ALLEN v. CITY OF GRAHAM, NC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SYLVESTER ALLEN, JR., et al., )

)

Plaintiffs, )

)

v. ) 1:20CV997

)

CITY OF GRAHAM, et al., )

)

Defendants. )

GREGORY DRUMWRIGHT, et al., )

)

Plaintiffs, )

)

v. ) 1:20CV998

)

TERRY JOHNSON, in his official )

and individual capacities as )

Alamance County Sheriff, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the Partial Consent Motion

for Leave to Take Limited Early Discovery and to Extend the Time

Limit for Service (Docket Entry 55).1 For the reasons that follow,

1 The Court (per United States District Judge Catherine C.

Eagles) previously “consolidated [the above-captioned cases] for

all pre-trial proceedings” (Docket Entry 22 at 2), at which time

“Allen v. City, 20cv997, [wa]s designated as the lead case” (id.),

with “all pleadings, motions, briefs, and other allowable filings

[to] be filed in that case only” (id.). The attorneys in the lead

case recently reported a settlement of that case subject to certain

approvals. (See Docket Entries 72, 73.) Because that settlement

remains tentative and resolution of the instant Motion remains

necessary regardless of any settlement of the lead case, the Court

has entered this order as to both cases. Unless otherwise noted,

parenthetical citations refer to the Docket in the lead case.

the Court will grant in part and will deny in part the instant

Motion, by declining to permit the proposed early discovery, but

extending the deadline for service of process on any proper

Defendant(s) presently sued as John or Jane Doe.

INTRODUCTION

A total of 20 individual and three organizational Plaintiffs

instituted the above-captioned actions against the City of Graham,

Alamance County, and five named law enforcement officers from the

Graham Police Department (“GPD”) and the Alamance County Sheriff’s

Office (“ACSO”) (collectively, the “Named Defendants”), as well as

at least 40 and (depending on overlap between the two actions) up

to 70 unnamed GPD and ACSO law enforcement officers (collectively,

the “Doe Defendants”). (See Docket Entries 24, 25.) The Named

Defendants answered and moved for dismissal or judgment on the

pleadings. (See Docket Entries 31, 42, 45, 48, 49, 50, 52.)

During the pendency of those motions and before the setting of an

initial pretrial conference, Plaintiffs filed the instant Motion,

seeking “leave to take limited discovery prior to the Rule 26(f)

conference for the purpose of ascertaining the identities of the []

Doe Defendants, and an extension of time to effect service on the

Doe Defendants in accordance with Rule 4(m)” (Docket Entry 55 at 1

(internal parenthetical omitted); see also Docket Entry 57

(Memorandum of Law)). Defendants City of Graham, Mary Kristine

(Kristy) Cole, Jonathan Franks, and Joaquin Velez (collectively,

2

the “Graham Defendants”) responded (see Docket Entry 69), and

Plaintiffs replied (see Docket Entry 71).

DISCUSSION

“The designation of a John [or Jane] Doe defendant is

generally not favored in the federal courts; it is appropriate only

when the identity of the alleged defendant is not known at the time

the complaint is filed and the plaintiff is likely to be able to

identify the defendant after further discovery.” Chidi Njoku v.

Unknown Special Unit Staff, No. 99-7644, 217 F.3d 840 (table), 2000

WL 903896, at *1 (4th Cir. July 7, 2000) (unpublished); see also

Strauss v. City of Chicago, 760 F.2d 765, 770 n.6 (7th Cir. 1985)

(“[A]llowing a complaint to be filed against an unnamed party in

the first place is viewed with disfavor.”); Gillespie v. Civiletti,

629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use of

‘John Doe’ to identify a defendant is not favored.”).*° Moreover,

the United States Court of Appeals for the Fourth Circuit recently

rejected the position “that a court may dismiss a suit for failure

to name a John [or Jane] Doe defendant only if it does not appear

that the true identity of an unnamed party can be discovered

through discovery or through intervention by the court.” Attkisson

v. Holder, 925 F.3d 606, 628 (4th Cir. 2019) (internal quotation

2 In fact, as well-explained by another court in this Circuit,

good reasons exist to deem suits against John or Jane Doe(s) not

only disfavored but precluded. See Price v. Marsh, No. 2:12CV5442,

2013 WL 5409811, at *3-5 (S.D.W. Va. Sept. 25, 2013) (unpublished).

marks omitted) (emphasis in original); see also id. (reiterating

“that, as to John Doe defendants, the district court is in a better

position than [an appellate court] to ascertain what treatment

should be given and when” and “defer[ring] to the wisdom of the

district judge in dismissing the John Doe defendants” (internal

quotation marks omitted)). In other words, circumstances may

warrant a district court declining to permit a case to proceed as

to unnamed defendants, even if the plaintiff(s) likely could

identify the unnamed defendants through discovery.

This case may present just such a circumstance, at least as to

many (if not most) of the (40 to 70) Doe Defendants, because (in

the main) “Plaintiff[s] ha[ve] failed to differentiate the alleged

wrongful conduct between [the Doe] Defendants; instead,

[Plaintiffs’ pleadings] repeatedly lump[] the [Doe] Defendants [and

even all Defendants] together . . . . Under Rule 8(a), grouping

multiple defendants together in a broad allegation is insufficient

to provide the defendants with fair notice of the claims against

them and the grounds for relief.” Bagwell v. Dimon, No. 1:14CV495,

2015 WL 2374614, at *7 (M.D.N.C. May 18, 2015) (Biggs, J.)

(unpublished) (internal quotation marks omitted); see also SD3, LLC

v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)

(“[I]f [a complaint] fails to allege particular facts against a

particular defendant, then the defendant must be dismissed.”);

Jiangmen Kinwai Furniture Decoration Co. v. IHFC Props., LLC, No.

4

1:14CV689, 2015 WL 5944278, at *2 n.1 (M.D.N.C. Oct. 13, 2015)

(Eagles, J.) (unpublished) (“One is also unable to tell which

defendant did what, since [the plaintiff] treated the two new

proposed defendants and [the original defendant] as one actor in

[the plaintiff’s] allegations.”); Luna-Reyes v. RFI Constr., LLC,

57 F. Supp. 3d 495, 503 (M.D.N.C. 2014) (Schroeder, J.) (requiring

filing of more definite statement where “the complaint repeatedly

makes factual allegations generally directed at ‘Defendants,’

without any distinction between them,” because “[s]uch a conclusory

and shotgun approach to pleading fails to provide each [d]efendant

the factual basis for the claim(s) against him or it and therefore

deprives them and the court of the opportunity of determining

whether there are sufficient facts to make a claim against each

[d]efendant plausible” (emphasis omitted)); Parker v. White, No.

5:12CT3082, 2012 WL 6701771, at *2 (E.D.N.C. Dec. 26, 2012)

(unpublished) (“[T]he complaint must provide each John Doe

defendant with fair notice of the specific facts upon which his

individual liability rests.”).

