UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGELA HOFFMAN et al., :
:
Plaintiffs, : Civil Action No.: 08-1924 (RMU)
:
v. : Re Documents Nos.: 23, 33, 37
:
DISTRICT OF COLUMBIA et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING THE PLAINTIFFS’ MOTION FOR RELIEF UPON RECONSIDERATION;
DENYING THE PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT;
GRANTING THE DISTRICT OF COLUMBIA’S MOTION TO DISMISS
I. INTRODUCTION
This matter is before the court on (1) the plaintiffs’ motion for relief upon reconsideration
of the court’s interlocutory ruling dismissing all claims against the United States,1 (2) the
plaintiffs’ motion for partial summary judgment and (3) the District of Columbia’s (“the
District”) motion to dismiss. The plaintiffs allege that agents of the District of Columbia
Metropolitan Police Department (“DCMPD”) and the Drug Enforcement Administration
(“DEA”) violated their constitutional and statutory rights and committed various common law
torts against them during a police raid that occurred on July 31, 2008. On August 17, 2009, the
court dismissed all claims asserted against the United States. Through their motion for relief
upon reconsideration, the plaintiffs ask the court to amend that ruling and to reinstate the United
States as a defendant in this case. The plaintiffs also move for summary judgment on their
1
Although the plaintiffs have titled their submission a “Motion to Reinstate the United States as a
Defendant” and cite no specific provision of the Federal Rules of Civil Procedure in support of that
motion, the court construes the motion as one for relief upon reconsideration of an interlocutory
judgment under Federal Rule of Civil Procedure 54(b). See FED. R. CIV. P. 54(b).
claims against the District on the basis of res judicata. The District moves to dismiss all of the
plaintiffs’ claims against it for failure to state a claim on which relief can be granted and for lack
of subject matter jurisdiction.
Because the plaintiffs have failed to offer any arguments persuading the court to revise its
dismissal of the claims against the United States, the court denies the plaintiffs’ motion to alter
its previous ruling on that issue. The court also denies the plaintiffs’ motion for partial summary
judgment because the plaintiffs have failed to demonstrate that the hearing officer’s decision,
which the plaintiffs argue should be given res judicata effect, constituted a final judgment on the
merits. Lastly, because the plaintiffs have failed to respond to the arguments for dismissal raised
in the District’s motion to dismiss, the court grants that motion as conceded.
II. FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs Angela Hoffman and Kiana Hoffman allege that on July 31, 2008, they were
throwing a birthday party at their residence located in the District of Columbia. Am. Compl.
¶¶ 1, 4. Plaintiff Melvin Gresham, a Captain in the DCMPD, owned the residence and leased it
to Hoffman. Id. ¶ 20. Captain Gresham was also attending the party along with the remaining
plaintiffs: Anthony Pate, Quinton Jones, John McLawhorn, Ralph Threat, Marvin Morris and
William Wilson. Id. ¶¶ 2-3, 5-8.
The plaintiffs allege that during the birthday party, agents of the DCMPD and the DEA
raided the residence as part of a scheme to retaliate against Captain Gresham. Id. ¶¶ 11, 13.
More specifically, the plaintiffs allege that agents of the DCMPD were attempting to terminate
Captain Gresham from his position because of his purported whistleblower activities. Id. ¶ 13.
2
The plaintiffs commenced this action on November 6, 2008, later amending their
complaint on November 26, 2008, asserting fourteen federal and state law claims against the
District of Columbia and the United States. See generally Compl.; Am. Compl. Specifically, the
plaintiffs allege that the defendants violated their First and Fourth Amendment rights in violation
of 42 U.S.C. § 1983 (“§ 1983”), Am. Compl. ¶¶ 39-43, and their Fifth Amendment right to full
and equal benefit of the law in violation of 42 U.S.C. § 1981 (“§ 1981”), id. ¶¶ 44-48. The
plaintiffs have also asserted common law tort claims for defamation, invasion of privacy, assault,
battery, malicious prosecution, theft, intentional infliction of emotional distress, aiding and
abetting and conspiracy. Id. ¶¶ 52-73, 80-82. In addition, the plaintiffs have alleged violations
of the D.C. Whistleblowers Act, D.C. CODE §§ 1-615.51 et seq., Am. Compl. ¶¶ 49-51, and the
District of Columbia Human Rights Act (“DCHRA”), D.C. CODE §§ 2-1401.01 et seq., Am.
