LAMBETH v. CITY OF HIGH POINT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CARL T. LAMBETH, AMY LIXL- )

PURCELL, CHRISTOPHER J. )

ESCHWEILER, JULIE MABE )

ESCHWEILER, DDC LAND TRUST by )

and through JULIE MABE )

ESCHWEILER as Trustee, )

)

Plaintiffs, )

)

v. ) 1:23-CV-797

)

CITY OF HIGH POINT, CITY )

COUNCIL OF THE CITY OF HIGH )

POINT, GUILFORD COUNTY )

SCHOOLS, GUILFORD COUNTY BOARD )

OF EDUCATION, RONALD O. PERDUE, )

STACK FAMILY, LLC, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This case, removed from state court, raises a Second Amendment

challenge to the rezoning of land in Guilford County for several

potential future uses, including that of a school. Before the

court are the motions to dismiss by Defendant Ronald O. Perdue

(Doc. 22), the City Council of the City of High Point, the City of

High Point, Guilford County Schools,1 and the Guilford County Board

of Education (“Board of Education”) (collectively, the “Municipal

Defendants”) (Doc. 26), and Defendant Stack Family, LLC (Doc. 46),

1 Guilford County Schools contends it is not authorized to litigate but

moved to dismiss in any event. (Doc. 27 at 1 n.1 (citing N.C. Gen.

Stat. § 115C-40).)

the consent motion to dismiss by Guilford County (Doc. 45),2 and

the motion for leave to submit additional evidence by Municipal

Defendants (Doc. 55). The court heard oral argument on April 22,

2024.

Because the court concludes that it lacks subject matter

jurisdiction over Plaintiffs’ claims, it is precluded from

reaching the merits of Plaintiffs’ Second Amendment claim and

instead will remand the case for further proceedings in state

court.

I. BACKGROUND

The facts outlined in Plaintiffs’ amended complaint (the

“complaint”) (Doc. 7), which are taken as true for the purpose of

the present motion, show the following:

Plaintiffs Carl T. Lambeth, Amy Lixl-Purcell, Christopher J.

Eschweiler, and Julie Mabe Eschweiler are citizens and residents

of Guilford County, North Carolina. (Doc. 7 ¶¶ 5-8.) Plaintiff

DDC Land Trust, by and through Trustee Mrs. Eschweiler, is a trust

duly created and established under the laws of North Carolina.

(Id. ¶ 9.) Trustee Eschweiler institutes this action solely on

behalf of the trust. (Id.)

Defendant City of High Point is a duly chartered municipality

located in Guilford County, North Carolina. (Id. ¶ 10.) Defendant

2 Guilford County previously moved to dismiss. (Doc. 38.) Its consent

motion asks that the court resolve or moot the prior motion. (Doc. 45.)

City Council of the City of High Point is an elected governing

body of the City of High Point. (Id. ¶ 11.) Defendant Guilford

County is a governmental entity of the State of North Carolina.

(Id. ¶ 12.) Defendant Guilford County Schools is a governmental

unit of Defendant Board of Education, which operates a system of

public schools in Guilford County. (Id. ¶¶ 13-14.) Defendant

Stack Family, LLC (“Stack”) is a limited liability company with

its principal place of business in Guilford County. (Id. ¶ 15.)

Defendant Ronald O. Perdue is a citizen and resident of Guilford

County. (Id. ¶ 16.)

Lambeth and Lixl-Purcell own two adjacent parcels of land,

Guilford County parcels 169083 and 169084, where they actively

raise American Quarter horses and grow hay. (Id. ¶ 17.) Mr. and

Mrs. Eschweiler own Guilford County parcel 169095, where they live.

(Id. ¶ 18.) DDC Land Trust owns Guilford County parcel 169089,

which is a residential lot that Mr. and Mrs. Eschweiler use

primarily for recreation. (Id. ¶ 19.)

At the time of the complaint, Perdue owned Guilford County

parcel 169142, (id. ¶ 21), and Stack owned Guilford County parcel

168991 and another property with an omitted parcel number, (id.

¶ 22). The complaint refers to the combination of the Perdue and

Stack properties as the “rezoned property.” (Id. ¶ 23.)

The only ingress and egress to the nearest public road for

Plaintiffs’ properties is a private easement known as Gray Lane.

(Id. @ 20.) Gray Lane bisects the rezoned property, and all

Plaintiffs must cross on a road through the middle of the rezoned

property to reach the public road via Gray Lane. (Id. 7 25.)

Plaintiffs allege that Guilford County Schools agreed to

purchase the Perdue and Stack properties to build a kindergarten

through eighth grade school. (Id. 7 28.) Upon request of Perdue

and Stack, the City Council voted on June 20, 2023, to annex the

properties. (Id. @ 29.) Guilford County Schools also submitted

a Zoning Map Amendment Application for the annexed property, which

Perdue and Stack signed. (Id. GF 30.) The City Council approved

the rezoning application on June 20, 2023, which rezoned the land

from Guilford County Agricultural District to City of High Point

Conditional Zoning Institutional (C%Z-I) District. (Id. @@ 31.)

