UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
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:
CLOUD FOUNDATION, INC., et al., :
: CASE NO. 1:09-CV-1651
Plaintiffs, :
:
v. : OPINION & ORDER
: [Resolving Doc. No. 39.]
KEN SALAZAR, Secretary of the Interior, :
et al., :
:
Defendants. :
:
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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Under Federal Rule of Civil Procedure 54(b), the Defendants ask this Court to reconsider its
Opinion and Order granting the Plaintiffs leave to file an amended complaint and denying in part the
Defendants’ motion to dismiss. [Doc. 39.] The government says the Court erred when it determined
that the Plaintiffs’ third claim is not moot. [Id.] In addition, the government adds that the Court
should grant it leave to respond, rather than simply answer, the Plaintiffs’ now-filed second amended
complaint. The Plaintiffs oppose. [Doc. 42.] For the reasons below, the Court DENIES IN PART
and GRANTS IN PART the government’s motion.
On October 9, 2009, the government moved to dismiss claims set forth in the Plaintiffs’ first
amended complaint for lack of jurisdiction. [Doc. 16.] It argued that completion of the September
2009 gather and removal of wild horses on the Pryor Mountain Wild Horse Range precluded
effective relief for the Plaintiffs’ claims relating to that action. [Id.] In response, the Plaintiffs
argued that they sought to challenge the Bureau of Land Management policy behind the gather, as
an action “capable of repetition yet evading review.” [Doc. 18.] Before this Court resolved the
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motion to dismiss, the Plaintiffs moved for leave to file a second amended complaint. [Doc. 31.]
Their proposed second amended complaint dropped one allegation and added three others,
challenging: (1) the Bureau’s May 2009 Herd Management Area Plan, (2) the Bureau’s construction
of a fence at the Range’s northern boundary, and (3) the June 1987 Custer National Forest Plan and
the May 2009 Herd Management Area Plan. [Doc. 31-2 at ¶¶ 76-78.] This second amended
complaint retained the Plaintiffs’ challenge to the Bureau’s use of categorical exclusions for horse
gathers. [Id. at ¶ 80.] The Plaintiffs attached the text of this proposed complaint to their motion.
[Doc. 31-2.]
On August 25, 2010, this Court resolved both motions. Its Opinion and Order first granted
the Plaintiffs’ motion for leave to file a second amended complaint. The Court then held that the
Plaintiffs’ challenges to the September 2009 gather were moot, but preserved the Plaintiffs’ other
claims—including their challenge to the Bureau’s categorical exclusion for horse gathers. In so
holding, the Court looked to the text of the Plaintiffs’ proposed second amended complaint. [Doc.
35.] On the same day as the Court issued its Opinion and Order, the Plaintiffs filed their second
amended complaint. [Doc. 36.]
The government asks the Court to reconsider that Opinion and Order, pursuant to Federal
Rule of Civil Procedure 54(b). See F.R.C.P. 54(b) (permitting a court to revise any order adjudicating
fewer than all claims in an action before final judgment). Under Rule 54(b), courts have broad
discretion when deciding motions for reconsideration. Isse v. American University, 544 F. Supp. 2d
25, 29 (D.D.C. 2008). A court must determine whether “justice requires” reconsideration, and may
base this determination on whether it “patently” misunderstood the parties, whether its decision
reached beyond the adversarial issues presented, or whether some harm would flow from denial of
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the motion. Id.
The government says this Court incorrectly based its holding on the Plaintiffs’ lodged, but
unfiled, second amended complaint. It contends that although the second amended complaint
challenges the Bureau’s ongoing categorical exclusion policy, the Plaintiffs’ first amended
complaint—which the government says should control this Court’s analysis—challenged only one
instance of the policy’s operation. Accordingly, the government says, completion of the September
2009 gather rendered that challenge moot, thus divesting this Court of jurisdiction over those claims.
The government’s argument misconstrues the propriety and the import of the Court’s leave
to amend. Under Federal Rule of Civil Procedure 15(a), this Court freely granted the Plaintiffs leave
to file a second amended complaint. At that point, the second amended complaint, rather than the
first, guided the Court’s analysis. To have then considered the government’s motion to dismiss as
against a prior complaint would have been pointless—“[o]nce an amended pleading is interposed,
the original pleading no longer performs any function in the case.” 6 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2010). The Plaintiffs ultimately filed a
second amended complaint identical to the one they proposed. [Doc. 36.] The Court thus declines
to reconsider its Opinion and Order on these grounds, finding no misunderstanding, overreaching,
or harm to the government.
In addition, the government requests the opportunity to move to dismiss the second amended
complaint. In its opposition to the Plaintiffs’ motion for leave to amend the complaint, the
government argued that the second amended complaint would fail to cure the mootness defect and
would ultimately prove futile on statute of limitations grounds. [Doc. 32 at 11-17.] This Court’s
August 25, 2010 Opinion and Order denied those arguments. [Doc. 35 at 4-6.] The government now
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points to new claims in the second amended complaint and asks for leave to respond under the
stricter motion to dismiss standard. [Doc. 39-1 at 10.] So that the government may more fully present
its challenges to any new arguments, this Court grants the Defendants 14 days from the date of this
Opinion and Order to file a motion to dismiss new claims in the second amended complaint.
For the foregoing reasons, the Court DENIES the government’s request that this Court
reconsider its Opinion and Order preserving the Plaintiffs’ categorical exclusion challenge. However,
the Court GRANTS the government 14 days to respond, under Federal Rule of Civil Procedure
12(b), to the Plaintiffs’ second amended complaint.
IT IS SO ORDERED.
Dated: September 29, 2010 s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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