Order Denying 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. 26 · 2020-09-30 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTII CAROLINA 
EASTERN DMSION 
No. 5:20-CV-507-D 
TIMOTHY K. MOORE, et al., 
) 
) 
Plaintiffs, 
) 
) 
v. 
) 
) 
DAMON CIRCOSTA, et al., 
) 
. ) 
Defendants. 
) 
ORDER 
On September 26, 2020, the Speaker of the North Carolina House of Representatives, 
Timothy K. Moore ("Moore"), the President Pro Tempore of the North Carolina Senate, Philip E. 
Berger ("Berger"), Bobby Heath ("Heath"), Maxine Whitley ("Whitley''), and Alan Swain ("Swain"; 
collectively, ''plaintiffs") filed a complaint against Damon Circosta ("Circosta") in his official 
capacity as chair of the North Carolina State Board of Elections (''NCSBOE"), Stella Anderson · 
("Anderson") in her official capacity as a NCSBOE member, Jeff Carmon, ill ("Carmon") in his 
official capacity as aNCSBOE member, and Karen Brinson Bell ("Bell"; collectively, "defendants") 
in her official capacity as Executive Director of the NCSBOE alleging claims under the Elections 
Clause and Equal Protection Clause of the United States Constitution and seeking declaratory and 
injunctive relief [D.E. 1]. On the same date, plaintiffs moved for a temporary restraining order [D.E. 
8] and filed a memorandum in support [D.E. 9]. On September 28, 2020, defendants moved to 
transfer venue to the United States District Court for the Middle District ofNorth Carolina [D.E. 14] 
and filed a memorandum in support [D.E. 15].1 On the same date, the court held a status conference 
1 Plaintiffs Berger and Moore and all defendants in this action are parties to ongoing 
litigation in the United States District Court for the Middle District of North Carolina. See 
Case 5:20-cv-00507-D   Document 26   Filed 09/30/20   Page 1 of 5

with all parties [D.E. 19]. After the status conference, plaintiffs responded in opposition to 
defendants' motion to transfer venue [D.E. 21 ]. On September 29, 2020, plaintiffs replied [D.E. 23]. 
In their motion to transfer venue, defendants ask this court to exercise its discretion under 
28 U.S.C. § 1404(a) or the ''first-filed" rule to transfer this action to the Middle District. See [D.E. 
1 S] 9--17. In response, plaintiffs argue that this court does not have a legal basis upon which to 
transfer this action under either section 1404(a) or the ''first-filed" rule. See [D.E. 21] 1-4, 7-8. 
Plaintiffs also argue that even if this court did have discretion, it should not exercise its discretion 
to transfer this action. See id. at 4-7. In reply, defendants offer three interrelated reasons for why 
Judge Osteen should hear this casetogetherwithDemocracyN.C.: (1) a defendant may waive venue 
as of right; (2) plaintiffs Berger and Moore did not object to venue in Democracy N.C.; and (3) this 
case is "so intertwined" with Democracy N.C. that Judge Osteen should hear both together. See 
[D.E. 23] 2-3. 
The court has considered the parties' arguments and finds plaintiffs' arguments much more 
persuasive. In short, the court denies defendants' motion to transfer venue for the reasons stated in 
plaintiffs' comprehensive and well-reasoned response. See [D.E. 21]. 
As for the legal basis upon which this court may transfer venue, defendants ignore the 
statutory commands of 28 U.S.C. § 1404(a). Under section 1404(a), the court may transfer venue 
to another district under two, distinct circumstances: (1) the transferee court sits in a district or 
Democracy N.C. v. N.C. State Bd. of Elections, No. l:20-CV-457, -
F. Supp. 3d-, 2020 WL 
4484063 ( M.D.N.C. Aug. 4, 2020) [hereinafter Democracy N.C.]. Plaintiffs Heath, Whitley, and 
Swain are not parties inDemocracyN.C. In.Democracy N.C., Judge Osteen issued a comprehensive 
188-page order concerning challenges to various North Carolina election laws and upheld, inter alia, 
the one-witness requirement in 2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a). See id. at 
*23-25. 
