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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CIVIL ACTION NO. 1:14-cv-299

ELLEN W. GERBER; et al, )

)

Plaintiffs, )

v. ) ANSWER AND

) AFFIRMATIVE DEFENSES

ROY COOPER, et al, )

NOW COMES Defendant, Jeff Thigpen, in his official capacity as the Register of

Deeds for Guilford County, (hereinafter Defendant Thigpen) without waiving any

motions or defenses not set out herein, in answer to Plaintiffs Complaint.

INTRODUCTION

Plaintiffs Complaint consists largely of analysis, conclusions and opinions of

various laws, cases and other legal authority and relates that legal authority to how

those laws impact the Plaintiffs. As such, most of the allegations set out in the Amended

Complaint consist of conclusions of law or facts related to the Plaintiffs to which

Defendant Jeff Thigpen has no personal knowledge. In fact, only paragraphs 198, 199,

200, and 216 of the total of 290 paragraphs are directed to Defendant Thigpen in any

meaningful way. Therefore, the only appropriate answer Defendant Thigpen can provide

for all, but a very small handful of paragraphs is that conclusions of law are neither

admitted nor denied and as to facts related to the Plaintiffs relationships to other

Plaintiffs or family members is outside the scope of Defendant Thigpens knowledge and,

thus can neither be admitted nor denied. Pursuant to Rule 8 of the Federal Rules of Civil

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Procedure, where one is without sufficient knowledge to form a belief as to the truth of an

averment, he is mandated to so state and his response is deemed a denial; further, no

response is required to conclusions of law, analysis of law or statements of law and

authority. Where no response is required, any averment is deemed denied.

ANSWER AND FIRST AFFIRMATIVE DEFENSE: Response ToENUMERATED

PARAGRAPHS:

1. To the extent that the allegations in Paragraph 1 constitute conclusions oflaw, said conclusions are neither admitted nor denied. As to any remaining allegations set

forth in Paragraph 1, Defendant Thigpen is without sufficient knowledge or information

to admit or deny. Thus, for the reasons set forth above, the remaining allegations in

Paragraph 1 are denied.

2. Defendant Thigpen is without sufficient knowledge or information to admitor deny Plaintiffs allegations in Paragraph 2.

3-8. To the extent that the allegations in these paragraphs constitute conclusionsof law, said conclusions are neither admitted nor denied. As to any remaining allegations

set forth in Paragraphs 3 through 8, Defendant Thigpen is without sufficient knowledge

or information to admit or deny. Thus, for the reasons set forth above, the remaining

allegations in Paragraphs 3 through 8 are denied.

Response ToMARRIAGE



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10. The allegations contained in Paragraph 10 of the Plaintiffs Complaint areadmitted upon information and belief. To the extent that the allegations in Paragraph 10

constitute conclusions of law, said conclusions are neither admitted nor denied.

11-12. To the extent that the allegations in Paragraphs 11 through 12 constituteconclusions of law, said conclusions are neither admitted nor denied. As to any remaining

allegations set forth in Paragraphs 11 through 12, Defendant Thigpen is without sufficient

knowledge or information to admit or deny. Thus, for the reasons set forth above, the

remaining allegations in Paragraphs 11 through 12 are denied.

Response ToADOPTION





Response ToCONSTITUTIONAL VIOLATIONS


forth in Paragraph 16, Defendant Thigpen is without sufficient knowledge of information


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Response ToJURISDICTION AND VENUE

20. Upon information and belief, it is admitted that Plaintiffs are asserting acause of action under 42 U.S.C 1983 pursuant to the Plaintiffs assertions in Paragraph

20. To the extent that the allegations in Paragraph 20 constitute conclusions of law, said

conclusions are neither admitted nor denied.





22. The allegations in Paragraph 22 are admitted as to Defendant Thigpen;admitted as to the remaining Defendants, upon information and belief.






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Response ToTHE NORTH CAROLINA MARRIAGE LAWS

Response ToNorth Carolina Marriage Statutes









Response ToThe North Carolina Anti-Marriage Amendment (Amendment

One)





27. It is admitted that Paragraph 27 of the Plaintiffs Complaint quotesAmendment One and N.C. Const. art. XIV, 6. To the extent that the allegations in


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Paragraph 27 constitute conclusions of law, said conclusions are neither admitted nor

denied.




