United States District Court, District of Columbia
F. Hogan, Senior United States Distinct Judge.
before the Court are motions to dismiss the plaintiffs'
complaint filed by the Department of the Interior, the
Secretary of the Interior and the Assistant Secretary-Indian
Affairs Tara Maclean Sweeney (the "federal
defendants") [ECF No. 10], and the Cherokee Nation, the
Cherokee Nation Election Commission, and the Principal Chief
of the Cherokee Nation Bill John Baker (the "tribal
defendants"), [ECF No. 11]. The plaintiffs did not file
an opposition to the motions to dismiss. Also pending before
the Court is plaintiff Rhonda Leona Brown Fleming's
renewed motion for a preliminary injunction, [ECF No. 15],
which defendants opposed, [ECF Nos. 16 & 17].
plaintiffs are Rhonda Leona Brown Fleming, a Cherokee citizen
and descendent of an individual listed on the Dawes
Commission's Final Roll of Cherokee Freedmen, and the
Harvest Institute Freedman Federation, LLC. Compl.
¶¶ 10-11; Fleming Aff. ¶ 2 [ECF No. 15-2].
Although she does not say so explicitly, it appears that Ms.
Fleming would like to run for the position of Principal Chief
of the Cherokee Nation. The plaintiffs assert that Article
VII, Section 2 of the Cherokee Nation Constitution, which
limits eligibility for election to the office of Principal
Chief to Cherokee "citizen[s] by blood" who are
also domiciled within the boundaries of the Cherokee Nation
for at least 270 days prior to the election, is barring Ms.
Fleming from running for office. Compl. ¶ 2. The
election is scheduled for June 1, 2019. Id.
with the complaint, on August 30, 2018, Ms. Fleming filed a
motion for a temporary restraining order seeking to restrain
the enforcement of the "citizen by blood" provision
of the Cherokee Nation Constitution. [ECF No. 2]. The Court
denied the motion and found, inter alia, that the
plaintiff failed to explain why the relief she sought
"would not be available in the form of a retrospective
waiver of the Cherokee Nation Constitution's domicile
requirement" if the Court found the "citizen by
blood" requirement unlawful. [ECF No. 7].
federal and tribal defendants moved to dismiss the
plaintiffs' complaint on December 4, 2018. [ECF Nos. 10
& 11]. The plaintiffs' opposition was due by December
18, 2018, but they did not file one. On January 2, 2019,
counsel for the plaintiffs moved for an extension of time to
respond to the motions. [ECF No. 12]. Counsel did not address
why he filed his motion for an extension after the opposition
was due. Rather, he described his work on other cases in
November and December, implying that he was unable to meet
the deadline due to those engagements. He requested that the
plaintiffs' opposition be due on January 21, 2019,
although he did not file one on that date (or on any other
date). Id. at 3. The tribal defendants opposed the
motion for an extension, arguing that the plaintiffs did not
demonstrate the excusable neglect required to justify an
extension. [ECF No. 13]. They also asked that the Court treat
their motion to dismiss as conceded under Local Civil Rule
7(b). Id. at 3. The Court did not rule on the motion
at that time.
March 22, 2019, Ms. Fleming filed a renewed motion for a
preliminary injunction. [ECF No. 15]. She argued that she
would be irreparably harmed if she moved to the Cherokee
Nation to meet the Cherokee Nation Constitution's 270-day
domicile requirement, because the defendants might disqualify
her from running in the election based on the "citizen
by blood" requirement. Fleming Aff. ¶ 8. The
federal and tribal defendants opposed the motion. [ECF Nos.
16 & 17].
April 11, 2019, the Court issued the following minute order:
MINUTE ORDER: Because the date of the election for Principal
Chief of the Cherokee Nation is June 1, 2019, the Court finds
that there is no immediate need for a hearing, and that a
hearing date more than 21 days after plaintiffs filing of her
renewed motion for a preliminary injunction will not
prejudice the parties. LCvR 65.1(d). Further, the Court
hereby GRANTS  plaintiffs first motion for an extension
of time to respond to defendants' motions to dismiss. The
plaintiff shall file her response by Monday, April 22, 2019.
Order, Apr. 11, 2019. Instead of responding to the motions to
dismiss as ordered by the Court, on April 22, 2019, the
plaintiffs filed a reply to the opposition to Ms.
Fleming's motion for a preliminary
injunction. [ECF No. 18]. The plaintiffs still have
not responded to the motions to dismiss.
Civil Rule 7(b) provides the following:
Within 14 days of the date of service or at such other time
as the Court may direct, an opposing party shall serve and
file a memorandum of points and authorities in opposition to
the motion. If such a memorandum is not filed within the
prescribed time, the Court may treat the motion as conceded.
LCvR(7)(b). The Rule is a "docket-management tool that
facilitates efficient and effective resolution of motions
...." Fox v. Am. Airlines, Inc.,389 F.3d 1291,
1294 (D.C. Cir. 2004). The D.C. Circuit has "endorsed
dismissing a complaint pursuant to Local Rule 7(b) if the
plaintiff failed to timely file a response in opposition to
the defendant's FRCP 12(b)(6) motion to dismiss."
Wash. All. of Tech. Workers v. United States Dep't of
Homeland Sec,892 F.3d 332, 344 (D.C. Cir. 2018);
see Fox, 389 F.3d at 1294 (affirming the application
of Local Rule 7(b) for failure to oppose a motion to
dismiss). The D.C. Circuit has, however, expressed concern
that "[a]pplying Local Rule 7(b) to grant an unopposed
motion to dismiss under Federal Rule 12(b)(6) risks
circumventing the clear preference of the Federal Rules to