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Judicial Watch • JW v. Kerry Kerry’s motion 00785

JW v. Kerry Kerry’s motion 00785

JW v. Kerry Kerry’s motion 00785

Page 1: JW v. Kerry Kerry’s motion 00785

Category:FOIA Request

Number of Pages:5

Date Created:July 24, 2015

Date Uploaded to the Library:July 30, 2015

Tags:Kerrys, recover, consolidation, 00785, KERRY, action, Civil, Institute, motion, Emails, Attorney, complaint, Hillary Clinton, Secretary, clinton, defendant, filed, plaintiff, document, court


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Case 1:15-cv-00785-JEB Document Filed 07/24/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH,
Civil Action No. 1:15-cv-00785-JEB
Plaintiff,
JOHN KERRY, his official capacity
SECRETARY STATE THE UNITED
STATES,
Defendant.
DEFENDANT MOTION CONSOLIDATE
AND
MOTION EXTEND DATE RESPOND THE COMPLAINT,
WITH INCORPORATED MEMORANDUM SUPPORT
Defendant John Kerry, Secretary State the United States, hereby moves the Court
pursuant Federal Rule Civil Procedure consolidate this civil action with another, more
recently filed civil action, Cause Action Institute Kerry, No. 1:15-cv-01068-JEB, that
based the same events and raises similar claims. Defendant Kerry further requests that the
Court extend his obligation respond the Complaint the present case until September 14,
2015, the due date for the response the Complaint Cause Action Institute. The reasons
for this motion are set forth more detail below.
Plaintiff Judicial Watch brings the present case against Secretary State John
Kerry under the Federal Records Act FRA and the Administrative Procedure Act APA
challenge[] the failure Defendant Kerry take any action recover emails former
Secretary State Hillary Clinton and other U.S. Department State employees unlawfully
Case 1:15-cv-00785-JEB Document Filed 07/24/15 Page
removed from the agency (referred this Complaint the Clinton emails Compl. (No.
1:15-cv-000785-JEB), Plaintiff asserts that defendant Kerry has violated his duties under the
FRA failing notify the Archivist concerning the unlawful removal the Clinton emails and failing initiate action through the attorney general recover the Clinton emails. Id. 25.
Plaintiff requests that the Court (1) declare the Clinton emails records subject the FRA;
(2) declare that defendant Kerry failure take any action recover the Clinton emails
arbitrary, capricious, abuse discretion, and otherwise not accordance with the FRA
and (3) order defendant Kerry take action recover the Clinton emails accordance with
the FRA, e.g., notifying the Archivist concerning the unlawful removal the emails and
initiating action through the Attorney General recover them. Id. Cause Action Institute Kerry, No. 1:15-cv-01068-JEB, plaintiff Cause
Action Institute COAI brings suit against defendant Kerry and David Ferriero, Archivist
the United States, under the FRA and the APA compel them comply with their statutory
duty initiate legal action for recovery federal records unlawfully removed from the
custody the Department State and stored personal computer server the exclusive
control and custody former Secretary State Hillary Rodham Clinton. Compl. (No. 1:15cv-01068-JEB), 1-2. COAI asserts that the defendants have violated their duties under the FRA failing initiate action through the Attorney General recover the unlawfully removed
records and, Defendant Ferriero case, failing notify Congress such action. Id. 6162. COAI further asserts that these are non-discretionary, mandatory duties. Id. 66. COAI
requests that the Court (1) declare Clinton emails subject the FRA and that Clinton
violated the FRA; (2) declare that defendants, their failure initiate legal action this case,
Case 1:15-cv-00785-JEB Document Filed 07/24/15 Page
violated the FRA; and (3) order defendants the form injunctive and mandamus relief comply with [the FRA] initiating legal action against Clinton through the Attorney General take Clinton computer server and recover the unlawfully removed and/or destroyed email
records. Id. 13. sum, both cases arise out former Secretary State Clinton use emails
stored her personal server the course her government duties, and both cases seek court