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(Doc. 7-2.)

Plaintiffs allege that the rezoning was a “conditional

district zoning for a site-specific use as a school,” as authorized

by North Carolina General Statute § 160D-703(b). (Doc. 7 ¶ 41.)

In Plaintiffs’ view, the City Council was “singularly focused on

the use of the Rezoned Property as a kindergarten – 8th grade

school,” though the application includes nineteen other potential

uses. (Id. ¶¶ 33, 40.)

The Board of Education was deeded the rezoned property on

September 19, 2023, and gained fee simple ownership. (Doc. 27-

1.) The transaction was duly recorded on September 20, 2023.

(Id.)3

Lambeth and Mr. and Mrs. Eschweiler allege that they own

licensed firearms for lawful purposes, such as self-defense. (Id.

¶¶ 44-46.) These firearms include handguns, a shotgun, and rifles.

(Id.) Prior to the rezoning, they have carried these firearms

across the rezoned property via Gray Lane and would continue to do

so were it not criminally prohibited by North Carolina General

Statute § 14-269.2, which prohibits possession of firearms on

“educational property.” (Id. ¶ 47; Doc. 42 at 11) Plaintiffs

contend that a rezoning for school use, as well as fourteen other

permitted uses under the application, would “correspond to a

3 The court may take judicial notice of facts that are “matters of public

record.” Justice 360 v. Stirling, 42 F.4th 450, 455 (4th Cir. 2022).

criminal ban on firearms.” (Doc. 7 ¶ 51.)

Relying on these allegations, Plaintiffs bring three causes

of action, all seeking a judgment declaring that the rezoning is

“unconstitutional, void, illegal, unlawful and/or invalid,” and

ordering that the rezoned property be restored to its zoning

classification immediately before adoption of the rezoning or the

most similar zoning classification under the City of High Point’s

zoning classification structure. (Id. ¶¶ 82, 93, 103.) The first

claim alleges that the rezoning unconstitutionally infringes upon

Plaintiffs’ rights to keep and bear arms under the Second Amendment

to the U.S. Constitution and Article I, Section 30 of the North

Carolina Constitution. (Id. ¶ 72.) The second claim alleges that

the rezoning is arbitrary and capricious, clearly unreasonable,

has no foundation in reason and/or is illegal. (Id. ¶ 84.) The

third claim alleges that the rezoning constitutes illegal contract

zoning. (Id. ¶ 97.)

The court heard oral argument on Defendants’ motions to

dismiss on April 22, 2024. The motions are fully briefed and ready

for decision.

II. ANALYSIS

This case’s peculiar posture as it relates to removal warrants

discussion before proceeding. Defendants premised removal on

federal question jurisdiction under 28 U.S.C. § 1331, as claim one

of the complaint alleges violations of the Second Amendment to the

U.S. Constitution. (Doc. 1 ¶¶ 9-10.) As to the remaining claims,

Defendants contended that the court has supplemental jurisdiction

pursuant to 28 U.S.C. § 1367(a). (Id. ¶¶ 11-16.) However, once

in this court, Municipal Defendants moved to dismiss the first

claim of the complaint, upon which removal was based, for lack of

subject matter jurisdiction (and all claims for failure to state

a claim) on October 17, 2023. (Doc. 26.) The remaining Defendants

have similarly moved on various dates to dismiss all claims solely

for lack of subject matter jurisdiction. (Docs. 22, 45, 46.)

Plaintiffs filed this action in Guilford County Superior

Court on August 18, 2023. (Doc. 1 ¶ 1.) On September 19, 2023,

at 11:05 a.m., Defendants filed a notice of removal pursuant to 28

U.S.C. §§ 1441 and 1446. (Doc. 1.) At some point that same day,

the deeds for the rezoned property were signed, though the time of

the signatures is not before the court. (Doc. 27-1.) The next

day, September 20, 2023, the conveyance was recorded at 3:31 p.m.

(Doc. 27-1.)4

As discussed below, North Carolina General Statute § 14-269.2

prohibits the possession of firearms on property “owned” by any

4 After oral argument, Municipal Defendants moved for leave to submit

additional evidence and filed an affidavit by the attorney who supervised

the closings of the rezoned property. (Doc. 55.) The attorney attests

that the signatures on the deeds occurred on September 19 in advance of

the closings on September 20. (Doc. 55-1.) Plaintiffs oppose the motion

for leave. (Doc. 56.) Because the information in the affidavit has no

impact on the outcome here or court’s analysis, the court need not

consider it.

county board of education. The parties dispute whether the Board

of Education’s ownership of the rezoned property moots Plaintiffs’

Second Amendment claim but have not addressed whether the recording

of the deed, or its mere signing, constitutes “ownership” under

§ 14-269.2. The court therefore assumes for purposes of these

motions that Municipal Defendants’ position taken at oral

argument, and uncontradicted by Plaintiffs, is correct — i.e.,

that the recording on September 20, 2023, is the relevant time

that ownership began.

