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Kanye West Filing PDF
Kanye West Filing PDF
KANYE WEST;
Plaintiff,
v. CIVIL ACTION NO. 2:20-570
Defendant.
the United States, by counsel, files this Complaint against Defendant Mac Warner, in his Official
Parties
Secretary of State, and the chief elections official, has ultimate authority over the enforcement of
the West Virginia Election Code, including the provisions challenged herein. Mr. Warner’s
official address is Office of the Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
3. Venue is proper in this Court because the Defendant is a state official who
public official of the State of West Virginia. Thus, this Court is a proper venue for this civil action
5. This Court has subject matter jurisdiction over this case pursuant to 28
U.S.C. § 1331 because Plaintiff’s claims arise under the First and Fourteenth Amendments of the
relief, W.Va. Code § 55-17-3 exempts the requirement to provide thirty days pre-suit notice of an
action against a government agency when irreparable harm would otherwise occur. See State ex
rel. McDavid v. Tenant, 2014 WL 4922641, Fn. 11 (2014). In the case at hand, application of the
30-day pre-suit notice requirement would do irreparable harm, as it would delay adjudication of
this action until after the 2020 General Election ballots were already printed and many absentee
Factual Allegations
independent candidate not affiliated with any major party, filed his West Virginia Statement of
major recognized party in West Virginia to have his/her name placed on a General Election ballot,
he or she must be nominated to the General Election ballot through the certificate nomination
2
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 3 of 8 PageID #: 3
their campaigns must solicit signatures from duly qualified voters in order to qualify for the general
election ballot.
needs to gain access to the General Election ballot must be equal to not less than 1% of the entire
vote cast in the last preceding general election for President of the United States, which in this case
is 7,144 signatures.1
13. Signature petition pages are provided to each county clerk to confirm the
voters are (1) registered to vote in the county, and (2) the petition signatures match each voter’s
signature on file.
14. The nomination certificate must “be personally signed” by the voter “in
their own proper handwriting.” In other words, it must be an original “wet” signature from the
15. Finally, pursuant to W.Va. Code § 3-5-24(a), in order to qualify for the
General Election ballot in West Virginia, Plaintiff was required to submit all 7,144 nominating
1
See West Virginia Secretary of State’s 2020 Election Petition Signature Requirements, available at
https://sos.wv.gov/FormSearch/Elections/Informational/Signatures%20Chart.pdf.
2
Because the statutorily imposed deadline of August 1 occurred on a Saturday this year, the deadline for
submission of nominating certificates defaulted to Monday, August 3 in accordance with W.Va. Code § 2-2-1(f).
3
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 4 of 8 PageID #: 4
16. To the extent practicable, Plaintiff has complied with all of the steps
necessary to be placed on the General Election ballot pursuant to W.Va. Code §§ 3-5-23 and 3-5-
24.
in the various counties, as required by W.Va. Code § 3-5-23(b), and Plaintiff’s designees solicited
signatures from duly registered voters in the following counties: Boone, Cabell, Clay, Fayette,
Hancock, Jackson, Jefferson, Kanawha, Lincoln, Logan, Marion, Marshall, Mason, Mingo,
Mercer, Monongalia, Nicholas, Ohio, Pleasants, Putnam, Raleigh, Roane and Wayne.
18. Plaintiff’s campaign conducted its signature gathering process in the midst
of Governor Jim Justice’s ongoing “Safer at Home” Order, which strongly encourages West
Virginians to leave their home “only for essential activities,” limits social gatherings to no more
than 25 people, and strongly encourages social distancing of six feet or more.3
19. While Governor Justice and Defendant West Virginia Secretary of State
made accommodations for those participating in the 2020 Primary Election, such as moving the
primary election date and providing absentee ballot forms for all registered voters, no such
accommodations have been made for individuals with no party affiliation wishing to avail
themselves of the ballot access process provided for by W.Va. Code § 3-5-23.
Defendant West Virginia Secretary of State’s recommendation for a 50% reduction in signatures
required for all non-major party candidates seeking ballot access pursuant to W.Va. Code § 3-5-
23. See Memorandum from WV Secretary of State’s General Counsel to Governor’s Office Legal
3
See Safer at Home Order, available at https://governor.wv.gov/Pages/Safer-at-Home.aspx.
