24 intervention
constitutes a final judgment subject to immediate appeal.
See Alt
v. United States Envtl. Prot. Agency, 758 F.3d 588, 590 (4th Cir.
2014).
Accordingly, Rule 54(b) does not apply here.
In addition,
although the Farm Bureau notes the standards that govern a Rule
60(b) motion, including “three threshold conditions” that “a movant
must show,” it did not address two of those threshold conditions —
“[2] that [it] has a meritorious defense to the action, and
[3] that the opposing party would not be unfairly prejudiced by
having the judgment set aside” — in its Reconsideration Motion.
(Docket Entry 65 at 7 n.6 (first and third set of brackets in
original); see generally Docket Entries 64, 65.)
16
Because the Farm
Bureau
“cannot
expect
th[e
information for [its motion],”
C]ourt
to
fill
in
the
essential
Scott v. Lyall, No. 2:17cv50, 2018
WL 323947, at *2 (W.D. Va. Jan. 8, 2018), the Reconsideration
Motion does not properly invoke Rule 60(b).
Thus, this Opinion
analyzes the Reconsideration Motion solely under Rule 59(e).9
II.
Reconsideration Analysis
Although the “[C]ourt has considerable discretion in deciding
whether to modify or amend a judgment,” Gagliano v. Reliance
Standard Life Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008),
“reconsideration of a judgment after its entry is an extraordinary
remedy which
should
be
used
sparingly,” Pacific
Ins.
Co.
v.
American Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)
(internal quotation marks omitted).
As such, the Court may amend
a final judgment pursuant to Rule 59(e) in three circumstances:
“(1) to accommodate an intervening change in controlling law;
(2) to account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice.”
Id.
As the Fourth Circuit has explained, Rule 59(e)
permits a district court to correct its own errors,
sparing the parties and the appellate courts the burden
of unnecessary appellate proceedings. Rule 59(e) motions
may not be used, however, to raise arguments which could
have been raised prior to the issuance of the judgment,
nor may they be used to argue a case under a novel legal
theory that the party had the ability to address in the
9 In any event, because (as discussed below) the Farm Bureau
has not justified intervention, analysis under Rule 60(b) or Rule
54(b) would yield the same result.
17
first instance. Similarly, if a party relies on newly
discovered evidence in its Rule 59(e) motion, the party
must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.
Id. (internal quotation marks and citations omitted).
Here, the Farm Bureau urges reconsideration on the basis of
newly
discovered
certain
evidence,
appellate
rights”
namely
by
Stein’s
failing
alleged
to
“waiver
object
to
of
the
Recommendation and tweets made after the Court issued the Order.
(Docket Entry 64, ¶ 11; see also Docket Entry 65 at 7-8.)
The Farm
Bureau receives notifications of filings in this action.
e.g., Docket Entry 23 at 1.)
(See,
Stein’s deadline to file objections
to the Recommendation occurred more than a week before the Court
issued the Order.
(Compare Text Order dated Aug. 30, 2018, with
Docket Entry 62 at 1.)
The Farm Bureau therefore knew of Stein’s
failure to file objections before the Court issued the Order. (See
Docket Entries dated Aug. 21, 2018, to Sept. 20, 2018 (reflecting
electronic notification to the Farm Bureau of eleven developments
in the case between the Recommendation and Order, which did not
include any objections from Stein).)
As such, Stein’s alleged
“waiver of certain appellate rights” (Docket Entry 64, ¶ 11) does
not constitute “newly discovered evidence” under Rule 59(e), and
any arguments based upon such failure “could have been raised prior
to the issuance of the judgment,” Pacific Ins., 148 F.3d at 403.
However, Plaintiffs do not object to the Court’s consideration of
such evidence, and arguably the alleged significance of Stein’s
18
actions
only
became
apparent
when
the
tweets
occurred.
Accordingly, this Opinion considers both the tweets and Stein’s
litigation decisions in evaluating the Reconsideration Motion.
A.
