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Act Now To Stop War and End Racism Coalition, et al v. the District of Columbia

November 19, 2012

ACT NOW TO STOP WAR AND END RACISM COALITION, ET AL., PLAINTIFFS,
v.
THE DISTRICT OF COLUMBIA DEFENDANT.



MEMORANDUM OPINION (DENYING RECONSIDERATION OF COURT'S OCT. 4, 2012 OPINION AND ORDER)

Before the Court is defendant District of Columbia's Motion for Reconsideration Or, In the Alternative, For a Stay of Payment of Sanctions Until Final Order and Opportunity for Appellate Review, Oct. 12, 2012, ECF No. 70. The District asks this Court to reconsider, strike, and stay its October 4, 2012 Memorandum Opinion and Order. Act Now to Stop War and End Racism Coal. v. Dist. of Columbia (ANSWER IV), ___ F. Supp. 2d ___, 2012 WL 4712980 (D.D.C. Oct. 4, 2012) (ECF Nos. 67 & 68). Upon consideration of the motion, the plaintiff's Opposition, Oct. 26, 2012, ECF No. 75, the defendant's Reply thereto, Nov. 5, 2012, ECF No. 79, and the record herein, the Court will deny defendant's motion in all respects.

I.INTRODUCTION AND BACKGROUND

The District of Columbia and several non-profit political advocacy organizations have been locked in a long-running dispute over the constitutionality of the District's postering regulations. The District allows political signs to be affixed to the District's lampposts, subject to specified restrictions. The District calculates how long posters may remain affixed differently based on whether the poster "relates to an event." The current regulations allow all signs to remain posted for a maximum of 180 days, but require that signs related to an event be removed within 30 days after the related event. 24 D.C. CODE MUN. REGS. § 108 (2012). The remaining plaintiff, Muslim American Society Freedom Foundation ("MASF") alleges that the law is an unconstitutional content-based regulation of speech, and is impermissibly vague and overbroad. See Pl.'s Mot. Summ. J., June 22, 2012, ECF No. 60. For a more detailed history of this case, see: Act Now to Stop War and End Racism Coal. v. Dist. of Columbia (ANSWER III), 798 F. Supp. 2d 134, 134--43 (D.D.C. 2011).

On July 21, 2011, this Court granted in part and denied in part the District's motion to dismiss. Id. at 151--55. The Court dismissed ANSWER and MASF's as-applied causes of action; only MASF's facial First Amendment and vagueness claims survived. Id. at 155. The Court directed the case to proceed to discovery, giving the District "an opportunity to clarify the questions remaining about the meaning of the term 'event' and the relation of the event/non-event distinction" in the postering regulations "to the anti-littering interests it asserts." Id.

On October 21, 2011, the parties submitted a Joint Report to the Court discussing how to proceed. ECF No. 45. MASF argued that the remaining issues warranted additional discovery, but the District asserted that "discovery is unnecessary here, as the remaining facial vagueness challenge presents a purely legal question." Id. at 3--4; see also id. at 6 ("The District objects that initial disclosures are-like all discovery here-inappropriate in this action[.]"). Throughout this Joint Report, the plaintiff repeatedly explained why it needs discovery and how it should take this discovery. Id. at passim. In the Joint Report, the District nowhere asserted a need for discovery, but simply reserved "the right to object to any and all discovery requests[.]"

Id at 6. The District suggested "a discovery period of no more than 60 days, and that, given the narrow scope of the remaining issued, Plaintiff should be limited to no more than ten (10) interrogatories, five (5) requests for production of documents, and one (1) deposition." Id at 7. The District did not state anywhere in the Joint Statement that it intended to or even wanted to take discovery, although it proposed an order providing "that each party may not propound more than ten (10) interrogatories.five (5) requests for production of documents, and may not take more than one (1) deposition[.]" Def.'s Proposed Sched. Order, Oct. 21., 2011, ECF No. 45-1. The plaintiff proposed an order "that the plaintiff is authorized to propound not more than ten (10) interrogatories, ten (10) requests for production, fifteen (15) requests for admission, and take six (6) depositions which shall include within that number any deposition(s) pursuant to Fed. R. Civ. P. 30(b)(6)[.]" Pl.'s Proposed Sched. Order, Oct. 21, 2011, ECF No. 45-2.

