Phillips v. Mabus

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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SEBASTIAN PHILLIPS, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 11-2021 (EGS)
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RAYMOND E. MABUS, et al., )
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Defendants. )
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MEMORANDUM OPINION
Currently pending before the Court are: (1) federal
defendants’ renewed motion to dismiss Counts I, II, and IX of
the amended complaint or, in the alternative, for summary
judgment as to Counts I and II; (2) defendant Matthew Miller’s
motion for summary judgment as to the claims against him; (3)
plaintiffs Sebastian Phillips’ and Marine Design Dynamics,
Inc.’s motion for partial summary judgment as to Count I; (4)
federal defendants’ motion to strike plaintiffs’ motion for
partial summary judgment; (5) plaintiffs’ motion for summary
judgment as to the claims against Mr. Miller; and (6) Mr.
Miller’s motion to strike plaintiffs’ summary judgment motion as
to the claims against him. Upon consideration of the motions,
the responses and replies thereto, the applicable law, and the
entire record, federal defendants’ and Mr. Miller’s motions to
strike are DENIED. Federal defendants and Mr. Miller will have
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the opportunity to file briefs in opposition to plaintiffs’
summary judgment motions, and plaintiffs, in turn, will have the
opportunity to reply. The Court will then be in a position to
resolve cross-motions for summary judgment as to Count I against
federal defendants and as to the claims against Mr. Miller.
I. Background
Plaintiffs’ amended complaint asserts nine counts. Count I
asserts that federal defendants——a group of Navy officials——
violated plaintiffs’ constitutional right to due process by
blacklisting them from government contracting without procedural
safeguards, and seeks declaratory and injunctive relief. Am.
Compl., ECF No. 42 ¶¶ 99-121. Count II asserts the same claims
against federal defendants Charles Traugh and Michael Bosworth
in their individual capacities and seeks damages of $2.5
million. Id. ¶¶ 122-26. Counts III-VIII assert breach of
fiduciary duty and civil conspiracy against plaintiffs’ former
employees Michael Mazzocco, Volker Stammnitz, William Muras, and
Matthew Miller, and common law defamation against Mr. Mazzocco.
Id. ¶¶ 127-92. Count IX alleges common law interference with
contractual relations by federal defendants Mr. Traugh and
William Robinson in their official and individual capacities.
Id. ¶¶ 193-200. On September 30, 2012, the Court denied federal
defendants’ motion to dismiss or, in the alternative, for
summary judgment, and denied motions to dismiss filed by Mr.
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Mazzocco, Mr. Stammnitz, and Mr. Muras. Phillips v. Mabus, 894
F. Supp. 2d 71 (D.D.C. 2012).
On October 23, 2012, the Court issued an order giving
federal defendants and plaintiffs until December 6, 2012 to
engage in settlement discussions and, in the event that
settlement discussions were unsuccessful, giving them until
March 5, 2013 to conduct limited discovery on the issues of
scope of employment (relevant to Count IX of the amended
complaint) and qualified immunity (relevant to Count II of the
amended complaint). See Minute Entry of October 23, 2012. No
settlement occurred, and on May 14, 2013, federal defendants
filed a renewed motion to dismiss or, in the alternative, for
summary judgment. See Fed. Defs.’ Renewed Mot. to Dismiss or, in
the Alternative, for Summ. J., ECF No. 88. Mr. Miller filed a
motion for summary judgment as to the claims against him that
same day. See Def. Matthew Miller’s Mot. for Summ. J., ECF No.
87. Plaintiffs, federal defendants, and Mr. Miller engaged in a
full round of briefing as to these motions. Federal defendants
raised certain arguments for the first time in their reply brief
in support of their renewed motion. See Fed. Defs.’ Reply, ECF
No. 104-1 at 4-6. Accordingly, on March 25, 2014 the Court
stayed proceedings in this case and directed plaintiffs to file
a surreply of no more than ten pages limited to addressing the
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facts and arguments raised for the first time in federal
defendants’ reply. See Minute Entry of March 25, 2014.