Intervention of Right
To establish an entitlement to intervention of right under
Rule 24(a), the Farm Bureau must “demonstrate:
(1) an interest in
the subject matter of the action; (2) that the protection of this
interest would be impaired because of the action; and (3) that
[its] interest is not adequately represented by existing parties to
the litigation.”
1991).
Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir.
Plaintiffs
continue
to
dispute
that the
Farm
Bureau
possesses the requisite “significantly protectable interest,” id.
at 261 (internal quotation marks omitted), for intervention of
right.
(See Docket Entry 69 at 14-16.)
The Court need not
determine whether the Farm Bureau satisfies the first two elements
of this test, though, for even with the proffered evidence, “the
[Farm Bureau] clearly ha[s] not met the third element of the test:
[it] ha[s] not shown that [its] interests are not being properly
represented by [Stein].”
Stuart v. Huff, No. 1:11cv804, 2011 WL
6740400, at *2 (M.D.N.C. Dec. 22, 2011), aff’d, 706 F.3d 345 (4th
Cir. 2013).
“When the party seeking intervention has the same ultimate
objective as a party to the suit, a presumption arises that its
interests are adequately represented, against which the [proposed
19
intervenor] must demonstrate adversity of interest, collusion, or
nonfeasance.”
Virginia v. Westinghouse Elec. Corp., 542 F.2d 214,
216 (4th Cir. 1976).
Moreover, “where the proposed intervenor
shares the same objective as a government party,” Stuart v. Huff,
706 F.3d 345, 351 (4th Cir. 2013), “the putative intervenor must
mount a strong showing of inadequacy,” id. at 352.
See also id.
(explaining that any lesser requirement “would place a severe and
unnecessary burden on government agencies as they seek to fulfill
their basic duty of representing the people in matters of public
litigation”). That requirement carries particular importance given
the fact that this litigation involves a constitutional challenge
to a “duly enacted statute.”
Id. at 351; see also id. (“[W]hen a
statute comes under attack, it is difficult to conceive of an
entity better situated to defend it than the government.”).10
10
As the Fourth Circuit explained,
[T]o permit private persons and entities to intervene in
the government’s defense of a statute upon only a nominal
showing would greatly complicate the government’s job.
Faced with the prospect of a deluge of potential
intervenors, the government could be compelled to modify
its litigation strategy to suit the self-interested
motivations of those who seek party status, or else
suffer the consequences of a geometrically protracted,
costly, and complicated litigation.
In short, the
business of the government could hardly be conducted if,
in matters of litigation, individual citizens could
usually or always intervene and assert individual points
of view.
Id. (internal quotation marks omitted).
20
The Farm Bureau’s Reconsideration Motion memorandum states
that its “objective in this case is to oppose the union’s [(i.e.,
FLOC’s)]
attack
on
[the
Farm
Act]
and
thereby
important protections for North Carolina farmers.”
65 at 9.)
preserve
its
(Docket Entry
Further, according to the Farm Bureau,
Stein’s recent public statements praising unions and
boasting that he has “been fighting in the courts” to
protect their rights show that he does not share this
objective.
To be “fighting in the courts to protect
[union] rights” would require Defendant Stein to fight
against [the] Farm Bureau in this case, not join with it
in vigorously defending its interests in [the Farm Act].
These statements suggest that even if Defendant Stein
continues to litigate this case, it will not be in
pursuit of [the] Farm Bureau’s objectives.
(Id. (first set of brackets in original).)
At the hearing,
however, the Farm Bureau “freely concede[d] that” Stein and his NC
DOJ counsel “are capable of defending the [Farm Act].”
(Hearing
Recording at 3:37; see also id. (asserting that Stein and the NC
DOJ “will do a fine job of defending the law”).)
The Farm Bureau
also confirmed that it “ha[s] no concerns with their abilities or
their motivations.”
(Id. at 3:00.)
In addition, both Stein and his NC DOJ counsel affirmed that
they will continue to “zealously and vigorously” (id. at 3:08)
defend the Farm Act.
(See, e.g., id. at 3:09, 3:16-3:18.)