Specifically, Plaintiffs’ operative pleadings contain these

material allegations regarding the Doe Defendants (en masse):

1) “Defendants John and Jane Does #1-15 . . . are all

officers, agents, and/or employees of GPD” (Docket Entry 24, ¶ 15;

see also id., ¶ 16 (“At all relevant times, Defendants John and

Jane Does #1-15 were acting within the scope of their employment as

5

GPD officers.”); Docket Entry 25, ¶ 43 (“Defendants [] Does #21–40

. . . are all officers, agents, and/or employees of the GPD. At

all relevant times, [they] were acting within the scope of their

employment and under color of state law.”));

2) “Defendants John and Jane Does #16-30 . . . are all

officers, agents, and/or employees of ACSO” (Docket Entry 24, ¶ 17;

see also id., ¶ 18 (“At all relevant times, Defendants John and

Jane Does #16-30 were acting within the scope of their employment

as ACSO deputy sheriffs.”); Docket Entry 25, ¶ 33 (“Defendants []

Does #1-20 . . . are all officers, agents, and/or employees of the

ACSO. At all relevant times, [they] were acting within the scope

of their employment and under color of state law.”));

3) “[o]n October 31, 2020” (Docket Entry 24, ¶ 40), sometime

after “approximately 11:00 A.M.” (id., ¶ 46), a group of

individuals (referred to alternately as “protesters” and “March

attendees” (id., ¶¶ 46, 48, 49)), “arrived at Court Square, [where]

dozens of officers including Defendants Velez and John and Jane

Does #1-30, were already present and in formation” (id., ¶ 49; see

also id., ¶ 50 (“The officers, including Defendants Velez and John

and Jane Does #1-30, were already wearing riot gear, gas masks, and

face shields, and had pepper spray canisters drawn.”));

4) “[i]mmediately after [a] remembrance [for George Floyd],

police officers ordered the nearly 200 protesters out of the

streets and into other designated protest areas” (id., ¶ 56

6

(emphasis added)), but “[s]lome protesters, including some

Plaintiffs, were unable to hear and/or understand the officers’

commands” (id., 97 57 (emphasis added) );°*

5) “[{s]leveral protesters, including [Plaintiffs Dejuana]

Bigelow and [Sylvester] Allen[, Jr.], observed officers on the

scene communicating with each other” (id., @ 59) and, “[ulpon

information and belief, the GPD police officers and ACSO deputies,

including Defendants John and Jane Does #1-30, were communicating

with each other to coordinate a plan for dispersing the crowd”

(id., I 60; accord id., {@ 183);

6) “GPD police officers and ACSO deputies, including

Defendants John and Jane Does #1-30, did not provide any warning

that chemical irritants would be used” (id., 1 61);

7) “[{u]lpon information and belief, less than one minute after

ordering protesters to clear the street and move to designated

protest areas, officers . . . indiscriminately discharged pepper

spray against the protesters” (id., J 62) and, “[u]pon information

and belief, Defendants Velez and John Does #1-30 either themselves

discharged pepper spray at protesters, including Plaintiffs, or

were aware of, had the opportunity to prevent, and failed to

prevent other officers from discharging pepper spray” (id., I 63;

3 Unlike other allegations in this pleading that expressly

include 30 Doe Defendants as among referenced “officers” and/or

“deputies” (Docket Entry 24, FI 49, 50, 52, 60, 61, 67, 70), the

allegations quoted in this item do not (see id., IF 56-57).

see also Docket Entry 25, 7 99 (“Within seconds after the silent

vigil ended, and without giving the marchers any warning,

direction, or opportunity to clear the street, one or more of Doe

GPD officers #21-40, working in coordination, suddenly began

indiscriminately pepper spraying the peaceful marchers-—many of

whom were still making their way to their feet.”));

8) “[u]pon information and belief, the operational plan

Defendant [Terry] Johnson developed after learning of the first use

of pepper spray authorized deputies, including Defendant Officers

John and Jane Does #16-30, to use pepper spray again” (Docket Entry

24, 7 67; accord id., 7 174; see also id., { 184 (“Upon information

and belief, Defendant Johnson formed an organizational plan for

Defendants John and Jane Does #16-30 that authorized the use of

pepper spray on peaceful marchers, including Plaintiffs.”));

9) “{uJpon information and belief, while the March organizers

were speaking to protesters, GPD and ACSO officers—-including

Defendants Velez and John and Jane Does #1-30—--communicated with

each other and decided to use pepper spray again” (id., 4 70);

10) “[a]fter approximately 30 minutes, ACSO deputies and GPD

officers came to the stage and attempted to unplug the generator to

end the rally without explanation” (id., I 71 (emphasis added)),*

4 Unlike other allegations in this pleading which expressly

include 30 Doe Defendants as among referenced “officers” and/or

“deputies” (Docket Entry 24, FI 49, 50, 52, 60, 61, 67, 70), the

allegation here does not (see id., {@ 71). However, the companion

(continued...)

whereupon, “[l]ess than a minute later, ACSO deputies and GPD

officers began to unleash pepper spray at the March attendees for

the second time without explanation” (id., ¶ 72 (emphasis added)),

and, “[u]pon information and belief, Defendants Velez and John and

Jane Does #1-30 again either themselves discharged pepper spray at

protesters, including Plaintiffs, or were aware of, had the

opportunity to prevent, and failed to prevent other officers from

discharging pepper spray” (id., ¶ 73; see also Docket Entry 25,

¶ 116 (“Suddenly and again with no warning or dispersal order,

Defendants’ [sic] officers and deputies, including at least some of

Doe ACSO Deputies #1-20 and at least some of Doe GPD officers

#21-40, worked in coordination to pepper spray the marchers a

second time . . . .”)); and

11) “[t]he pepper spray caused many of the[] elderly

protesters [with respiratory problems] to go into respiratory

distress” (Docket Entry 24, ¶ 78), while, “[u]pon information and

belief, Defendants Velez and John and Jane Does #1-30 themselves

blocked paramedics from administering aid” (id., ¶ 80).5

4(...continued)

pleading ascribes the same actions to “one of Defendants ACSO Does

#1-20” (Docket Entry 25, ¶ 114), while accusing “[s]ome of

Defendants ACSO Does [of] grabb[ing an organizational] Plaintiff[’s

] equipment, . . . [as well as an individual] Plaintiff [] and

members of [that organizational] Plaintiff” (id., ¶ 115).

5 The above-quoted allegations that elderly protesters

experienced respiratory distress, while 30 Doe Defendants “blocked

paramedics from administering aid” (Docket Entry 24, ¶ 80),

(continued...)

