United States District Court, D. Columbia.
RICHARD ALLEN SMITH, JR., Plaintiff, Pro se, Pine Knot, KY.
For UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF U.S. ATTORNEYS, UNITED STATES ATTORNEYS OFFICE, NORTHERN DISTRICT OF WEST VIRGINIA, UNITED STATES ATTORNEY OFFICE, SOUTHERN DISTRICT OF WEST VIRGINIA, FEDERAL BUREAU OF INVESTIGATIONS, DRUG ENFORCEMENT ADMINISTRATION, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants: Michelle Jean Seo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
On May 31, 2011, plaintiff filed this action against the United States Department of Justice and several DOJ components under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. [Dkt. #1]. On November 17, 2011, the Executive Office for United States Attorneys and the Federal Bureau of Investigation moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) moved for summary judgment under Fed.R.Civ.P. 56. [Dkt. 17]. On November 22, 2011, the Drug Enforcement Administration (" DEA" ) moved for summary
judgment as well. [Dkt. 20]. On each occasion, the Court notified the plaintiff, in accordance with Fox v. Strickland, 837 F.2d 507, 267 U.S.App. D.C. 84 (D.C. Cir. 1988) and Neal v. Kelly, 963 F.2d 453, 295 U.S.App. D.C. 350 (D.C. Cir. 1992), that he was required to respond by a certain date, and that, pursuant to the court's Local Rules, if plaintiff failed to file a timely response, " the court will treat defendants' motion as conceded and may either summarily dismiss the claims against the moving defendants or enter judgment in their favor." [Dkt. 19 and 21]. The orders set forth the text of Rule 56, accompanied by the following explanation:
Plaintiff should be advised that on a motion for summary judgment, " any factual assertion in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." . . . Thus, parties such as plaintiff, who are on the opposing side of a motion for summary judgment must rebut the moving party's affidavits with evidence, such as other affidavits or sworn statements; mere statements that the moving party's affidavits are inaccurate or incorrect are not sufficient.
Plaintiff did not file any opposition to the pending motions, and on February 3, 2012, several weeks after the oppositions were due, the Court granted the motions, including the motion for summary judgment filed by the DEA, as conceded. See Memorandum Opinion and Order [Dkt. # 22 and 23]. Ten days later, plaintiff filed a motion for enlargement of time by which to file his opposition, requesting an additional 60 days. [Dkt. # 24]. The Court construed the motion to be a motion seeking relief under Fed.R.Civ.P. 60(b), but it declined to vacate the dismissal order since plaintiff had not demonstrated the existence of a meritorious claim or grounds to oppose the motion upon which the Court dismissed the complaint. See Order dated February 16, 2012 [Dkt. # 25], citing Murray v. District of Columbia, 52 F.3d 353, 355, 311 U.S.App. D.C. 204 (D.C. Cir. 1995). However, the Court denied the motion " without prejudice to plaintiff's filing, within 60 days of this order, a Rule 60(b) motion with his proposed opposition as an attachment." Id. Plaintiff never filed his proposed opposition to the summary judgment motion; instead, he appealed the judgment and the February 16, 2012 order denying reconsideration. So plaintiff has never supplied the court with any evidence to rebut the material proffered in support of the defendants' motions for summary judgment.
On January 3, 2013, the United States Court of Appeals for the District of Columbia Circuit vacated this Court's judgment and remanded the case for consideration of " the effect of the 2010 amendments to Federal Rule of Civil Procedure 56 and 'state on the record the reasons for granting or denying the [summary judgment] motion.' " Order, No. 12-5078 (D.C. Cir. Jan. 3, 2013) (quoting Fed.R.Civ.P. 56(a)). 
A. Summary Judgment in a FOIA Case
Rule 56 provides that summary judgment shall be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The ...