They
also emphasized that the disputed tweets “had nothing to do with
this case” (id. at 3:15 (emphasis in original); see id. at 3:16),
but instead referred to two unrelated Supreme Court amicus briefs
(see
id.
at
3:15).
Furthermore,
21
Stein’s
NC
DOJ
counsel
specifically confirmed that (1) “it’s [his] job to defend the [Farm
Act]” (id. at 3:09 (emphasis in original)), (2) he and the lawyers
in his Office, not Stein, have made “the litigation decisions in
this case” (id.), (3) the NC DOJ “Office is fully prepared to
defend this lawsuit” going forward (id.), (4) the tweets did not
“hav[e] anything to do with the legal issues involved in the Farm
Act itself” (id. at 3:16), and (5) they “ha[ve] no bearing . . .
[on his] ability or what [he] will do in terms of defending this
case” (id.).
Under the circumstances, the Farm Bureau’s interest continues
to
align
with
Stein’s
interest,
as
“[b]oth
the
government
[official] and the would-be intervenor[] want the statute to be
constitutionally
sustained,”
Stuart,
706
F.3d
at
352.
The
presumption of adequate representation therefore applies, against
which the Farm Bureau “must mount a strong showing of inadequacy,”
id.
The Farm Bureau failed to make that showing.
To begin, the Farm Bureau has not shown adversity of interest.
As discussed above, Stein and his NC DOJ counsel have explicitly
confirmed their commitment to defending the Farm Act. Notably, the
Farm Bureau has also conceded both the capability of Stein and his
NC DOJ counsel to defend the Farm Act and a lack of concern about
their motivations.
In addition, Stein’s explanation regarding the
tweets — which the Farm Bureau does not contest — reveals their
22
lack of relevance to this litigation, a perspective that the NC DOJ
counsel tasked with defending this litigation reaffirmed.
The mere fact that Stein expressed support for, and advocated
in other, unrelated matters on behalf of, a segment of the North
Carolina
population
that
shares
some
characteristics
with
Plaintiffs cannot, by itself, create the “strong showing” of
adverse
interests
necessary
for
intervention
of
right.
See Maryland Restorative Justice Initiative v. Hogan, 316 F.R.D.
106, 115 (D. Md. 2016) (denying intervention even though proposed
intervenors “refer to numerous instances in which the State has
taken positions [in other cases] that do not coincide with those of
[proposed
intervenors]”).
Because
governments
“serve
in
a
representative capacity on behalf of [their] people,” Stuart, 706
F.3d
at
351,
and
the
“people”
possess
myriad
interests
and
characteristics, whether a government’s interest aligns with a
particular segment of its constituents will necessarily vary from
case to case.
See, e.g., id. (recognizing that “[i]n matters of
public law litigation that may affect great numbers of citizens, it
is the government’s basic duty to represent the public interest”);
Feller
v.
Brock,
802
F.2d
722,
730
(4th
Cir.
1986)
(“[T]he
government’s position is defined by the public interest, as well as
the interests of a particular group of citizens.”).
Thus, “the
business of the government could hardly be conducted if, in matters
of litigation,” Stuart, 706 F.3d at 351 (internal quotation marks
23
omitted), the government’s support in unrelated matters for the
interests of entities who share arguable similarities with an
opposing party sufficed to allow “individual citizens . . . [to]
intervene and assert individual points of view,” id. (internal
quotation marks omitted).
See also Maryland Restorative Justice,
316 F.R.D. at 115 (“The Attorney General’s responsibility to apply
or uphold the law does not constitute the kind of adverse interest
contemplated by Virginia v. Westinghouse Elect. Corp., supra, 542
F.2d at 216.”).
Here, the Farm Bureau has not identified any concrete harm to
the governmental defense of the Farm Act that Stein’s tweets (and
underlying sentiments) have caused or will cause.
For instance,
the Farm Bureau failed to specify any “appellate rights” that Stein
waived by not objecting to the Recommendation.
(See generally
Docket Entries 64, 65; see also Hearing Recording at 2:45-3:02,
3:37-3:43; cf. id. at 3:12-3:13 (Stein’s NC DOJ counsel asserting
that Stein’s defenses “are not waiveable”)).