Compl. ¶¶ 74-79. The plaintiffs also requested a declaratory judgment directing Congress to
apportion and appropriate to the District’s budget the monies necessary to satisfy any judgment
resulting from this action. Id. ¶ 83.
On August 17, 2009, the court dismissed all claims asserted against the United States.
See generally Mem. Op. (Aug. 17, 2009). More specifically, the court dismissed the plaintiffs’ §
1981 and § 1983 claims against the United States because those provisions do not permit a cause
of action against the federal government. Id. at 5-6. The court dismissed the plaintiffs’ common
law tort claims against the United States because the plaintiffs did not exhaust their
administrative remedies prior to filing suit. Id. at 6-9. Lastly, the court held that the plaintiffs
had failed to state a claim against the United States under the D.C. Whistleblowers Act or the
DCHRA, and dismissed the plaintiffs’ claim for a declaratory judgment based on the absence of
a case or controversy. Id. at 9-12.
3
On June 9, 2009, the plaintiffs moved for partial summary judgment on their claims
against the District. See generally Pls.’ Mot. for Partial Summ. J. The plaintiffs point out that
the District of Columbia Housing Authority (“DCHA”) conducted a hearing in April 2009 to
consider whether the agency wrongfully terminated plaintiff Hoffman from the Housing Choice
Voucher Program (“HCVP”). See Pls.’ Mot. for Partial Summ. J., Ex. 1 (“DCHA Decision”) at
1. In an “informal hearing decision,” the hearing officer noted that “Captain Gresham provided
uncontroverted testimony that he was the target of the MPD unit which orchestrated the raid on
Ms. Hoffman’s residence due to his attempt to rehabilitate the MPD Narcotics and Special
Investigations Division.” Id. at 2. The hearing officer also concluded that there was no evidence
that the raid uncovered any illegal activity at the home of plaintiff Hoffman and recommended
that she be reinstated to the HCVP. Id. at 2.
On July 22, 2009, the District moved to dismiss all claims against it. See generally
District Mot. to Dismiss. The plaintiffs failed to file a timely opposition to that motion. On
October 5, 2009, the plaintiffs filed a motion to reinstate the United States as a defendant along
with a “Memorandum in Support of Plaintiff’s [sic] Motion to Reinstate the United States and to
Deny the District of Columbia’s Motion to Dismiss” (“Pls.’ Mot.”). Although the plaintiffs do
not challenge the dismissal of their claims against the United States under § 1981, § 1983, the
D.C. Whistleblower Act or the DCHRA, the plaintiffs seek to reinstate their common law tort
claims against the United States, arguing that they did, in fact, exhaust their administrative
remedies before filing suit. See generally id. The court now turns to the applicable legal
standards and the parties’ arguments.
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III. ANALYSIS
A. The Court Denies the Plaintiffs’ Motion to Reinstate the United States as a Defendant
1. Legal Standard for Altering or Amending an Interlocutory Judgment
A district court may revise its own interlocutory decisions “at any time before the entry
of judgment adjudicating all the claims and the rights and liabilities of all the parties.” FED. R.
CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing the
Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the
court’s review of an interlocutory decision differs from the standards applied to final judgments
under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt,
133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that “motions for [relief upon] reconsideration
of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are
within the sound discretion of the trial court”) and United Mine Workers v. Pittston Co., 793 F.
Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon
reconsideration of an interlocutory order) with LaRouche v. Dep’t of Treasury, 112 F. Supp. 2d
48, 51-52 (D.D.C. 2000) (analyzing the defendant’s motion for relief from judgment under Rule
60(b)) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996) (ruling on the
plaintiff’s motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to
Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F.
Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e)
or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (per curiam); FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at
51-52.
5
By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule
54(b) is available “as justice requires.” Childers, 197 F.R.D. at 190. “As justice requires”
indicates concrete considerations of whether the court “has patently misunderstood a party, has
made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an
error not of reasoning, but of apprehension, or where a controlling or significant change in the
law or facts [has occurred] since the submission of the issue to the court.” Cobell v. Norton, 224
F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted). These considerations leave a great
deal of room for the court’s discretion and, accordingly, the “as justice requires” standard
amounts to determining “whether [relief upon] reconsideration is necessary under the relevant
circumstances.” Id. Nonetheless, the court’s discretion under Rule 54(b) is limited by the law of
the case doctrine and “subject to the caveat that, where litigants have once battled for the court’s
decision, they should neither be required, nor without good reason permitted, to battle for it
again.” Singh, 383 F. Supp. 2d at 101 (internal citations omitted).
2. The Plaintiffs Have Failed to Articulate Any Justification For Altering
the Court’s Dismissal of their Claims Against the United States
As noted in the court’s prior memorandum opinion, see Mem. Op. (Aug. 17, 2009) at 7,
the Federal Tort Claims Act (“FTCA”) requires that plaintiffs exhaust their administrative
remedies prior to commencing suit against the federal government for money damages. 28
U.S.C. § 2675(a). To exhaust his or her administrative remedies, a claimant must first present a
claim to the appropriate federal agency. Id. If the agency issues a final written denial of the
claim or fails to resolve the claim within six months, the claimant may then commence suit in
district court. Id.
In its August 17, 2009 ruling, the court concluded that the plaintiffs had failed to exhaust
their administrative remedies with respect to their tort claims against the United States. See
6
Mem. Op. (Aug. 17, 2009) at 6-9. Specifically, the court held that the plaintiffs did not receive a
final written denial of their claim and waited only three months after presenting their claim to the
federal government before commencing suit in this court. Id. at 8-9. Accordingly, the court
dismissed the plaintiffs’ tort claims against the United States. Id. at 9.
In their motion for relief upon reconsideration, the plaintiffs argue that they did, in fact,
exhaust their administrative remedies. See generally Pls.’ Mot. The plaintiffs argue, as they did
in their opposition to the United States’s motion to dismiss, that the “Notice of Unlawful
Activity” they received from the United States Attorney’s Office for the District of Columbia
constituted a final denial of their claims. Id. at 8; Pls.’ Opp’n to United States’s Mot. to Dismiss,
Ex. 12. Furthermore, the plaintiffs contend that even though they filed suit less than six months
after presenting their claim to the federal agency, the six-month period expired prior to the time
the United States filed its motion to dismiss, thus satisfying the exhaustion requirement. Pls.’
Mot. at 7; Pls.’ Reply at 3-4.
The United States responds that the defendants have presented no arguments warranting
the reinstatement of the dismissed claims. See generally United States’s Opp’n. The court
concurs. In its prior ruling, the court rejected the plaintiffs’ argument that the “Notice of
Unlawful Activity” constituted a final written denial of their claim, observing that the notice
made no mention whatsoever of the plaintiffs’ claim. See Mem. Op. (Aug. 17, 2009) at 8-9. The
plaintiffs offer nothing to call the court’s conclusion into question beyond the bare and
unsupported assertion that the United States Attorney’s Office must have known about the
plaintiff’s complaint at the time it sent the notice. See Pls.’ Mot. at 8. This assertion, even if
true, would not alter the fact that the notice does not deny – or even refer to – the plaintiffs’
claim. See Pls.’ Opp’n to United States’s Mot. to Dismiss, Ex. 12; see also Brown v. Alford,
7
2008 WL 4837498, at *6 (S.D. Ohio Nov. 4, 2008) (holding that a “Settlement and Release
Agreement” from the agency did not constitute a final denial notice because it did not mention,
let alone deny, the plaintiff’s FTCA claims, was not sent by certified or registered mail by the
agency and the title of the document showed it was clearly a settlement and release agreement,
not a final notice from the agency denying the claim); 28 C.F.R. § 14.9 (explaining that “[f]inal
denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or
legal representative by certified or registered mail”). The court sees no reason to alter its
conclusion that the plaintiffs filed suit prior to receiving a final written decision from the agency.