9

Elsewhere, Plaintiffs’ operative pleadings routinely eschew

even the restriction of their allegations about use of pepper spray

(and related violations of their rights) to amorphous amalgams of

15, 20, 30, or 40 Doe Defendants, in favor of (even more generic)

5(...continued)

followed allegations that, “[a]ls March attendees, including

Plaintiffs, attempted to clear out of the area and disperse,

officers continued to patrol the area, deploying pepper spray a

third time at individuals who were allegedly not moving fast

enough” (id., 7 75 (emphasis added)). Unlike other allegations in

this pleading which expressly include 30 Doe Defendants as among

referenced “officers” and/or “deputies” (id., FTI 49, 50, 52, 60,

61, 67, 70), the instant allegation as to a third use of pepper

spray does not (see id., {@ 75). Later in that pleading, however,

Plaintiffs alleged (without additional context) that “Defendants

Velez and John and Jane Does #1-30 discharged pepper spray, or

failed to intervene to stop the discharge of pepper spray despite

being able to, on at least three separate occasions at Plaintiffs

Tabatha Davis, Olivia Davis, Talaun Woods, and members of Future

Alamance, as well as other peaceful marchers who intended to vote

at the end of the March.” (id., { 140 (emphasis added); see also

id., 142 (impliedly alleging that 30 Doe Defendants “used or

failed to prevent the use of pepper spray” on “three separate

occasions”), 167 (alleging that 30 Defendant Does “repeatedly used

pepper spray on Plaintiffs, or were aware of, had reasonable

opportunity to prevent, and failed to prevent other officers’ use

of pepper spray on Plaintiffs”).) Other aspects of that pleading

generally allege that 30 Doe Defendants used pepper spray (or, in

some instances, failed to stop other officers from using pepper

spray), but do not give a number of occasions. (See id., IF 150-

52, 168, 171, 172, 175, 176, 196, 205.) The other operative

pleading blames “Defendants” (without further specification) for

“dispensing large volumes of pepper spray into the crowd a third

time, without warning, even as marchers tried to leave” (Docket

Entry 125, @ 124 (emphasis added)) and then appears to describe

further uses of pepper spray by 20 Doe Defendants and a sub-group

thereof after those three instances (see id., 128 (“As many

marchers, including [five individual] Plaintiffs [], attempted to

disperse, they were chased and sprayed repeatedly with pepper spray

by Defendant [] Does #21-40.”), 131 (‘As they began to head towards

North Main Street in compliance with the officers’ orders, multiple

Doe GPD officers #21-40 who lined the street pepper sprayed

Plaintiffs Ernestine and Edith Ward and the other marchers.”)).

10

references to “Defendants.” (See, e.g., Docket Entry 24, ¶¶ 84

(alleging that three individual Plaintiffs and “at least one member

of [an organizational Plaintiff] had all planned to vote on October

31, 2020, following the March; none were able to do so because of

the violence Defendants directed at them and others”), 90

(“Defendants’ discharge of pepper spray against individuals

marching to a polling place and seeking to exercise the right to

vote intimidates North Carolina voters, particularly Black voters,

and is likely to deter individuals from voting.”), 91 (“Defendants

sent a clear message to Black voters and others who speak out

against police violence directed at Black people, including

Plaintiffs, that they may face pepper spray or other violence when

they vote or engage in peaceful assemblies.”), 94 (“Upon

information and belief, Defendants’ use of pepper spray on March

attendees was motivated at least in part by the race of March

attendees—-the majority of whom were Black, and all of whom were

marching in support of the Black community.”), 110 (“Defendants’

intimidating and violent conduct prevented [Plaintiff Tabatha]

Davis from voting at Elm Street on October 31, 2020.”), 130

(“Defendants discharged, or approved the discharge of, pepper spray

on protesters on at least three occasions on October 31, 2020,

which caused Plaintiffs physical harm.”), 134 (“Defendants

deployed, or approved the deployment of, pepper spray through

aerosol guns, causing the gas to spread over entire areas.”), 146

11

(“[One individual Plaintiff] was in fact unable to vote on Election

Day because Defendants’ conduct on October 31, 2020 extinguished

his final opportunity to register to vote.”), 155 (“Defendants’

conduct would likely deter a person of ordinary firmness from

participating in further marches for fear of being subject to

similar force and has, in fact, actually deterred at least some

Plaintiffs from participating in further demonstrations.”), 160

(“Defendants’ conduct was motivated at least in part by the subject

matter of Plaintiffs’ March–-protesting police violence.”), 162

(“Defendants’ conduct was willful, wanton, and undertaken with

reckless or callous indifference to the federally protected rights

of Plaintiffs.”), 191 (“After Defendants deployed tear gas

following the remembrance of George Floyd, a number of marchers

were injured and forced to leave.”); Docket Entry 25, ¶¶ 124

(“Without providing marchers adequate time to disperse or providing

any instruction on where or how they should move, Defendants began

dispensing large volumes of pepper spray into the crowd a third

time, without warning, even as marchers tried to leave the area.”),

144 (“Because of Defendants’ conduct, the planned march to the

polls was abruptly terminated. . . . Plaintiff [Avery] Harvey was

unable to vote at all in the 2020 election because of Defendants’

actions.”), 155 (“Defendants’ activities constitute an attempt to

intimidate, threaten, and coerce citizens, like [four individual]

Plaintiffs [] and members of [two organizational] Plaintiffs []

12

. . . in a manner that prevents them from exercising their

constitutional right to vote and from encouraging others to do

so.”), 156 (“Defendants’ actions harassed, threatened, and

intimidated voters and peaceful marchers.”), 160 (“Upon information

and belief, Defendants provided no explanations of any violations

being committed, and no written warnings, before deploying pepper

spray and commencing to arrest protesters . . . .”), 162

(“Defendants’ violent suppression of Plaintiffs’ rights to assemble

for a march to the polls constitutes an attempt to intimidate,

threaten, and coerce voters such as [four i]ndividual Plaintiffs []

and [two o]rganizational Plaintiffs[’ ] members in an attempt to

prevent and discourage them from exercising their right to vote.”),

164 (“Defendants’ actions violated Plaintiffs’ clearly established

rights, of which a reasonable person would have known.”), 165 (“As

a result of Defendants’ unlawful actions, Plaintiffs have suffered

injuries entitling them to damages . . . .”), 168 (“Defendants’

actions were not a reasonable regulation of the time, place, or

manner of Plaintiffs’ First Amendment protected activity.”), 169

(“The actions and inactions of Defendants had the effect of denying

people the ability to peaceably assemble, march, vote, and

protest.”), 171 (“Defendants have demonstrated continued hostility

to Plaintiffs’ attempts to participate in non-violent protests and

otherwise exercise their First Amendment rights since the October

31 March.”), 182 (“Defendants’ issuance of unlawful dispersal

13

orders and use of pepper spray and arrests to forcibly disperse a

peaceful march to the polls and peaceful pro-voting rally

unreasonably seized Plaintiffs and violated their Fourth Amendment

rights.”), 188 (“Defendants’ violent conduct would intimidate or

attempt to intimidate an objectively reasonable individual and did

in fact prevent Plaintiff [Edith Ann] Jones and other voters from

exercising their constitutional right to vote on the last day of

the early voting period.”), 197 (“Defendants knew or should have

known at the time of their actions that they would prevent or deter

constitutionally eligible voters . . . from exercising their right

to vote in elections for President and members of Congress.”).)

