Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Flaherty v. Pritzker

United States District Court, District of Columbia

August 21, 2017

MICHAEL S. FLAHERTY, et al., Plaintiffs,
v.
PENNY PRITZKER, et al., Defendants And SUSTAINABLE FISHERIES COALITION, Defendant-Intervenor

          MEMORANDUM OPINION

          GLADYS KESSLER, UNITED STATES DISTRICT JUDGE

         Plaintiffs 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 matter.

         Upon consideration of the Motion, Oppositions, Reply, the entire record herein, and for the reasons discussed below, Plaintiffs' Motion is granted.

         I. BACKGROUND

         A. Factual Background

         On 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].

         In that 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) .

         B. Procedural History

         On 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] .

         II. STANDARD OF REVIEW

         The 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).

         In 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)).

         III. DISCUSSION

         Plaintiffs 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.