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Ralph Schoenman v. Federal Bureau of Investigation

January 23, 2012

RALPH SCHOENMAN, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL. , DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Over seven years ago, Plaintiff Ralph Schoenman ("Schoenman"), a self-described political activist and author, commenced this action against the Central Intelligence Agency (the "CIA") and a handful of other federal agencies, citing the Freedom of Information Act ("FOIA") and the Privacy Act of 1974 ("PA") as a basis for the disclosure of a broad array of records relating to him, Lord Bertrand Russell, and several organizations. Over the years, Schoenman's claims for disclosure have been successively winnowed down by the decisions of this Court such that, today, there is only one "live" substantive issue remaining-namely, the disposition of 120 records that were referred to the CIA by the Federal Bureau of Investigation (the "FBI") for processing and a direct response to Schoenman. There are now two motions before the Court that speak to this issue: the CIA's [164] Motion for Summary Judgment and Schoenman's [166] Cross-Motion for Summary Judgment as to the FBI Records Referred to the CIA ("Cross-Motion for Summary Judgment"). Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT the CIA's [164] Motion for Summary Judgment and DENY Schoenman's [166] Cross-Motion for Summary Judgment. In addition, because no other viable claims for disclosure remain extant in this case, the Court shall enter a final judgment, marking the final chapter in this protracted litigation.

I. PRELIMINARY MATTERS

Preliminarily, the Court must address two matters that, once resolved, will define the scope of the record for the pending cross-motions for summary judgment.

A. Schoenman's First Motion to Late File The first preliminary matter to be addressed is Schoenman's self-styled [171] Unopposed Motion for Leave to File Reply to Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judmgment [sic] With Respect to CIA Referrals Out-of-Time ("First Motion to Late File"). Through this motion, Schoenman seeks the Court's leave to late file two documents in support of his Cross-Motion for Summary Judgment-specifically, a reply memorandum of points and authorities and a declaration prepared by his wife. Although the motion is unopposed, the Court declines to exercise its discretion to allow Schoenman to late file.

In this case, Schoenman did not file his First Motion to Late File until August 8, 2011, four days after his deadline to act had already expired. See Scheduling & Procedures Order ("Scheduling Order"), ECF No. [162], at 4; Min. Order (June 20, 2011). As a result, he must do more than establish that there is "good cause" for the requested extension; he must also show that his failure to act within the time specified was the product of "excusable neglect." F ED. R. C IV. P. 6(b)(1); see also F ED. R. C IV. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent."). Schoenman has satisfied neither standard. See generally Yesudian ex rel. U.S. v. Howard Univ. , 270 F.3d 969, 971 (D.C. Cir. 2001) (identifying the factors that should generally be considered under the "excusable neglect" inquiry).

Honoring the parties' joint request, this Court originally set an exceedingly generous schedule for the briefing of the pending cross-motions for summary judgment. Under the default framework supplied by the Local Rules, any motion should be fully briefed somewhere between twenty-one and twenty-seven days, depending on the method(s) of service employed. See LC VR 7(b), (d); F ED. R. C IV. P. 6(d). In this case, the Court afforded the parties, who were already intimately familiar with the contours of this case, a total of fifty-six days to brief their cross-motions for summary judgment. See Scheduling Order at 4. According to the schedule set by the Court, Schoenman's reply would be the last filing in the series and was due to be filed no later than July 21, 2011. See id.

Despite the generosity of the schedule, Schoenman, citing "developments in other cases handled by [his] counsel," previously moved this Court for a further two-week enlargement.

Pl.'s Unopposed Mot. to Revise Briefing Schedule, ECF No. [165], at 1. "Very reluctantly," the Court exercised its discretion to grant Schoenman's motion, extending the briefing schedule an additional two weeks and giving him until and including August 4, 2011, at close-of-business, to file his reply papers with the Court. See Min. Order (June 20, 2011). But in so doing, the Court "underscore[d] that [it was] an extension of an already exceedingly generous briefing schedule" and warned Schoenman, in no uncertain terms, that "NO FURTHER EXTENSIONS [would] be granted to either party absent extraordinary circumstances." Id. (capitalization in original). *fn1

The Court's generosity proved to be misplaced. Schoenman did not file his reply papers, seek an extension of time, or take any other proactive steps before the August 4, 2011 deadline expired. Instead, he elected to allow the Court-ordered deadline to come and go without so much as a peep. Indeed, it was not until four days later, on August 8, 2011, that Schoenman filed his First Motion to Late File. Plainly, Schoenman did not heed this Court's prior warnings.

