UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF NORTH CAROLINA

- - - - - - - - - - - - - - - - - - - - - - - - - - - x
MARCIE FISHER-BORNE, et al.,
Plaintiffs,
v.
JOHN W. SMITH, et al.,
Defendants.
:
:
:
:
:
:
:
:
CIVIL ACTION
NO. 1:12-cv-00589
- - - - - - - - - - - - - - - - - - - - - - - - - - - x
ELLEN W. GERBER, et al.,
Plaintiffs,
v.
ROY COOPER, et al.,
Defendants.
:
:
:
:
:
:
:
:
CIVIL ACTION
NO. 1:14-cv-00299
- - - - - - - - - - - - - - - - - - - - - - - - - - - x

Plaintiffs Motion for Judgment on the Pleadings

In light of the Fourth Circuits controlling decision in Bostic v.
Schaefer, No. 14-1167, 760 F.3d 352, 2014 WL 3702493 (4th Cir. July 28, 2014),
cert. denied sub nom. McQuigg v. Bostic, ___ S.Ct. ____, 2014 WL 4354536
(Oct. 6, 2014), Plaintiffs in the above-captioned Actions move for judgment on
the pleadings pursuant to Fed. R. Civ. P. 12(c). Judgment on the pleadings is
appropriate because no party to this case disputes that the decision and
mandate issued by the Fourth Circuit in Bostic controls the outcome of the
Case 1:12-cv-00589-WO-JEP Document 116 Filed 10/08/14 Page 1 of 5

-2-


proceedings in this case, which is now ripe for determination as a matter of law.
1

See Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 724 (M.D.N.C.
2012) ([J]udgment on the pleadings is only appropriate when, taking all of the
non-moving party's factual allegations as true, no genuine issues of material fact
remain and the case can be determined as a matter of law.). Pursuant to the
Courts October 8, 2014 Order, Plaintiffs do not attach briefing in support of their
Motion and instead rely on the prior briefs, status reports, and orders of this
Court. See October 8 Order at 3. Counsel for Plaintiffs has contacted counsel
for defendants; counsel for the State Defendants and for Register of Deeds
Defendant Donna Hicks Spencer have indicated that they do not oppose this
Motion. Counsel for Plaintiffs will inform the Court when they have ascertained
the position taken by remaining Register of Deeds Defendants.
As the Answers filed by the State Defendants today admit,
2
both
Article XIV, 6 of the North Carolina State Constitution (Amendment One) and
North Carolina General Statutes 51-1 and 51-1.2 are unconstitutional on their

1
In the event that the Court is not inclined to proceed to immediate
judgment on the pleadings, Plaintiffs also renew their pending motions for a
preliminary injunction and respectfully suggest that such an injunction should
enter forthwith. See Motion for Preliminary Injunction, No. 12-cv-589, ECF No.
75 (Apr. 9, 2014); Motion for Preliminary Injunction, No. 14-cv-299, ECF No. 3
(Apr. 9, 2014); Order at 3, No. 12-cv-589 ECF No. 114, 14-cv-299 ECF No. 71
(Oct. 8, 2014) [hereinafter October 8 Order].
2
Answers were filed by Defendant/Intervenor Roy A. Cooper and State
Defendants John W. Smith, Hon. David L. Churchill, Hon. Archie L. Smith III, and
Hon. Al Jean M. Bogle (the State Defendants).
Case 1:12-cv-00589-WO-JEP Document 116 Filed 10/08/14 Page 2 of 5

-3-


face. See First Amended Complaint 408, Fisher-Borne v. Smith, 12-cv-589,
ECF No. 40 (July 19, 2013) (Amendment One and N.C. Gen. Stat. 51-1, 51-
1.2 are unconstitutional on their face and as applied to the Married Plaintiffs
because they violate the Equal Protection Clause of the United States
Constitution by categorically depriving these plaintiffs of the recognition of their
marriage in North Carolina.); State Defendants Answer and Defenses 406-
413, No. 12-cv-589, ECF No. 115 (Oct. 8, 2014) ([I]n accordance with Bostic v.
Schaefer, the legal conclusions of this paragraph, as they pertain to Plaintiffs
14th Amendment rights, are admitted.); see also Complaint 222, Gerber v.
Cooper, No. 14-cv-299, ECF No. 1. (Apr. 9, 2014) (same allegation); State
Defendants Answer and Defenses 221-227, No. 14-cv-299, ECF No. 70 (Oct.
8, 2014) (same answer). Prior to the Fourth Circuits ruling in Bostic and the
Supreme Courts denial of certiorari, the answers filed by certain Register of
Deeds Defendants neither admitted nor denied these conclusions of law. See
Thigpen Answer 406-412, Fisher-Borne v. Smith, 12-cv-589, ECF No. 67 (Sept.
11, 2013) (To the extent that the allegations in Paragraphs 406-412 constitute
conclusions of law, said conclusions are neither admitted nor denied.); Spencer
Answer 221-227, Gerber v. Cooper, 14-cv-299, ECF No. 53 (June 16, 2014)
(To the extent that the allegations in Paragraphs 221 through 227 constitute
conclusions of law, said conclusions are neither admitted nor denied.).
3
Since

3
The Register of Deeds Defendants are Willie Covington, Jeff Thigpen,
Case 1:12-cv-00589-WO-JEP Document 116 Filed 10/08/14 Page 3 of 5

