UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION
Civil Action No. 3:18-CV-00072-RJC-DSC

BRIANNE STEPHENS, et al., )

)
Plaintiffs, ) MOTION TO DISMISS BY DEFENDANTS
) ASSOCIATION OF FAMILY AND
vs. ) CONCILIATION COURTS AND
) PETER SALEM (Fed. R. Civ. P. 12(b)(1),
STATE OF NORTH CAROLINA, et al., ) 12(b)(2) and 12(b)(6))
)
Defendants. )

Defendants Association of Family and Concil iatio n Courts ("AFCC ") and Peter Salem

("11' r. Salem " ) (c o llective ly, the "AFCC Defendants") hereby move to dismiss Plaintiffs' claims

against them in the above-captioned matter pursuant to Fed. R. Civ. P . 12(b)(1), on the basis that

the Court lacks subject matter jurisdiction over the AFCC Defendants; Fed. R. Civ. P. 12(b)(2),

on the basis that the Court lacks personal jurisd icti o n ov er the AFCC Defendants; and Fed. R. Civ.

P. 12(b)(6), on the basis that Plaintiffs have failed to state a claim upon which relief can be granted

against the AFCC Defendants.

Specifically, Plaintiffs have alleged four causes of action in their Complaint: (1) violation

of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); (2) violation

of Title III of the ADA; (3) violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 701 et seq.; and (4) violation of 42 U.S.C. § 12203, which prohibits discri minatin g, coercing,

intimidating, threatening or interfering with a person ' s rights under the ADA. Based on their

allegations and admissions in the Complaint, Plaintiffs' claims against the AFCC Defendants

should be dis m issed with prejudice on at least the following grounds:

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 l. Plaintiffs are attempting to challenge and appeal in federal court a state court's final

determination in a child custody matter, which is prohibited by the Rooker -Feldman doctrine - a

doctrine consistently applied by our federal courts and named for two cases holding that such

courts may not exercise appe llate jurisdiction over state courts. See D.C. Court of Appeals v.

Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 1314-17 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415-16, 44 S.Ct. 149, 150 (1923).

2. Both AFCC and Mr. Sal em are citizens and residents of a state other than North

Carolina, and neither have sufficient "minimum contacts" with North Carolina to satisfy the

standards of general or specific personal jurisdiction.

3. In the facts of this case, Mr. Salem is neither a proper party nor may he be held

personally liable under the ADA or the Rehabilitation Act of 1973; therefore, all claims against

him, whether in his individual or official capacity as executive director of AFCC, should be

dismissed.

4. Neither AFCC nor Mr. Salem are "public entities" as required by Title II of the

ADA.

5. Neither AFCC nor Mr. Salem own or operate places of "public accommodation" in

North Carolina or any other state as required by Title Ill of the ADA.

6. Neither AFCC nor Mr. Salem are subject to Section 504 of the Rehabilitation Act

of 1973 inter alia because they do not operate any program or activity receiving direct or indirect

federal financial assistance in the manner required by such Act, and they are neither an Executive

agency nor the United States Postal Service, as mandated by 29 U.S.C. § 794(a).

7. Plain tiffs have not alleged any actions by AFCC or Mr. Salem that satisfy the

standards of 42 U.S.C. § 12203 prohibiting discriminatio n, coercion, intimi dation, threats, or

inte rference with Plaintiffs' purported rights under 42 U.S.C. § 12101 et seq.

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 In support of this Motion, the AFCC Defendants rely upon the Complaint filed in this

action, as well as the supporting Affidavit of Peter Salem ( attached as "Exhibit A"), and such lega l

authorities and arguments contained in the Memorandum of Law in support of their Motion to

Dismiss being filed contemporaneously herewith.

WHEREFORE, defendants Association of Family and Conciliation Courts and Peter

Salem request that, pursuant to Rules 12(b)(l ), 12(b)(2) and 12(b)(6) of the Federal Rules of Civil

Procedure, the Court dismiss with prejudice Plainti ffs' Complaint and their claims against such

Defendants due to any or all of the following reasons: lack of subject matter jurisdiction, lack of

personal jurisdiction, and failure to state a claim upon which relief can be granted, respectively.

The AFCC Defendants further request that the Coutt award to them their costs and reasonable

attorneys' fees for bringing this Motion, and such other relief as the Court deems just and proper.

Respectfully submitted, this the 9th day of April, 2018.

s/Kenneth P. Carlson, Jr.