Nor can Stein’s
“tactical decision” (id. at 3:12) to proceed with litigation rather
than object to the Recommendation (and subsequently appeal from the
Order) establish adversity of interest.
See, e.g., Stuart, 706
F.3d at 353 (rejecting argument that adversity existed “because, in
defending the Act, the Attorney General made certain strategic
decisions with which [the proposed intervenors] disagree” — namely
“the Attorney General relied on legal arguments at the preliminary
24
injunction stage and chose to litigate the case to final judgment,
whereas the[ proposed intervenors] would have presented factual
evidence and immediately appealed the preliminary injunction” — as
“the relevant and settled rule is that disagreement over how to
approach the conduct of the litigation is not enough to rebut the
presumption of adequacy”); Outdoor Amusement Bus. Ass’n, Inc. v.
Department of Homeland Sec., No. CV 16-1015, 2017 WL 2778820, at
*11
(D.
Md.
June
26,
2017)
(“The
presumption
of
adequate
representation is not rebutted simply because defendants have
chosen to focus on the merits or because the would-be intervenors
disagree with the government’s reasonable litigation tactics.”
(internal quotation marks omitted)).
Finally, the Farm Bureau’s concern that Stein’s statements
could “influence[]” his NC DOJ counsel if counsel faces “a tough
choice to make or a close call to make in discovery about whether
to pull a punch” (Hearing Recording at 3:01) fails to establish
adversity of interest. Speculation about some potential, amorphous
influence
interests.
(“[The
does
not
constitute
a
“strong
showing”
of
adverse
See, e.g., Outdoor Amusement, 2017 WL 2778820, at *12
proposed
intervenors’]
speculative
concern
that
the
[government defendants] will not vigorously defend the contested
regulations does not justify intervention.”); Ohio Valley Envtl.
Coal., Inc. v. McCarthy, 313 F.R.D. 10, 29 (S.D. W. Va. 2015) (“The
mere
allegation
that
a
governmental
25
party
could
argue
less
vigorously than members of the regulated industry is at best an
argument that the government could commit nonfeasance, which is
insufficient to rebut the presumption of adequate representation.”
(emphasis in original)).11
personal
preferences
Moreover, to the extent that Stein’s
matter,
he
has
directly
and
explicitly
expressed support for the Farm Bureau, both in his 2015 speech at
the Farm Bureau’s annual meeting, see NC Farm Bureau, State Sen.
Josh
Stein
2015
Annual
Meeting,
YOUTUBE
(Dec.
15,
2015),
https://www.youtube.com/watch?v=3s5yhkbsHCQ, and in this Court,
where
he
affirmed
his
intent
to
fight
for
litigation (see Hearing Recording at 3:17).
farmers
in
this
In any event, by
declining to respond to the Reconsideration Motion even though
Stein
“was
bothered
by”
its
assertions
(id.),
the
NC
DOJ
demonstrated that Stein’s personal preferences do not control this
litigation.
The Farm Bureau further failed to establish nonfeasance or
collusion.
In its memorandum in support of the Reconsideration
11 Insofar as the Farm Bureau objects to non-party status
because it “can’t appeal an adverse ruling” (Hearing Recording at
2:54), any concern that Stein would not appeal an adverse final
judgment constitutes speculation that cannot justify intervention.
See Makhteshim Agan of N. Am., Inc. v. National Marine Fisheries
Serv., No. 8:18cv961, 2018 WL 5846816, at *5 (D. Md. Nov. 8, 2018)
(“To suggest, as the Applicants do, that the agency ‘may enter a
settlement that allows for less effective protections than those
required by the [challenged opinion] or may not present a vigorous
defense to [the plaintiffs’] claims’ is to indulge in speculation.
Applicants must present a good deal more than this to rebut the
presumption of adequacy.” (citation omitted)).
26
Motion, the Farm Bureau maintained that Stein committed nonfeasance
by declining to object to the Recommendation. (See Docket Entry 65
at 12-13.)
