USCA4 Appeal: 19-1110 Doc: 19

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No. 19-1110

in the United States Court of Appeals

for the Fourth Circuit

NAPIER SANDFORD FULLER,

Plaintiff-Appellant,

v.

REBECCA W. HOLT, in her official capacity as an employee of the North

Carolina Administrative Office of the Courts; RICHARD A. BADDOUR, in his
official capacity as an employee of the North Carolina Administrative Office
of the Courts; JAMES C. STANFORD, in his official capacity as an employee
of the North Carolina Administrative Office of the Courts; JAMES T. BRYAN,
III, in his official capacity as an employee of the North Carolina Administrative
Office of the Courts; SAMANTHA HYATT CABE, in her official capacity
as an employee of the North Carolina Administrative Office of the Courts;
CATHERINE C. STEVENS, in her official capacity as an employee of the North
Carolina Administrative Office of the Courts,

Defendants-Appellees.

on Appeal from the United States District Court

for the Eastern District of North Carolina

MOTION FOR
INFORMAL BRIEFTHE
FOR
INFORMALCOURT TO SET THE TERMS
THE PLAINTIFF-APPELLANT
APPELLANT BRIEF
OF A VOLUNTARY DISMISSAL PURSANT TO RULE 42(B)

N.S. FULLER, ESQ. N. S. FULLER, pro se

in propria persona Plaintiff-Appellant
Post Office Box 7901 P.O. Box 7091
Wilmington NC 28406-7901 FOR APPELLANT
Wilmington NC 28406-7091
910.262.2359
napier@alum.mit.edu 910.262.2359
napier@alum.mit.edu
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To the Honorable United States Court of Appeals Judges Niemeyer,

Agee, and Richardson of the 4th Circuit,

1. Pursuant to Fed. R. App. P. Rule #42(b), the self-represented Plaintiff-

Appellant, Napier Sandford Fuller, kindly asks the circuit court clerk to

order a voluntary dismissal of this appeal “on terms fixed by the court”

that are just and proper.

2. Defendant-Appellee’s attorney of record filed a three sentence “no

opposition” response (Dkt #43) on August 8, 2019.

3. Therefore, Plaintiff-Appellant, Mr. Fuller, hereby requests this

court to order such a voluntary dismissal based “on terms fixed by the

court” after a review of the “extraordinary circumstances” referenced

in Plaintiff-Appellant’s “Motion to Stay Mandate and Request for

Voluntary Dismissal,” filed August 4, 2019 (¶1, Dkt #37).

4. Mr. Fuller’s primary concern relates to procedural technicalities:

he cannot refile the claims unless a “savings provision” is applied as a

condition of the dismissal (or available by due process) as the statute

of limitations is 2 years from the date of injury (federal ADA claims

drawing from a parallel law, N.C.G.S. 168A, in the period of repose).

This aspect civil procedure -- refiling a federal civil action previsouly

withdrawn in which the the statute of limitations would track state laws

-- is very confusing to the self-represented Plaintiff.

5. Mr. Fuller has read an article “Taking a Voluntary Dismissal: Some

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Pitfalls” prepared in 2015 by the UNC School of Government which

states “Plaintiff may file the action again within one year, and the

statute of limitations on its claim is extended for that refiling period...

Things can get complicated if a case is going back and forth between

North Carolina and federal courts.” Hence, Mr. Fuller leaves the terms

of the dismissal to be decided by this Court.

https://civil.sog.unc.edu/taking-a-voluntary-dismissal-some-pitfalls/

6. Mr. Fuller requests this Court use common sense in determining

the conditons of the dismissal: Mr. Fuller “shows good cause for not

seeking relief earlier: the complex, parallel litigation between state and

federal courts present[ed] unique legal challenges that could not have

been foreseen.” (¶7, Dkt #37).

7. Although the federal trial court’s intent appears merely to transfer

jurisdiction of Mr. Fuller’s federal disability claims back into the

state trial court, such transfer became impossible due to a lack of

synchronicity thereby creating a constitutional issue regarding

procedural due process.

