The opinion of the court was delivered by: Thomas F. Hogan, Chief Judge.
Pending before the Court is plaintiffs Motion to Reconsider and Vacate
the Judgment of Dismissal and For Leave to Amend her Complaint ("Motion
to Reconsider"), defendant's Motion to Strike plaintiffs Motion to
Reconsider, and plaintiffs Request for an Oral Hearing on these motions.
Upon consideration of plaintiffs and defendant's Motions, the oppositions
and replies, and the entire record herein the Court will deny defendant's
Motion to Strike and will deny plaintiffs Request for an Oral Hearing as
well as her Motion to Reconsider and Vacate the Judgment of Dismissal and
for Leave to Amend her Complaint.
On October 18, 2000, plaintiff Christine Niedermeier ("plaintiff")
brought this action, alleging employment discrimination against her
former employer, the Office of Max S. Baucus, United States Senator
("defendant"). Specifically, plaintiff alleged that she has been the
victim of sex discrimination in the form of "continuing sexual
harassment" (Count I) and reprisal (Count II). On March 27, 2001, the
Court granted defendant's Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6) and dismissed plaintiffs Complaint in its entirety
A. Defendant's Motion to Strike
Defendant has moved to strike plaintiffs Motion to Reconsider on the
grounds that plaintiffs counsel failed to meet and confer with opposing
counsel, in accordance with Local Civil Rule 7.1(m)*fn1 prior to the
filing of this Motion to Reconsider. Plaintiff admits that her counsel
failed to meet and confer with defense counsel, but argues that (1) a
meet and confer was not required in this instance because plaintiffs
Motion to Reconsider is "so closely intertwined" with a dispositive
motion that it should not be covered by Local Civil Rule 7.1(m); and (2)
that plaintiffs counsel in good faith believed that he was not required
to meet and confer with opposing counsel, since, in his opinion, nothing
could be accomplished by such a meeting.
Plaintiffs argument that she was exempt from the requirements of Local
Civil Rule 7.1(m) because her Motion to Reconsider relates to an order on
a dispositive motion is contrary to existing authority. Local Civil Rule
7.1(m) clearly states that it applies to "any nondispositive motion."
LCvR 7.1(m) (emphasis added). The District of Columbia Circuit has
defined a dispositive motion as "a motion that, if granted, would result
either in the determination of a particular claim on the merits or
elimination of such a claim from the case." Burkhart v. Washington
Metropolitan Area Transit Authority, 112 F.3d 1207, 1215 (D.C.Cir.
1997). Even plaintiff admits that her Motion to Reconsider would not
technically be a dispositive motion under this definition. See Pl.'s
Opp. at 2 ("plaintiffs Motion to Reconsider may technically not be a
`dispositive motion' under the Court's definition . . ."). Nevertheless,
plaintiff urges this Court to read into Local Civil Rule 7.1(m) an
exception for motions that are "closely intertwined" with dispositive
motions. Id. However, Local Civil Rule 7.1(m) clearly states that it
applies to "any nondispositive motion," and provides no exception for
motions relating to dispositive motions. LCvR 7.1(m) (emphasis added).
In McMillan v. United States, No. 1:90-CV-798, 1992 WL 281405
(W.D.Mich. Sept. 24, 1992), the case relied upon by plaintiff as "the
only relevant case cited by Defendant," Pl.'s Opp. at 2, the court held
that a Rule 59(e) motion is a nondispositive motion. Contrary to
plaintiffs assertions, the McMillan court did not decline to strike the
reply brief, notwithstanding the party's failure to meet and confer,
because the motion was "closely intertwined" with a dispositive motion.
In fact, the duty to meet and confer was not at issue in that case;
instead, the court granted the motion to strike based on the fact that
reply briefs were not permitted under the court's local rules for
nondispositive motions and that a reply brief had been filed without
leave of court.*fn2 McMillan, 1992 WL 281405, at *1. Furthermore,
argument for escaping Local Rule 7.1(m) by arguing that her motion was
"closely intertwined" with a dispositive motion was explicitly rejected
in Center for Auto Safety it National Highway Traffic Safety
Administration, 93 F. Supp.2d 1, 12 (D.D.C. 2000). As explained in Center
for Auto Safety, there is simply no exception to Local Civil Rule 7.1(m)
for nondispositive motions which happen to relate to dispositive
motions. Id. Therefore, plaintiffs counsel did breach Local Civil Rule
With respect to plaintiffs counsel's argument that he believed in good
faith that a meet and confer session was not required in this situation
because nothing could be accomplished by such a meeting, plaintiffs
counsel is hereby on notice that a meet and confer session is required
under Local Civil Rule 7.1(m) regardless of whether or not plaintiffs
counsel personally believes it would be productive. The Rule explicitly
dictates that the party filing the nondispositive motion "shall" meet and
confer with opposing counsel "in good faith" with the intent of learning
if there would be any objection to the motion and if so, of narrowing the
issues in dispute. See Alexander v. FBI, 186 F.R.D. 197, 199 (D.D.C.
1999) (The purpose of Local Civil Rule 7.1(m) is "to force litigants to
attempt to resolve, or a [sic] least narrow, the disputed issues to
prevent the unnecessary waste of time and effort on any given motion," not
"to simply determine whether the motion will be opposed"). Determining in
advance that a meet and confer session would be futile does not meet the
"good faith effort' requirement of Local Rule 7.1(m). Attorneys are not
authorized to determine unilaterally whether a meet and confer session
would be productive and thus whether or not it was warranted. See
Alexander, 186 F.R.D. at 199 ("[Local Civil Rule 7.1(m)] would be
meaningless if a party could . . . file any nondispositive motion they
chose without meeting and conferring, and later argue that a [Local Civil
Rule 7.1(m)] argument is moot simply because the motion is later
opposed"). Therefore, plaintiffs counsel's independent determination that
a meet and confer session was unnecessary because it was unlikely to be
productive is insufficient and does not provide a basis to ignore the
clear mandates of Local Rule 7.1(m).
Despite plaintiffs counsel's breach of Local Civil Rule 7.1(m), the
Court will deny defendant's Motion to Strike. Given the general judicial
preference for resolving motions on their merits rather than dismissing
them on technicalities, the fact that this will be plaintiffs final
opportunity to argue the merits of her case to this Court, and the desire
to avoid prejudicing litigants for their counsel's errors, the Court will
consider plaintiffs Motion for Reconsideration on its merits despite her
counsel's violation of Local Rule 7.1(m).
B. Plaintiffs Motion to Reconsider
In her Motion to Reconsider, plaintiff seeks to vacate the Court's
judgment dismissing this case with prejudice and to amend her retaliation
claims based on the continued withholding of her personal ...