Paragraphs 28 are denied. In further response and defense of the Plaintiffs allegations in

Paragraph 28, Defendant Thigpen asserts the following with respect to subparagraphs

28(a) through 28(e) as follows:

(a-e) To the extent that the allegations in subparagraphs 28(a) through 28(e)


As to any remaining allegations set forth in subparagraphs 28(a) through 28(e),

Defendant Thigpen is without sufficient knowledge of information to admit or

deny. Thus, for the reasons set forth above, the remaining allegations in

subparagraphs 28(a) through 28(e) are denied.






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Response ToOTHER BARRIERS TO MARRIAGE HAVE BEEN STRUCK

DOWN

31-47. To the extent that the allegations in Paragraphs 31 through 47 constitute

conclusions of law, said conclusions are neither admitted nor denied. As to any remaining




Response ToANY ALLEGED STATE INTEREST IN FORBIDDINGMARRIAGE IS SUBJECT TO HEIGTENED SCRUTINY






Response ToTHE NORTH CAROLINA ADOPTION STATUTES







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70. It is admitted that Paragraph 70 of the Plaintiffs Complaint quotes N.C.Gen. Stat. 48-1-101(18). To the extent that the allegations in Paragraph 70 constitute

conclusions of law, said conclusions are neither admitted nor denied.






Response ToOTHER STATES GRANT SECOND PARENT ADOPTION,

RECOGNIZING THAT SUCH ADOPTIONS ARE IN THE BEST INTERESTS

OF CHILDREN






Response ToWHILE NORTH CAROLINA PROHIBITS ADOPTION BY

SECOND PARENTS, NORTH CAROLINA LAWS AND POLICIES

OTHERWISE RECOGNIZE THE VALUE THAT GAY AND LESBIAN

COUPLES PROVIDE AS PARENTS





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Response To De FactoParent Doctrine






Response ToFORBIDDING APPLICATIONS FOR SECOND PARENT

ADOPTION ADVANCES NO COMPELLING OR EVEN LEGITIMATE STATE

PURPOSE



allegations set forth in Paragraphs 97 through 104, Defendant Thigpen is without

sufficient knowledge or information to admit or deny. Thus, for the reasons set forth

above, the remaining allegations in Paragraphs 97 through 104 are denied.

Response ToPARTIES

Response ToPLAINTIFFS

Response ToEsmeralda Mejia, Christina Ginter-Mejia, and J.G.-M

105-110. Upon information and belief, the allegations contained in Paragraphs 105through 110 of the Plaintiffs Complaint are admitted. To the extent that the allegations


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in Paragraphs 105 through 110 constitute conclusions of law, said conclusions are neither

admitted nor denied.


forth in Paragraph 111, Defendant Thigpen is without sufficient knowledge or

information to admit or deny. Thus, for the reasons set forth above, the remaining

allegations in Paragraph 111 are denied.




allegations in Paragraph 112 are denied. In further response and defense of the Plaintiffs

allegations in Paragraph 112, Defendant Thigpen asserts the following with respect to

subparagraphs 112(a) through 112(e) as follows:

(a-d) To the extent that the allegations in subparagraph 112(a) through 112(d)


As to any remaining allegations set forth in subparagraph 112(a) through

112(d), Defendant Thigpen is without sufficient knowledge of information to

admit or deny. Thus, for the reasons set forth above, the remaining allegations

in subparagraph 112(a) through 112(d) are denied.


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113-114. Upon information and belief, the allegations contained in Paragraphs 113

through 114 of the Plaintiffs Complaint are admitted. To the extent that the allegations



115. Defendant Thigpen is without sufficient knowledge or information to admitor deny Plaintiffs allegations contained in Paragraph 115.

116. Upon information and belief, the allegations contained in Paragraph 116 ofthe Plaintiffs Complaint are admitted. To the extent that the allegations in Paragraph

116 constitute conclusions of law, said conclusions are neither admitted nor denied.

117-120. Defendant Thigpen is without sufficient knowledge or information to

admit or deny Plaintiffs allegations contained in Paragraphs 117 through 120.