Plaintiffs not only filed the surreply, see Pls.’ Surreply,
ECF No. 109, but also filed a motion for partial summary
judgment as to Count I of their amended complaint and a motion
for summary judgment as to the claims against Mr. Miller. See
Pls.’ Mot. for Partial Summ. J., ECF No. 107; Pls.’ Mot. for
Summ. J. Against Def. Matthew Miller, ECF No. 113. Federal
defendants then filed a motion to strike plaintiffs’ motion for
partial summary judgment as to Count I, see Fed. Defs.’ Mot. to
Strike Pls.’ Mot. for Partial Summ. J., ECF No. 108, and Mr.
Miller filed a motion to strike plaintiffs’ summary judgment
motion as to the claims against him. See Def. Matthew Miller’s
Mot. to Strike Pls.’ Mot. for Summ. J., ECF No. 115.
II. Analysis
Plaintiffs principally argue that the Court should deny the
motions to strike their summary judgment motions because Federal
Rule of Civil Procedure 12(f) only contemplates motions to
strike a “pleading,” and a motion for summary judgment is not
included in Federal Rule of Civil Procedure 7(a)’s list of
“pleadings.” Pls.’ Opp. to Fed. Defs.’ Mot. to Strike, ECF No.
110 at 1-2; Pls.’ Opp. to Def. Matthew Miller’s Mot. to Strike,
ECF No. 116 at 1-2. This argument fails, however, as the Court
does retain the discretionary authority to strike summary
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judgment motions if necessary “to tame . . . tempestuous
litigation.” Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d
2, 11 (D.D.C. 2004). Even so, the Court declines to exercise
that authority in this case. As detailed below, the Court finds
federal defendants’ and Mr. Miller’s arguments in support of
their motions to strike unavailing and is of the opinion that
the best course for this case is to permit one last set of
opposition and reply briefs, thereby permitting the Court to
resolve cross-motions for summary judgment as to Count I against
federal defendants and as to Counts VI and VIII against Mr.
Miller.
A. Federal Defendants’ and Mr. Miller’s Arguments in
Favor of Striking Plaintiffs’ Summary Judgment Motions
Are Unavailing
Federal defendants and Mr. Miller argue that plaintiffs
have failed to comply with the Court’s March 25, 2014 order and,
consequently, plaintiffs’ summary judgment motions should be
stricken. Specifically, they allege that plaintiffs did not file
a surreply and did not limit their arguments to the facts and
arguments raised for the first time in federal defendants’ reply
in support of their renewed motion. Fed. Defs.’ Mem. Supp. Mot.
to Strike, ECF No. 108 at 3.1 But this argument fails——and
1 Mr. Miller “incorporates by reference all of the arguments made
by the federal defendants in their motion to strike” into his
motion to strike. Def. Miller’s Mem. Supp. Mot. to Strike, ECF
No. 115-1 at 3.
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federal defendants abandon it, see generally Fed. Defs.’ Reply
to Pls.’ Opp. to Mot. to Strike, ECF No. 111——because, as
plaintiffs explain, plaintiffs filed a timely and appropriately
limited surreply. See Pls.’ Opp. to Fed. Defs.’ Mot. to Strike,
ECF No. 110 at 2-3.
Mr. Miller, however, advances a stronger argument when he
asserts that plaintiffs’ motions for summary judgment should be
stricken on the ground that plaintiffs violated the Court’s
March 25, 2014 order because that order stayed the proceedings
in this case and plaintiffs’ summary judgment motions were filed
after the stay. Def. Miller’s Mem. Supp. Mot. to Strike, ECF No.
115-1 at 2-3. Plaintiffs’ primary retort that the Court’s order
staying proceedings in this case made “no reference whatsoever
to Defendant Miller,” Pls.’ Opp. to Def. Matthew Miller’s Mot.
to Strike, ECF No. 116 at 2, is not persuasive for two reasons.
