813 F. Supp. 2d 21
D.D.C.2011Background
- Kidwell, proceeding pro se, sues the FBI, DOJ, the State of Florida, a Florida circuit court, a Florida judge, a Florida attorney, Gibson Guitar Corp., and Gibson’s alleged Tennessee attorney.
- Plaintiff alleges ADA violations, due process violations, and FOIA-related failures to respond or investigate.
- Defendants move to dismiss; federal defendants have not appeared or been served; plaintiff has acknowledged lack of service on FBI and DOJ.
- Court previously advised on response deadlines under Fox v. Strickland and Local Rule 7; plaintiff filed some responses but not to most motions.
- Court grants some motions to dismiss as conceded for lack of timely opposition and addresses service issues and potential mandamus stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay of proceedings is warranted | Plaintiff seeks stay to pursue Rule 11 motions. | No stay necessary; plaintiff had time to respond and delayed unnecessarily. | Stay denied. |
| Whether to reconsider denial of in forma pauperis and appointment of counsel | Requests reconsideration based on new circumstances. | No new circumstances warranting reconsideration. | Reconsideration denied; prior order affirmed. |
| Whether to compel adherence to ethical rules and professional conduct | Court and counsel should comply with ABA/Code of Conduct; require truthful conduct. | Ethical obligations already in place; no further order needed. | Motion denied; no additional relief necessary. |
| Whether to dismiss as conceded due to lack of timely opposition | Opposition papers were timely or will be forthcoming. | Failing to oppose three motions justifies dismissal as conceded. | Three motions to dismiss granted as conceded; those defendants dismissed. |
| Whether the federal defendants must be served or the case dismissed for failure to serve under Rule 4(m) | Request for mandamus stay; service costs are prohibitive; in forma pauperis status requested. | Lack of service permits dismissal under Rule 4(m); potential mandamus stay is unwarranted. | Ordered service by October 21, 2011; if not served, case dismissed without prejudice; mandamus stay denied. |
Key Cases Cited
- Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988) (warns that courts may treat unopposed motions as conceded and manage dockets accordingly)
- Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (agency discretion not to prosecute generally unreviewable)
- Best v. Kelly, 39 F.3d 328 (D.C. Cir. 1994) (limits on judicial review when relief cannot be granted)
- Davis v. Billington, 775 F. Supp. 2d 23 (D.D.C. 2011) (court controls docket and may dismiss sua sponte under Rule 12(b)(6))
- Moore v. Motz, 437 F. Supp. 2d 88 (D.D.C. 2006) (ADA claims against federal officials may be dismissed where no cognizable relief)
- Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972 (D.C. Cir. 1985) (public interest in permit-based decisions; standard for stay)
- Citizens for Responsibility and Ethics in Washington v. Cheney, 580 F. Supp. 2d 168 (D.D.C. 2008) (factors for stay pending mandamus petition)
- Brown v. District of Columbia, 514 F.3d 1279 (D.C. Cir. 2008) (liberal standard for pro se pleadings; interpret complaints leniently)
- Brown v. District of Columbia, 514 F.3d 1279 (D.C. Cir. 2008) (courts construe pro se filings liberally)