The Court entered a Scheduling Order on November 17, 2011, granting word for word MASF's proposed scheduling order. ECF No. 48. The Order authorized and set limits on plaintiff's discovery; it nowhere said that "either party" could take discovery or otherwise provided for discovery by the District. Id. Afterwards, the District propounded discovery requests on MASF. See Def.'s First Set of Interrogs. to Pls. & Req. Docs., Mar. 9, 2012, ECF No. 49-2. The District even directed interrogatories at ANSWER, although ANSWER was no longer a party to this action after the Court dismissed its remaining claims in June 2011. Compare id. ¶ 10 (requesting information about one of ANSWER's as-applied claims); with ANSWER III, 798 F. Supp. 2d at 151--55 (dismissing all of ANSWER's claims and making clear that MASF remains the only plaintiff going forward). MASF's counsel*fn1 objected to these demands, and requested the District either withdraw these requests or explain what authorized them. Pl.'s Ltr. to Def., Apr. 5, 2012, ECF No. 49-2. In response, the District took the position that the Court's Scheduling Order only "imposed limits on any discovery sought by plaintiffs [sic]" but "did not impose any such limits on the District." Def.'s Ltr. to Pl., Apr. 9, 2012, ECF No. 49-2. "As a gesture of good faith and cooperation" the District withdrew "its Interrogatories 6 through 11" and noted that it expected "timely and complete responses to its remaining discovery requests." Id.

With the District refusing to withdraw all its discovery requests, MASF moved for a protective order and an award of reasonable expenses. Pl.'s Mot. Protective Order, Apr. 11, 2012, ECF No. 49. MASF maintained that the Scheduling Order did not allow the District to take any discovery, let alone discovery exceeding what the Court allowed the plaintiff to take. Id. at 6--10. As such, the District violated the Scheduling Order without substantial justification, permitting an award of attorney's fees and costs to MASF. Id. at 11. The Court granted MASF's motion and awarded MASF its reasonable expenses per Federal Rule of Civil Procedure 16(f). ANSWER IV, 2012 WL 4712980. The District now asks the Court to reconsider and strike this Opinion and Order, or stay payment of sanctions until the District can seek appellate review. Def.'s Mot. Reconsideration 1--2, 12, Oct. 12, 2012, ECF No. 70. For the reasons discussed herein, the Court will deny the District's motion for reconsideration in all respects.

II.LEGAL STANDARDS

A.Motion for Reconsideration

An interlocutory order "may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). "[R]elief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available 'as justice requires.'" Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, 2011 WL 1097450, *2 (D.D.C. Mar. 25, 2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). "'As justice requires' indicates concrete considerations of whether the court 'has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.'" Id. (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)) (alteration in original). Therefore, "[i]n general, a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: '(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.'" Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)). The court's discretion to grant a Rule 54(b) motion is "'subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" Judicial Watch v. Dep't of the Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)).

B.Motion to Strike

Under Federal Rule 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See Fed. R. Civ. P. 12(f); Judicial Watch, Inc. v. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004). These motions are strongly disfavored, and the decision of whether to strike all or part of a pleading rests within the sound discretion of the court. See Judicial Watch, 224 F.R.D. at 263 (collecting authorities); 2-12 MOORE'S FEDERAL PRACTICE-CIVIL § 12.37 (2006). Most courts have held that Rule 12(f) motions "only may be directed towards pleadings as defined by Rule 7(a)" and therefore "motions, affidavits, briefs, and other documents outside of the pleadings are not subject to Rule 12(f)." 5C WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 1380 (3d ed. 2012).

While some have allowed motions to strike directed at affidavits and other party submissions, see Gauthier v. United States, 2011 WL 3902770, *11 (D. Mass. 2011), 12(f) motions cannot be directed at the court's opinions and memoranda. A "motion to strike is considered an exceptional remedy and is generally disfavored," Larouche v. Dep't of the Treasury, 2000 WL 805214, *13, (D.D.C. Mar. 31, 2000) (citing MOORE'S at § 12.37), and the proponent must carry a "formidable burden," Judicial Watch, 224 F.R.D. at 264.

III.DISCUSSION

A.Motion for Reconsideration

The District has made no showing that the Court's Opinion merits reconsideration. The District may disagree with the Court, but it has not explained whether there has been an intervening change in the law, discovery of new evidence, or clear error warranting reconsideration. Zeigler, 555 F. Supp. 2d at 129. Instead, it appears to be a vehicle to reair settled grievances and attack the Court's reputation. See Judicial Watch, 466 F. Supp. 2d at 123 (discouraging reconsideration when party merely seeks second bite at the apple). While suggesting the Court committed clear error, the District seriously misapprehends why the Court imposed sanctions-claiming the sanctions were based on 'inherent powers,' when the Court made clear they were based on Rule 16(f). Compare Def.'s Mot. Reconsideration 6; Def.'s Reply 4--6 (discussing inherent power sanctions for bad faith); with ANSWER IV, 2012 WL 4712980, *5 (awarding sanctions under Rule 16(f) express powers). Nevertheless, the Court will re-explain in detail ...


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