First, the stay was with regard to the “proceedings in this
case” and was not expressly limited to proceedings involving
just federal defendants. See Minute Entry of March 25, 2014.
Second, even if the stay had been limited to proceedings
involving just federal defendants, plaintiffs filed a post-stay
motion for partial summary judgment as to one of their claims
against federal defendants. Plaintiffs did therefore violate the
terms of the stay by filing their two summary judgment motions
after the stay was put in place, which authorizes the Court to
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strike their motions. Cf. Edisync Sys., Inc. v. Centra Software,
Inc., No. 03-1587, 2006 WL 1980633, at *1 (D. Colo. July 13,
2006); Brinco Mining Ltd. v. Fed. Ins. Co., 552 F. Supp. 1233,
1240 (D.D.C. 1982) (describing a court’s “inherent authority
over its own docket”).
The Court, however, declines to exercise that authority
because, as plaintiffs accurately explain, federal defendants
and Mr. Miller have not been prejudiced by plaintiffs’ motions
for summary judgment. See Pls.’ Opp. to Fed. Defs.’ Mot. to
Strike, ECF No. 110 at 4; Pls.’ Opp. to Def. Matthew Miller’s
Mot. to Strike, ECF No. 116 at 3. There is no merit to federal
defendants’ and Mr. Miller’s assertion that they are
“prejudiced” by arguments made for the first time in plaintiffs’
summary judgment motions, see Fed. Defs.’ Mem. Supp. Mot. to
Strike, ECF No. 108 at 3, because they will have the opportunity
to file opposition briefs. Similarly, there is no merit to the
assertion that plaintiffs’ motions should be stricken as
duplicative of their earlier-filed opposition briefs. See Fed.
Defs.’ Reply to Pls.’ Opp. to Mot. to Strike, ECF No. 111 at 4;
Def. Miller’s Mem. Supp. Mot. to Strike, ECF No. 115-1 at 3. To
the extent that plaintiffs’ summary judgment motions merely
rehash the arguments put forth in their opposition briefs,
federal defendants and Mr. Miller are free to point that out to
the Court in their own opposition briefs and simply incorporate
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by reference any arguments they have already put in front of the
Court in their prior briefing.
Federal defendants and Mr. Miller also argue that
plaintiffs’ summary judgment motions should be stricken on the
ground that plaintiffs failed to comply with the Court’s October
23, 2012 order. That order set a briefing schedule for federal
defendants’ renewed motion in the event that federal defendants
and plaintiffs were unable to reach a settlement. Minute Entry
of October 23, 2012. Federal defendants and Mr. Miller argue
that because that order in no way contemplated that plaintiffs
would be filing a dispositive motion, plaintiffs’ subsequent
summary judgment motions were filed in violation of the order
and should be stricken. Fed. Defs.’ Mem. Supp. Mot. to Strike,
ECF No. 108 at 4; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to
Strike, ECF No. 111 at 2-4. Although the Court is sympathetic to
the position that plaintiffs could have more clearly
communicated an intent to file a dispositive motion when the
Court initially set a briefing schedule for federal defendants’
renewed motion, the Court is still not convinced that striking
plaintiffs’ motions is the proper course of action. The Court’s
October 23, 2012 order did only address federal defendants’
renewed motion, but it did not preclude the filing of other
motions. And, in any event, given the opportunity federal
defendants and Mr. Miller will have to file opposition briefs,
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refusing to strike plaintiffs’ motions will not result in any
undue prejudice.
Finally, federal defendants and Mr. Miller argue that
plaintiffs’ motions for summary judgment are untimely under
Federal Rule of Civil Procedure 56(b). Fed. Defs.’ Mem. Supp.