For the reasons set out below, the court concludes that the

Board of Education’s purchase of the rezoned property after the

rezoning decision renders Plaintiffs’ Second Amendment claim

against the rezoning moot, thus destroying this court’s subject

matter jurisdiction. That is because Plaintiffs’ alleged injury

— threat of prosecution under § 14-269.2 — now stems solely from

the Board of Education’s ownership.5

A. Removal and Remand

Pursuant to 28 U.S.C. § 1441(a), a defendant may remove “any

civil action brought in a State court of which the district courts

of the United States have original jurisdiction.” The party

5 To the extent the Board gained some ownership interest in the rezoned

property prior to the removal petition by virtue of the deed transfer,

which was not recorded until the next day, one could argue that standing

is the proper legal inquiry, rather than mootness. Nevertheless, the

outcome would be the same.

seeking removal bears the burden of proving jurisdiction by a

preponderance of the evidence. Zoroastrian Ctr. & Darb-E-Mehr of

Metro. Wash., D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739,

748 (4th Cir. 2016) (citing Mulcahey v. Columbia Organic Chems.

Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994)). That is, the party

“‘must provide enough facts to allow a court to determine — not

speculate — that it is more likely than not’ that the case belongs

in federal court.” Cannon v. AutoMoney, Inc., 1:19-cv-877, 2020

WL 3105183, at *3 (M.D.N.C. May 12, 2020) (quoting Scott v. Cricket

Commc’ns, LLC, 865 F.3d 189, 197 (4th Cir. 2017)), report and

recommendation adopted, 2020 WL 3104352 (June 11, 2020). Removal

requires that a case “be fit for federal adjudication at the time

the removal petition is filed.” Caterpillar Inc. v. Lewis, 519

U.S. 61, 73 (1996); see also Nova Health Sys. v. Gandy, 416 F.3d

1149, 1155 (10th Cir. 2005) (“As with all questions of subject

matter jurisdiction except mootness, standing is determined as of

the date of the filing of the complaint.”).

This court has the authority and, indeed, the duty to remand

a case to state court if “at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction.” 28 U.S.C. § 1447(c) (emphasis added). “Because

removal jurisdiction raises significant federalism concerns, [the

court] must strictly construe removal jurisdiction.” Mulcahey, 29

F.3d at 151 (internal citation omitted). “If federal jurisdiction

is doubtful, a remand is necessary.” Id. (citations omitted); see

also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-41

(2009) (holding that where court dismisses federal claim for

failure to state claim, then decision whether to hear or remand

pendant state law claims is discretionary); News-Texan, Inc. v.

City of Garland, Tex., 814 F.2d 216, 218 (5th Cir. 1987) (stating

that where removed case becomes moot, “the question of the mootness

of the suit is left for the state court, which has exclusive

jurisdiction of the case and which may have different standards of

mootness than do the federal courts.”); Ruggier v. Go Mart, Inc.,

107 F. Supp. 3d 580, 584 (S.D.W. Va. 2015) (remanding removed

action after determining that it was moot).

Defendants maintain that the proximity between the conveyance

of the rezoned property and the removal petition is a coincidence.

In any event, they removed this case to federal court claiming

federal question jurisdiction on the first claim (Doc. 1 ¶¶ 9-10)

only to seek dismissal for lack of subject matter jurisdiction of

the very same claim. Flip-flopping on the court’s jurisdiction in

this manner is known as “fraudulent removal” and has been critiqued

because it unnecessarily increases litigation costs and unfairly

grants defendants the value of delay. Martin v. Franklin Cap.

Corp., 546 U.S. 132, 140 (2005) (“The process of removing a case

to federal court and then having it remanded back to state court

delays resolution of the case, imposes additional costs on both

parties, and wastes judicial resources.”); Collier v. SP Plus

Corp., 889 F.3d 894, 897 (7th Cir. 2018) (describing removal

followed by Rule 12(b)(1) motion as a “dubious strategy [that]

resulted in a significant waste of federal judicial resources”);

see generally Zachary D. Clopton & Alexandra D. Lahav, Fraudulent

Removal, 135 Harv. L. Rev. F. 87 (2021). This is partly why

§ 1447(c) provides for “just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.”

Martin, 546 U.S. at 136 (limiting fees where the removing party

“has an objectively reasonable basis for removal”).

In several recent cases, plaintiffs in removed cases facing

a Rule 12(b)(1) motion have moved to remand the case to state

court. See, e.g., Cumberland Cnty. v. Chemours Co., 608 F. Supp.

3d 294 (E.D.N.C. 2022); Barnes v. ARYZTA, LLC, 288 F. Supp. 3d 834

(N.D. Ill. 2017); Miller v. Syracuse Univ., No. 5:21-CV-1073, 2022

WL 7505177 (N.D.N.Y. Oct. 13, 2022); Marine Depot, Int’l, Inc. v.

James River Grp., Inc., No. 19-CV-24821, 2021 WL 1893064 (S.D.

Fla. Feb. 22, 2021), report and recommendation adopted, No. 19-

24821-CIV, 2021 WL 1890653 (S.D. Fla. Apr. 14, 2021); Bycko v.

