United States District Court, D. Maryland
JUDICIAL WATCH, Inc. Plaintiff,
LINDA LAMONE, et al. Defendants.
Lipton Hollander, United States District Judge.
litigation concerns a request for voter registration records
pertaining to Montgomery County, Maryland.
Judicial Watch, Inc. (“Judicial Watch”) has sued
a host of defendants, including Linda Lamone, the Maryland
Administrator of Elections, alleging violation of §
8(i)(1) of the National Voter Registration Act of 1993
(“NVRA” or the “Act”), codified, as
amended, at 52 U.S.C. § 20507(i)(1). See ECF 1
(“Complaint”). Judicial Watch has also sued David
McManus, Jr., the Chairman of the Maryland State Board of
Elections (“SBE”); Patrick Hogan, the
Vice-Chairman of the SBE; Jared DeMarinis, the Public
Information Act Officer and Director of the Division of
Candidacy and Campaign Finance for SBE; SBE Members Michael
Cogan, Kelley Howells, and Gloria Lawlah (collectively, the
“State Defendants”). Id. In addition,
plaintiff has sued James Shalleck, the President of the
Montgomery County Board of Elections (“MCBE”);
Nahid Khozeimeh, the Vice-President of the MCBE; Mary Ann
Keeffe, the Secretary of the It appears that Lawlah is no
longer an SBE Member. See M ., S MCBE; Alexander
Vincent and David Naimon, MCBE Members; and Jacqueline
Phillips, an MCBE Substitute Member (collectively, the
“County Defendants”). Id. Each defendant
was sued in his or her official capacity. Id.
submitted two exhibits with its Complaint. See ECF
1-1 (letter from Thomas Fitton, President of Judicial Watch,
to McManus, dated April 11, 2017); ECF 1-2 (email from
DeMarinis to Robert Popper, Esquire, and Eric Lee, Esquire,
counsel for Judicial Watch, dated July 7, 2017).
State Defendants have filed a “Motion to Dismiss
Plaintiff's Complaint or, in the Alternative, For Summary
Judgment” (ECF 19), supported by a memorandum of law
(ECF 19-1) (collectively, the “State Motion”) and
exhibits. See ECF 19-2 through ECF 19-4. The County
Defendants also moved to dismiss (ECF 20), supported by a
memorandum of law (ECF 20-1) (collectively, the “County
Motion”). Judicial Watch filed a combined opposition to
both motions (ECF 24, “Opposition”), along with
three additional exhibits. See ECF 24-1 through ECF
24-4. Defendants have replied. See ECF 29
(“County Reply”); ECF 31 (“State
hearing is necessary to resolve the motions. See
Local Rules 105.6. For the reasons that follow, I shall deny
the State Motion (ECF 19) and I shall grant the County Motion
(ECF 20), without prejudice.
Watch describes itself as a “not-for-profit,
educational organization” that is dedicated to
“promot[ing] transparency, integrity, and
accountability in government.” ECF 1, ¶ 5.
According to Judicial Watch, it “regularly requests
records from state and local governments pursuant to Section
8(i) of the NVRA, and state open-records laws . . . .”
Id. It then “analyzes all responses and
disseminates both its findings and the requested records to
the American public to inform it about ‘what the
government is up to.'” Id. (citation
April 11, 2017, Thomas Fitton, President of Judicial Watch,
“sent an email to the address for the officers and
members of the Maryland State Board of Elections and
Maryland's State Administrator, and to the address for
the officers and members of the Montgomery County Board of
Elections.” ECF 1, ¶ 11. The email included a
letter to McManus dated April 11, 2017. See ECF 1-1
(“Notice Letter”). Hogan, Cogan, Howells, Lawlah,
Lamone, Shalleck, Khozeimeh, Keefe, Vincent, Naimon, Popper,
and Nikki Charlson, the Deputy State Administrator of the
SBE, were copied on the Notice Letter. ECF 1-1 at
Notice Letter, which is appended to the suit (ECF 1-1), was
also sent by certified mail to the SBE and the MCBE. ECF 1,
¶ 11. It states, in part, ECF 1-1 at 1-7 (emphasis
Dear Chairman McManus:
We write to bring your attention to violations of Section 8
of the National Voter Registration Act (“NVRA”)
in Montgomery County, Maryland. From public records obtained,
Montgomery County has more total registered voters than adult
citizens over the age of 18 as calculated by the U.S. Census
Bureau's 2011-2015 American Community Survey. This is
strong circumstantial evidence that Montgomery County is not
conducting reasonable voter registration record maintenance
as mandated under the NVRA.
* * *
This letter serves as statutory notice that Judicial Watch
will bring a lawsuit against your office if you do not take
specific actions to correct these violations of Section 8
within 90 days. In addition, by this letter we are asking you
to produce certain records to us which you are required to
make available under Section 8(i) of the NVRA.
* * *
You are receiving this letter because you are the designated
chief state election official under the NVRA.
