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Fisher-Borne v. Smith

United States District Court, M.D. North Carolina

August 27, 2014

MARCIE FISHER-BORNE, for herself and as guardian ad litem for M.F.-B., a minor, et al., Plaintiffs,
v.
JOHN W. SMITH, in his official capacity as the Director of the North Carolina Administrative Office of the Courts, et al., Defendants. ELLEN W. GERBER, et al., Plaintiffs,
v.
ROY COOPER, et al., Defendants.

ORDER

WILLIAM L. OSTEEN, Jr., District Judge.

On July 30, 2014, this court entered an order requiring the parties in each of these two cases to submit supplemental briefs addressing the opinion of the Fourth Circuit Court of Appeals in Bostic v. Schaefer, Nos. 14-1167 , 14-1169, 14-1173, ___ F.3d ___, 2014 WL 3702493 (4th Cir. July 28, 2014). The parties have filed those briefs. All parties suggest that Bostic would control at least some of the issues in each of these two cases.

On August 20, 2014, the Supreme Court issued an order which stayed the mandate of the United States Court of Appeals for the Fourth Circuit in McQuigg v. Bostic, No. 14A196, ____ S.Ct. ____, 2014 WL 4096232 (Mem) (Aug. 20, 2014) (Fourth Circuit Case No. 14-1167). The stay remains pending through disposition of a petition for a writ of certiorari. If the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of the Supreme Court. If the writ is denied, the stay terminates automatically at that time. Id.

Pending before this court in each of these two cases is a Recommendation from the Magistrate Judge recommending that the matters be stayed pending the Fourth Circuit's decision in Bostic v. Schaefer, No. 14-1167. (No. 1:12CV589, Doc. 97; No. 1:14CV299, Doc. 49.) Plaintiffs objected to the Recommendations in each of these cases. (No. 1:12CV589, Doc. 99; No. 1:14CV299, Doc. 52.)

This court has conducted a de novo review of the matters to which objections were made and finds that the Recommendations should be adopted and these matters stayed. In light of the Supreme Court's stay of the Fourth Circuit's mandate, this court modifies the Recommendations to stay these matters pending termination of the stay granted in McQuigg v. Bostic, No. 14A196 (Fourth Circuit Case No. 14-1167). The parties are directed to notify this court within twenty (20) days of the denial of the petition for a writ of certiorari or the sending down of the judgment of the Supreme Court.

IT IS SO ORDERED.


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