-4-


the Supreme Courts denial of certiorari in Bostic, however, all Registers of
Deeds Defendants have recognized that the Bostic mandate controls the
outcome of these proceedings and have agreed to implement the law of North
Carolina as construed by this Court. Response to the Courts October 6, 2014
Order, ECF No. 68 (Oct. 7, 2014).
Furthermore, as disclosed in the parties reports filed yesterday, the
parties agree that no discovery is required to resolve Plaintiffs marriage claims,
and that the adoption claims are mooted by the equal availability or recognition of
marriage and stepparent adoption pursuant to North Carolina law.
For the foregoing reasons and those set out in Plaintiffs prior briefs,
Plaintiffs respectfully urge the Court to enter judgment in the form of the attached
proposal, which is substantially identical to the judgment granted by the district
court and affirmed by the Court of Appeals for the Fourth Circuit in Bostic.

and Donna Hicks Spencer. Register of Deeds Defendant Willie Covington did
not answer and instead moved to dismiss Plaintiffs complaint. Motion, Fisher-
Borne v. Smith, No. 12-cv-589, ECF No. 63 (Sept. 10, 2013). That motion was
denied as moot in the Courts October 8 Order.
Case 1:12-cv-00589-WO-JEP Document 116 Filed 10/08/14 Page 4 of 5

-5-


This the 8th day of October 2014.
Of Counsel: __/s/ Amy Richardson______________
Amy E. Richardson
N.C. State Bar No. 28768
2009 Fairview Road #6220
Raleigh, NC 27628
Telephone: (919) 429-7386
Facsimile: (202) 730-1301
arichardson@harriswiltshire.com

Jonathan D. Sasser
N.C. State Bar No. 10028
Jeremy M. Falcone
N.C. State Bar No. 36182
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone Number: (919) 865-7000
Facsimile Number: (919) 865-7010
jsasser@aclunc.org
jfalcone@aclunc.org

Rose A. Saxe
James D. Esseks
American Civil Liberties Union Foundation
125 Broad Street
New York, New York 10004-2400
Telephone: (212) 549-2500
Facsimile: (212) 549-2646
rsaxe@aclu.org
jesseks@aclu.org

Elizabeth O. Gill
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, California 94111-4805
Telephone: (415) 343-1237
Facsimile: (415) 255-1478
egill@aclunc.org

Christopher Brook
N.C. State Bar No. 33838
ACLU of North Carolina
P.O. Box 28004
Raleigh, North Carolina 27611-8004
Telephone: (919) 834-3466
Facsimile: (866) 511-1344
cbrook@acluofnc.org

Garrard R. Beeney
David A. Castleman
C. Megan Bradley
W. Rudolph Kleysteuber IV
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Telephone: (212) 558-4000
Facsimile: (212) 558-3588
beeneyg@sullcrom.com
castlemand@sullcrom.com
bradleyc@sullcrom.com
kleysteuberr@sullcrom.com

Attorneys for the Plaintiffs

Case 1:12-cv-00589-WO-JEP Document 116 Filed 10/08/14 Page 5 of 5

-1-
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA

- - - - - - - - - - - - - - - - - - - - - - - - - - -x
MARCIE FISHER-BORNE, et al.,
Plaintiffs,
v.
J OHN W. SMITH, et al.,
Defendants.
:
:
:
:
:
:
:
:
CIVIL ACTION
NO. 1:12-cv-00589
- - - - - - - - - - - - - - - - - - - - - - - - - - - x
ELLEN W. GERBER, et al.,
Plaintiffs,
v.
ROY COOPER, et al.,
Defendants.
:
:
:
:
:
:
:
:
CIVIL ACTION
NO. 1:14-cv-00299
- - - - - - - - - - - - - - - - - - - - - - - - - - - x

[PROPOSED] JUDGMENT
THIS ACTION having come before the Court, it is hereby
ORDERED, ADJ UDGED AND DECREED that:
1. North Carolinas marriage laws are facially unconstitutional under the
Due Process and Equal Protection Clauses of the Fourteenth Amendment to the
United States Constitution to the extent they deny the rights of marriage to same-
sex couples or recognition of lawful marriages between same-sex couples that
are validly entered into in other jurisdictions.
2. The Clerk of the Superior Court for Guilford County, the Clerk of the
Superior Court for Durham County, the Clerk of the Superior Court for Catawba
Case 1:12-cv-00589-WO-JEP Document 116-1 Filed 10/08/14 Page 1 of 2

-2-
County, the Attorney General, and their officers, agents, and employees, and the
officers, agents, and employees of the State of North Carolina are hereby
ENJ OINED from enforcing: Article XIV, 6 of the North Carolina State
Constitution, North Carolina General Statute 51-1, North Carolina General
Statute 51-1.2, and any other North Carolina law if and to the extent that it
denies to same-sex couples the rights and privileges of marriage that are
afforded to opposite-sex couples.
3. Plaintiffs claims concerning the adoption laws of North Carolina
(Plaintiffs First, Second, Third, Fourth, and Fifth Claims for Relief in Fisher-Borne
v. Smith, First Amended Complaint, 12-cv-589, ECF No. 40 (J uly 19, 2013); and
Plaintiffs Fourth, Fifth, Sixth, and Seventh Claims for Relief in Gerber v. Cooper,
Complaint, No. 14-cv-299, ECF No. 1. (Apr. 9, 2014)) are hereby dismissed
without prejudice.
4. Plaintiffs claim for attorneys fees and costs under 42 U.S.C. 1988
is hereby severed and will be considered by the Court upon motion of the parties.
This J udgment is FINAL.


Dated:


__________________________
William L. Osteen
United States District J udge

Case 1:12-cv-00589-WO-JEP Document 116-1 Filed 10/08/14 Page 2 of 2