Those broad-brush allegations stand in stark contrast to one

(small) portion of one of these pleadings, where Plaintiffs

singled-out four Doe Defendants (denominated as “Defendant Officers

John and Jane Does #1-4”) for committing discrete acts against a

specific individual Plaintiff. (See Docket Entry 24, ¶¶ 114-20,

169, 197.) Notably, Plaintiffs’ operative pleadings contain other

allegations about distinct conduct by individual Doe Defendants and

sub-groups of Doe Defendants (or law enforcement officers who meet

Doe Defendants’ general description) that appear likely to number

fewer than 15, but Plaintiffs made no effort to differentiate those

Doe Defendants from any others (such as by assigning them

particular numbers). (See, e.g., Docket Entry 24, ¶¶ 82

(referencing encounter caught on video of “three GPD officers

14

restraining an elderly man”), 83 (“Th[at same] video also shows

protestors inform one GPD officer, ‘You sprayed a kid.’ The

officer appears to respond ‘I did.’”), 102 (alleging that “[l]aw

enforcement pepper sprayed [Plaintiff] Allen in the face”),6 126

(“[Plaintiff Willis] was pepper sprayed twice at the March . . . .

The second time, [she] was pepper sprayed directly in the face from

close range.”);7 Docket Entry 25, ¶¶ 106 (“Plaintiff [Ashley Reed]

Batten was approximately six feet away from one of [the] Defendant

[] Does #1-20 who pepper sprayed her directly as she helped an

elderly Black woman in the crowd get away from the area.”),8 110

(“[O]ne or more of Doe GPD officers #21-40 stopped [members of two

organizational Plaintiffs] and started to arrest them.”), 113 (“GPD

Officer Jordan and two or more Doe GPD Officers #21-40 put hands on

Plaintiff Harvey and arrested him.”), 119 (“At least one of

Defendant ACSO Does #1-20 or Defendant [GPD] officer Does #21-40

6 The above-quoted allegation directly conflicts with later

allegations in the same pleading that “Defendants deployed . . .

pepper spray through aerosol guns” (Docket Entry 24, ¶ 134) and

that, “[w]hen used in such a manner, pepper spray cannot be

targeted at specific people or even in a discrete direction” (id.).

7 The above-quoted allegation directly conflicts with later

allegations in the same pleading that “Defendants deployed . . .

pepper spray through aerosol guns” (Docket Entry 24, ¶ 134) and

that, “[w]hen used in such a manner, pepper spray cannot be

targeted at specific people or even in a discrete direction” (id.).

8 The above-quoted allegation directly conflicts with

allegations in the companion pleading that “Defendants deployed

. . . pepper spray through aerosol guns” (Docket Entry 24, ¶ 134)

and that, “[w]hen used in such a manner, pepper spray cannot be

targeted at specific people or even in a discrete direction” (id.).

15

sprayed in the direction of Plaintiff Janet Nesbitt.”),9 120

(“Defendants’ [sic] officers stood nearby but did not assist

Plaintiff Nesbitt [while she experienced pepper-spray-induced

convulsions].”), 127 (“Plaintiff [Gregory] Drumwright was arrested

by ACSO Corporal Bernard Kilmer and additional ACSO deputy Does #1-

20 . . . .”), 130 (alleging that “one or more of Doe GPD officers

#21-40 blocked [Plaintiffs Ernestine and Edith Ward’s] path” as

they “attempted with other marchers to flee the pepper spray and

get to the polling place located a block away at Elm and Maple”),

131 (“[M]ultiple Doe GPD officers #21-40 who lined the street

pepper sprayed Plaintiffs Ernestine and Edith Ward and other

marchers.”), 137 (“[A]pproximately seven of ACSO deputy Doe

officers #1-20 arrested Plaintiff [Faith] Cook without warning.”),

143 (“[V]ideo also shows a Defendant GPD Doe officer shouting ‘Get

moving, you f-g pricks’ as he sprays pepper spray at protesters

while they try to walk away along a sidewalk.”).

Despite the fact that Plaintiffs’ operative pleadings (almost

exclusively) treat Doe Defendants (and often all Defendants) as a

monolith and (repeatedly) bypass opportunities to assign

particularized pseudonyms to distinguishable Doe Defendants,

Plaintiffs have “request[ed] that [] the Court permit expedited

9 The above-quoted allegation directly conflicts with

allegations in the companion pleading that “Defendants deployed

. . . pepper spray through aerosol guns” (Docket Entry 24, ¶ 134)

and that, “[w]hen used in such a manner, pepper spray cannot be

targeted at specific people or even in a discrete direction” (id.).

16

discovery related to the identities of the Doe Defendants” (Docket

Entry 57 at 13). “The Court will not allow Plaintiff[s] to go on

a fishing expedition. Based on the plethora of vague allegations

against unnamed persons, this is likely what will happen if the

Court allows Plaintiff[s] to conduct discovery to determine the

names of the individuals who allegedly violated [Plaintiffs’]

rights.” Nixon v. Doe, No. 3:15CV370, 2016 WL 593828, at *2

(W.D.N.C. Feb. 12, 2016) (unpublished), aff’d, 667 F. App’x 395

(4th Cir. 2016); see also Allstate Ins. Co. v. Etienne, No.

09CV3582, 2010 WL 11626966, at *4 (E.D.N.Y. Apr. 30, 2010)

(unpublished) (“[E]ven the inclusion of allegations against John

(or Jane) Doe defendants will not entitle plaintiffs to embark on

broad fishing expeditions for unknown additional parties.”).

The present procedural posture of these consolidated actions

further undermines Plaintiffs’ position, as “expedited discovery is

not the norm, particularly where defendants have filed a motion to

dismiss,” Guttenberg v. Emery, 26 F. Supp. 3d 88, 97 (D.D.C. 2014).

Rather, as a general matter, “[p]ursuant to Federal Rule of Civil

Procedure 26, ‘a party may not seek discovery from any source

before the parties have conferred as required by Rule 26(f).’”

McKnight v. Pickens Police Dep’t, C/A No. 8:18-3277, 2019 WL

4593578, at *2 (D.S.C. Sept. 23, 2019) (unpublished) (internal

17

brackets and ellipsis omitted) (quoting Fed. R. Civ. P. 26(d)(1)).10

Notwithstanding that default rule, “[d]iscovery can begin earlier

if authorized . . . by [court] order . . . . This will be

appropriate in some cases, such as those involving requests for a

preliminary injunction or motions challenging personal

jurisdiction.” Fed. R. Civ. P. 26, advisory committee notes, 1993

amend., subdiv. (d) (emphasis added).

“[C]ourts . . . have frequently treated the question whether

to authorize early discovery as governed by a good cause standard.”