In his First Motion to Late File, Schoenman tenders a litany of excuses for his failure to abide by the schedule ordered by the Court. While some of those excuses might provide a legitimate explanation why Schoenman's counsel was unable to work on this matter for a few days, or perhaps even a week, they do not satisfy the Court that a reasonably diligent attorney would be unable to prepare and file the requisite submissions in a timely manner. Under the specified schedule, Schoenman had twenty-one days after being served with the CIA's papers to prepare and file his response-multiples more than the norm. See LC VR 7(d). Even accepting that Schoenman's counsel encountered the cited difficulties during this extended period, there was still more than ample time for a reasonably diligent attorney to prepare and file a cogent, thoughtful, and well-researched reply. Yet the record is barren of any indication that Schoenman's counsel sought to do so. Indeed, Schoenman's "actions in this case do not bespeak diligence or any sense of urgency at all." Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 226 (D.C. Cir. 2011). Upon consideration of the totality of the circumstances, the Court finds that Schoenman has failed to discharge his burden of showing that there is "good cause" for a further extension of his deadline. F ED. R. C IV. P. 6(b)(1)(A); F ED. R. C IV. P. 16(b)(4).

Moreover, in his First Motion to Late File, Schoenman alleges that he "continued to believe that he could met [sic] the August 4 deadline until late on August 3rd," at which point it "became clear that there was still much work to do." First Mot. to Late File at 3. In other words, by his own account, Schoenman subjectively believed as early as the day before the expiration of the Court-ordered deadline that he would be unable to meet that deadline. Despite this admission, Schoenman offers no satisfactory explanation as to why he still waited another five days, until his time to act had already expired, to petition the Court for a further extension. *fn2 Far from "excusable neglect," F ED. R. C IV. P. 6(b)(1)(B), these circumstances evince something closer to "willful disregard" of the Court's process, B LACK' S L AW D ICTIONARY 1133 (9th ed.

2009), a conclusion that is only bolstered by the fact that Schoenman had long since been on actual notice that the Court expected him to adhere to the specified schedule and was strongly disinclined to grant further extensions absent extraordinary circumstances, see Tibbetts v. Sweetland , No. 02-7151, 2004 WL 287123, at *1 (D.C. Cir. Feb. 3, 2004) ( per curiam (denying leave to file out of time where party was given a "final warning" that "[n]o further extensions" would be allowed); Rones v. Nat'l Ass'n for the Advancement of Colored People , 170 F.R.D. 80, 81-82 (D.D.C. 1997) (same). Under these unique circumstances, the Court finds that Schoenman has failed to establish "excusable neglect" for his failure to act within the time specified. F ED. R. C IV. P. 6(b)(1)(B).

In short, Schoenman has failed to establish to this Court's satisfaction that there is "good cause" for the requested extension and that his failure to act within the time specified was the product of "excusable neglect." F ED. R. C IV. P. 6(b)(1). Accordingly, in an exercise of its discretion, the Court shall DENY Schoenman's [171] First Motion to Late File. *fn3

B. Schoenman's Second Motion to Late File The second preliminary matter to be addressed is Schoenman's [172] Motion for Leave to File Local Rule 7(h) Statement Out-of-Time ("Second Motion to Late File"), which the CIA has opposed. Filed on August 10, 2011, Schoenman's motion asks the Court's blessing to late file a statement of undisputed material facts, as required by Local Civil Rule 7(h). As Schoenman concedes, his statement was due by no later than June 30, 2011, meaning that he is asking this Court permission to file one month and eleven days late. But because Schoenman has failed to establish that there is "good cause" for the extension and that his failure to act within the time specified was the product of "excusable neglect," F ED. R. C IV. P. 6(b)(1), the Court shall exercise its discretion to DENY Schoenman's [172] Second Motion to Late File. *fn4

As an initial matter, Schoenman had an exceedingly generous one month and four days to prepare and file his Cross-Motion for Summary Judgment, including his statement of undisputed material facts. See Scheduling Order at 4; Min. Order (June 20, 2011). Further, he was on notice that this Court "strictly adheres" to the dictates of Local Civil Rule 7(h) and that he was expected to submit a statement of undisputed material facts. Scheduling Order at 2-3. Nonetheless, Schoenman offers a single reason for his failure to file a timely statement-namely, that he purportedly encountered "multiple [technical] problems, primarily with a malfunctioning scanner" when attempting to file on the eve of the expiration of the deadline. Second Mot. to Late File at 1. On its face, the excuse is patently insufficient. When a party is afforded a generous briefing schedule of this kind, he waits until the cusp of the deadline to begin filing at his peril. Schoenman had more than a month to prepare and submit a timely filing in connection with a relatively straightforward motion. His cursory explanation for his inability to timely file, viewed within the context of the schedule as a whole, fails to satisfy this Court that there is "good cause" for the requested extension. F ED. R. C IV. P. 6(b)(1)(A). Again, this conclusion is bolstered by the fact that Schoenman was on ...


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