Mot. to Strike, ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’
Opp. to Mot. to Strike, ECF No. 111 at 4-6. Rule 56(b) states:
“Unless a different time is set by local rule or the court
orders otherwise, a party may file a motion for summary judgment
at any time until 30 days after the close of all discovery.”
Fed. R. Civ. P. 56(b). Federal defendants and Mr. Miller argue
that in its October 23, 2012 order, the Court mandated that the
parties would have until March 5, 2013 to conduct limited
discovery on the issues of scope of employment and qualified
immunity. Because plaintiffs’ summary judgment motions were
filed much later than 30 days after March 5, 2013, federal
defendants and Mr. Miller assert that plaintiffs’ motions should
be stricken as untimely. Fed. Defs.’ Mem. Supp. Mot. to Strike,
ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to
Strike, ECF No. 111 at 4-5. But plaintiffs are correct to
emphasize that the discovery schedule put in place by the Court
governed discovery limited to issues pertaining to Counts II and
IX of plaintiffs’ amended complaint. See Pls.’ Opp. to Fed.
Defs.’ Mot. to Strike, ECF No. 110 at 3-4; Pls.’ Opp. to Def.
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Matthew Miller’s Mot. to Strike, ECF No. 116 at 3. No discovery
has yet occurred with regard to Counts I, VI, and VIII, which
are the Counts implicated by plaintiffs’ motions for summary
judgment. Thus “all discovery” has not yet closed with regard to
those Counts, so plaintiffs’ summary judgment motions are not
untimely under the Federal Rules. See Fed. R. Civ. P. 56(b).
B. Sanctions Are Not Warranted
Plaintiffs seek attorneys’ fees and costs associated with
opposing the motions to strike should the Court determine that
the filing of federal defendants’ and Mr. Miller’s motions to
strike violates Federal Rule of Civil Procedure 11(b)(1). Pls.’
Opp. to Fed. Defs.’ Mot. to Strike, ECF No. 110 at 4-5; Pls.’
Opp. to Def. Matthew Miller’s Mot. to Strike, ECF No. 116 at 3-
4. Rule 11(b)(1) permits sanctions for the filing of a motion
that has “any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of
litigation.” Fed. R. Civ. P. 11(b)(1). Plaintiffs’ request for
sanctions is unavailing. First, it does not appear that
plaintiffs have complied with the procedural requirements of
Rule 11(c)(2). That provision states that a “motion for
sanctions must be made separately from any other motion” and
that the allegedly offending party, after being served with the
motion for sanctions, is to be given 21 days to withdraw or
correct the challenged filing before the motion for sanctions is
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presented to the court. Fed. R. Civ. P. 11(c)(2). Here,
plaintiffs’ requests for sanctions are not stand-alone motions
but rather are tacked on to their briefs in opposition to the
motions to strike, and the requests were not served on federal
defendants and Mr. Miller 21 days prior to the requests being
presented to the Court. See generally Pls.’ Opp. to Fed. Defs.’
Mot. to Strike, ECF No. 110; Pls.’ Opp. to Def. Matthew Miller’s
Mot. to Strike, ECF No. 116. Second, even assuming the proper
procedure was followed, plaintiffs have not shown that federal
defendants’ and Mr. Miller’s motions to strike have an improper
purpose. Particularly given the fact that all proceedings in
this case were stayed when plaintiffs filed their summary
judgment motions, see supra Part II.A, federal defendants and
Mr. Miller certainly had a colorable argument that the Court
should strike plaintiffs’ summary judgment motions. Accordingly,
sanctions under Rule 11(b)(1) are unwarranted.
III. Conclusion
For the reasons stated above, federal defendants’ and Mr.
Miller’s motions to strike are DENIED. Federal defendants and
Mr. Miller will have an opportunity to file briefs in opposition
to plaintiffs’ motions for summary judgment, and plaintiffs
will, in turn, have an opportunity to reply. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
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Signed: Emmet G. Sullivan
United States District Judge
November 4, 2016
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