* * *
In order to avoid litigation, we hope you will promptly
initiate efforts to comply with Section 8 so that no lawsuit
will be necessary. We ask you to please respond to this
letter in writing no later than 45 days from today informing
us of the compliance steps you are taking. Specifically, we
ask you to: (1) conduct or implement a systematic, uniform,
nondiscriminatory program to remove from the list of eligible
voters the names of persons who have become ineligible to
vote by reason of a change in residence; and (2) conduct or
implement additional routine measures to remove from the list
of eligible voters the names of persons who have become
ineligible to vote by reason of death, change in residence,
or a disqualifying criminal conviction, and [(3)]to remove
noncitizens who have registered to vote unlawfully.
* * *
[P]ursuant to your obligations under the NVRA, please make
available to us all pertinent records concerning “the
implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency” of
Maryland's official eligible voter lists during the past
2 years. Please include these records with your response to
this letter. These records should include, but are not
1. Copies of the most recent voter registration database
from Montgomery County, Maryland, including fields indicating
name, date of birth, home address, most recent voter
activity, and active or inactive status.
2. Copies of all email or other communications internal to
the office of the Maryland State Board of Elections,
including any of its divisions, bureaus, offices, third party
agents, or contractors, (hereinafter, collectively
“State Board of Elections”) relating to the
maintenance of accurate and current voter rolls.
3. Copies of all email or other communications between the
State Board of Elections and all Maryland County Voter
Registration Officials concerning:
a. Instructions to the counties concerning their general list
maintenance practices and obligations; b. Instructions to the
counties for the removal of specific noncitizens and
deceased, relocated, or convicted persons identified by the
State Board of Elections; and c. Notices to the counties
concerning any failure to comply with their voter list
maintenance obligations under Maryland's program.
4. Copies of all email or other communications between the
State Board of Elections and the Maryland State Department of
Health, the Maryland State Department of Corrections, the
Maryland Motor Vehicle Administration, and the Maryland State
Judiciary concerning obtaining information about deceased,
relocated, convicted, or noncitizen registered voters for the
purpose of updating Maryland's voter registration lists.
5. Copies of all email or other communications between the
State Board of Elections and the U.S. Attorney(s) for
Maryland, the U.S. District Court for Maryland, the U.S.
Social Security Administration, the U.S. Postal Service, the
U.S. Citizenship and Immigration Services, and the U.S.
Department of Homeland Security concerning the National
Change of Address database, the Systematic Alien Verification
for Entitlements database, or any other means of obtaining
information about deceased, relocated, convicted, or
noncitizen registered voters for the purpose of updating
Maryland's voter registration lists.
6. Copies of all email or other communications between the
State Board of Elections and the Interstate Voter
Registration Cross-Check Program, the Electronic Registration
Information Center, the National Association for Public
Health Statistics and Information Systems, and any other U.S.
State concerning obtaining information about deceased or
relocated registered voters for the purpose of updating
Maryland's voter registration lists. . . .
Watch received an email from SBE's Nikki Charlson on May
26, 2017, indicating that the SBE had received the Notice
Letter. ECF 1, ¶ 18. Further, she stated that the SBE
would issue a response to Judicial Watch, and that the SBE
would provide Judicial Watch with the “requested
documents next week.” Id.
Watch received a letter from Lamone on June 5, 2017.
Id. ¶ 19. She stated, inter alia, that
Maryland's voter list maintenance program complies with
the NVRA, that the SBE was compiling “responsive”
documents, and that the SBE would provide those documents to
Judicial Watch “‘shortly.'”
Id. ¶¶ 19-20.
email dated July 7, 2017 (ECF 1-2), DeMarinis informed
plaintiff, id.: “The documents that you
requested from your April 11, 2017 letter are ready for
review. However, . . . the request for the Montgomery County
voter registration list was not made in accordance with
Election Law Article 3-506. Therefore, it will not be
processed.” ECF 1, ¶¶ 21-22. See Md.
Code (2017 Repl., 2017 Supp.), § 3-506(a)(1) of the
Election Law Article (“E.L.”) (stating that
“a list of registered voters shall be provided to a
Maryland registered voter”) (emphasis added).
11, 2017, Popper, as counsel for plaintiff, spoke with
DeMarinis by telephone. ECF 1, ¶ 24. During that call,
Popper noted that because Judicial Watch is organized under
D.C. law, it could not be “a Maryland registered voter,
” as required by E.L. § 3-506(a)(1), and thus
could not obtain the “requested voter list.” ECF
1, ¶ 24. DeMarinis confirmed that the Maryland
Attorney General's office had so indicated. Id.
watch claims that, pursuant to NVRA § 8(i)(1), it is
entitled to the materials withheld by defendants. ECF 1,
¶¶ 16, 27-28. Moreover, to the extent that E.L.
