United States District Court, District of Columbia
MICHAEL S. FLAHERTY, et al., Plaintiffs,
PENNY PRITZKER, et al., Defendants And SUSTAINABLE FISHERIES COALITION, Defendant-Intervenor
KESSLER, UNITED STATES DISTRICT JUDGE
Michael S. Flaherty, Captain Alan A. Hastbacka, and the Ocean
River Institute ("Plaintiffs"), bring this action
against Commerce Secretary Penny Pritzker who has now been
succeeded by Wilbur Ross, the National Oceanic and
Atmospheric Administration ("NOAA"), and the
National Marine Fisheries Service ("NMFS")
(collectively "Defendants"), as well as
Defendant-Intervenor Sustainable Fisheries Coalition
("SFC"). This matter is now before the Court on
Plaintiffs' Motion for Leave to File Third Amended and
Supplemental Complaint ("Pis.' Mot.") [Dkt. No.
152]. In the Motion, Plaintiffs seek, among other things, to
add the New England Fishery Management Council and its
Executive Director, Mr. Thomas Nies, as Defendants in this
consideration of the Motion, Oppositions, Reply, the entire
record herein, and for the reasons discussed below,
Plaintiffs' Motion is granted.
March 2, 2011, the National Marine Fisheries Service
("NMFS") published its Final Rule implementing
Amendment 4 to the Atlantic Herring Fishery Management Plan
("FMP"). Final Rule, 76 Fed. Reg. 8, 786 (Feb. 2,
2011). The NMFS and the New England Fishery Management
Council (the "Council") jointly developed Amendment
4 in order to bring the FMP into compliance with the annual
catch limits and accountability measures of the
Magnuson-Stevens Act ("MSA"), 16 U.S.C. §
1801, by the 2011 statutory deadline. On March 8, 2012, this
Court found that Amendment 4 violated certain provisions of
the MSA, the Administrative Procedure Act ("APA"),
and the National Environmental Policy Act ("NEPA"),
and issued an Order remanding the action to Defendants which
contained specific guidance, as well as a timeline, for
actions Defendants were to take and complete within one year
("Remedial Order") [Dkt. No. 41].
Order, the Court ordered NMFS to send a letter to the Council
"recommending that the Council consider, in an amendment
to the Atlantic Herring FMP, whether 'river herring'
[including shad] should be designated as a stock in the
fishery[.]" Remedial Order at 11. Although NMFS sent two
letters to the Council making this recommendation, the
Council ultimately adopted recommendations that failed to add
river herring and shad as stocks in the Atlantic herring
fishery. On February 13, 2014, NMFS published its Final Rule
implementing Amendment 5, which similarly failed to include
river herring and shad as stocks in the fishery. Final Rule,
79 Fed. Reg. 8786 (Feb. 13, 2014) .
March 31, 2014, this Court granted Plaintiffs' request to
file a Supplemental Complaint challenging Amendment 5.
See Order [Dkt. No. 92]. At the Parties'
request, the Court stayed the case through November 28, 2016
in light of anticipated actions by NMFS that could have
alleviated Plaintiffs' concerns. On November 29, 2016,
the Court held a status conference and ordered the parties to
submit a proposed briefing schedule. On January 6, 2017,
Plaintiffs filed the present Motion for Leave to File Third
Amended and Supplemental Complaint ' [Dkt. No. 152].
Defendants and Defendant-Intervenor filed Oppositions to
Plaintiffs' Motion on January 19, 2017 [Dkt. Nos. 153 and
154] . On January 27, 2017, Plaintiffs' filed their Reply
[Dkt. No. 155] .
STANDARD OF REVIEW
amendment of pleadings in civil matters is governed by Rule
15 of the Federal Rules of Civil Procedure, which states that
the "court should freely give leave [to amend] when
justice so requires." Fed.R.Civ.P. 15(a)(2). The
decision to grant or deny leave to amend rests in the sound
discretion of the trial court; however, it is an abuse of
discretion to deny leave without a sufficient justification
for doing so. Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). Sufficient justifications include
"undue delay, bad faith or dilatory motive . . .
repeated failure to cure deficiencies by [previous]
amendments . . . [or] futility of amendment."
Id. (quoting Foman, 371 U.S. at 182).
assessing a motion for leave to amend, the Court is required
to assume the truth of the allegations in the amended
complaint and construe them in the light most favorable to
the movant. Caribbean Broadcasting Sys. v. Cable &
Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998). The
party opposing the amendment bears the burden to show why
leave should not be granted. Dove v. Washington Metro.
Area Trans. Auth., 221 F.R.D. 246, 247 (D.D.C. 2004)
(citing Gudavich v. Dist. of Columbia, 22
F.App'x 17, 18 (D.C. Cir. 2001)).
seek to amend their Second Supplemental Complaint to add the
New England Fishery Management Council and its Executive
Director, Mr. Thomas Nies, as Defendants. Plaintiffs also set
forth events, and a related claim, that have ...