State Farm Mut. Auto. Ins. Co., Civ. No. 23-1316, 2023 WL 7411752

(D.N.J. Nov. 9, 2023).

Rather than move for remand, however, Plaintiffs here argue

that there is subject matter jurisdiction (although not with

respect to Guilford County (see Doc. 45 (consent motion to

dismiss))). This presents an unusual scenario, as it is unclear

whether Plaintiffs should be permitted to attempt to meet

Defendants’ burden on their behalf. See Collier, 889 F.3d at 896

(addressing plaintiffs’ standing arguments even though defendant

had the burden of showing subject matter jurisdiction);

Zhirovetskiy v. Zayo Grp., LLC, No. 17-CV-05876, 2018 WL 11195494,

at *2 (N.D. Ill. Mar. 7, 2018) (remanding case and declining to

address merits of standing argument because the defendant’s

“conflicting positions leave the Article III standing issue

unsettled”). In any event, no party has successfully shouldered

the burden of establishing subject matter jurisdiction. Because,

as set out below, Municipal Defendants’ mootness arguments have

merit as to all Defendants, the court concludes it lacks subject

matter jurisdiction over the claim allegedly supporting removal,

thus requiring remand.

1. Subject Matter Jurisdiction Standard of Review

“No lawsuit may proceed in federal court unless the party

seeking relief has Article III standing.” Carolina Youth Action

Project v. Wilson, 60 F.4th 770, 778 (4th Cir. 2023); Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998) (“For a

court to pronounce upon the meaning or the constitutionality of a

state or federal law when it has no jurisdiction to do so is, by

very definition, for a court to act ultra vires.”). Standing

requires (1) injury in fact, (2) that the injury is “fairly . . .

trace[able] to the challenged action of the defendant,” and (3)

that it is “likely” that “the injury will be redressed by a

favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992) (citations and internal quotation marks omitted)

(alteration and omission in original). The injury in fact

“requirement ensures that plaintiffs have a ‘personal stake in the

outcome of the controversy.’” Kenny v. Wilson, 885 F.3d 280, 287

(4th Cir. 2018) (quoting Warth v. Seldin, 422 U.S. 490, 498

(1975)). An injury in fact is “‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.

Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560).

The Constitution’s case-or-controversy requirement underpins

both standing and mootness jurisprudence. Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).

Article III of the Constitution empowers federal courts to

“adjudicate actual, ongoing controversies.” Honig v. Doe, 484

U.S. 305, 317 (1988) (citations omitted). When “the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome,” the lawsuit becomes moot.

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation

omitted). “When a case or controversy ceases to exist — either

due to a change in the facts or the law – ‘the litigation is moot,

and the court’s subject matter jurisdiction ceases to exist also.’”

Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (quoting S.C.

Coastal League v. U.S. Army Corp of Eng’rs, 789 F.3d 475, 482 (4th

Cir. 2015)).

Mootness principles “indeed blend quite directly with

standing.” 13B Fed. Prac. & Proc. (Wright & Miller), § 3533.1 (3d

ed. Apr. 2023). “The doctrine of standing generally assesses

whether [a plaintiff’s personal] interest exists at the outset [of

the litigation], while the doctrine of mootness considers whether

it exists throughout[.]” Uzuegbunam v. Preczewski, 141 S. Ct.

792, 796 (2021). “[I]f in the course of litigation a court finds

that it can no longer provide a plaintiff with any effectual

relief, the case generally is moot.” Id.; Friends of the Earth,

528 U.S. at 190 (providing nuance to observation that mootness is

“standing set in a time frame”).

In multi-plaintiff cases, “[a]t least one plaintiff must have

standing to seek each form of relief requested in the complaint.”

Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651

(2017). If there is one such plaintiff, the court need not

consider whether other plaintiffs have standing to seek that same

form of relief. Carolina Youth Action, 60 F.4th at 778.

Additionally, where plaintiffs seek declaratory relief, they must

identify “some further concrete relief that will likely result

from the declaratory judgment.” Comite de Apoyo a los Trabajadores

Agricolas (CATA) v. U.S. Dep’t of Lab., 995 F.2d 510, 513 (4th

Cir. 1993)); Pub. Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 242

(1952) (stating that the Declaratory Judgment Act does not abrogate

the traditional law of standing); S. Walk at Broadlands Homeowner’s

Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 183 (4th

Cir. 2013) (citing CATA, 995 F.2d at 513).

In a facial challenge to subject matter jurisdiction,6 such

as the one argued here, the defendant contends “that a complaint

simply fails to allege facts upon which subject matter jurisdiction

can be based.” Kerns v. United States, 585 F.3d 187, 192 (4th

Cir. 2009) (internal quotation marks omitted). In this instance,

the plaintiff receives the same procedural protection available

under a Rule 12(b)(6) consideration — i.e., the court accepts as

true the facts alleged in the complaint, but not any conclusory

statements or legal conclusions. Id.; Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555-56 (2007). Moreover, the court may consider

“documents that are explicitly incorporated into the complaint by

reference” and documents “attached to the complaint as exhibits.”

Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir.

2016). “[I]n the event of conflict between the bare allegations

of the complaint and any exhibit attached . . ., the exhibit

prevails.” Id. (internal quotation marks omitted).

6 In a factual challenge, the defendant instead claims that the

“jurisdictional allegations of the complaint [are] not true,” and the

court may “go beyond the allegations in the complaint” without converting

the motion into one for summary judgment. Kerns, 585 F.3d at 192

(internal quotation marks omitted).

Threatened enforcement of a law against an individual may

give rise to injury in fact even absent an actual threat, arrest,

prosecution or other enforcement action. Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014). Such a theory of standing

requires “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution

thereunder.” Id. at 159 (quoting Babbitt v. Farm Workers, 442

U.S. 289, 298 (1979)). However, the injury may not be “fairly

traceable” to the governmental conduct at issue where the source

of the injury is different and independent from the challenged

conduct. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413 (2013)

(holding injury not “fairly traceable” where Government could rely

on different and unchallenged authorities from the one at issue to

effectuate the same alleged injury).

2. Plaintiffs’ Second Amendment Claim and Mootness

Plaintiffs claim that the City Council’s June 20, 2023

decision to rezone the property infringes on their right to bear

arms as guaranteed by the Second Amendment by limiting their

ability to carry and possess firearms over school grounds and by

creating a threat of prosecution under North Carolina General

Statute § 14-269.2. (Id. ¶¶ 61-65, 67.) Plaintiffs contend that

the rezoning did not render the land “educational property” under

§ 14-269.2 but that the land will become so when a school is built.

(Doc. 42 at 5-6.)

Municipal Defendants make two related contentions: first,

that Plaintiffs’ claims are moot; and second, that the requested

relief — a declaration that the rezoning is invalid — would no

longer redress any alleged infringement or threat of prosecution.

(Doc. 27 at 7-8, 12.) They argue that under § 14-269.2, it is the

Board of Education’s ownership of the rezoned property that invokes

the statutory prohibition and creates a threat of prosecution, not

the rezoning. (Id. at 13.) Municipal Defendants point to the

relevant statutory provision that states that educational property

is

[a]ny school building or bus, school campus, grounds,

recreational area, athletic field, or other property

owned, used, or operated by any board of education or

school board of trustees, or directors for the

administration of any school.

N.C. Gen. Stat. § 14-269.2(a)(1) (2023). They contend that this

statute, which prohibits possessing or carrying a firearm on

educational property, is already enforceable on the rezoned

property because educational property includes “other property

owned, used, or operated by any board of education.” (Id. at 13.)7

7 Additionally, they contend that Plaintiffs can still carry firearms

across Gray Lane, so long as they comply with § 14-269.2(k), which carves

out an exception for those with a concealed carry permit who have a

firearm on educational property in a locked compartment of their vehicle.

(Doc. 27 at 14.) At oral argument, Municipal Defendants clarified that

they understand this to only apply to handguns, rather than long guns,

Plaintiffs do not contest that the Board of Education now

owns the rezoned property. (See Doc. 27-1); Justice 360, 42 F.4th

at 455 (permitting the court to take judicial notice of public

records). Instead, they argue that under a proper reading of § 14-

269.2(a), the rezoned property is not currently “educational

property,” notwithstanding the change in ownership. (Doc. 42 at

5-7.) In their view, the statutory phrase “for the administration

of any school” modifies “other property owned [] by any board of

education,” not merely “directors.” (Id. at 5-6.) And if the

land were already educational property, Plaintiffs contend,

§ 115C-518 would mandate that the Board of Education dispose of it

if the rezoning were declared invalid. (Id. at 6-7.)

In reply, Municipal Defendants argue that the land is already

“educational property” because placement of the last comma in § 14-

269.2(a)(1) indicates that “for the administration of any school”

modifies only “directors,” as this comma separates “directors”

from “any board of education or school board of trustees.” (Doc.

44 at 2-3.) In support, Municipal Directors also point to the

history of the amendments to the statute. (Id. at 4.) Moreover,

they rebut Plaintiffs’ position regarding § 115C-518 by noting

that the statute is permissive, stating only that a board of

but argue that even so, the Supreme Court’s Second Amendment

jurisprudence would only protect Plaintiffs’ firearm use for self-

defense, not recreation.

education “may dispose” of property when “in the opinion of any

local board of education the use of any building site [] owned or

held by the board is unnecessary or undesirable for public school

purposes.” (Id. at 5.)

As a starting point, Municipal Defendants’ arguments require

resolving the parties’ disagreements regarding the proper

interpretation of § 14-269.2(a)(1). See Whole Woman’s Health v.

Jackson, 595 U.S. 30, 46-47 (2021) (interpreting state law to

determine jurisdictional question); Brownback v. King, 592 U.S.

