(mtn to amend order & grant interlocutory appeal).pdf

Case 3:11-cv-00123-TCB Document 153 Filed 05/31/13 Page 1 of 6 

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF GEORGIA 

NEWNAN DIVISION 

GEORGIA STATE CONFERENCE OF 

THE NAACP, et al., 

v. 

Plaintiffs, 

CIVIL ACTION NO. 3:11-CV- 

00123-TCB 

FAYETTE COUNTY BOARD OF 

COMMISSIONERS, et al., 

Defendants. 

MOTION TO AMEND OR ALTER ORDER TO INCLUDE 

STATEMENT PRESCRIBED BY 28 U.S.C. § 1292(b) AND A STAY 

COME NOW Defendants Fayette County Board of Commissioners; Steve 

Brown, David Barlow, Allen McCarty, Charles Oddo, and Randy Ognio, in their 

official capacities; Fayette County Board of Elections and Voter Registration; and 

Tom Sawyer, in his official capacity (collectively “County Defendants”) and 

hereby requests the Court amend its Order on the summary judgment motions 

[Doc. 152] to include the statement prescribed by 28 U.S.C. § 1292(b) and to stay 

this case, showing the Court as follows: 

On May 21, 2013, this Court entered its Order on the summary judgment 

motions of the parties, granting Plaintiffs’ motion and denying the motion of 

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County Defendants. The Court directed the parties to submit proposed remedial 

plans for Commission and Board of Education elections on or before June 25, 

2013. 

The Court’s Order is not immediately appealable to the Eleventh Circuit by 

County Defendants because (1) it does not finally resolve all the issues of the case 

and/or grant injunctive relief to Plaintiffs, 28 U.S.C. §§ 1291, 1292(a)(1), or (2) 

contain the statement required by 28 U.S.C. § 1292(b) that would allow County 

Defendants to seek the Eleventh Circuit’s review of the Order before the end of the 

case. 

In this case, County Defendants asserted that (1) the Illustrative Plan is a 

racial gerrymander, (2) a racial gerrymander could not be used to prove the first 

prong of the vote dilution test from Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 

2752, 92 L.Ed.2d 25 (1986), (3) a racially-gerrymandered plan cannot survive 

strict scrutiny as the remedy of a Section 2 violation when that plan was used to 

demonstrate the violation, and (4) that each of the Senate factors was important to 

a determination of liability. This Court disagreed on these points. However, this 

Court also recognized in its 80-page Order that the law to be applied in this case is 

“exasperatingly complex” and a “monumental and salutary task.” [Doc. 152, p. 28 

n.12]. 

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County Defendants respectfully request that before the Court proceeds to a 

new plan for the Board of Commissioners and Board of Education, the Court: 

Circuit; and 

1. Allow County Defendants to seek interlocutory review by the Eleventh 

2. Stay further proceedings in this Court pending resolution of the 

interlocutory appeal by the Eleventh Circuit. 

Therefore, pursuant to Fed. R. Civ. P. 59 and Fed. R. App. P. 5(a), County 

Defendants move this Court to amend its May 21, 2013 Order by including the 

following statement: 

“In the opinion of the Court, this Order involves a controlling question 

of law as to which there is substantial ground for difference of opinion, 

and an immediate appeal from the order may materially advance the 

ultimate termination of the litigation.” 

County Defendants also request that the Court add the following language to 

the amended order: 

“The Court further orders that all proceedings in this case shall be 

stayed pending resolution of an interlocutory appeal by the United 

States Court of Appeals for the Eleventh Circuit.” 

In support of this motion, County Defendants’ attach their Brief in Support 

of Motion to Amend or Alter Order to Include Statement Prescribed by 28 U.S.C. 

§1292(b) and to Stay. 

3


This 31st day of May, 2013. 

s/ Anne W. Lewis 

Frank B. Strickland 

Georgia Bar No. 687600 

fbs@sbllaw.net 

Anne W. Lewis 


awl@sbllaw.net 

Bryan P. Tyson 


bpt@sbllaw.net 

STRICKLAND BROCKINGTON 

LEWIS LLP 

Midtown Proscenium Suite 2200 

1170 Peachtree Street NE 

Atlanta, Georgia 30309 

678-347-2200 (telephone) 

678-347-2210 (facsimile) 

4


IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF GEORGIA 

NEWNAN DIVISION 

GEORGIA STATE CONFERENCE OF 

THE NAACP, et al., 

v. 

Plaintiffs, 

CIVIL ACTION NO. 3:11-CV- 

00123-TCB 

FAYETTE COUNTY BOARD OF 

COMMISSIONERS, et al., 

Defendants. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that I have this day electronically filed the 

within and foregoing MOTION TO AMEND OR ALTER ORDER TO INCLUDE 

STATEMENT PRESCRIBED BY 28 U.S.C. § 1292(b) AND A STAY with the 

Clerk of Court using the CM/ECF system which will automatically send e-mail 

notification of such filing to the following attorneys of record: 

Natasha Korgaonkar, Esq. 

Ryan P. Haygood, Esq. 

Leah C. Aden, Esq. 

Phillip L. Hartley, Esq. 

Neil T. Bradley, Esq. 

5


This 31st day of May, 2013. 

s/ Anne W. Lewis 

Anne W. Lewis 


6

(mtn to amend order & grant interlocutory appeal).pdf

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