ORDER
AMIT
P. MEHTA UNITED STATES DISTRICT JUDGE.
Before
the court is yet another motion by Plaintiffs 12 Percent
Logistics and the Small Business in Transportation Coalition
concerning the public noticing of meetings of Defendant
Unified Carrier Registration Plan Board. In this motion,
Plaintiffs ask the court to cancel Defendant's ten
subcommittee meetings that are scheduled for June 3 and June
5, 2018, and to hold Defendant in contempt for violating a
January 29, 2018, court order enjoining Defendant, pending
appeal, from holding subcommittee meetings “without
first complying with the notice requirements of the Sunshine
Act, 5 U.S.C. §552b(e).” See generally
Pls.' Emergency Mot. for the Ct. to Hold Def. Unified
Carrier Registration Plan Board in Contempt of Ct. Order (DE
68) and Mem. in Supp., ECF No. 84 [hereinafter Pls.'
Mot.]; see also Order, ECF No. 68.[1] Plaintiffs argue
that Defendant has violated the injunction by: (1) failing to
provide the subject matter for its subcommittee meetings in
its notices in the Federal Register and on its website,
Pls.' Mot. at 4-7; (2) failing to submit to the Federal
Register its subcommittee meeting notices
“immediately” following a May 11, 2018, online
announcement by the Board that it would hold such meetings,
id. at 7; and (3) failing to submit its meeting
notices to the Federal Register one week prior to the
subcommittee meetings, which was May 27, 2018, id.
For the reasons that follow, the court denies Plaintiffs'
motion.
For
starters, the court denies Plaintiffs' motion for failure
to meet and confer as required by Local Civil Rule 7(m).
See LCvR 7(m) (requiring parties to meet and confer
before the filing of any nondispositive motion). Plaintiffs
admit that they failed to adhere to the meet-and-confer
requirement. Pls.' Reply in Support of Emergency Mot. for
Contempt, ECF No. 88 [hereinafter Pls.' Reply], at 3.
They attempt to excuse their omission on the grounds that
they learned late of the “emergent situation, ”
i.e., the alleged violation of the court's order, and
that Defendant's lead counsel was out of the country.
See id. But those are not valid excuses. See
United States ex rel. K&R Ltd. P'ship v. Mass. Hous.
Fin. Agency, 456 F.Supp.2d 46, 52 (D.D.C. 2006)
(concluding that a party's “most cursory
attempt” to communicate with opposing counsel regarding
a time-sensitive motion was inadequate). And the irony
appears lost on Plaintiffs: While they insist on
Defendant's strict compliance with the court's order,
they themselves knowingly violated the court's local
rules. Plaintiffs' violation of Local Civil Rule 7(m) is,
on its own, reason to deny their motion. See, e.g.,
Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 102 (D.D.C.
2006) (denying discovery motions for lack of “any hint
that [the parties] discussed the motions in person or by
phone, as required” by the local rule).
Plaintiffs'
failure to meet and confer is no mere ministerial misstep.
Had they done so, perhaps they would have realized that they
could not meet the stringent standard to show civil contempt.
To succeed on a motion for a finding of civil contempt, the
movant must show, “by clear and convincing evidence,
that: (1) there was a court order in place; (2) the order
required certain conduct by the defendant; and (3) the
defendant failed to comply with that order.”
Int'l Painters & Allied Trades Indus. Pension
Fund v. ZAK Architectural Metal & Glass LLC, 736
F.Supp.2d 35, 38 (D.D.C. 2010) (citing Armstrong v. Exec.
Office of the President, 1 F.3d 1274, 1289 (D.C.
Cir.1993)). The movant also must establish that the order
allegedly violated was clear and unambiguous. Id.
Once the above three-part showing is made, the burden shifts
to the non-moving party to provide adequate detailed proof
justifying noncompliance. Id.
Here,
as Defendant has demonstrated, Defendant's notices for
the upcoming subcommittee meetings substantially complied
with the court's order requiring it to adhere to the
notice requirements of the Sunshine Act, 5 U.S.C. §
552b(e).[2] See generally Def.'s
Opp'n to Pls.' Emergency Mot., ECF No. 86. An initial
meeting notice appeared on Defendant's newly created
website, www.ucrplan.org, on April 24, 2018. Def.'s
Notice of Filing of Exhibits, ECF No. 87 [hereinafter
Def.'s Filing], Exhibit B, ECF No. 87-2, ¶ 5.
Thereafter, Defendant posted on its website initial agendas
for the subcommittee meetings on May 11, 2018. Id.
¶ 6. And, then, Defendant published final agendas for
the meetings on May 23, 2018, id. ¶ 7, and the
Department of Transportation signed and transmitted a final
public notice for the meetings on May 25, 2018- more than
seven days before the scheduled meetings, see id.
¶ 8. The meeting notice appeared in the Federal Register
on Tuesday, May 29, 2018-the first business day after
Memorial Day, a federal holiday. See Def.'s
Filing, Exhibit D, ECF No. 87-4. That publication contained
information about the time and location of all ten
subcommittee meetings and conference call information so that
persons could participate remotely. Id. Moreover,
the Federal Register notice stated that agendas for the
meetings would be available on the Defendant's website by
5 p.m. on May 25, 2018, and contained a URL to that website.
Id. Plaintiff offers no evidence to contest this
timeline of events. See generally Pls.' Reply.
As the foregoing demonstrates, Plaintiffs have fallen
woefully short of establishing a violation of the court's
order by “clear and convincing evidence.” See
Armstrong, 1 F.3d at 1289.
For the
foregoing reasons, Plaintiffs' Emergency Motion is
denied.
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Notes:
[1] The January 29, 2018, court order
stated, in relevant part:
Pursuant to Rule 62(c) of the Federal Rules of Civil
Procedure, Defendant Unified Carrier Registration Plan Board
is hereby enjoined from holding subcommittee meetings of the
UCR Board without first complying with the notice
requirements of the Sunshine Act, 5 U.S.C. § 552b(e),
for all subcommittee meetings held after January 31, 2018.
This injunction shall remain in effect until the D.C. Circuit
resolves Plaintiffs' appeal from the court's denial
of their second and third requests for injunctive
relief.
[2] The court appreciates Defendant's
counsel's quick work in responding to Plaintiffs'
...