4
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 5 of 8 PageID #: 5
certificates, to the West Virginia Secretary of State on August 3, 2020, along with his
corresponding Certificate of Announcement and filing fee. See W.Va. Code §§ 3-5-7 and 3-5-8.
certificates, signature petition pages are provided by Defendant West Virginia Secretary of State
to each county clerk to confirm that the voters are duly registered to vote in the particular county
and that the petition signatures match each voter’s signature on file with the County Clerk’s Office.
23. Nearly three weeks following the submission of his nomination certificates,
Plaintiff was notified by Defendant West Virginia Secretary of State that more than 7,000 of his
petition signatures had been invalidated by the various County Clerks, leaving him with a total of
6,383 valid petition signatures – 761 signatures shy of the 7,144 signature requirement to gain
24. Upon information and belief, Defendant West Virginia Secretary of State
provided notice shortly thereafter to all 55 County Clerks of the names duly qualified for the 2020
General Election ballot. Plaintiff’s name was not included amongst those duly qualified for the
ballot.
25. Pursuant to W.Va. Code § 3-6-2(d)(2), the statutorily required drawing for
order of names appearing on the General Election ballot took place on August 25, 2020.
challenge the invalidation of the submitted nomination certificates, or in any other way cure
27. West Virginia Code § 3-5-23 does not provide any procedural safeguards
that would permit a third-party candidate to challenge the various county clerks’ counting and
5
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 6 of 8 PageID #: 6
assessment of the validity of signatures in a third-party certificate nomination, nor does it provide
any procedural safeguard to challenge the Secretary of State’s refusal to certify a third-party
certificate nomination to be placed on West Virginia’s General Election ballot based upon the non-
(Violation of freedom of speech and association, equal protection, and due process rights as
guaranteed by the First and Fourteenth Amendments, as enforced by 42 U.S.C. § 1983)
30. West Virginia’s ballot access law, and Defendant West Virginia Secretary
of State’s application of that law, infringes upon the Plaintiff’s right to associate for the
advancement of his political beliefs and the rights of qualified voters, regardless of their political
persuasion, to cast their votes effectively. In fact, “[n]o right is more precious in a free country
than that of having a voice in the election of those who make the laws under which … we must
live.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (quoting Wesberry
31. Plaintiff was deprived of any chance to be heard or appeal the decision made
by the West Virginia Secretary of State and any ability to cure any alleged defects in Plaintiff’s
certificate nomination paperwork prior to the statutorily required drawing for order of names
32. West Virginia does not have any legislative rules governing the certificate
nomination process, nor is there any opportunity for Plaintiff or other similarly situated candidates
6
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 7 of 8 PageID #: 7
to challenge the invalidation of any petition signatures or otherwise cure once the statutory
33. As such, Plaintiff faces imminent deprivation of his liberty interest without
any adequate notice from the West Virginia Secretary of State due to the lack of any procedural
requirement.
34. Defendant, acting under the color of law and in his official capacity as the
Secretary of State of West Virginia, violated Plaintiff’s rights as secured by the Constitution and
the laws of the United States when his actions effectively prohibited Plaintiff from any opportunity
to cure defects with his submission of double the statutory amount of nomination certificates
of association rights.
37. The actions taken against Plaintiff are in violation of his rights as protected
by both the First and Fourteenth Amendments to the United States Constitution.
deprived of his constitutional rights to freedom of speech and association, equal protection, and
due process rights as guaranteed by the First and Fourteenth Amendments, and enforced by 42
U.S.C. § 1983.
emergency briefing schedule, emergency hearing and preliminary injunctive relief, Plaintiff will
7
Case 2:20-cv-00570 Document 1 Filed 08/28/20 Page 8 of 8 PageID #: 8
continue to incur irreparable injury because his name will not appear on the November 3, 2020
General Election ballot, and qualified voters will be deprived of their fundamental rights to cast
judgment in his favor and against Defendant and grant the following emergency relief:
B. Enter declaratory judgment holding that W.Va. Code §§ 3-5-23 AND 3-5-
and requiring placement of Mr. West and his running mate Ms. Michelle
E. Award such other relief as the Court deems just and proper.
Respectfully submitted,
12135099.1
Case 2:20-cv-00570 Document 1-1 Filed 08/28/20 Page 1 of 6 PageID #: 9
MEMORANDUM
Introduction:
Candidates unaffiliated with a major recognized political party in West Virginia must follow the
signature-gathering petition process set forth in W. Va. Code § 3-5-23 et seq. to be placed on a
General Election ballot. With COV1D-19 posing a threat to the public health, the in-person
signature-gathering process places the general public's health at risk and creates a larger than
typical burden on these candidates to satisfy the law under the circumstances.