8A Charles Alan Wright, et al., Federal Practice and Procedure

§ 2046.1 (3d ed. & Apr. 2021 Update) (emphasis added). “Some

courts have also treated the question in terms similar to the

10 In what amounts to an attempt to bypass the above-

referenced default rule, Plaintiffs have contended that “courts

routinely authorize limited early discovery to ascertain the

identity of Doe defendants” (Docket Entry 57 at 9); however,

decisions “permit[ting] expedited discovery to identify unknown

defendants usually [arise in cases] when the plaintiff

simultaneously can identify no defendants and legitimately fears

that information leading to their whereabouts faces imminent

destruction,” Facebook, Inc. v. Various, Inc., No. C-11-1805, 2011

WL 2437433, at *3 (N.D. Cal. June 17, 2011) (unpublished). Here,

“Plaintiff[s] face[] neither circumstance.” Id. Plaintiffs’

argument that “allowing for the early discovery sought at this

stage in the litigation will promote judicial efficiency and

fairness” (Docket Entry 57 at 9) similarly does not warrant

exemption from the default rule against early discovery, see

Megaupload. Ltd. v. Universal Music Grp., Inc., No. 11CV6216, 2012

WL 243687, at *3 (N.D. Cal. Jan. 25, 2012) (unpublished) (“The

problem with [the p]laintiff’s argument . . . is that it applies to

nearly every case. It would probably always be more efficient–-at

least from a plaintiff’s perspective–-to obtain discovery from

parties and non-parties before the Rule 26(f) conference . . . .

Nonetheless, the federal rules, adopted after much study and

thought, dictate a different procedure.”).

18

criteria for a preliminary injunction,” id., but that “approach

. . . has been criticized,” Dimension Data N. Am., Inc. v. Netstar-

1, Inc., 226 F.R.D. 528, 531 (E.D.N.C. 2005) (citing cases); see

also Wright, et al., supra, § 2046.1 (questioning use of

preliminary injunction criteria in assessing motions for early

discovery, because “permission to commence discovery is a much less

aggressive order than a preliminary injunction”). After careful

consideration, the Court adopts the majority view that, “a standard

based upon reasonableness or good cause, taking into account the

totality of the circumstances, is more in keeping with discretion

bestowed upon the [C]ourt in the Federal Rules of Civil Procedure,”

Dimension Data, 226 F.R.D. at 531; accord, e.g., Garnett v.

Zeilinger, No. 17CV1757, 2017 WL 8944640, at *1 &@ n.1l (D.D.C. Dec.

15, 2017) (unpublished); Chryso, Inc. v. Innovative Concrete Sols.

of the Carolinas, LLC, No. 5:15CV115, 2015 WL 12600175, at *3

(E.D.N.C. June 29, 2015) (unpublished); L’Occitane, Inc. v. Trans

Source Logistics, Inc., No. 09CV2499, 2009 WL 3746690, at *2 (D.

Md. Nov. 2, 2009) (unpublished); contra, e.g., ForceX, Inc. v.

Technology Fusion, LLC, No. 4:11CV88, 2011 WL 2560110, at *5 (E.D.

Va. June 27, 2011) (unpublished).

Typically, “[t]o determine whether a request [for early

discovery] is reasonable, courts look to five factors: (1) whether

a motion for preliminary injunction is pending, (2) the discovery

request’s breadth, (3) the purpose for requesting expedited

19

discovery, (4) the burden on the defendant to comply with the

requested discovery, and (5) how far in advance of the typical

discovery process the request is made.” Garnett, 2017 WL 8944640,

at *1l; accord, e.g., Democracy N.C. v. North Carolina State Bd. of

Elections, No. 1:20CV457, 2020 WL 4288103, at *4 (M.D.N.C. July 27,

2020) (unpublished) (Osteen, J.); Michael v. Estate of Kovarbasich

by and through Marano, No. 1:14CV212, 2015 WL 13757325, at *2

(N.D.W. Va. Apr. 10, 2015) (unpublished); JTH Tax, Inc. v. M&M

Income Tax Serv., Inc., No. 6:13CV265, 2013 WL 460316, at *2

(D.S.C. Feb. 6, 2013) (unpublished). On balance, those factors

tilt decidedly against Plaintiffs’ early discovery request.

To begin, “[t]he first factor weighs against allowing the

[requested early] discovery because there is no preliminary

injunction [motion] pending,” Gilpatrick v. Harper Cnty., No. 18-

1245, 2018 WL 6504394, at *3 (D. Kan. Dec. 11, 2018) (unpublished).

(See Docket Entries dated Nov. 2, 2020, to present (reflecting no

such motion).)?"? “Although there are undoubtedly circumstances

11 In the Complaint originally filed in the second of these

two (since) consolidated actions, “Plaintiffs respectfully pray[ed]

that the Court .. . [p]reliminarily ... enjoin. . . Defendants’

unlawful dispersal orders and use of pepper spray against peaceful

marchers ... .” (Compl. at 21, Drumwright v. Cole, No. 20CV998,

Docket Entry 1 (M.D.N.C. Nov. 2, 2020).) That preliminary

injunctive relief request, however, does not appear in (either of)

Plaintiffs’ operative pleadings. (See Docket Entries 24, 25.)

Even if it did, “[a] prayer fora. . . preliminary injunction set

forth in a pleading will not bring the issue before the Court prior

to the time of trial. If a ruling before trial is desired, a party

must separately file a motion and brief.” M.D.N.C. LR 65.1(a).

20

where granting a motion for expedited discovery in the absence of

a motion for preliminary equitable relief is warranted, the absence

of such a pending motion in this case undermines a finding of good

cause.” Fluke Elecs. Corp. v. CorDEX Instruments, Inc., No. C12-

2082, 2013 WL 566949, at *11 (W.D. Wash. Feb. 13, 2013)

(unpublished); see also MNM Invs., Inc. v. HDM, Inc., No. 18-1267,

2018 WL 6413227, at *2 (D. Kan. Dec. 6, 2018) (unpublished) (“[T]he

fact remains that no preliminary injunction [motion] is currently

pending. This weighs against allowing the early discovery.”).

The remaining factors share inter-related facets, all of which

strongly disfavor allowance of the early discovery requested by

Plaintiffs. For example, as concerns the fourth (burden on Named

Defendants) and fifth (degree of prematurity) factors, another

court persuasively has explained that:

Because discovery typically occurs after the resolution

of motions to dismiss, presenting a motion for expedited

discovery prior to rulings on motions to dismiss is often

disfavored. Even filing a motion for expedited discovery

after briefing of motions to dismiss has concluded is

well in advance of typical discovery.

Relatedly, requiring [Named D]efendants to comply with an

order for expedited discovery when the case may later be

dismissed for failure to state a claim could force [them]

to expend significant resources responding to discovery

requests in a case where [P]laintiffs did not have a

viable cause of action. At the very least,

reasonableness dictates that the Court consider [pending]

motion[s] to dismiss [and for judgment on the pleadings]

before requiring extensive and expensive discovery.

Attkisson v. Holder, 113 F. Supp. 3d 156, 165-66 (D.D.C. 2015)

(internal brackets, citations, and quotation marks omitted); see

21

also Alaris Grp., Inc. v. Disability Mgmt. Network, Ltd., Civ. No.

12-446, 2012 WL 13029504, at *3 (D. Minn. May 30, 2012)

(unpublished) (“[R]equiring the [d]efendant to participate in

discovery when the [c]omplaint may yet be dismissed pursuant to

pending Rule 12 motions would waste the resources of both parties,

especially considering that no motion for preliminary injunctive

relief has in fact yet been filed.”).

