USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 1 of 7
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 20-1776 (L)
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`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.;
`CENTER FOR FOOD SAFETY;
`ANIMAL LEGAL DEFENSE FUND;
`FARM SANCTUARY; FOOD & WATER
`WATCH; GOVERNMENT
`ACCOUNTABILITY PROJECT; FARM
`FORWARD; and AMERICAN SOCIETY
`FOR THE PREVENTION OF
`CRUELTY TO ANIMALS,
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`Plaintiffs-Appellees, Cross-
`Appellants
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`v.
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`JOSH STEIN, in his official capacity as
`Attorney General of North Carolina;
`and DR. KEVIN GUSKIEWICZ, in his
`official capacity as Chancellor of the
`University of North Carolina-Chapel
`Hill,
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`Defendants-Appellants, Cross-
`Appellees
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`and
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`NORTH CAROLINA FARM BUREAU
`FEDERATION, INC.,
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`Intervenor-Defendant-Appellant,
`Cross-Appellee.
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`DEFENDANTS-APPELLANTS’ RESPONSE TO
`MOTION TO DISMISS INTERVENOR’S APPEAL FOR
`LACK OF JURISDICTION
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`
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 20-1776 (L)
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`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.;
`CENTER FOR FOOD SAFETY;
`ANIMAL LEGAL DEFENSE FUND;
`FARM SANCTUARY; FOOD & WATER
`WATCH; GOVERNMENT
`ACCOUNTABILITY PROJECT; FARM
`FORWARD; and AMERICAN SOCIETY
`FOR THE PREVENTION OF
`CRUELTY TO ANIMALS,
`
`
`Plaintiffs-Appellees, Cross-
`Appellants
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`
`
`v.
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`JOSH STEIN, in his official capacity as
`Attorney General of North Carolina;
`and DR. KEVIN GUSKIEWICZ, in his
`official capacity as Chancellor of the
`University of North Carolina-Chapel
`Hill,
`
`
`Defendants-Appellants, Cross-
`Appellees
`
`
`
`and
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`NORTH CAROLINA FARM BUREAU
`FEDERATION, INC.,
`
`
`Intervenor-Defendant-Appellant,
`Cross-Appellee.
`
`
`DEFENDANTS-APPELLANTS’ RESPONSE TO
`MOTION TO DISMISS INTERVENOR’S APPEAL FOR
`LACK OF JURISDICTION
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`
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 2 of 7
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`Defendants Josh Stein and Kevin Guskiewicz (the “State
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`defendants”) respond to plaintiffs’ motion to dismiss the appeal of
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`intervenor-defendant North Carolina Farm Bureau Federation, Inc.
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`(“Farm Bureau”) as follows:
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`1.
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`Plaintiffs move to dismiss Farm Bureau’s appeal because
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`Farm Bureau allegedly lacks Article III standing, as an intervenor-
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`defendant, to appeal from the district court’s order granting in part and
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`denying in part the parties’ cross-motions for summary judgment.
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`2.
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`This Court has consolidated Farm Bureau’s appeal, No. 20-
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`1776; the State defendants’ appeal, No. 20-1777; and plaintiffs’ cross-
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`appeal, No. 20-1807. The State defendants therefore consider the three
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`appeals to be a single, consolidated case.
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`3.
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`Plaintiffs have not moved to dismiss the State defendants’
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`appeal. Instead, plaintiffs’ motion is limited to Farm Bureau’s appeal
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`as an intervenor-defendant. As a result, the State defendants take no
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`position on plaintiffs’ motion.
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`4. However, the State defendants briefly respond to correct
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`several inaccuracies in plaintiffs’ motion.
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`2
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 3 of 7
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`5.
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`First, plaintiffs state that Farm Bureau’s appeal
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`“successfully disrupted” settlement negotiations between plaintiffs and
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`the State defendants. Mot. at 10. That is not an accurate
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`representation. Plaintiffs have no basis for speculating about the
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`reasons the State defendants filed an appeal in this case. In any event,
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`the course of settlement negotiations between plaintiffs and the State
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`defendants is irrelevant to the question whether Farm Bureau’s appeal
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`should be dismissed for lack of jurisdiction.