Many states have relaxed similar signature-gathering processes, whether by executive action or
court order. Consistent with the Governor's emergency authority set forth in W.Va. Code § 15-5-
6(c)(7), relaxing the aforementioned regulatory statute may be in the best interest of the State for
the 2020 General Election because strict compliance therewith will prevent, hinder or delay
necessary action in coping with the emergency.
Reco mendation:
50% reduction in signatures required for all non-major party candidates seeking ballot access under
the signature-gathering process set forth in W. Va. Code § 3-5-23. However,if upon review ofthe
current West Virginia COV1D-19 data your office deems the reduction unnecessary, our Office
stands ready to communicate the decision and reasoning to inquiring candidates.
For a candidate unaffiliated with a major recognized party in West Virginias to have his/her name
placed on a General Election ballot, W. Va. Code §§ 3-5-23 and 3-5-24 require the following
chronological steps:
1. Obtain permission ("official credentials") from the county clerk(s)to gather signatures in
each county where the candidate seeks ballot access (for statewide candidates, all 55
counties must issue official credentials to the candidates).
2. The candidate or designee solicits signatures from registered voters in each jurisdiction.
3. The person soliciting signatures must "exhibit" the official credentials to each voter
solicited.
4. The voter solicited must "be personally signed" by the voter "in their own proper
handwriting."
5. The total amount of signatures required for ballot access is equal to 1% of the total votes
cast for the office sought in the previous election.
For the 2020 election cycle, the recognized major parties are Democratic, Libertarian, Mountain and Republican.
EXHIBIT
A
Case 2:20-cv-00570 Document 1-1 Filed 08/28/20 Page 2 of 6 PageID #: 10
6. Signature petition pages are provided to each county clerk to confirm the voters are (1)
registered to vote in the county,and(2)the petition signatures match each voters' signature
on file.
7. Upon confirming signatures are valid and the candidate satisfied the threshold signature
amount requirement, each county moves forward with certifying the candidate's name for
placement on the General Election ballot.
Discussion:
Considering the risks to in-person interaction between candidates and the general public, the
signature-gathering process presents a health risk to solicited voters. This process requires
candidates and campaign workers/volunteers to solicit signatures door-to-door,at meetings/drives,
and in public places.
During the COVID-19 pandemic,some candidates have chosen to "exhibit" the official credentials
electronically, which requires the voters to print, sign "in their own proper handwriting," and to
mail the signed signature petition back to the candidate. The term "exhibit" is undefined by this
law, so our Office has blessed this electronic process for the purpose of distributing the official
credentials to voters, who must print, sign, and mail or email the signed petitions back to the
candidate.
Based on a survey of other states' responses to similar signature-gathering procedures amid the
pandemic, several courts have held the fundamental right to ballot access and public safety
outweigh current statutory signature requirements. There is a clear majority consensus among the
various courts to relax or remove the signature-gathering process due to the risk to the public health
for the 2020 election cycle.
Though few relevant cases have been adjudicated, the Sixth Circuit Court of Appeals is closely
related to the current question in West Virginia. In Esshaki v. Whitmner2,the court found, in part,
that a 50% reduction in the minimum number of signatures required for ballot access was
warranted because (1) the candidate would suffer irreparable hair to his Pt Amendment free
speech and free association rights, and (2) the probability of harm to other and public interest
weighed in favor ofa preliminary injunction which reduces the signature threshold.