At the hearing, however, the Farm Bureau acknowledged
“that[ it was] a tactical consideration” not to object.
Recording at 3:41-3:42.)
(Hearing
Although the Farm Bureau would prefer
that Stein had further litigated the preliminary injunction motion
(see
id.),
such
nonfeasance.
tactical
considerations
do
See Stuart, 706 F.3d at 353.
not
constitute
Finally, in its
Reconsideration Motion memorandum, the Farm Bureau argued that
Stein’s
tweets
and
failure
to
object
to
the
Recommendation,
combined with Plaintiffs’ “vehement[] oppos[ition]” to the Farm
Bureau’s intervention, constitute “procedural maneuvering [that]
indicates an attempt to go behind the North Carolina General
Assembly and the State’s governor in order to invalidate a law
enacted with bi-partisan support.”
(Docket Entry 65 at 14.)
In
light of its subsequent admission that it “ha[s] no concerns” about
Stein’s and the NC DOJ’s “motivations” (Hearing Recording at 3:00),
the
Farm
Bureau
appears
to
have
abandoned
this
argument.
Regardless, the Farm Bureau has not established how Plaintiffs’
decision to litigate against Stein, whom the Court concluded
constituted a proper defendant under the Ex parte Young sovereign
immunity exception,12 and Stein’s decision to proceed to defending
12
Notably, the Farm Bureau’s proposed motion to dismiss
argued that Plaintiffs lacked standing to sue Governor Cooper
regarding the Farm Act on the theory that “they can[not] establish
sufficient traceability . . . .” (Docket Entry 21-1 at 3.)
27
this
case
collusion.
on
its
merits
(see
Docket
Entry
70)
constitutes
(See Docket Entries 64, 65; Hearing Recording at 2:45-
3:02, 3:37-3:43.)
In sum, even considering its “newly discovered evidence,” the
Farm Bureau fails to overcome the strong presumption of Stein’s
adequate representation.
Accordingly, the Farm Bureau has not
shown entitlement to intervention of right.
B.
Permissive Intervention
The Farm Bureau also seeks reconsideration of the Court’s
denial of permissive intervention.
(See, e.g., Docket Entry 65 at
14-15; Hearing Recording at 2:52 (“[T]he Court should use its
discretion to allow [the Farm Bureau] into the case to, again, give
North Carolina farmers a voice in this case.”).) Under Rule 24(b),
“the [C]ourt may permit anyone to intervene who . . . has a claim
or defense that shares with the main action a common question of
law or fact.”
Fed. R. Civ. P. 24(b)(1)(B).
However, when
“exercising its discretion [regarding permissive intervention], the
[C]ourt must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.”
R. Civ. P. 24(b)(3).
Fed.
After all, as the Fourth Circuit has
recognized, “[i]t is incontrovertible that motions to intervene can
have profound implications for district courts’ trial management
functions.
Additional parties can complicate routine scheduling
orders, prolong and increase the burdens of discovery and motion
28
practice, thwart settlement, and delay trial.” Stuart, 706 F.3d at
350.
Here, the Farm Bureau failed to justify reconsideration of
the Court’s conclusion that its intervention “‘would result in
undue delay in adjudication of the merits, without a corresponding
benefit to existing litigants, the courts, or the process’” (Docket
Entry 56 at 60 (quoting Stuart, 2011 WL 6740400, at *3); see also
id. at 57 (concluding that “permitting the Farm Bureau to intervene
will needlessly complicate and unduly delay the adjudication of the
existing parties’ rights; it will also needlessly consume both the
parties’
and
the
Court’s
resources”);
Docket
Entry
62
at
1
(adopting the Recommendation)).
In regard to permissive intervention, the Reconsideration
Motion memorandum argued (in full):
C. [The] Farm Bureau’s intervention will contribute
to the full development of the factual issues and legal
arguments in this case.