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`6.
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`Second, plaintiffs argue that Farm Bureau “has sought to
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`direct this litigation” and that the State defendants have not “genuinely
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`prosecute[d]” certain “theories” to support the constitutionality of the
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`statute at issue here. Mot. at 10. Again, that is not an accurate
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`representation. As the State defendants told the district court in their
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`response to Farm Bureau’s motion to intervene, the State defendants
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`“have vigorously defended the challenged legislation in this lawsuit to
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`date and intend to continue to do so as this litigation progresses.” Dkt.
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`89 at 2.
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`7. Nothing has changed since that time. Plaintiffs point to one
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`argument that Farm Bureau made in its motion for summary judgment
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`3
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 4 of 7
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`but that the State defendants allegedly “did not genuinely prosecute.”
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`Mot. at 10 (comparing Dkt. 110 at 19-22, with Dkt. 108 at 26). That is
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`misleading. Plaintiffs cite a portion of the State defendants’ motion for
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`summary judgment in which the State defendants incorporated by
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`reference Farm Bureau’s arguments about why the challenged statute
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`does not violate due process. Dkt. 108 at 26. Farm Bureau, in turn,
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`incorporated by reference the State defendants’ arguments about why
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`the challenged statute does not violate equal protection. Dkt. 110 at 23.
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`8.
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`It is common—and entirely appropriate—for multiple parties
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`before a district court to incorporate each other’s arguments by
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`reference.1 The decision to do so here provides no support for plaintiffs’
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`statement that Farm Bureau is “direct[ing]” the litigation, or that the
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`State defendants are failing to “genuinely prosecute” it. See Mot. at 10.
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`And in any event, the “genuineness” of the State defendants’ litigation
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`1
`See, e.g., Shore v. Charlotte-Mecklenburg Hosp. Authority, 412 F.
`Supp. 3d 568, 571 (M.D.N.C. 2019) (Schroeder, J.) (accepting motion to
`dismiss by one set of defendants that “adopt[ed] and incorporate[d] by
`reference the facts, authorities, and arguments” in motion to dismiss by
`another set of defendants in the same action and granting that motion
`as to all defendants), appeal voluntarily dismissed, No. 19-2086, 2019
`WL 8359567, at *1 (4th Cir. Dec. 16, 2019).
`4
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 5 of 7
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`conduct is irrelevant to the question whether Farm Bureau’s appeal
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`should be dismissed for lack of jurisdiction.
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`9.
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`The State defendants otherwise take no position on
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`plaintiffs’ motion.
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`Respectfully submitted, this the 24th day of August 2020.
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`JOSHUA H. STEIN
`Attorney General
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`Matthew Tulchin
`Special Deputy Attorney General
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`/s/ Nicholas S. Brod
`Nicholas S. Brod
`Assistant Solicitor General
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`N.C. Department of Justice
`Post Office Box 629
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`Raleigh, NC 27602
`(919) 716-6400
`mtulchin@ncdoj.gov
`nbrod@ncdoj.gov
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`Counsel for Josh Stein and Kevin
`Guskiewicz
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`5
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 6 of 7
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`CERTIFICATE OF COMPLIANCE
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`I certify that this motion complies with Federal Rule of Appellate
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`Procedure 27(d) because it has been prepared in Century Schoolbook
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`14-point font using Microsoft Word. I further certify that it complies
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`with Federal Rule of Appellate Procedure 27(d)(2)(A) because it
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`contains 594 words.
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`Respectfully submitted, this the 24th day of August 2020.
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`/s/ Nicholas S. Brod
`Nicholas S. Brod
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`USCA4 Appeal: 20-1776 Doc: 23 Filed: 08/24/2020 Pg: 7 of 7
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`CERTIFICATE OF SERVICE
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`I certify that on August 24, 2020, I filed the foregoing with the
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`Clerk of the Court for the United States Court of Appeals for the Fourth
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`Circuit by using the appellate CM/ECF system. Participants in the case
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`are registered CM/ECF users and service will be accomplished by the
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`appellate CM/ECF system.
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`Respectfully submitted, this the 24th day of August 2020.
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`/s/ Nicholas S. Brod
`Nicholas S. Brod
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