UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) TIMOTHY DEMITRI BROWN, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1931 (RWR) ) FEDERAL BUREAU OF ) INVESTIGATION et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Timothy Demitri Brown filed this pro se complaint
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
against the FBI, other components of the Department of Justice
(“DOJ”), and the DOJ itself. A December 28, 2009 memorandum
opinion (“December 28th opinion”) dismissed some of Brown’s
claims, entered summary judgment for the defendants on the
remaining claim, and denied Brown’s cross-motion for summary
judgment. Brown moves for reconsideration and to amend his
complaint. Because Brown has not provided a basis for
reconsidering the December 28th opinion, he has unduly delayed
seeking to amend the complaint, and amending would unduly
prejudice the defendants, his motion will be denied.
BACKGROUND
The background of this case is discussed fully in Brown v.
FBI, 675 F. Supp. 2d 122 (D.D.C. 2009). Briefly, Brown - 2 -
challenged the defendants’ responses to three FOIA requests: one
concerning records about himself and two concerning records
relating to a book he authored called “Tyrant Wanted.” Id. at
124. In addition, Brown’s complaint made reference to two
“federal questions,”1 although the record did not reveal any FOIA
requests related to those questions. Id. Brown filed his
complaint in 2007. (Compl., Docket #1.) On August 14, 2008, the
defendants moved to dismiss for failure to state a claim or
alternatively for summary judgment under Federal Rule of Civil
Procedure 56, and Brown likewise sought summary judgment. The
December 28th opinion dismissed the FOIA claim concerning the
request for records about Brown and one of the FOIA claims
concerning a request for records about “Tyrant Wanted” for
failure to exhaust administrative remedies, dismissed the claim
concerning the “federal questions” for lack of subject matter
jurisdiction, and entered summary judgment for the defendant with
respect to the other claim concerning a request for records about
“Tyrant Wanted.” Id. at 130. On January 13, 2010, Brown moved
1 “The ‘federal questions’ Brown asks are whether the federal government ‘exercised exclusive legislative jurisdiction over the property located at 3708 Third Street, Alexandria, Louisiana on or before May 31, 2001[,]’ and what is ‘the legal status of 21 U.S.C. §§ 841 and 846,’ prohibiting trafficking in controlled or counterfeit substances, and engaging in a narcotics conspiracy.” Brown, 675 F. Supp. 2d at 124 (alteration in original). - 3 -
for reconsideration2 and to amend his complaint, arguing that he
submitted an additional proper FOIA request to the New Orleans,
Louisiana FBI office and headquarters that was not considered in
the December 28th opinion, and that he should be permitted to
amend his complaint to assert a claim that the “Agency’s
interpretation of the statutes (21 U.S.C. §[§] 841 and 846) are
2 Brown does not specify a federal rule under which he moves for reconsideration. A party may move “to alter or amend a judgment” under Federal Rule of Civil Procedure 59(e). Whether to alter or amend a final judgment is discretionary, and a court need not grant a Rule 59(e) motion unless it “‘finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Alternatively, a party may move for relief from a final judgment under Rule 60(b) on the grounds of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct by an opposing party.
With respect to the New Orleans request, Brown argues that “[t]he court incorrectly assume[d] plaintiff only submitted the second request to the Alexandria Office.” (Pl.’s Mot. to Reconsider, Mot. to Amend Compl. (“Pl.’s Mot.”) at 2.) With respect to the “federal questions,” Brown argues that he “never asked . . . that the federal questions be answered under the FOIA” and that “[c]learly plaintiff is stating that the Court has general federal question jurisdiction” over the “federal questions” he asks. (Pl.’s Mot. at 3-4.) However, he does not seek to alter or amend the judgment, or for relief from that judgment on these bases. Brown merely styled his motion as one for reconsideration even though the relief he seeks is to amend his complaint. (Pl.’s Mot. at 1 (“Plaintiff asserts that it is within the Court’s authority to allow plaintiff to amend the complaint to resolve any unspecific statements in the complaint and add FOIA request.”).) Thus, the motion will not be treated as one for reconsideration. - 4 -
erroneous[.]”3 (Pl.’s Mot. to Reconsider, Mot. to Amend Compl.
(“Pl.’s Mot.”) at 2, 4.)
DISCUSSION
A plaintiff may amend his complaint more than twenty-one
days after a defendant files a Rule 12(b) motion “only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a). Brown has moved for leave to amend his complaint more
than sixteen months after the defendants filed their motion to
dismiss or in the alternative for summary judgment, and the
defendants do not consent to Brown’s motion for leave to amend.
The decision to grant or deny leave to amend is committed to
the sound discretion of the district court. Foman v. Davis, 371
U.S. 178, 182 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085,
1099 (D.C. Cir. 1996). While a litigant ordinarily ought to be
afforded the opportunity to proceed on the merits of his claim,
Mead v. City First Bank of D.C., N.A., 256 F.R.D. 6, 7 (D.D.C.
