Vemuri v. Napolitano

• Court: District Court, District of Columbia
• Decided: March 23, 2011
• Docket: Civil Action No. 2010-0199
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAMAKRISHNA VEMURI,

Plaintiff,

v. Civil Action No. 10-199 (CKK) JANET NAPOLITANO, Secretary, Department of Homeland Security, et al.,

Defendants.

MEMORANDUM OPINION (March 23, 2011)

Presently pending before the Court is Defendants’ [9] Motion to Dismiss, which was filed

on August 30, 2010. On September 10, 2010, Plaintiff filed an [10] Unopposed Motion to

Extend Time of Filing in which he requested an extension of time until September 27, 2010 to

file his response to Defendants’ motion to dismiss. By minute order issued on the same day, the

Court denied Plaintiff’s motion without prejudice because Plaintiff had not provided the Court

with any grounds for an extension. This Court does not automatically grant extensions simply

because all parties consent to an extension; there must be some valid grounds for seeking to

extend the deadlines imposed by the Court’s rules. Local Civil Rule 7(b) governs the filing of

oppositions to motions filed in this Court:

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).

By operation of Local Civil Rule 7(b), Plaintiff’s opposition to Defendants’ motion to dismiss was due by no later than September 16, 2010.1 Plaintiff could have either filed his

opposition by this date or filed a new motion for extension of time that provided a reason why an

extension should be granted. However, Plaintiff failed to do either of these things by September

16, 2010. In fact, Plaintiff took no further steps to prosecute this case until March 22,

2011—more than six months after his opposition was due—when he filed a [11] Motion to File

Out of Time Plaintiff’s Opposition to Defendants’ Motion to Dismiss. The only explanation

provided by that motion is that “[c]o-counsel on the case took a parental leave of absence of the

firm and subsequently left the firm.” Plaintiff also argues that Defendants will not be prejudiced

by the late filing. Plaintiff’s explanation as to why his filing is so late is woefully inadequate.

Furthermore, Plaintiff’s motion to file out of time violates yet another of this Court’s rules,

LCvR 7(m), which requires a party filing a nondispositive motion to confer with opposing

counsel and include a statement in the motions indicating whether the motion is opposed. See

LCvR 7(m). Therefore, the Court shall DENY Plaintiff’s [11] Motion to File Out of Time.

Having denied Plaintiff’s second motion for extension of time, the Court is not inclined

to give Plaintiff a third bite at the apple more than six months after his opposition was initially

due. The D.C. Circuit has explained that Local Civil Rule 7(b) “is a docket-management tool

that facilitates efficient and effective resolution of motions by requiring the prompt joining of

issues.” Fox v. Am. Airlines, 389 F.3d 1291, 1294 (D.C. Cir. 2004). A district court’s decision

to apply the rule is reviewed only for abuse of discretion, and the D.C. Circuit has never

1 This period includes the three days that are added to the computation of time based on certain kinds of service under Federal Rule of Civil Procedure 6(d); this rule applies if Plaintiffs received service only through electronic means via the Court’s electronic filing system. See Fed. R. Civ. P. 5(b)(3); LCvR 5.4(d).

2 considered straightforward application of Rule 7(b) to be an abuse of discretion. Id.; FDIC v.

Bender, 127 F.3d 58, 67 (D.C. Cir. 1997). The Court need not provide notice before enforcing

the rule or offer a party an opportunity to explain its failure to comply. Fox, 389 F.3d at 1295.2

“Where the district court relies on the absence of a response as a basis for treating the motion as

conceded, we honor its enforcement of the rule.” Twelve John Does v. District of Columbia, 117

F.3d 571, 577 (D.C. Cir. 1997).

In this case, Plaintiff has completely disregarded this Court’s rules by failing to file a

timely opposition and then seeking to file an opposition over six months later without providing

an adequate explanation or conferring with opposing counsel. Accordingly, the Court shall

exercise its discretion to enforce Local Civil Rule 7(b) and grant Defendants’ [9] Motion to

Dismiss as conceded. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

2 An exception to this rule is for dispositive motions filed against parties who are representing themselves, pro se. See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (holding that district courts must advise pro se plaintiffs of the consequences of failing to respond to a dispositive motion).