The fourth (burden on Named Defendants) factor also overlaps

with the second (breadth of discovery) and third (purpose of

discovery) factors in several respects, which together counsel

against permitting the proposed early discovery. “First, contrary

to [Plaintiffs’] suggestion, the requested discovery appears to be

extremely broad.” Centennial Bank v. ServisFirst Bank Inc., No.

8:16CV88, 2016 WL 7376655, at *3 (M.D. Fla. Jan. 29, 2016)

(unpublished) (emphasis omitted). Second, “as a consequence of the

broad scope of the requested discovery, it would likely be very

burdensome for [Named] Defendants to comply with the request[ed]

discovery on an expedited basis.” Id. Third, “Plaintiff[s’]

discovery requests are so broad as to be implausibly tailored for

the sole purpose of discerning [Doe] Defendants’ identities

. . . .” Facebook, Inc. v. Various, Inc., No. C-11-1805, 2011 WL

2437433, at *3 (N.D. Cal. June 17, 2011) (unpublished).

More specifically, although (according to their Memorandum)

Plaintiffs simply “seek answers to four narrow interrogatories for

22

the sole purpose of ascertaining the true identities of Doe

Defendants who used or authorized the use of force at the October

31 March” (Docket Entry 57 at 7 (emphasis added); see also Docket

Entry 57-1 at 812 (proposing two interrogatories requiring Named

Defendants to, inter alia, “[i]dentify all ACSO deputies” and “all

GPD officers,” “who used force, or authorized the use of force, on

any Participant in the October 31 March”)),13 the limitless

definition of “‘[u]se of force’ or ‘used force’” incorporated into

Plaintiffs’ proposed interrogatories (Docket Entry 57-1 at 5) make

them anything but narrowly and solely focused on identification of

proper defendants; instead, the proposed interrogatories “sweep[]

too broadly, and constitute[] an improper fishing expedition,”

Allstate Ins., 2010 WL 11626966, at *4, subject to judicial

12 This (and other) pin citation(s) to attachments to

Plaintiffs’ Memorandum refer to page number(s) appearing in the

footer appended thereto upon docketing in the CM/ECF system.

13 The first two proposed interrogatories also demand that

Named Defendants “state whether each such deputy [or officer] used

force, or authorized the use of force, on any of the [] Plaintiffs”

(Docket Entry 57-1 at 8), which would pose significant difficulties

for Named Defendants, because (as Graham Defendants have noted)

they “have no way of knowing who is, and who is not, a member of

the[] organization[al Plaintiffs]” (Docket Entry 69 at 10). The

remaining two proposed interrogatories – which would require Named

Defendants to “[i]dentify all persons who might know the answer to

the [first two proposed i]nterrogatories” (Docket Entry 57-1 at 8)

and to “[d]escribe what steps [Named Defendants] took to respond to

the[ first two proposed i]nterrogatories, including the identity of

all persons with whom [Named Defendants] consulted and all

documents that [they] reviewed” (id.) – amount to “‘discovery on

discovery,’[ which courts generally describe a]s not an appropriate

topic of discovery,” Fish v. Air & Liquid Sys. Corp., Civ. No. 16-

496, 2017 WL 697663, at *6 (D. Md. Feb. 21, 2017) (unpublished).

23

preclusion as not “proportional to the needs of the case,” Fed. R.

Civ. P. 26(b) (1), as well as ‘“oppressi[ve and] undu [ly]

burden[some],” Fed. R. Civ. P. 26(c) (1).

In that regard, the “DEFINITIONS AND INSTRUCTIONS” (Docket

Entry 57-1 at 3) for Plaintiffs’ proposed interrogatories state:

“Use of force” or “used force” includes but is not

limited to the use of: (a) pepper spray, pepper balls, OC

spray, capsaicin spray, MK-9S spray, or any other

chemical agent; (b) baton, club, nightstick, or any other

blunt instrument; (c) handcuffs, zipties, flexcuffs, or

any other bodily restraint; or (d) any other effort used

to compel compliance.

(Id. at 5-6 (emphasis added); see also id. at 7 (“The terms

‘include’ or ‘including’ do not limit the scope of the

request ... .”).)

The plain language of that definition, including “the phrase

‘but not limited to’ renders the scope of the _ [proposed]

interrogator[ies] undefined,” Segerdahl Corp. v. Ferruzza, No.

17CV3015, 2018 WL 11199218, at *4 (N.D. Ill. Mar. 9, 2018)

(unpublished) (some internal quotation marks omitted), as “the

incorporation of the words ‘including but not limited to’ ... in

connection with the definition... renders any otherwise properly

demarcated category meaningless,” DEI Inc. v. First Bank of Berne,

No. 1:10CV102, 2010 WL 3272831, at *1 (N.D. Ind. Aug. 18, 2010)

(unpublished); see also Perry v. Indiana Mich. Power Co., No.

1:07CV244, 2007 WL 3232094, at *1 n.1 (N.D. Ind. Oct. 30, 2007)

(unpublished) (“The phrase ‘including, but not limited to’ is a

24

‘fudge’ that compounds the vagueness of the definition . . . .”).

Moreover, if one disregarded the phrase “includes but not limited

to” (Docket Entry 57-1 at 5), Plaintiffs’ definition of “[u]se of

force’ or ‘used force’” (id.) would remain grossly overbroad, given

its express adoption of the vague and elastic term “any other

effort used to compel compliance” (id. at 6).

For example, an officer’s resort to logical appeals or moral

suasion to get a protester to do something (such as move out of the

path of an oncoming car) likely would qualify as “any other effort

used to compel compliance” (id.).14 Furthermore, given Plaintiffs’

allegation that mere “deployment of [] deputies and officers . . .

constituted [a] substantial step[] in furtherance of the conspiracy

[to unlawfully disperse a march to the polls]” (Docket Entry 25,

¶ 196), any deputy/officer observed by any protester would (by

Plaintiffs’ definition) have “used force . . . to compel

compliance” (Docket Entry 57-1 at 5–6 (internal quotation marks

omitted)). In sum, the proposed interrogatories – even when

stripped of the infinite expander “but is not limited to” (Docket

14 Indeed, if (as Plaintiffs have alleged) “the neo-

confederate or white supremacist groups that had gathered at Court

Square were warned to clear the area” (Docket Entry 24, ¶ 95

(emphasis added); accord Docket Entry 25, ¶ 145), under Plaintiffs’

definition of “‘[u]se of force’ or ‘used force’” (Docket Entry 57-1

at 5), officers who gave (or authorized) any such warnings also

thereby would have “used force, or authorized the use of force”

(id. at 8) against those counter-protesters, as such “warn[ings] to

clear the area” (Docket Entry 24, ¶ 95) would constitute “any other

effort used to compel compliance” (Docket Entry 57-1 at 6).