In
determining
whether
to
grant
permissive
intervention,
“courts
may
consider
whether
such
intervention will ‘contribute to the full development of
the underlying factual issues in the suit and to the just
and equitable adjudication of the legal questions
presented.’” Students for Fair Admissions Inc. v. Univ.
of N. Carolina, 319 F.R.D. 490, 496 (M.D.N.C. 2017).
Defendant Stein’s recent statements underscore his
inability to represent the perspective of North Carolina
farmers, a constituency that will be substantially
impacted by the outcome of this lawsuit. For this reason
and those set forth in [the] Farm Bureau’s prior filings,
this Court should permit [the] Farm Bureau’s intervention
in this case because the presence of an opposing
viewpoint that represents North Carolina farmers will
29
contribute to the full development of the factual and
legal issues in this case.
(Docket Entry 65 at 14-15 (bold font in original).)
This argument does not justify intervention. Most notably, as
discussed above, the Farm Bureau has shown neither that Stein
cannot (or will not) represent farmers’ interest in sustaining the
Farm
Act
nor
that
the
Farm
Bureau
requires
party
status
to
“contribute to the full development of the factual and legal issues
in this case” (id. at 15).
In addition, the Farm Bureau’s
arguments do not address, let alone ameliorate, the concern that
its intervention “will needlessly complicate and unduly delay the
adjudication of the existing parties’ rights[ and] needlessly
consume both the parties’ and the Court’s resources” (Docket Entry
56 at 57).
(See Docket Entry 65 at 14-15.)13
13
At the hearing, the Farm Bureau argued that its
intervention would reduce the risk of a “deluge of intervenors”
because “[the Farm Bureau] can speak with authority for thousands
of North Carolina farmers, and so they know [the Farm Bureau has]
their back and that they don’t need to come in here and try to
intervene” (Hearing Recording at 2:51). The Farm Bureau provided
no support for this proposition, and it fails to explain how its
intervention would assuage the concerns of farmers who opted
against Farm Bureau membership.
In any event, this assertion
addresses neither the concern that permitting the Farm Bureau’s
intervention would invite, inter alia, other entities mentioned in
the Amended Complaint “to individually petition for permissive
intervention” (Docket Entry 56 at 59 (internal quotation marks
omitted)), nor the concern that, should it permit the Farm Bureau’s
intervention, “the Court could not draw a meaningful line that
prevents all such entities and individuals from gaining permissive
intervention in this case” (id. (brackets and internal quotation
marks omitted)).
30
Nor did the Farm Bureau satisfactorily resolve the issues its
litigation approach presents.
For instance, the Farm Bureau’s
proposed Answer denied many more allegations than Stein’s answer
did.
(Compare, e.g., Docket Entry 70, ¶¶ 18, 20, 22, 27, 31, 32
(admitting, inter alia, (1) that North Carolina is a leading
tobacco
producer,
(2)
North
Carolina’s
H-2A
visa
statistics,
(3) the predominantly Hispanic/Latino and immigrant character of
North
Carolina’s
characteristics
and
farmworkers,
historic
and
(4)
presence
in
FLOC’s
membership
North
Carolina),
with Docket Entry 59-1, ¶¶ 18, 20, 22, 27, 31, 32 (denying all
allegations).)
The fact that the Farm Bureau disputes seemingly
uncontroversial allegations that Stein has not disputed increases
the risk of unnecessary delay and complication of this case.14
In sum, the Court thus should decline to reconsider its denial
of Rule 24(b) intervention.
CONCLUSION
Even given its “newly discovered evidence,” the Farm Bureau
has not shown entitlement to intervention of right or circumstances
warranting permissive intervention.
14 At the hearing, the Farm Bureau suggested that Plaintiffs
could resolve any “particular[ly] concern[ing]” denials (Hearing
Recording at 3:40) through written discovery or calling the Farm
Bureau (id.). This suggestion ignores both the time and effort
required to address the Farm Bureau’s denials, as well as this
Court’s discovery limitations, see M.D.N.C. LR 26.1(a).
31
IT
IS
THEREFORE
RECOMMENDED
that
the
Court
deny
the
Reconsideration Motion (Docket Entry 64).
This 17th day of May, 2019.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
32
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