122-123. Defendant Thigpen is without sufficient knowledge or information to

admit or deny Plaintiffs allegations contained in Paragraphs 122 through 123.

124-132. To the extent that the allegations in Paragraphs 124 through 132constitute conclusions of law, said conclusions are neither admitted nor denied. As to any

remaining allegations set forth in Paragraphs 124 through 132, Defendant Thigpen is

without sufficient knowledge or information to admit or deny. Thus, for the reasons set

forth above, the remaining allegations in Paragraphs 124 through 132 are denied.


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Response To Ellen W. Gerber and Pearl Berlin

133-137. Upon information and belief, the allegations contained in Paragraphs 133

through 137 of the Plaintiffs Complaint are admitted. To the extent that the allegations















As to any remaining allegations set forth in subparagraphs 139(a) through

139(e), Defendant Thigpen is without sufficient knowledge of information to


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in subparagraphs 139(a) through 139(e) are denied.

Response ToLyn McCoy and Jane Blackburn

140-142. Upon information and belief, the allegations contained in Paragraphs

140 through 142 of the Plaintiffs Complaint are admitted. To the extent that the

allegations in Paragraphs 140 through 142 constitute conclusions of law, said conclusions

are neither admitted nor denied.











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As to any remaining allegations set forth in subparagraphs 147(a) through

147(e), Defendant Thigpen is without sufficient knowledge of information to


in subparagraphs 147(a) through 147(e) are denied.

Response ToHARMS SUFFERED BY PLAINTIFFS AS RESULT OF

BEING DENIED THE FREEDOM TO MARRY

148-150. To the extent that the allegations in Paragraphs 148 through 150

constitute conclusions of law, said conclusions are neither admitted nor denied. As to any







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Response ToFUTILITY






216. The allegations contained in Paragraph 216 of the Plaintiffs Complaint areadmitted. To the extent that the allegations in Paragraph 216 constitute conclusions of

law, said conclusions are neither admitted nor denied.






Response ToCLAIMS FOR RELIEF

Response ToFIRST CLAIM FOR RELIEF

(BY THE ADULT PLAINTIFFS)

( DUE PROCESS CLAUSE OF THE UNITED STATES

CONSTITUTION, 42 U.S.C. 1983)

220. Defendant Thigpen re-alleges and incorporates herein by reference hisresponses to the allegations, contained in Paragraphs 1 through 219 of Plaintiffs


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Complaint, as though fully set forth.






Response ToSECOND CLAIM FOR RELIEF

(BY THE MARRIED PLAINTIFFS)(EQUAL PROTECTION CLAUSE OF THE UNITED STATES









Response ToTHIRD CLAIM FOR RELIEF

(BY PLAINTIFF J.G.-M.)

(EQUAL PROTECTION CLAUSE OF THE UNITED STATES

CONSTITUTION, 42 U.S.C. 1983)235. Defendant Thigpen re-alleges and incorporates herein by reference his

responses to the allegations, contained in Paragraphs 1 through 234 of Plaintiffs


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Response ToFOURTH CLAIM FOR RELIEF

(BY PLAINTIFF J.G.-M)(J.G.-MS RIGHTS UNDER THE EQUAL PROTECTION CLAUSE

UNDER THE UNITED STATES CONSTITUTION, 42 U.S.C. 1983)








Response ToFIFTH CLAIM FOR RELIEF(BY Plaintiffs MEJIA AND MEJIA-GINTER)

(PARENTS RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF

THE UNITED STATES CONSTITUTION, 42 U.S.C. 1983)



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Response ToSIXTH CLAIM FOR RELIEF

(BY PLAINTIFF GINTER-MEJIA)(GINTER-MEJIAS RIGHTS UNDER THE DUE PROCESS CLAUSE OF

THE UNITED STATES CONSTITUTION, 42 U.S.C. 1983)








Response ToSEVENTH CLAIM FOR RELIEF

(BY PLAINTIFF GINTER-MEJIA, MEJIA, AND J.G.-M)(DUE PROCESS CLAUSE UNDER THE UNITED STATES




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SECOND AFFIRMATIVE DEFENSE: MOTION TO DISMISS

PLAINTIFFS LACK OF STANDINGFed. R. Civ. P., Rule 12(b)(1)

Defendant Thigpen asserts that the Plaintiffs lack standing to assert the claims in

their Complaint. Therefore, Defendant Thigpen moves this Court to dismiss the

Plaintiffs Complaint as to Defendant Thigpen.

