Fdic Reply Brief On Motion To Sever
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Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 1 of 4
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VERN McKINLEY, Plaintiff, v. No. 1:09-cv-1263-ESH FEDERAL DEPOSIT INSURANCE CORPORATION and BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Defendants.
October 5, 2009
FDIC’S REPLY IN SUPPORT OF MOTION TO SEVER In his opposition (Dkt. 14) to the FDIC’s Motion to Sever, plaintiff Vern McKinley (McKinley) makes no attempt to address the central question: Whether his claims against defendant FDIC and his claims against defendant Federal Reserve Board are properly joined under Fed. R. Civ. P. 20. Mr. McKinley’s silence effectively concedes that the claims are not properly joined. The claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences, and there is no question of law or fact common to the defendants. Rather, Mr. McKinley’s only argument is that “an order severing the claims or parties in this case would cause inefficiencies and likely result in undue delay.” McKinley Opp. (Dkt. 14) at 3. At the same time, Mr. McKinley describes the two very different procedural postures of the claims against the FDIC and the Federal Reserve Board (Dkt. 14 at 3), and concedes that “[t]he Court undoubtedly can and will consider Plaintiff’s claims against the two defendants separately” (Dkt. 14 at 4). If there are
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Document 15
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Page 2 of 4
inefficiencies in this litigation, it is because Mr. McKinley improperly joined two entirely separate defendants and two entirely separate claims, resulting in two separate series of motions and filings and two separate schedules. Severance will considerably simplify the proceedings. Mr. McKinley asserts that, “[i]f the Court were to sever the claims at this point, it is likely that the progress made by the parties to date will be undone.” Dkt. 14 at 3. It is difficult to see how severing the case will affect the schedules already in place, in which the claim against the FDIC is proceeding smoothly to a resolution on summary judgment (see the Joint Status Report regarding FDIC, Dkt. 11)1 and the claim against the Federal Reserve Board is on hold pending a search for documents and filing of a draft Vaughn index (see the Joint Status Report regarding the Federal Reserve Board, Dkt. 12). Severance would be largely an administrative matter in the hands of the Clerk of the Court, and need have no effect at all on the progress of the two claims. Mr. McKinley speculates that if the case were severed, “the parties and the Court would effectively have to start the severed case anew” (Dkt. 14 at 4). There is no basis for this assertion. No party need be dropped, no party need be dismissed, and no pleading need be re-filed. See Grayson v. K-Mart Corp., 849 F. Supp. 785, 792-793 (N.D. Georgia 1994) (detailing the allocation of pleadings when multiple plaintiffs were severed). In short, there would be no prejudice to Mr. McKinley by severing this case, and Mr. McKinley’s undisputed failure to comply with Fed. R. Civ. P. 20 would be corrected.
1
To the extent Mr. McKinley suggests that the FDIC will complicate the case by litigating the scope of plaintiff’s original FOIA request, we note that (a) in his administrative appeal, Mr. McKinley did not dispute the FDIC’s understanding of the scope of his request, and (b) Mr. McKinley’s Complaint states, “To date, the FDIC has provided the requested documents . . . .” Dkt. 1 at 2 (emphasis added).
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Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 3 of 4
CONCLUSION For the reasons stated, all claims asserted in this action against the FDIC should be severed from the claims asserted against the Federal Reserve Board and proceed separately.
Respectfully submitted, COLLEEN J. BOLES Assistant General Counsel ____/s/ Daniel Kurtenbach_____ Daniel Kurtenbach (DC 426590) Counsel D. Ashley Doherty Counsel FEDERAL DEPOSIT INSURANCE CORPORATION 3501 Fairfax Drive, VS-D7026 Arlington, VA 22226 Tel.: (703) 562-2465 Fax.: (703) 562-2477 E-mail: [email protected] October 5, 2009
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Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on October 5, 2009, the foregoing REPLY IN SUPPORT OF MOTION TO SEVER was mailed to the following: Vern McKinley 20745 Ashburn Station Place Ashburn, VA 20147 /s/ Daniel H. Kurtenbach Daniel H. Kurtenbach D.C. Bar No. 426590 Counsel Federal Deposit Insurance Corporation 3501 Fairfax Drive, Room VS-D7026 Arlington, VA 22226 703-562-2465
4
Document 15
Filed 10/05/2009
Page 1 of 4
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VERN McKINLEY, Plaintiff, v. No. 1:09-cv-1263-ESH FEDERAL DEPOSIT INSURANCE CORPORATION and BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Defendants.