N.C. State Bar No. 17361
CONSTANGY, BROOKS, SMITH
& PROPHETE, LLP
l 00 N. Chen-y Street , Suite 300
Winston-Salem , NC 27101
Telephone: (336) 721-6843
Facsimile: (336) 748-9112
Email: kcarlso n@constangv.com

s/Michelle Rippon
N.C. State Bar No. 10018
CONSTANGY, BROOKS , SMITH
& PR OPHETE, LLP
84 Peachtree Road, Suite 230
Asheville, NC 28803
Telephone: (828) 333-5010
Facsimile: (828) 277-5138
Email: mrippon@.co nstangy .com

Attorneys for Defendants Association of

Family and Conciliation Courts and Peter Salem

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Case 3:18-cv-00072-RJC-DSC Document 66 Filed 04/09/18 Page 3 of 4
 CERTIFICATE OF SERVICE

I hereby certify that on April 9, 2018 I electronically filed the foregoing MOTION TO

DISMISS BY DEFENDANTS ASSOCIATIO

N OF FAMILY AND CONCILIATION

COURTS AND PETER SALEM with the Clerk of Court using the CM/ECF system which will

send notification and service of such filing to all parties in this action participating in such system,

and that I served such motion and proposed order upon the pro se Plaintiffs by depositing a copy

of same in th e United States Mail, postage prepaid, addressed as follows:

Brianne Stephens D. S. (a Min.o r)

831 White Oak Lane 831 White Oak Lane
Matthews, NC 28104 Matthews, NC 28104
Pro Se Plaintiff Pro Se Plainti.ff

T. S. S. (a Minor) D . G. S. (a Minor)
831 White Oak Lane 83l White Oak Lane
Matthews, NC 28104 Matthews, NC 28104
Pro Se Plaintiff Pro Se Plaintiff

s/Kenneth P. Carlson, Jr.

N.C. State Bar No. 17361
CONSTANGY, BROOKS, SMITH
& PROPHETE, LLP
100 N. Cherry Street, Suite 3 00
Winsto n-Salem, NC 27101
Telephone: (336) 721-6843
Facsimile : (33 6) 7 48- 9 11 2
Email: kcarlson@constangy.com

Attorney for Defendants Association of

Family and Conciliation Courts and Peter Salem

4
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 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No. 3:18-CV-00072-RJC-DSC

BRIANNE STEPHENS, et al., )

)
Plaintiffs, )
)
vs. ) AFFIDAVIT OF PETER SALEM
)
STATE OF NORTH CAROLINA, et al., )
)
Defendants. )

Peter Salem, after being first duly sworn, deposes and says as follows:

1. My name is Peter Salem. I am the Executive Director of the Association of Family

Conciliation and Courts ("AFCC"), and I have personal knowledge of the facts stated in this

Affidavit.

2. AFCC is a not for profit organization which is inco rporated in the State of Illinois

with its principal place of business in :\1adison, Wisconsin. AfCC rents its offices in Madison,

but does not own or lease them, and it does not ovm, lease, leaseto anyone, or operate any other

offices or facilities, whether in Wisconsin or any other state.

3. I am a citizen and resident of Wisconsin.

4. AFCC does not maintain any office or other facility in the State of North Carolina,

and has no on-going business or other presence there. Similarly, I do not maintain a residence or

own any property in North Carolina, nor do I have any on-going personal, business or other

presence in the state.

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Case 3:18-cv-00072-RJC-DSC Document 66-1 Filed 04/09/18 Page 1 of 3

 5. That being said, individuals in North Carolina might access our website or

otherwi se order materials or utilize our resources, and to the best of my knowledge AFCC does

have some members in the state - but those actions and any memberships obtained are at the

individuals' own initiative.

6. The only direct contact I have had with North Carolina on a personal or professional

basis occurred approximately 18-20 years ago when on behalf of AFCC I conducted three or four

one-day mediation training sessions to family mediators though a program sponsored by the North

Carolina Administrative Office of the Courts. In addition, there is not an AFCC Chapter currently

in North Carolina nor has one ever existed.

7. AFCC does maintain a website which can be accessed through

http://www.afccnet.org/, but its primary purpose is to act as an information resource to be drawn

upon by members and non-members wherever they nright be located. The website allows

individuals to pay for their membership and register for conferences, webi.nars , and training

programs online. The website membership consists of "an international network of coliegiality,

suppo11and timely access to informati on and resources . . . to exchange information, share

perspectives and work collaboratively on projects," whether in person or electronically by remote

access depending on the preference of the individual or group seeking information.

8. Neither I nor AFCC are a recipient of federal financial assistance.

9. AFCC is not a state or a local "public entity." AFCC is a private, not for profit

entity and is not associated in any way wi th a governmental body.

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 I have read the foregoing statement and it is true and couect, to the best of my knowledge

and beJief.

111is the 9u i day of April, 2018.

Association of Family Conciliation and Comts

S':"om to ang,,subscribed_before me by PETER SALEM

this the day of Apnl, 2018.
CAMERON WOLDT
Notary Public
State of Wisc onsin

My commission expires: 01 ¥ /

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