THIRD AFFIRMATIVE DEFENSE: MOTION TO DISMISS

LACK OF STANDINGFed. R. Civ. P., Rule 12(b)(1)

Defendant Thigpen asserts that the Court lacks jurisdiction to as Plaintiffs seek

equitable relief and jurisdiction is estopped due to Defendant Thigpens governmental

and qualified immunity.

FOURTH AFFIRMATIVE DEFENSE: MOTION TO DISMISS

Fed. R. Civ. P., Rule 12(b)(6)

The Plaintiffs Complaint fails to state a claim against Defendant Thigpen upon which

relief can be granted. Plaintiffs Complaint fails to state a cause of action against the

public entity Defendant Thigpen for, pursuant toMonell v. Department of Social Services


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of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978), there can

be no recovery for a federal civil rights violation where there is no constitutional

deprivation occurring pursuant to governmental policy or custom. Therefore, Defendant

Thigpen moves this Court to dismiss the Plaintiffs Complaint as to Defendant Thigpen.

FIFTH AFFIRMATIVE DEFENSE: GOVERNMENTAL IMMUNITY

Defendant Thigpen asserts governmental immunity and N.C. Gen. Stat. 153A-

435 in bar of Plaintiffs claims in that the Complaint complains of governmental acts with

respect to which Plaintiff must plead and prove a waiver of governmental immunity. At

all times relevant to the acts alleged in the Plaintiffs Complaint, Defendant Thigpen,

acted reasonably, properly, lawfully, and in good faith in the exercise of his discretion

within the laws established in the State of North Carolina. As a result Defendant Thigpen

is entitled to governmental immunity.

SIXTH AFFIRMATIVE DEFENSE: QUAILFIED IMMUNITY

Defendant Thigpen has acted within the current laws established in the State of

North Carolina. Therefore, Defendant Thigpen has not violated any clearly established

constitutional or statutory rights of which reasonable persons would have otherwise

known and is entitle to the protections by qualified immunity.

SIVENTH AFFIRMATIVE DEFENSE: COMPLIANCE WITH EXISTING LAW

Defendant Thigpen has not violated any rights, privileges or immunities secured to

Plaintiff by the Constitution or laws of the United States, the State of North Carolina or

any political subdivision thereof, nor has Defendant Thigpen violated any act of Congress

providing for the protection of civil rights.


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EIGHTH AFFIRMATIVE DEFENSE: ADEQUATE REMEDIES AT LAW

Defendant Thigpen asserts that the Plaintiffs are not entitled to injunctive or

declaratory relief since the remedies at law are adequate.

NINTH AFFIRMATIVE DEFENSE: CONTRADICTION TO PUBLIC POLICY

Defendant Thigpen asserts that the Plaintiffs are not entitled to the injunctive relief

sought since the relief sought is contrary to public policy.

PRAYER FOR RELIEF

WHEREFORE, Defendant Thigpen respectfully prays:

283. In that Paragraphs 283 through 290 constitute Plaintiffs Prayer for Relief,Defendant Thigpen answers and respectfully prays this Court to dismiss this action

against Defendant Thigpen as to Plaintiffs claims for relief. With respect to all claims

Defendant Thigpen prays this Court issue no injunctive relief. To the extent Paragraph

283 contains allegations that constitute conclusions of law, said conclusions are neither

admitted nor denied. As to any remaining allegations set forth in this Paragraph 283,

Defendant Thigpen is without sufficient knowledge or information to admit or deny.

Thus, for the reasons set forth above, the remaining allegations in Paragraph 283 are

denied.


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This the 30 day of May, 2014.

/s/J. Mark PayneJ. Mark Payne (N.C.S.B. No. 11046)

Attorney for Defendant

Guilford County, North Carolina

Phone: (336) 641-3852

[email protected]

OFFICE OF GUILFORD COUNTY ATTORNEY

301 W. Market StreetPO Box 3427 (27402)

Greensboro, N.C. 27401

336-641-3852 (phone)

336-641-3642 (facsimile)

mailto:[email protected]:[email protected]:[email protected]

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