25

Entry 57-1 at 5) – still would oblige Named Defendants to

“[i]dentify all ACSO deputies” (id. at 8) and “all GPD officers”

(id.), (A) who said anything any protester could hear or (B) who

any protester could see, as well as (C) any ACSO deputy or GPD

officer who “authorized” (id.) another such deputy/officer to be so

heard or seen.15

Plaintiffs’ definition, “[w]ith respect to a person, [of] the

word ‘identify’ . . . [to] mean to specify[ not just the f]ull

name[ and p]osition/job title and employer[ of officers/deputies,

but also a]ll known telephone numbers[ and a]ll known addresses

(including electronic mail addresses)” (id. at 6 (emphasis added))

further underscores the unreasonable breadth and burdensomeness of

the proposed interrogatories, as well as the implausibility of

Plaintiffs’ proffered (sole) motive for their proposal (i.e., to

“ascertain[] the identities of . . . Doe Defendants” (Docket Entry

57 at 1)). “Stated more bluntly, what Plaintiff[s actually]

propose[] to do is to use the arsenal of discovery weapons . . . to

gain access to the personal [information of many officers/deputies]

. . . . Such prodigious power, which includes prominently the

power to compel . . . produc[tion of] otherwise confidential

15 Consistent with that assessment of the (over)breadth of

Plaintiffs’ proposed interrogatories, images that Plaintiffs

attached to their letter to Named Defendants dated January 21,

2021, “ask[ing] that [they] identify all (not just those encircled

in red) the deputies and officers who are seen in the images”

(Docket Entry 57-2 at 2), depict officers/deputies doing nothing

more than standing or walking (see id. at 4, 10-12, 14-16).

26

[information], should not be granted lightly.” Local Acceptance

Co. of Fla. v. Doe, 962 F. Supp. 1495, 1496 (S.D. Fla. 1997).

As the United States Supreme Court has explained:

[T]he enforcement of the criminal laws [] require[s] the

orderly preservation of great quantities of information,

much of which is personal in character and potentially

. . . harmful if disclosed. The right to collect and use

such data for public purposes is typically accompanied by

a concomitant statutory or regulatory duty to avoid

unwarranted disclosures. . . . [I]n some circumstances

that duty arguably has its roots in the Constitution

. . . .

Whalen v. Roe, 429 U.S. 589, 605 (1977). The home addresses,

personal telephone numbers, and personal e-mail addresses of law

enforcement officers possessed by their governmental employers and/

or supervisors surely lie within the realm of information as to

which a duty of protection (of arguable constitutional dimension)

arises. See, e.g., Kallstrom v. City of Columbus, 136 F.3d 1055,

1069 (6th Cir. 1998) (holding that Due Process Clause guards

against “release of [law enforcement] officers’ addresses[ and]

phone numbers . . . [if] likely to result in a substantial risk to

their personal security”); Flanagan v. Munger, 890 F.2d 1557, 1570

(10th Cir. 1989) (recognizing that “highly personal information”

contained in personnel files of law enforcement officers “is

protected” by “constitutional right to privacy”); Zantiz v. Seal,

Civ. No. 12-1580, 2013 WL 2459269, at *3 (E.D. La. June 6, 2013)

(unpublished) (“Discovery of the personnel files of all persons,

especially law enforcement officers, presents special concerns

27

about the privacy rights of the individuals involved.” (internal

footnote omitted)), aff’d, 602 F. App’x 154 (5th Cir. 2015).16

Put in plain terms, “[s]hould th[eir personal] information

fall into the wrong hands, the officers[/deputies] or their family

members may suffer serious and irreparable harm. No remedy at law

could adequately compensate them for any physical, psychological,

or emotional trauma they might suffer at the hands of one obtaining

this personal information.” Kallstrom, 136 F.3d at 1068-69.

Recent societal trends have only heightened concerns on this front,

as “[l]aw enforcement officers . . . fall into an increasingly

vulnerable population for attacks wielding their personal

information for criminal purposes,” Emily Roscoe & Charles

Szypszak, Privacy and Public Real Estate Records: Preserving Legacy

System Reliability Against Modern Threats, 49 Urb. Law. 355, 372-73

(2017), while academic commentators simultaneously praise

protesters for their “impressive feats” and “ability to ‘out’ via

‘doxing’ officers who have–-in the protesters’ view–-violated civil

rights and liberties,” Lenese C. Herbert, O.P.P.: How ‘Occupy’s’

16 In line with that conclusion, “[Named] Defendants have

taken the position that the information Plaintiffs have requested

. . . is considered confidential personnel information prohibited

from disclosure without order of the Court by N.C. Gen. Stat.

§160A-168.” (Docket Entry 57 at 4.)

28

Race-Based Privilege May Improve Fourth Amendment Jurisprudence for

All, 35 Seattle U. L. Rev. 727, 745 n.97 (2012)

Coordinately, “‘ambush-style killings of police officers have

spiked recently, hitting a 10-year high in 2016,” Scott E. Wolfe,

et al., Police Managers’ Self-Control and Support for

Organizational Justice, 42 Law & Hum. Behav. 71, 77 (2018),'° and

“a recent study by the Pew Research Center (2017) found that 9 of

10 officers have become more concerned about their safety,” id. at

77-78; see also Ronald T. Hosko, Through Police Eyes -- The

Ferguson Effect Scare, 23 Berkeley J. Crim. L. 9, 24 (2018) (citing

same study and noting that it arose from “survey of eight thousand

police officers from departments with more than one hundred

officers”); Michael Levin Epstein, Spotlight, 36 Law Enforcement

Emp. Bull. 1, 1 (2019) (“[I]ncreased ambush assaults on officers,

and social media posting of information on officers’ home addresses

17 ™“*‘*Doxing (sometimes spelled ‘doxxing’}) is short for

‘dropping documents,’” Vangheluwe v. GOT News, LLC, 365 F. Supp. 3d

850, 858 (E.D. Mich. 2019) (internal brackets omitted), i.e., “the

practice of disclosing a person’s identifying information (e.g.,

their home address) on the Internet to retaliate against and harass

the ‘outed’ person,” id. at 852; see also id. at 859 (“The goal of

doxxing is typically retribution, harassment or humiliation.”

(internal quotation marks omitted)).

18 “Some year-end reports suggested the increased ambushes [in

2016] marked a twenty-year high.” Ronald T. Hosko, Through Police

Eyes -- The Ferguson Effect Scare, 23 Berkeley J. Crim. L. 9, 26

(2018); see also id. (documenting that, in 2016, “the number of

officers intentionally killed r[ose] over fifty percent to sixty-

four officers killed by gunfire,” and that “[p]lolice in 2016 were

physically attacked tens of thousands of times, according to law

enforcement agencies’ self-reported numbers”).

29

. . . when alleged police misconduct occurs, also are mentioned as

deterrents for recruitment and retention.”). “Adding weight to

[those] worries . . . [i]s an FBI paper, released in early 2017,

known as ‘The Assailant Study.’ Based on investigation into fifty

police assailants and dozens of fatal attacks on law enforcement

officers in 2016, the results [a]re troubling . . . .” Hosko,

supra, at 23–24. Of particular salience here, “twenty-eight

percent of police assailants in the study were inspired by social

and/or political reasons and believed that attacking police

officers was their way to ‘get justice’ for those who had been, in

their view, unjustly killed by law enforcement.” Id. at 24.

