12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Board

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) 12 PERCENT LOGISTICS, INC., et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-02000 (APM) ) UNIFIED CARRIER REGISTRATION ) PLAN BOARD, et al., ) ) Defendants. ) _________________________________________ )

ORDER

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

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.

Order, ECF No. 68. 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).

2 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

2 The court appreciates Defendant’s counsel’s quick work in responding to Plaintiffs’ Emergency Motion.

3 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.

Dated: June 2, 2018 Amit P. Mehta United States District Judge