§ 3-506(a)(1) “conflicts with, overrides, or
burdens” § 8(i)(1) of the NVRA, Judicial Watch
argues that E.L. § 3-506(a)(1) is subject to preemption.
ECF 1, ¶ 33.
facts are included in the Discussion.
Standard of Review
State Defendants have moved to dismiss the Complaint under
Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary
judgment under Fed.R.Civ.P. 56. See ECF 19. A motion
styled in the alternative, to dismiss or for summary
judgment, implicates the court's discretion under Rule
12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788
F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court
“is not to consider matters outside the pleadings or
resolve factual disputes when ruling on a motion to
dismiss.” Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a
court, in its discretion, may consider matters outside of the
pleadings, pursuant to Rule 12(d). If the court does so,
“the motion must be treated as one for summary judgment
under Rule 56, ” and “[a]ll parties must be given
a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d); see
Adams Housing, LLC v. City of Salisbury, Maryland, 672
Fed.Appx. 220, 222 (4th Cir. 2016) (per curiam). But when, as
here, the movant expressly captions its motion “in the
alternative, ” as one for summary judgment, and submits
matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur, and the court
“does not have an obligation to notify parties of the
obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).
district judge has “complete discretion to determine
whether or not to accept the submission of any material
beyond the pleadings that is offered in conjunction with a
Rule 12(b)(6) motion and rely on it, thereby converting the
motion, or to reject it or simply not consider it.” 5C
Alan Wright & Arthur Miller, Federal Practice &
Procedure § 1366 (3d ed.). This discretion “should
be exercised with great caution and attention to the
parties' procedural rights.” Id. at 149.
In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the
disposition of the action, ” and “whether
discovery prior to the utilization of the summary judgment
procedure” is necessary. Id. at 165-67.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co., 637 F.3d at
448-49; see Putney v. Likin, 656 Fed.Appx. 632,
638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland
Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014).
However, “the party opposing summary judgment
‘cannot complain that summary judgment was granted
without discovery unless that party has made an attempt to
oppose the motion on the grounds that more time was needed
for discovery.'” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(hereinafter, “Harrods”) (quoting
Evans v. Tech's. Applications & Serv. Co.,
80 F.3d 954, 961 (4th Cir. 1996)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLLP, 616
Fed.Appx. 552, 561 (4th Cir. 2015).
raise adequately the issue that discovery is needed, the
non-movant typically must file an affidavit or declaration
pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, [he] cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing the affidavit requirement of former
Rule 56(f)). A non-moving party's Rule 56(d) request for
additional discovery is properly denied “where the
additional evidence sought for discovery would not have by
itself created a genuine issue of material fact sufficient to
defeat summary judgment.” Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995);
see Gordon v. CIGNA Corp., ___ F.3d ___, 2018 WL
2209305, at *10 (4th Cir. May 15, 2018); Amirmokri v.
Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006),
aff'd, 266 Fed.Appx. 274 (4th Cir. 2008),
cert. denied, 555 U.S. 885 (2008). In addition, a
Rule 56(d) motion may be denied if the opposing party had a
reasonable opportunity to conduct discovery. Hodgin v.
UTC Fire & Sec. Americas Corp., Inc., 885 F.3d 243,
250 (4th Cir. 2018).
non-moving party believes that further discovery is necessary
before consideration of summary judgment, the party who fails
to file a Rule 56(d) affidavit does so at his peril, because
“‘the failure to file an affidavit . . . is
itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.'”
Harrods, 302 F.3d at 244 (quoting Evans, 80
F.3d at 961); see also Dave & Buster's,
Inc., 616 Fed.Appx. at 561. But, the non-moving
party's failure to file a Rule 56(d) affidavit does not
obligate a court to issue a summary judgment ruling that is
obviously premature. Although the Fourth Circuit has placed
“‘great weight'” on the Rule 56(d)
affidavit, and has said that a mere “‘reference
to Rule 56(f) [now Rule 56(d)] and the need for additional
discovery in a memorandum of law in opposition to a motion
for summary judgment is not an adequate substitute for [an]
affidavit, '” the appellate court has “not
always insisted” on a Rule 56(d) affidavit.
Harrods, 302 F.3d at 244 (quoting Evans, 80
F.3d at 961). The failure to file an affidavit may be excused
“if the nonmoving party has adequately informed the
district court that the motion is pre-mature and that more
discovery is necessary, ” when the “nonmoving
party's objections before the district court
‘served as the functional equivalent of an
affidavit', ” and if the nonmoving party “was
not lax in pursuing discovery.” Harrods, 302
F.3d at 244-45 (quoting First Chicago Int'l v. United
Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir.
Watch does not contend that summary judgment prior to
discovery would be premature or prejudicial. Nor has Judicial
Watch filed an affidavit or declaration under Fed.R.Civ.P.
56(d). However, I am of the view that summary judgment is
premature because the factual record is not fully developed.
Accordingly, I decline to convert the State Motion to one for