Against this backdrop, any officer/deputy whose personal

information the Court ordered disclosed to Plaintiffs (for the

putative purpose of identifying Doe Defendants) plausibly could

fear the subsequent distribution of his/her personal information

(via doxxing) to a mass-audience that includes individuals like the

perpetrators analyzed in The Assailant Study, who (in turn) would

perceive those officers/deputies as tantalizing targets for

vigilante violence, in light of Plaintiffs’ allegations that Doe

Defendants all shared a racist ideology that led them to callously

brutalize Plaintiffs and other protesters (see, e.g., Docket Entry

24, ¶¶ 91 (“Defendants sent a clear message to Black voters and

others who speak out against police violence directed at Black

people, including Plaintiffs, that they may face pepper spray or

30

other violence when they vote or engage in peaceful assemblies.”),

94 (“Upon information and belief, Defendants’ use of pepper spray

on March attendees was motivated at least in part by the race of

March attendees–-the majority of whom were Black, and all of whom

were marching in support of the Black community.”), 159 (implying

that Doe Defendants sympathized with “neo-confederates or white

supremacist groups that had gathered at Court Square”), 185

(“Defendants decided to engage in the use of pepper spray

. . . at least in part due to the race of the March attendees, the

majority of whom were Black.”)). Plaintiffs’ pursuit (prior to

resolution of pending, dispositive motions) of the bulk disclosure

of the home addresses, personal telephone numbers, and personal e-

mail addresses of dozens of officers/deputies (some of whom may

have done nothing more than appear in uniform within sight of

protesters), when (at the same time) Plaintiffs’ pleadings do not

meaningfully differentiate among Doe Defendants, manifests (at

minimum) a reckless indifference by Plaintiffs to the legitimate

privacy and security interests of those officers/deputies.19

19 To some, discussion of such interests of officers/deputies

should have no place in the context of a challenge to an allegedly

racially biased, law enforcement response to protest activity about

allegedly racially biased, law enforcement activity. See India

Thusi, Blue Lives & the Permanence of Racism, 105 Cornell L. Rev.

Online 14, 27 (2020) (pronouncing expression of concern for safety

of law enforcement officers and their families, “when it is done in

conversation with calls for police accountability and the

recognition of Black humanity,” as “an attempt to qualify the

recognition of Black worth” and “a statement about why ‘Black Lives

(continued...)

31

To the extent Plaintiffs impliedly have argued for disclosure

of not only the names, titles, and employers – but also the home

addresses, personal telephone numbers, and personal e-mail

addresses – of at least two score officers/deputies, “so that

Plaintiffs can [not only] name the appropriate individuals [but

also] serve them” (Docket Entry 57 at 5), Plaintiffs’ “argument

overlooks Rule 4(e)(1), which permits service by ‘following state

law for serving a summons in an action brought in courts of general

jurisdiction in the state where the district court is located,’

Fed. R. Civ. P. 4(e)(1),” Stollard v. Gwynn, No. 1:19CV926, 2021 WL

620706, at *5 (M.D.N.C. Feb. 17, 2021) (unpublished),

recommendation adopted, slip op. (M.D.N.C. Mar. 29, 2021) (Osteen,

J.), as well as “North Carolina state law [which] permits service

via certified mail to a defendant’s place of employment,” id.

(emphasis added) (citing Moore v. Cox, 341 F. Supp. 2d 570, 573

(M.D.N.C. 2004)). Nor does Plaintiffs’ reference to the

possibility of “entry of a mutually agreeable Consent Protective

Order (‘CPO’) authorizing the production and protecting the

confidentiality of information” (Docket Entry 57 at 4) assuage the

19(...continued)

Matter’ should not be prioritized and why blue lives should matter

more”). That perspective, however, cannot alter the Court’s

obligation to “administer justice without respect to persons, and

. . . faithfully and impartially discharge and perform all duties

. . . under the Constitution and the laws of the United States,” 28

U.S.C. § 453, which requires equal solicitude for the discovery-

related rights of all litigants (and affected non-parties).

32

Court’s concerns about disclosure of the home addresses, personal

telephone numbers, and personal e-mail addresses of 40 to 70

officers/deputies, given that Plaintiffs have not proffered even

the outlines of any CPO (see id. at 4-5) and “three [] Plaintiffs

are unincorporated organizations with undisclosed members” (Docket

69 at 10; see also Docket Entry 71 at 5 n.2 (confirming that

organizational Plaintiffs will not identify their members)), such

that the Court lacks adequate means to enforce any CPO.

In sum, the pertinent factors all weigh against a finding of

good cause for the early discovery sought by Plaintiffs in the

instant Motion. Alternatively, the instant Motion asks that the

Court extend Plaintiffs’ deadline to serve Doe Defendants for

“sixty (60) days from the later of either: 1) entry of an order

granting this partial consent motion; or 2) entry of an order

authorizing the production and protecting the confidentiality of

information and documents covered by N.C. Gen. Stat. §160A-168.”

(Docket Entry 55 at 1-2 (emphasis added).) According to

Plaintiffs’ Memorandum, “because Plaintiffs cannot serve defendants

whose identity they do not know, there is good cause to extend

Plaintiffs’ time to effect service under Fed. R. Civ. P. 4(m).

Plaintiffs have acted diligently. They have attempted to identify

the Doe Defendants through informal discovery, and have attempted

to reach an agreement to obtain the information necessary without

court intervention.” (Docket Entry 57 at 12; see also id. at 5

33

(“Both sets of [Named] Defendants consent to Plaintiffs’ [instant

M]otion as it relates to an extension of time for service.”).)

At present, no party has filed a motion requesting “entry of

an order authorizing the production and protecting the

confidentiality of information and documents covered by N.C. Gen.

Stat. §160A-168” (Docket Entry 55 at 2). (See Docket Entries dated

Nov. 2, 2020, to present (showing no such motion).) Nor does

Plaintiffs’ Memorandum forecast any date for the filing of any such

motion. (See, e.g., Docket Entry 57 at 4-5 (referencing

“discussions” between counsel dating back to on or about February

5, 2021, but describing those discussions as having reached

“impasse”).) In other words, the instant Motion effectively

solicits an indefinite extension of Plaintiffs’ deadline to serve

Doe Defendants. The Court declines to go that far, but (given the

lack of opposition from Named Defendants) will allow a more modest

extension of time for service of process, pursuant to Rule 4(m).

CONCLUSION

Plaintiffs have not shown good cause for their proposed early

discovery, but (without objection from Named Defendants) Plaintiffs

may have some additional time to serve Doe Defendants.

IT IS THEREFORE ORDERED that the instant Motion (Docket Entry

55) is GRANTED IN PART and DENIED IN PART, in that (A) Plaintiffs

shall not serve discovery prior to the entry of a scheduling order

following the planning meeting under Rule 26(f) (except as

34

permitted by Rule 26(d)(2)), and (B) Plaintiffs shall make service

of process on any Defendant(s) presently identified in Plaintiffs’

operative pleadings as John or Jane Doe no later than 90 days after

the entry of a scheduling order.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 21, 2021

35