2009), undue delay or prejudice to the opposing party may warrant
denying leave to amend. Atchinson v. Dist. of Columbia, 73 F.3d
418, 425 (D.C. Cir. 1996); Williamsburg Wax Museum, Inc. v.
3 Brown also moves to supplement his motion for reconsideration and leave to amend. The defendants have filed a single opposition to Brown’s motions, but it does not address substantively the motion to supplement. This motion, therefore, will granted as unopposed. See FDIC v. Bender, 127 F.3d 58, 67- 68 (D.C. Cir. 1997); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003). - 5 -
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) TIMOTHY DEMITRI BROWN, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1931 (RWR) ) FEDERAL BUREAU OF ) INVESTIGATION et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Timothy Demitri Brown filed this pro se complaint
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
against the FBI, other components of the Department of Justice
(“DOJ”), and the DOJ itself. A December 28, 2009 memorandum
opinion (“December 28th opinion”) dismissed some of Brown’s
claims, entered summary judgment for the defendants on the
remaining claim, and denied Brown’s cross-motion for summary
judgment. Brown moves for reconsideration and to amend his
complaint. Because Brown has not provided a basis for
reconsidering the December 28th opinion, he has unduly delayed
seeking to amend the complaint, and amending would unduly
prejudice the defendants, his motion will be denied.
BACKGROUND
The background of this case is discussed fully in Brown v.
FBI, 675 F. Supp. 2d 122 (D.D.C. 2009). Briefly, Brown - 2 -
challenged the defendants’ responses to three FOIA requests: one
concerning records about himself and two concerning records
relating to a book he authored called “Tyrant Wanted.” Id. at
124. In addition, Brown’s complaint made reference to two
“federal questions,”1 although the record did not reveal any FOIA
requests related to those questions. Id. Brown filed his
complaint in 2007. (Compl., Docket #1.) On August 14, 2008, the
defendants moved to dismiss for failure to state a claim or
alternatively for summary judgment under Federal Rule of Civil
Procedure 56, and Brown likewise sought summary judgment. The
December 28th opinion dismissed the FOIA claim concerning the
request for records about Brown and one of the FOIA claims
concerning a request for records about “Tyrant Wanted” for
failure to exhaust administrative remedies, dismissed the claim
concerning the “federal questions” for lack of subject matter
jurisdiction, and entered summary judgment for the defendant with
respect to the other claim concerning a request for records about
“Tyrant Wanted.” Id. at 130. On January 13, 2010, Brown moved
1 “The ‘federal questions’ Brown asks are whether the federal government ‘exercised exclusive legislative jurisdiction over the property located at 3708 Third Street, Alexandria, Louisiana on or before May 31, 2001[,]’ and what is ‘the legal status of 21 U.S.C. §§ 841 and 846,’ prohibiting trafficking in controlled or counterfeit substances, and engaging in a narcotics conspiracy.” Brown, 675 F. Supp. 2d at 124 (alteration in original). - 3 -
for reconsideration2 and to amend his complaint, arguing that he
submitted an additional proper FOIA request to the New Orleans,
Louisiana FBI office and headquarters that was not considered in
the December 28th opinion, and that he should be permitted to
amend his complaint to assert a claim that the “Agency’s
interpretation of the statutes (21 U.S.C. §[§] 841 and 846) are
2 Brown does not specify a federal rule under which he moves for reconsideration. A party may move “to alter or amend a judgment” under Federal Rule of Civil Procedure 59(e). Whether to alter or amend a final judgment is discretionary, and a court need not grant a Rule 59(e) motion unless it “‘finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Alternatively, a party may move for relief from a final judgment under Rule 60(b) on the grounds of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct by an opposing party.
With respect to the New Orleans request, Brown argues that “[t]he court incorrectly assume[d] plaintiff only submitted the second request to the Alexandria Office.” (Pl.’s Mot. to Reconsider, Mot. to Amend Compl. (“Pl.’s Mot.”) at 2.) With respect to the “federal questions,” Brown argues that he “never asked . . . that the federal questions be answered under the FOIA” and that “[c]learly plaintiff is stating that the Court has general federal question jurisdiction” over the “federal questions” he asks. (Pl.’s Mot. at 3-4.) However, he does not seek to alter or amend the judgment, or for relief from that judgment on these bases. Brown merely styled his motion as one for reconsideration even though the relief he seeks is to amend his complaint. (Pl.’s Mot. at 1 (“Plaintiff asserts that it is within the Court’s authority to allow plaintiff to amend the complaint to resolve any unspecific statements in the complaint and add FOIA request.”).) Thus, the motion will not be treated as one for reconsideration. - 4 -
erroneous[.]”3 (Pl.’s Mot. to Reconsider, Mot. to Amend Compl.
(“Pl.’s Mot.”) at 2, 4.)
DISCUSSION
A plaintiff may amend his complaint more than twenty-one
days after a defendant files a Rule 12(b) motion “only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a). Brown has moved for leave to amend his complaint more
than sixteen months after the defendants filed their motion to
dismiss or in the alternative for summary judgment, and the
defendants do not consent to Brown’s motion for leave to amend.