October 5, 2009
FDIC’S REPLY IN SUPPORT OF MOTION TO SEVER In his opposition (Dkt. 14) to the FDIC’s Motion to Sever, plaintiff Vern McKinley (McKinley) makes no attempt to address the central question: Whether his claims against defendant FDIC and his claims against defendant Federal Reserve Board are properly joined under Fed. R. Civ. P. 20. Mr. McKinley’s silence effectively concedes that the claims are not properly joined. The claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences, and there is no question of law or fact common to the defendants. Rather, Mr. McKinley’s only argument is that “an order severing the claims or parties in this case would cause inefficiencies and likely result in undue delay.” McKinley Opp. (Dkt. 14) at 3. At the same time, Mr. McKinley describes the two very different procedural postures of the claims against the FDIC and the Federal Reserve Board (Dkt. 14 at 3), and concedes that “[t]he Court undoubtedly can and will consider Plaintiff’s claims against the two defendants separately” (Dkt. 14 at 4). If there are
1
Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 2 of 4
inefficiencies in this litigation, it is because Mr. McKinley improperly joined two entirely separate defendants and two entirely separate claims, resulting in two separate series of motions and filings and two separate schedules. Severance will considerably simplify the proceedings. Mr. McKinley asserts that, “[i]f the Court were to sever the claims at this point, it is likely that the progress made by the parties to date will be undone.” Dkt. 14 at 3. It is difficult to see how severing the case will affect the schedules already in place, in which the claim against the FDIC is proceeding smoothly to a resolution on summary judgment (see the Joint Status Report regarding FDIC, Dkt. 11)1 and the claim against the Federal Reserve Board is on hold pending a search for documents and filing of a draft Vaughn index (see the Joint Status Report regarding the Federal Reserve Board, Dkt. 12). Severance would be largely an administrative matter in the hands of the Clerk of the Court, and need have no effect at all on the progress of the two claims. Mr. McKinley speculates that if the case were severed, “the parties and the Court would effectively have to start the severed case anew” (Dkt. 14 at 4). There is no basis for this assertion. No party need be dropped, no party need be dismissed, and no pleading need be re-filed. See Grayson v. K-Mart Corp., 849 F. Supp. 785, 792-793 (N.D. Georgia 1994) (detailing the allocation of pleadings when multiple plaintiffs were severed). In short, there would be no prejudice to Mr. McKinley by severing this case, and Mr. McKinley’s undisputed failure to comply with Fed. R. Civ. P. 20 would be corrected.
1
To the extent Mr. McKinley suggests that the FDIC will complicate the case by litigating the scope of plaintiff’s original FOIA request, we note that (a) in his administrative appeal, Mr. McKinley did not dispute the FDIC’s understanding of the scope of his request, and (b) Mr. McKinley’s Complaint states, “To date, the FDIC has provided the requested documents . . . .” Dkt. 1 at 2 (emphasis added).
2
Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 3 of 4
CONCLUSION For the reasons stated, all claims asserted in this action against the FDIC should be severed from the claims asserted against the Federal Reserve Board and proceed separately.
Respectfully submitted, COLLEEN J. BOLES Assistant General Counsel ____/s/ Daniel Kurtenbach_____ Daniel Kurtenbach (DC 426590) Counsel D. Ashley Doherty Counsel FEDERAL DEPOSIT INSURANCE CORPORATION 3501 Fairfax Drive, VS-D7026 Arlington, VA 22226 Tel.: (703) 562-2465 Fax.: (703) 562-2477 E-mail: [email protected] October 5, 2009
3
Case 1:09-cv-01263-ESH
Document 15
Filed 10/05/2009
Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on October 5, 2009, the foregoing REPLY IN SUPPORT OF MOTION TO SEVER was mailed to the following: Vern McKinley 20745 Ashburn Station Place Ashburn, VA 20147 /s/ Daniel H. Kurtenbach Daniel H. Kurtenbach D.C. Bar No. 426590 Counsel Federal Deposit Insurance Corporation 3501 Fairfax Drive, Room VS-D7026 Arlington, VA 22226 703-562-2465
4
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