Reply in Support of Motion to Transfer Venue — Moore v. Circosta

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U.S. District Court for the Eastern District of North Carolina · No. 5:20-cv-00507-D · Doc. 23 · 2020-09-29 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
WESTERN DIVISION 
 
Civil Action No. 5:20-cv-00507-D  
 
 
TIMOTHY K. MOORE, in his official 
capacity as Speaker of the North Carolina 
House of Representatives, PHILIP E. 
BERGER, in his official capacity as President 
Pro Tempore of the North Carolina Senate, 
BOBBY HEATH, MAXINE WHITLEY, and 
ALAN SWAIN, 
 
Plaintiffs, 
v. 
 
DAMON CIRCOSTA, in his official capacity 
as Chair of the North Carolina State Board of 
Elections, STELLA ANDERSON, in her 
official capacity as a member of the North 
Carolina State Board of Elections, JEFF 
CARMON, III, in his official capacity as a 
member of the North Carolina State Board of 
Elections, and KAREN BRINSON BELL, in 
her official capacity as the Executive Director 
of the North Carolina State Board of Elections, 
 
Defendants. 
 
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REPLY 
MEMORANDUM OF LAW IN 
SUPPORT OF DEFENDANTS’ 
MOTION TO TRANSFER 
VENUE 
 
 
NOW COME defendants and, in support of their motion to transfer venue to the United 
States District Court for the Middle District of North Carolina and replying to Plaintiffs’ Response 
to Defendants’ Motion to Transfer [D.E. 21], show the Court the following: 
 
 
 
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ARGUMENT 
I. 
The Pendency of Democracy NC in the Middle District of North Carolina 
Refutes Plaintiffs’ Assertion that Their Claims Could Not Be Presented in 
that District.  
Plaintiffs assert that they could not have brought their claims in the Middle District of 
North Carolina because venue is only proper against defendants—members and employees of the 
State Board of Elections—in the Eastern District of North Carolina, where the capital city Raleigh 
is located.  This assertion is plainly refuted by the reality that Democracy North Carolina v. NC 
State Board of Elections, M.D.N.C. No. 1:20-cv-457 (filed May 22, 2020) is currently pending in 
the Middle District of North Carolina. 
While venue for actions against members and employees of the State Board of Elections 
generally does appropriately lie where those members and employees perform their official duties, 
venue can be waived. “Nothing in this chapter [28 U.S.C. §§ 1391 et seq.] shall impair the 
jurisdiction of a district court of any matter involving a party who does not interpose timely and 
sufficient objection to the venue.”  28 U.S.C.S. § 1406.  As the Fourth Circuit has noted, “venue 
is a personal privilege of the defendant that may be waived.”  Young Again Prods. v. Acord, 459 
Fed. Appx. 294, 306 (4th Cir. 2011) (citing Leroy v. Great W. United Corp., 443 U.S. 173, 180 
(1979)). 
That is why the primary case relied on by plaintiffs, Republican Party of North Carolina, 
et al., v. Martin, 682 F. Supp. 834 (M.D.N.C. 1988), is inapposite.  In Martin, the defendants 
challenged venue in the Middle District and asserted their privilege to venue in the Eastern District 
of North Carolina.  In Democracy NC, defendants did not; rather, defendants waived any challenge 
to venue by not raising it.  It is simply untenable to assert that, having waived any challenge to 
venue in Democracy NC, defendants could nevertheless successfully challenge venue had this 
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action, which is clearly related to the subject matter of Democracy NC, been filed in the Middle 
District.1  Such a motion would surely be denied by the court, and appropriately so.  See Ettore v. 
Calvo, 2017 U.S. Dist. LEXIS 48112, at *3 (S.D. Cal. March 30, 2017) (noting with approval a 
transfer of venue to a district that was not the situs for any claims “when the defendants waived 
their objections to defective venue, so that the case could be adjudicated along with the related 
case . . . which was then pending in this District.”) 
The issue raised here is not that venue is generally improper in the Eastern District; rather 
it is that the issues raised in this case are so intertwined with a case already pending in the Middle 
District that the two cases should be heard together.  Plaintiffs’ reliance on the general, and 
waivable, rule that venue against State officials lies in the Eastern District is, like their reliance on 
Martin, unavailing.  
 
II. 
Plaintiffs’ Own Arguments Demonstrate that Their Claims Are Inextricable 
From the Preliminary Injunction Entered in Democracy NC. 
 
 
Plaintiffs assert that the claims and issues raised in this action “are entirely distinct” from 
those raised in Democracy NC [D.E. 21 at 4], and that Numbered Memo 2020-19 could not 
plausibly have been issued in order to comply with Judge Osteen’s preliminary injunction.2  They 
then expend over a page of their Response arguing about what Judge Osteen did and did not intend 
in his preliminary injunction.  Plaintiffs could not have made it any clearer that there is 
disagreement between the parties in this case as to what Judge Osteen’s order means, and that they 
                                                          
1   That is, of course, assuming that this action had been brought as a separate action in the 
Middle District rather than raised, as it should have been, in Democracy NC itself. 
2 As noted in defendants’ initial Memorandum of Law on their Motion to Transfer [D.E. 15 at 
16], there is no requirement under the first-filed rule that the issues presented in different cases 
be identical.  Rather, they simply must “bear on a common question.” Berger v. United States 
DOJ, 2016 U.S. Dist. LEXIS 84536, at *32 (E.D.N.C. June 29, 2016). 
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are asking this Court rather than Judge Osteen to resolve that disagreement.  By their argument, 
plaintiffs themselves have demonstrated that this action and Democracy NC “bear on a common 
question.”  Berger, 2016 U.S. Dist. LEXIS at *32.  Judge Osteen knows what he intended, and the 
first-filed rule, as well as judicial economy and efficiency, counsel that he, not a different federal 
court, should be called on to determine whether or not Numbered Memo 2020-19 implements his 
ruling as he intended. 
 
The inescapable conclusion in this case is that plaintiffs are using this Court to try and gain 
an end-run around both Judge Osteen and the Superior Court of Wake County.  Their attempt to 
do so should be rejected, and this matter should be transferred to the Middle District of North 
Carolina, where Judge Osteen can adjudicate questions about the meaning of his preliminary 
injunction. 
 
CONCLUSION 
For the foregoing reasons, this case should be transferred to the United States District Court 
for the Middle District of North Carolina. 
 
This the 29th day of September, 2020.  
 
 
 
 
 
JOSHUA H. STEIN 
Attorney General 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Alexander McC. Peters  
Alexander McC. Peters  
N.C. State Bar No. 13654 
Chief Deputy Attorney General 
 
 
 
 
 
 
 
 
N.C. Dept. of Justice 
Post Office Box 629 
Raleigh, NC 27602 
Telephone: (919) 716-6900 
Facsimile: (919) 716-6763 
Email: apeters@ncdoj.gov  
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CERTIFICATE OF WORD COUNT 
 
Pursuant to Local Rule 7.2(f)(4), the undersigned counsel hereby certifies that the 
foregoing Memorandum, including body, headings, and footnotes, contains 896 words as 
measured by Microsoft Word. 
 
Respectfully submitted this the 29th day of September, 2020. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Alexander McC. Peters  
Alexander McC. Peters  
Chief Deputy Attorney General 
 
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