Etzenhouser v. Vilsack

• Court: District Court, District of Columbia
• Decided: November 22, 2024
• Docket: Civil Action No. 2023-3539
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MATTHEW ETZENHOUSER, et al.,

Plaintiffs, Case No. 23-cv-3539 (JMC)

v.

THOMAS J. VILSACK, Secretary of Agriculture, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Matthew Etzenhouser and Taiga S. Rohrer, individually and as proposed putative

class representatives, brought this action against Thomas J. Vilsack, the Secretary of the

Department of Agriculture (in his individual and official capacities), and former Deputy Secretary

Jewel Bronaugh (in her individual capacity only), asserting claims under the Religious Freedom

Restoration Act (RFRA) and Title VII of the Civil Rights Act of 1964. See ECF 1, 27. 1 In July

2024, Defendants filed motions to dismiss Plaintiffs’ amended complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). ECF 32, 33. 2 To date—four months later— Plaintiffs,

who are represented by counsel, have neither filed an opposition to Defendants’ motions nor

requested an extension of time to do so. And they have not filed anything else on the docket or

taken other steps to prosecute this case since Defendants moved to dismiss. Because Plaintiffs have

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 2 Defendants in their individual capacities move to dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction and failure to state a claim. ECF 32. They also claim qualified immunity, but the Court need not address that argument given the posture and resolution of this case. Defendant Vilsack in his official capacity moves to dismiss for failure to state a claim and, in the alternative, for summary judgment. ECF 33. The Court resolves Defendant’s motion to dismiss and need not (and does not) consider his alternative motion for summary judgment.

1 failed to respond to Defendants’ motions to dismiss, the Court GRANTS Defendants’ motions as

conceded and DISMISSES the case without prejudice.

Local Civil Rule 7(b) requires an opposing party to file a memorandum of points and

authorities in opposition to a motion within 14 days of the service of the motion, or “the Court

may treat the motion as conceded.” LCvr 7(b). Defendants moved to dismiss Plaintiffs’ complaint

on July 22, 2024, making Plaintiffs’ response due on August 5, 2024. That deadline has come and

gone with no word from Plaintiffs.

Accordingly, the Court grants the Individual-Defendants’ motion to dismiss Plaintiffs’

RFRA claims for lack of subject matter jurisdiction as conceded. In response to a Rule 12(b)(1)

motion, Plaintiffs have the burden to establish that the Court has subject matter jurisdiction. See,

e.g., Berman v. Fed. Election Comm’n, No. 23-CV-01017, 2024 WL 3887373, at *2 (D.D.C. Aug.

20, 2024) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Having filed no

response at all, Plaintiffs have not satisfied their burden.

With respect to Defendants’ Rule 12(b)(6) motions, the Court acknowledges that the D.C.

Circuit has recognized some tension between the Federal Rule, which places the burden of

persuasion on the moving party, and Local Rule 7(b) that permits the Court to grant such a motion

where a plaintiff fails to respond. See Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia,

819 F.3d 476, 480, 481 (D.C. Cir. 2016). Nonetheless, it has consistently found that a district court

does not abuse its discretion in granting a motion to dismiss as conceded, provided that the

dismissal is without prejudice. Id. at 484; see also Wash. Alliance of Tech. Workers v. U.S. Dep’t

of Homeland Sec., 892 F.3d 332, 344 (D.C. Cir. 2018) (observing that “[w]e have 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”); Jordan v. Ormond,

2 No. 15-7151, 2016 WL 4098823, at *1 (D.C. Cir. July 22, 2016) (per curiam) (holding that “[t]he

district court did not abuse its discretion in dismissing appellant’s complaint pursuant to [Local

Rule] 7(b)”); Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294–95 (D.C. Cir. 2004) (affirming the

district court’s dismissal of a complaint based on the plaintiff’s failure to comply with Local Civil

Rule 7(b) and file a timely response to the defendant’s motion to dismiss); Twelve John Does v.

District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (observing that “[w]here the district court

relies on the absence of a response as a basis for treating the motion as conceded, [the Circuit will]

honor its enforcement of the rule”). The Court exercises its discretion to grant Defendants’ Rule

12(b)(6) motions as conceded. Defendants raise fulsome legal arguments in support of their request

for dismissal. The Court assumes that Plaintiffs concede the merits of Defendants’ positions since

they have filed no responsive pleadings or taken any actions that demonstrate their interest in

continuing to pursue this litigation, even though they are represented by counsel.

Accordingly, the Court will GRANT Defendants’ motions to dismiss, ECF Nos. 32 & 33,

and DISMISS the case WITHOUT PREJUDICE. A separate order accompanies this

memorandum opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: November 22, 2024