209, 218 (2021) (“[A] federal court always has jurisdiction to

determine its own jurisdiction.” (internal quotation marks

omitted)). If the ownership of the land by the Board of Education,

rather than the rezoning, creates the threat of prosecution, then

a declaration stating that the rezoning is invalid would no longer

afford Plaintiffs relief for their alleged injuries from Second

Amendment infringement. See Clapper, 568 U.S. at 413.

The court’s charge, of course, is to discern the intent of

the General Assembly, which wrote the law. Whitmire v. S. Farm

Bureau Life Ins. Co., 52 F.4th 153, 158 (4th Cir. 2022) (“Under

North Carolina law, ‘[t]he goal of statutory interpretation is to

determine the meaning that the legislature intended upon the

statute’s enactment.’” (quoting State v. Rankin, 821 S.E.2d 787,

792 (N.C. 2018))). “The intent of the General Assembly may be

found first from the plain language of the statute, then from the

legislative history, the spirit of the act and what the act seeks

to accomplish.” State v. Langley, 817 S.E.2d 191, 196 (N.C. 2018)

(internal quotation marks omitted).

Courts, including those in North Carolina, apply the “rule of

the last antecedent” to statutes, such as the one at issue here,

that include a list of terms or phrases followed by a limiting

clause. See, e.g., Lockhart v. United States, 577 U.S. 347, 351

(2016) (collecting cases); Wilkie v. City of Boiling Spring Lakes,

809 S.E.2d 853, 859 (N.C. 2018) (stating that the doctrine of the

last antecedent has been “previously recognized by the [North

Carolina Supreme Court]”). Under that rule, “a limiting clause or

phrase . . . should ordinarily be read as modifying only the noun

or phrase that it immediately follows.” Barnhart v. Thomas, 540

U.S. 20, 26 (2003); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 144-46 (2012); Rule

of the Last Antecedent, Black’s Law Dictionary (11th ed. 2019)

(“[Q]ualifying words or phrases modify the words or phrases

immediately preceding them and not words or phrases more remote,

unless the extension is necessary from the context or the spirit

of the entire writing.”).

In Lockhart, for example, the defendant faced an increased

maximum sentence under 18 U.S.C. § 2252(a)(4) for having a “prior

conviction . . . under the laws of any State relating to aggravated

sexual abuse, sexual abuse, or abusive sexual conduct involving a

minor or ward.” Lockhart, 577 U.S. at 349. The Court was asked

to determine whether the phrase “involving a minor or ward”

modifies all three predicates or only the one that immediately

precedes it. Id. Applying a “timeworn textual canon,” the Court

observed that the last antecedent principle “suggests that the

phrase ‘involving a minor or ward’ modifies only the phrase that

it immediately follows” — i.e., “abusive sexual conduct.” Id. at

351; see also id. at 352-53 (noting that the canon is not a

steadfast rule and considering the full context of the clause);

United States v. Pritchett, 470 F.2d 455, 459-60 (D.C. Cir. 1972)

(applying qualifier “when on duty” to last antecedent in “shall

not apply to marshals, sheriffs, prison or jail wardens, or their

deputies, policemen or other duly appointed law-enforcement

officers, or to members of the Army, Navy, or Marine Corps of the

United States or of the National Guard or Organized Reserves when

on duty”).

Applied here, the canon of the last antecedent supports

Municipal Defendants’ reading because “for the administration of

any school” would qualify only “directors.” This would mean that

ownership by the Board of Education alone renders the rezoned

property “educational property.”

Nevertheless, “structural or contextual evidence may ‘rebut

the last antecedent inference.’” Lockhart, 577 U.S. at 355

(quoting Jama v. Immigr. and Customs Enf’t, 543 U.S. 335, 344 n.4

(2005)). Courts facing this evidence typically invoke the “series

qualifier canon,” which would apply a postpositive modifier to the

entire preceding series when “there is a straightforward, parallel

construction that involves all nouns or verbs in a series.” Scalia

& Garner, Reading Law, supra, at 147. Application of this rule is

context-dependent and ordinarily applies where a modifier is

“applicable as much to the first . . . as to the last words in a

list,” where a set of items forms a “single, integrated list,” or

where application of the last antecedent canon would require

acceptance of an “unlikely premise.” Lockhart, 577 U.S. at 355-

56 (internal quotation marks and citations omitted). For example,

the Supreme Court, in United States v. Bass, 404 U.S. 336 (1971),

applied the series qualifier canon to 18 U.S.C. App. § 1202(a)

(1970 ed.), a firearm possession law, which included the phrase

“[a]ny person . . . who receives, possesses, or transports in

commerce or affecting commerce.” There, the Court construed “in

commerce or affecting commerce” to extend to all three predicates

in the series because an effect on commerce is required for federal

jurisdiction. Bass, 404 U.S. at 339-40 (observing that this

interpretation was still “certainly neither overwhelming nor

decisive” and turning to extrinsic evidence); see also N.C. Dep’t

of Env’t Quality v. N.C. Farm Bureau Fed’n Inc., 895 S.E. 2d 437,

442 (N.C. Ct. App. 2023) (declining to apply last antecedent canon

to the phrase, “[a]ny agency regulation, standard, or statement of

general applicability”).