8. While it is quite confusing, the federal court transfered Mr. Fuller’s

disability claims to state court process albeit at a time in which that

state court process was already over. The state court process refrained

from hearing the federal claims while the federal action was ongoing,

and thus the state appeals court has declined to consider the federal

claims as they were not part of the record of the state court process.

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9. Hence, the jurisdiction of Mr. Fuller’s federal disability claims have

become a legal version of the “musical chairs” game.

10. The federal trial court’s statement of facts, docket item #70, suggests

there is no dispute regarding Mr. Fuller’s asserting a prima facie set of

claims:

11. Wherefore, pursuant to Fed. R. App. P. Rule #42(b), the self-

represented Plaintiff-Appellant, Mr. Fuller, kindly asks the Court to

order a voluntary dismissal of this appeal “on terms fixed by the court”

that are just and proper.

12. Should an appeal conference per Fed. R. App. P. Rule #33 aid in such

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a determination of such terms, it is so requested.

13. Should the Court suggest Mr. Fuller need to retain counsel to
negotiate or to review such terms of a voluntary dismissal due to the
complexity of the legal questions that may arise hereto, it is so urged.
14. Mr. Fuller has paid the filing fees for this action and the appeal,
totaling approximately US $1,000: Mr. Fuller seeks merely declaratory
and injunctive relief. Mr. Fuller does not wish to incur more liability,
but is willing to bear such past costs. Mr. Fuller requests the Court to
specify if refiling the action will result in an additional filing fee, and if
so, the cost therein.

I declare under penalty of perjury, under the laws of the United States
of America, that the foregoing factual statements to which I have personal
knowledge are true and correct.

This being the 9th day of August 2019.

NAPIER SANDFORD FULLER

Appellant in propria persona.
PO Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

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CERTIFICATE OF SERVICE
19-1110 Fuller v. Holt et al.

August 9, 2019 the foregoing document was served on all parties or their
I certify that on _________________
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

Matthew W. Sawchak, N.C. State Bar No. 17059

Solicitor General, North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
919.716.6400

___________________________ August 9, 2019

________________________
Signature Date

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USCA4 Appeal: 19-1110 Doc: 46 Filed: 08/09/2019 Pg: 7 of 7

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Effective 12/01/2016

19-1110
No. ____________ Fuller v. Holt et al.
Caption: __________________________________________________

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT

Type-Volume Limit, Typeface Requirements, and Type-Style Requirements

Type-Volume Limit for Briefs: Appellant’s Opening Brief, Appellee’s Response Brief, and
Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s
Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may
not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not
exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed
2,600 words. Counsel may rely on the word or line count of the word processing program used to
prepare the document. The word-processing program must be set to include headings, footnotes, and
quotes in the count. Line count is used only with monospaced type. See Fed. R. App. P. 28.1(e),
29(a)(5), 32(a)(7)(B) & 32(f).

Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission
to appeal and a motion or response thereto may not exceed 5,200 words. Reply to a motion may not
exceed 2,600 words. Petition for writ of mandamus or prohibition or other extraordinary writ may not
exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R.
App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1).

Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New
Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier
New) must be 12-point or larger (at least 10½ characters per inch). Fed. R. App. P. 32(a)(5), 32(a)(6).

This brief or other document complies with type-volume limits because, excluding the parts of the
document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of
citations, statement regarding oral argument, signature block, certificates of counsel, addendum,
attachments):

[X]
this brief or other document contains 687 [state number of] words

[ ] this brief uses monospaced type and contains [state number of] lines

This brief or other document complies with the typeface and type style requirements because:

[X ] this brief or other document has been prepared in a proportionally spaced typeface using
Adobe InDesign CC 2019 [identify word processing program] in
14 pt Palatino (body text)
[identify font size and type style]; or
14 pt and > Helvetica Neue (headings, captions)
[ ] this brief or other document has been prepared in a monospaced typeface using
[identify word processing program] in
[identify font size and type style].

(s)

Party Name Napier S. Fuller (Plaintiff-Appellant in propria persona)

Dated: August 9, 2019

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