2 
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division where the action ''might have been brought''; or (2) the transferee court sits in a "district or 
division to which all parties have consented." 28 U.S.C. § 1404(a) (emphasis added). As for the 
second circumstance, plaintiffs in this action do not consent to transfer to the Middle District. See 
[D.E. 21] 1-4. As for the first circumstance, defendants fail to demonstrate this action ''might have 
been brought'' in the Middle District. See 28 U.S.C. § 1391(b)(l), (b)(2); Hoffman v. Blaski, 363 
U.S. 335, 343-44 (1960) (''The power of a District Court under [section] 1404(a) to transfer an 
action to another district is made to depend not upon the wish or waiver of the defendant but, rather, 
upon whether the transferee district was one in which the action 'might ~ve been brought' by the 
plaintiff."). On the con1rary, defendants concede that ''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." [D.E. 23] 2; see Jackson v. Leake, No. 105CV00691, 2006 
WL 2264027, at *10 (M.D.N.C. Aug. 7, 2006) (unpublished); Re,Publican Parcy: ofN.C. v. Martin, 
682 F. Supp. 834, 835-36 (M.D.N.C. 1988); cf. 28 U.S.C. § 1391(b)(l); Butterworth v. Hill, 114 
U.S. 128, 132 (1885). Moreover, defendants do not argue that the official duties they performed 
relevant to this action occurred anywhere other than in Raleigh, which is in the Eastern District of 
North Carolina. See [D.E. 23] 2-3; 28 U.S.C. § 139l(b)(2). As for the first-filed rule, "[a]lthough 
the first-to-file rule guides the district court's exercise of discretion in handling related cases, the 
requirements of[section] 1404(a) cabin the exercise of that discretion." In re Bozic, 888 F.3d 1048, 
1054 (9th Cir. 2018).2 As discussed, defendants fail to meet section 1404(a)'s requirements. 
2 To the extent defendants rely on 28 U.S.C. § 1406, see [D.E. 23] 2, venue must still lie in 
the transferee court. See Porter v. Groat, 840 F .2d 255, 251 ( 4th Cir. 1988); Jenkins v. Albuquerque 
Lonestar Freightliner, LLC, 464 F. Supp. 2d 491, 494 (E.D.N.C. 2006). As discussed, venue in this 
action does not lie in the Middle District. Thus, the court rejects defendants' argument under section 
1406. 
3 
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Alternatively, even if this court had discretion to 1ransfer this action to the Middle District 
so that Judge Osteen could hear this action and any pending motions for reconsideration in 
Democracy N .C., the court would decline to exercise that discretion. Although plaintiffs Berger and 
Moore did not object to venue in Democracy N.C. when they intervened in that case, defendants' 
argument fails to account for plaintiffs Swain, Heath, and Whitley. Cf. 28 U.S.C. § 1404(a). 
Furthermore, if a party waives venue in one judicial district in one case, that party is not required to 
accept venue in that judicial· district as a plaintiff in another case. Cf. Trs. of the Plumbers & 
PipefittersNat'lPensionFund v. Plumbing Servs., Inc., 791 F.3d436, 444 (4th.Cir. 2015). Rather, 
plaintiffs' choice of venue is entitled to "substantial weight" in determining whether transfer is 
appropriate. Id. ( quotation omitted). Additionally, witness convenience, convenience of the parties, 
and the interests of justice all fail to support 1ransfer. Moreover, and as plaintiffs explain at length, 
. this action is not "so intertwined" with Democracy N.C. that this court should 1ransfer this action to 
Judge Osteen. See [D.E. 21] 4-7; cf. DemocracyN.C., 2020 WL 4484063, at *4, 23. Even if the 
court were to 1ransfer this action to Judge Osteen, this action would not be consolidated with 
Democracy N.C. Cf. Fed. R. Civ. P. 42(a). Thus, the court rejects defendants' arguments, and 
denies defendants' motion to 1ransfer venue to the Middle District. 
Insum, the court DENIES defendants' motionto1ransfervenue [D.E. 14]. Defendants may 
submit a response to plaintiffs' motion for a temporary restraining order by 9:00 A.M. on Thursday, 
October 1, 2020. Plaintiffs may reply to defendants' response by 9:00 A.M. on Friday, October 2, 
2020. 
4 
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SO ORDERED. This .JQ day of September 2020. 
s 
~SC.DEVERill 
United States District Judge 
Case 5:20-cv-00507-D   Document 26   Filed 09/30/20   Page 5 of 5

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