orders directing defendants take action recover these emails pursuant the FRA. deciding whether consolidate, courts must weigh the risk prejudice and
confusion wrought consolidation against the risk inconsistent rulings common factual
and legal questions, the burden the parties and the court, the length time, and the relative
expense proceeding with separate lawsuits they are not consolidated. Nat Ass Mort.
Brokers Bd. Governors the Fed. Reserve Sys., 770 Supp. 283, 286 (D.D.C. 2011).
The consolidation actions raising similar factual and legal questions appropriate regardless the presence different claims different issues law fact; sufficient there any
common question law fact. See id. 287 (consolidation appropriate where, despite
differences, there are extensive common questions law and fact Mylan Pharms., Inc.
Henney, Supp. 36, (D.D.C. 2000) The plaintiffs requests for different forms
relief not vitiate the propriety consolidation, but rather, consolidation proper any all
matters issue which are common. vacated other grounds, 276 F.3d 627 (D.C. Cir. 2002). addition, cases may consolidated even where certain defendants are named only one
the complaints. Nat Ass Mort. Brokers, 770 Supp. 286.
Case 1:15-cv-00785-JEB Document Filed 07/24/15 Page
Consolidation these two actions appropriate because both arise out the same
events, present similar legal issues, and request similar relief. Consolidation would thus serve
the interests judicial economy. See Harbison U.S. Senate Comm. Foreign Relations,
839 Supp. 99, 105 (D.D.C. 2012) (consolidating cases that arise from the same core
factual allegations, involve mostly the same parties, and vary only the nature the legal
claims asserted against the parties Hanson District Columbia, 257 F.R.D. 19, (D.D.C.
2009) (consolidating cases brought different plaintiffs challenging the District Columbia
gun laws because consolidation would save time and effort for the court and for the defendants resolving this issue one proceeding rather than two Consolidation warranted even
though there are some minor differences between the cases with regard the claims asserted and
relief requested (e.g., Ferriero defendant only Cause Action and Cause Action
includes claim for mandamus relief). See Nat Ass Mort. Brokers, 770 Supp. 286;
Mylan Pharms., Inc. Henney, Supp. 43. Additionally, because both actions are the
same early stage litigation, consolidation these actions will not result prejudice any
party. See Hanson, 257 F.R.D. 22.
Defendant due date respond the Complaint the present action
currently August 2015. Defendant requests that this deadline extended the due date for
the response the Complaint Cause Action Institute, which September 14, 2015.
Additional time needed because undersigned counsel was only recently assigned these
cases. The prior attorney assigned these cases could longer work them because
unexpected developments other matters. Current counsel requires additional time order
Case 1:15-cv-00785-JEB Document Filed 07/24/15 Page
provide defendant adequate time consult internally, analyze the legal issues, accommodate
existing vacation schedules for the month August, and prepare responses the complaints. July 23, 2015, undersigned counsel, Carol Federighi, spoke with counsel for
Judicial Watch, James Peterson, who advised that Judicial Watch opposes the present motion. July 24, 2015, Ms. Federighi also contacted counsel for Cause Action Institute, Lee
Steven, who advised email that COAI neither supports nor opposes consolidation.
WHEREFORE defendant respectfully requests that the Court consolidate this civil action
with Cause Action Institute Kerry, No. 1:15-cv-01068-JEB, and extend his obligation
respond the Complaint the present case until September 14, 2015. proposed Order
submitted.
Dated: July 24, 2015
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
Civil Division
ELIZABETH SHAPIRO
Deputy Director
MARCIA BERMAN
Assistant Director
/s/ Carol Federighi
CAROL FEDERIGHI
Senior Trial Counsel
United States Department Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, 20044
Phone: (202) 514-1903
Email: carol.federighi@usdoj.gov
Counsel for Defendant