The Attorney General's Office issued recent guidance regarding the Governor's broad authority
to relax regulatory statutes during times of emergency.3 Specifically, referring to the provisions of
W. Va. Code § 15-5-6(c), the Attorney General's Office opined:
[W]e also note that the Governor has separate and more extensive authority under
a state of emergency. ... Arguably, these provisions could support an order from
the Governor regarding safe election procedures—potentially including personnel
State law explicitly authorizes the Governor's ability to suspend regulatory statues, stating further
in W. Va. Code § 15-5-6(c):
As we know,the Governor's emergency authority has already been exercised to delay the Primary
Election date from May 12th to June 9, 2020. Analogizing to that action in reliance upon, in part,
the above Attorney General Opinion, it is likely the Governor likewise has the authority to relax
or remove the signature-gathering requirement for candidates seeking ballot access under the
premises of(1)protecting the public health because no alternative exists to gain ballot access, and
(2)uphold independent candidates' constitutional right to seek public office.
Inherent in the Governor's authority to suspend rules is the Governor's authority to provide for
resumption ofthe same rules. Merriam Webster's dictionary defines "suspend" as "to set aside or
make temporarily inoperative." As anything "temporary" may only persist for a limited time, and
the Governor's authority is to suspend (not terminate) rules, the Governor inherently has the
authority to allow for resumption of the suspended rules.
The nature of the COVID pandemic has left many states grappling with issues of first impression.
This section summarizes several states' current positions, including modified approaches required
by either executive or judicial order.
1. Reduction ofsignature.requirements
Connecticut — Governor Ned Lamont issued an executive order reducing petition signature
requirement for all candidates by 30 percent. He also extended the filing deadlines for
major-party and unaffiliated candidates by two days, to June 11,2020, and August 7,2020,
respectively.4
• Vermont — Governor Phil Scott signed HB 681, eliminating all ballot-access petition
requirements during 2020.5
htt&Wportatatovi-imedia/Office-of-the-Govemor/Executive-OrdersiLarnont-Exectitive-Orders/Executive-
prderNo-71,L.pdf
hitpsililegislatureoterrnotOovibo liments/2020/Docs/ACTS/ACTOOVACT092%26As%208.nacted.ptif
Case 2:20-cv-00570 Document 1-1 Filed 08/28/20 Page 4 of 6 PageID #: 12
• Michigan — Judge Terrence Berg (US DCT ED Michigan) issued an order reducing the
petition signature requirements for primary candidates in Michigan to 50 percent of their
statutory requirements. Berg also extended the filing deadline from April 21, 2020, to May
8, 2020, and directed election officials to develop procedures allowing for the collection
and submission of electronic petition signatures.6'7
• Virginia — Judge W. Reilly Marchant issued an order reducing the petition signature
requirement for Republican primary candidates for the United States Senate to 3,500. The
statutory minimum was 10,000.8
• piew York — Governor Andrew Cuomo issued an executive order reducing petition
signature requirements by 30% for primary candidates and suspending the signature-
gathering process effective March 17, 2020.9
Massachusetts — The State Supreme Court issued an order reducing candidate petition
signatures requirements to 50 percent of their statutory requirements. The court also
authorized candidates to collect petition signatures electronically.
• Alabama — Governor Kay Ivey signed HB272 into law, extending the petition deadline for
unaffiliated presidential candidates to August 20, 2020.11
• Texas — Secretary of State Ruth Rugger() Hughs determined that the petition deadline for
independent candidates for non-presidential office would be extended to August 13,
2020.12
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Case 2:20-cv-00570 Document 1-1 Filed 08/28/20 Page 5 of 6 PageID #: 13
Nevada 一Court ordered extension of ballot access petition deadline for initiatives from
June 24 to August 5.13
0hio 一Ohio Courts declared that relaxing the signature gathering requirements for ballot
access is was rational and necessary to prevent irreversible harm to candidates.
Florida 一Secretary of State Laurel Lee signed two orders authorizing candidatesto submit
quali勿ing documents,including signed petitions, electronically.14
New Jersey 一(overnor Phil Murp蚜issued an executive order making the following
changes to the state's election procedures: permitting candidates to collect petition
signatures electronically and submit petitions online.15
Geor恤a 一Secretary of State Brad Ra钱nsperger extended the petitioning deadline for
minor-party and unaffihiated candidates to August 14, 2020严
・ Massachusetts 一The State Supreme Court issued an order reducing candidate petition
signatures requirements to 50 percent of their statutory requirements. The court also
authorized candidatesto collect petition signatures electronically.