The decision to grant or deny leave to amend is committed to
the sound discretion of the district court. Foman v. Davis, 371
U.S. 178, 182 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085,
1099 (D.C. Cir. 1996). While a litigant ordinarily ought to be
afforded the opportunity to proceed on the merits of his claim,
Mead v. City First Bank of D.C., N.A., 256 F.R.D. 6, 7 (D.D.C.
2009), undue delay or prejudice to the opposing party may warrant
denying leave to amend. Atchinson v. Dist. of Columbia, 73 F.3d
418, 425 (D.C. Cir. 1996); Williamsburg Wax Museum, Inc. v.
3 Brown also moves to supplement his motion for reconsideration and leave to amend. The defendants have filed a single opposition to Brown’s motions, but it does not address substantively the motion to supplement. This motion, therefore, will granted as unopposed. See FDIC v. Bender, 127 F.3d 58, 67- 68 (D.C. Cir. 1997); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003). - 5 -
Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987)
(stating that a court may deny leave to amend a complaint “if a
party has had sufficient opportunity to state a claim and has
failed to do so”). Specifically, it is within a court’s
discretion to deny leave to amend when the motion is “an effort
to evade summary judgment[.]” Key Airlines, Inc. v. Nat’l
Mediation Bd., 745 F. Supp. 749, 752 (D.D.C. 1990).
Additionally, a court may deny leave to amend if the amendment
bears “only [a] tangential relationship” to the initial claim,
which could unduly prejudice the opposing party by expanding the
scope of the litigation. Nat’l Treasury Employees Union v.
Helfer, 53 F.3d 1289, 1295 (D.C. Cir. 1995).
Here, Brown seeks to add to his complaint a claim regarding
a New Orleans FOIA request, which he alleges he sent to the New
Orleans office on October 31, 2007 (Pl.’s Mot. at 3), six days
after he filed this action. Although Brown claims that he “was
in the process of requesting leave to amend the complaint to
include this request when he received the court’s Final Order”
(id.), he provides no explanation for why he waited more than two
years to try to amend his complaint to include that request.
Allowing Brown to amend his complaint to add an additional FOIA
claim at this stage in the litigation –– after his other FOIA
claims were dismissed and summary judgment was entered against
him –– would allow him to circumvent the effect of the order that - 6 -
terminated this action. His motion for leave to amend therefore
will be denied with respect to the New Orleans FOIA request. See
Hoffman v. United States, 266 F. Supp. 2d 27, 34 (D.D.C. 2003)
(denying leave to amend complaint when case was on verge of final
resolution because a “plaintiff, quite simply, cannot be
permitted to ‘circumvent the effects of summary judgment by
amending the complaint every time a termination of the action
threatens’” (quoting Glesenkamp v. Nationwide Mut. Ins. Co., 71
F.R.D. 1, 4 (N.D. Cal. 1974))).
Brown also seeks to amend his complaint to add a claim that
the “Agency’s interpretation of the statutes (21 U.S.C. §[§] 841
and 846) are erroneous[.]” (Pl.’s Mot. at 4.) Brown’s initial
complaint alleged claims only under the FOIA. His proposed
amendment would add a claim beyond FOIA’s scope. To the extent
that Brown’s proposed amendment states a claim for relief,4
granting him leave to amend would prejudice the defendants by
denying them the litigative repose to which they are entitled
from entry of a final judgment in their favor following a fully
4 Even if, as Brown argues, 28 U.S.C. § 1331 grants subject matter jurisdiction over this new claim challenging the interpretation of the statutes he cites, the “general federal- question statute does not itself give rise to a right for relief.” Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5-6 (D.D.C. 2009). Because Brown has not provided a basis upon which he may bring such a cause of action, his claim would be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Thus, the amendment is futile. See Smith v. Janey, 664 F. Supp. 2d 1, 8 n.4 (D.D.C. 2009) (denying motion for leave to amend as futile). - 7 -
contested case. It would also prejudice the defendants by
expanding the scope of the litigation –– after the litigation
concluded –– beyond its initial character as solely a FOIA
action. Brown’s motion for leave to amend therefore will be
denied also with respect to this proposed amendment. Cf. Adair
v. Johnson, 216 F.R.D. 183, 186, 188-89 (D.D.C. 2003) (granting
plaintiffs’ motion for leave to amend where the litigation was
still in an early stage and the defendants had not shown that the
proposed amendment would prejudice them by “chang[ing] the
character of the litigation”).
CONCLUSION AND ORDER
Brown has not established a basis for reconsidering the
December 28th opinion, and amending his complaint at this stage
in the litigation would unduly prejudice the defendants.
Accordingly, it is hereby
ORDERED that the plaintiff’s motion [56] to supplement be,
and hereby is, GRANTED. It is further
ORDERED that the plaintiff’s motion [55] for reconsideration
and for leave to amend be, and hereby is, DENIED.
SIGNED this 29th day of September, 2010.
__________/s/_______________ RICHARD W. ROBERTS United States District Judge