Here, however, the last antecedent canon applies more neatly.

Most critically, the series “any board of education or school board

of trustees, or directors” is not a single, integrated set. The

comma between “trustees” and “or” does not serve as an Oxford

comma, as in the Bass example above. By contrast, the comma here

separates, rather than integrates, “directors” and “any board of

education or school board of trustees.”

Moreover, application of the last antecedent canon does not

result in the acceptance of an “unlikely premise.” While § 14-

269.2 does not define “directors,” the chapter governing education

includes directors alongside principals, assistant principals, and

supervisors as “school administrator[s].” N.C. Gen. Stat. § 115C-

287.1(a)(3).8 It stands to reason, therefore, that “for the

administration of any school” is a necessary qualifier for

“directors” to preclude property they may own as individuals (such

as a personal residence) from being “educational property.”

By contrast, such a qualifier is not needed for “any board of

education,” given that the mandate of a board of education is

necessarily to administer schools. See N.C. Gen. Stat. § 115C-40

(“Local boards of education [] shall have general control and

8 At oral argument, Municipal Defendants represented that directors are

generally administrators for non-public “regional” schools. This may

be supported by § 115C-238.66, which provides for the powers and duties

of a “board of directors” for “regional schools.”

supervision of all matters pertaining to the public schools in

their respective local school administrative units.”). Indeed,

while surplusage need not be avoided “at all costs,” United States

v. Atl. Rsch. Corp., 551 U.S. 128, 137 (2007), extending “for the

administration of any school” to property owned by any board of

education would appear to infuse an unnecessary degree of

redundancy. See Lockhart, 577 U.S. at 356-57 (discussing

interaction of canon of the last antecedent with the canon to avoid

surplusage).9

In addition, the legislative history of the statute supports

Municipal Defendants’ reading. When initially enacted, the

provision read, “property owned, used or operated by any board of

education, school, college, or university board of trustees or

directors for the administration of any public or private

educational institution.” 1971 N.C. Sess. Laws, ch. 241, § 1. In

1994, the General Assembly amended the provision to read as

follows: “property owned, used, or operated by any board of

education, school, college, or university board of trustees, or

directors for the administration of any public or private

9 Though not raised by the parties, a textual argument in favor of

Plaintiffs would be that the General Assembly did not repeat “by” before

“directors” — e.g., “owned . . . by any board of education or school

board of trustees, or by directors for the administration of any school.”

See Scalia & Garner, Reading Law, supra, at 148 (discussing how

repetition of a “determiner,” such as “by,” would clarify that the

modifier does not extend beyond the antecedent). Whatever merit this

argument may have, it does not overcome the better arguments in favor

of Municipal Defendants’ position.

educational institution.” Extra Session 1994 N.C. Sess. Laws, ch.

14, § 4.(a). Of note, the General Assembly added an Oxford comma

between “used” and “operated,” and, most importantly, added a comma

between “trustees” and “or.”

In 1999, the General Assembly amended the provision once again

to its current form. 1999 N.C. Sess. Laws 211, § 1. Rather than

make an integrated list — e.g., “board of education, school board

of trustees, or directors” — the General Assembly maintained the

comma separating “trustees” and “or,” as amended in 1994.10 This

amendment history, though not decisive, supports the court’s

construction of the plain language of the statute.

Accordingly, considering the language of the statute and its

context, Lockhart, 577 U.S. at 355-56, the most persuasive

construction is in accord with Municipal Defendants’

interpretation — i.e., that the Board of Education’s ownership of

the rezoned property renders it educational property under § 14-

269.2. Assuming there is a cognizable threat of prosecution under

§ 14-269.2, it stems from the Board of Education’s ownership of

the rezoned property, not from the rezoning decision.

Moreover, Plaintiffs incorrectly argue that invalidating the

rezoning would require the Board of Education to sell the rezoned

10 The 1999 amendment also replaced “for the administration of any public

or private educational institution” within § 14-269.2(a)(1) with “for

the administration of any school” and separately defined “school” in

§ 14-269.2(a)(1b) as a “public or private school, community college,

college, or university.”

property. North Carolina General Statute § 115C-518 provides (with

emphasis added):

When in the opinion of any local board of education the

use of any building site or other real property or

personal property owned or held by the board is

unnecessary or undesirable for public school purposes,

the local board of education may dispose of such

according to the procedures prescribed in General

Statutes, Chapter 160A, Article 12, or any successor

provisions thereto. Provided, when any real property to

which the board holds title is no longer suitable or

necessary for public school purposes, the board of

county commissioners for the county in which the

property is located shall be afforded the first

opportunity to obtain the property.

While a local board of education may view the rezoned property as

unnecessary or undesirable if it were not zoned for school use,

the North Carolina General Assembly put such discretion in the

hands of the local board of education, not the federal courts.