4. 0ther
* Washington 一Governor Jay Inslee issued an executive order waiving the petition
requirement for candidates who cannot afford to pay the filing fees associated with the
offices being sought.'7
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Countervailing Concerns:
The public interest in allowing minor party candidates ballot access is balanced by several factors
including overcrowding ofballots and difficulty ofimplementing new processes during an election
and pandemic. Simply put, without some requirement beyond filing to run for office, but not
requiring signatures and/or a filing fee (which fee offsets the county(ies) costs for holding the
election),the public interest may be harmed.
Regarding the overcrowding of ballots, such can create a substantial nuisance. For example, in
2003, California had minimal ballot access requirements and attracted 135 candidates in a
gubernatorial election. 18 The presence of a hundred, or even a dozen, candidates on a ballot can
create confusion amongst the voting population. Secondary consequences ofovercrowded ballots
include: dilution ofcampaign funding reimbursement funds, difficulty satisfying the Commission
on Presidential Debates' 15% threshold; and fears that a vote for a non-major party "spoiling" the
election.
Regarding the difficulty of implementing new processes or systems in the middle of pandemic,
such can result in catastrophic consequences. The City of San Jose, for example, is facing a $1
million recount cost to remedy alleged signature counting errors. 19
Conclusion:
The COVID-19 pandemic has created ballot access challenges for non-major party candidate in
the 2020 General Election. In the public interest, some relaxation ofexisting petition requirements
and their corresponding signature collection procedures may be necessary. Based on the vast
majority of recent court decisions, the trend suggests that a legal challenge to West Virginia's
current signature-gathering process under the COVID-19 pandemic would likely be successful.
Acting now will reduce last-minute process changes at the county level, sooner remove the public
health risks posed by candidates currently gathering signatures, and protect candidates'
fundamental right to ballot access amid the current State of Emergency.
In contra, all aforementioned court decisions were entered in the previous months. With the current
state of West Virginia's COVID-19 infection rate, the facts may have changed sufficiently to, at
least, warrant a review of the court decisions and apply the analyses to the State's situation.
Indeed, a reduction by 50% of the number of signatures required for a minor party candidate to
gain ballot access is: (1) an equitable way to balance candidates' ballot access with the public
interest of not having a confusing and overcrowded ballot, and (2)the least-disruptive alternative
to WV's signature-gathering requirements.
However, if upon review the current facts are distinguishable from those present in the previous
months, our Office stands ready to communicate to the candidates your ultimate decision and
reasoning.
KANYE WEST, )
)
)
)
Plaintiff(s) )
)
v. Civil Action No. 2:20-cv-570
)
MAC WARNER, in his Official Capacity as Secretary )
of State of Wet Virgnia )
)
)
Defendant(s) )
To: (Defendant’s name and address) Mac Warner, in his Official Capacity as the West Virgnia Secretary of State
Office of the Secretary of State
State Capitol Building
Charleston, West Virginia 25305
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
J. Mark Adkins, Esquire
Richard R. Heath, Jr., Esquire
Bowles Rice LLP
600 Quarrier Street
Charleston, West Virginia 25301
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 2:20-cv-00570 Document 1-3 Filed 08/28/20 Page 2 of 2 PageID #: 17
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s signature
Server’s address
KANYE WEST, )
)
)
)
Plaintiff(s) )
)
v. Civil Action No. 2:20-550
)
MAC WARNER, in his Official Capacity as Secretary )
of State of West Virginia )
)
)
Defendant(s) )
To: (Defendant’s name and address) Office of the West Virginia Attorney General
State Capitol Complex, Bldg. 1, Room E-26
Charleston, WV 25305
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
J. Mark Adkins, Esquire
Richard R. Heath, Jr., Esquire
Bowles Rice LLP
600 Quarrier Street
Charleston, West Virgniai 25301
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date: 8/28/2020
Signature of Clerk or Deputy Clerk
Case 2:20-cv-00570 Document 1-4 Filed 08/28/20 Page 2 of 2 PageID #: 19
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s signature
Server’s address
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
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VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
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Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.