Plaintiff v. State of North Carolina et al

Filing 28

ORDER granting Pltf's 24 Motion to Lift Stay or Issue Ruling, and the stay of this matter is hereby LIFTED; Pltf shall proceed with service on the named Defts; and denying as moot Pltf's 27 Motion and Notice of Constitutional Question. Signed by District Judge Martin Reidinger on 5/6/15. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00044-MR-DSC

TODD W. SHORT,

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Plaintiff,
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vs.
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STATE OF NORTH CAROLINA, et al., )
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Defendants.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Lift Stay
or Issue Ruling [Doc. 24] and the Plaintiff’s Motion and Notice of
Constitutional Question [Doc. 27].
Upon review of the Plaintiff’s Amended Complaint, the Court will lift the
stay of this action and allow the case to proceed. By lifting the stay, the Court
in no way intends to express any opinion as to whether the Plaintiff’s
Amended Complaint states any claim upon which relief can be granted.
The Plaintiff further moves the Court, pursuant to Rule 5.1(a)(1)(B) of
the Federal Rules of Civil Procedure and 28 U.S.C. § 2403, to certify to the
North Carolina Attorney General that the constitutionality of a North Carolina
statute has been questioned by the Plaintiff’s Amended Complaint. [Doc.

27]. Certification to a state attorney general is required, however, only where
the State is not a party to the action. See 28 U.S.C. § 2403(b) (“In any action,
suit, or proceeding in a court of the United States to which a State or any
agency, officer, or employee thereof is not a party . . . the court shall certify
such fact to the attorney general of the State . . . .”) (emphasis added); see
also Fed. R. Civ. P. 5.1(a)(1)(B) (notice required where state statute is
questioned and parties do not include the state, one of its agencies, or one
of its officers or employees). Here, the Plaintiff has named both the State of
North Carolina and the North Carolina Department of Health and Human
Services as defendants. Accordingly, the Court is not required to provide
certification of a constitutional question to the State Attorney General.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Lift Stay
or Issue Ruling [Doc. 24] is GRANTED, and the stay of this matter is hereby
LIFTED. The Plaintiff shall proceed with service on the named Defendants.
IT IS FURTHER ORDERED that the Plaintiff’s Motion and Notice of
Constitutional Question [Doc. 27] is DENIED AS MOOT.
IT IS SO ORDERED.

Signed: May 6, 2015

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