Even so, the statute states the board “may dispose” of the land in

such a case, not that it must. Thus, while Plaintiffs may view

the ultimate ownership of the rezoned property as a natural

consequence of the rezoning, § 115C-518 shows that this causal

connection, if any, does not run in reverse. Cf. Clapper, 568

U.S. at 412-13 (finding injury not fairly traceable where plaintiff

could “only speculate” as to how the defendants would “exercise

their discretion”). And in light of the “significant federalism

concerns” at play with removal jurisdiction, any doubt on this

point, which is only bolstered by Defendants’ inconsistency in

improperly removing this case and then moving to dismiss for lack

of jurisdiction, must be resolved in favor of remand. Mulcahey,

29 F.3d at 151.

In light of the record and the statute, the issuance of a

declaration that the rezoning is unconstitutional would not

redress Plaintiffs’ alleged injuries. Consequently, the court

“finds that it can no longer provide [Plaintiffs] with any

effectual relief.” Uzuegbunam, 141 S. Ct. at 796. Plaintiffs’

Second Amendment claim is thus moot.11

3. Applicability to All Defendants

Though the arguments for remand have been raised principally

in Municipal Defendants’ and Plaintiffs’ briefing, the court’s

conclusions necessarily apply to all Defendants. Guilford County

has filed a consent motion requesting that the court dismiss the

claims against it without prejudice. (Doc. 45.) The thrust of

Perdue’s and Stack’s Rule 12(b)(1) arguments is that the court

cannot grant relief as to them because they no longer own the

rezoned property. (Doc. 23 at 6; Doc. 47 at 10-11.) The court

need not reach these motions, as Plaintiffs’ Second Amendment claim

against these Defendants is likewise moot for the same reasons

discussed above. Accordingly, the court lacks subject matter

11 Plaintiffs allege a number of additional injuries in their complaint.

(See Doc. 7 ¶¶ 53-67 (e.g., traffic congestion, trespassing students,

noise pollution, etc.).) On these motions, no party has argued that

these injuries create standing for the Second Amendment claim.

Cumberland Cnty., 608 F. Supp. 3d at 298 (remanding where no party

shouldered the burden of proving jurisdiction).

jurisdiction over the claims against Guilford County, Perdue, and

Stack.

B. Subject Matter Jurisdiction for Remaining Claims

Defendants’ removal petition rested on the court’s original

jurisdiction over Plaintiffs’ Second Amendment federal question

claim. (Doc. 1 ¶ 10.) Part of that claim and all of the other

two claims rest on state law, and the parties thus invoke this

court’s supplemental jurisdiction. (See id. ¶ 11 (invoking

supplemental jurisdiction over state law claims; Doc. 27 at 18-22

(citing solely North Carolina law for claims two and three); Doc.

42 at 17-24 (same).)

A court may exercise supplemental jurisdiction over claims

that are “so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy.”

28 U.S.C. § 1367(a). Because the court lacks original jurisdiction

over any claim here, however, the court cannot exercise

supplemental jurisdiction over these remaining claims. Id.

(requiring as a pre-requisite that the court have original

jurisdiction over some claim); 28 U.S.C. § 1447(c) (providing that

“the case shall be remanded” if “it appears that the district court

lacks subject matter jurisdiction”); Mitchell v. Bailey, 982 F.3d

937, 943 (5th Cir. 2020) (“In order for a federal court to invoke

supplemental jurisdiction, however, it must first have original

jurisdiction over at least one claim in the action.”); Montefiore

Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011)

(“In order to exercise supplemental jurisdiction, a federal court

must first have before it a claim sufficient to confer subject

matter jurisdiction.”); Johnson v. Lyddane, 368 F. Supp. 2d 529,

532 (E.D. Va. 2005) (finding lack of jurisdiction over state law

claim where no original jurisdiction existed).12 The court thus

does not consider the parties’ arguments as to the remaining claims

for want of subject matter jurisdiction.

III. CONCLUSION

For the reasons stated, remand is warranted pursuant to 28

U.S.C. § 1447(c) because the court lacks subject matter

jurisdiction over Plaintiffs’ claims.

IT IS THEREFORE ORDERED that the case is REMANDED to the

General Court of Justice, Superior Court Division, Guilford

County, North Carolina;

IT IS FURTHER ORDERED that Defendants’ motions to dismiss

(Docs. 22, 26, 38, 45, and 46) are DENIED without prejudice as

moot.

12 Notably, this is not a case where the court undeniably had original

jurisdiction over the sole federal claim and could dismiss it for failure

to state a claim and remand the pendent state law claims. Carlsbad

Tech., Inc., 556 U.S. at 638-41 (holding that decision whether to retain

jurisdiction over pendent claims is discretionary). It is also

distinguishable from a non-removed case where a court has diversity

jurisdiction at the time of the complaint, but the required amount-in-

controversy is subsequently lost. Shanaghan v. Cahill, 58 F.3d 106,

112-13 (4th Cir. 1995) (holding that court has discretion on whether to

remand state law claims).

IT IS FURTHER ORDERED that Municipal Defendants’ motion for

leave to submit additional evidence (Doc. 55) is DENIED as moot.

/s/ Thomas D. Schroeder

United States District Judge

May 7, 2024