The court also observed in its prior ruling that the six-month period must expire before a
plaintiff commences suit under the FTCA. See Mem. Op. (Aug. 17, 2009) at 9 (citing Brown,
2008 WL 4837498, at *7 (noting that the “exhaustion process must occur prior to the time that a
court action has been filed, and cannot occur during the pendency of the case”); Rashad v. D.C.
Cent. Det. Facility, 570 F. Supp. 2d 20, 24 (D.D.C. 2008) (observing that a plaintiff must
exhaust his administrative remedies before bringing an action in district court)). Indeed, the
Supreme Court has expressly held the same. See McNeil v. United States, 508 U.S. 106, 113
(1993) (upholding the district court’s dismissal of an action commenced by the plaintiff four
months after he presented his claim to the federal agency, noting that the plain language of the
FTCA requires that the plaintiff wait six months before commencing suit). Accordingly, the fact
that the six-month period expired during the pendency of the litigation is simply of no moment.
See id.
8
In sum, the court sees no justification for altering its prior ruling that the plaintiffs failed
to exhaust their administrative remedies as required prior to commencing suit.2 As a result, the
court denies the plaintiffs’ motion for relief upon reconsideration.
B. The Court Denies the Plaintiffs’ Motion for Partial Summary Judgment
The plaintiffs contend that they are entitled to summary judgment on their claims against
the District of Columbia because the DCHA hearing officer’s informal hearing decision “is Res
Judicata, and collaterally estops [sic] the defendant from denying the allegations at [sic] the
complaint.” Pls.’ Mot. for Partial Summ. J. at 1. The plaintiffs appear to argue that because the
DCHA hearing officer concluded that the July 31, 2008 raid was conducted in retaliation for
Captain Gresham’s efforts to reform the MPD, the District is precluded from relitigating these
issues and the court must accept the hearing officer’s findings. See generally id. The District
argues that the hearing officer’s decision has no bearing on this litigation. See generally
District’s Opp’n to Pls.’ Mot. for Partial Summ. J.
“The doctrine of res judicata prevents repetitious litigation involving the same causes of
action or the same issues.” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944,
946 (D.C. Cir. 1983). Res judicata has two distinct aspects – claim preclusion and issue
preclusion (commonly known as collateral estoppel) – that apply in different circumstances and
with different consequences to the litigants. NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns
2
The plaintiffs devote a significant portion of their motion to the argument that dismissal denies them
the opportunity to learn the identities of the DEA agents who conducted the raid at issue. Pls.’ Mot.
at 5. As stated in their motion, “[t]he plaintiff seeks reinstatement if not but for the sole purpose of
identifying the DEA agents who participated in the raid.” Id. Beyond the fact that this issue is
irrelevant to whether dismissal is warranted, the United States rightly points out that dismissal of the
claims against it does not foreclose the plaintiffs from filing a request under the Freedom of
Information Act. See United States Opp’n at 4 n.3.
9
Comm’n, 254 F.3d 130, 142 (D.C. Cir. 2001); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.
Cir. 1983).
Under claim preclusion, “a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in that action.” Drake
v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449 U.S.
90, 94 (1980)). Under issue preclusion or collateral estoppel, “once a court has decided an issue
of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a
suit on a different cause of action involving a party to the first case.” Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94).
These authorities make clear that claim preclusion and issue preclusion apply only to
“final judgments.” See Drake, 291 F.3d at 66 (observing that claim preclusion applies to final
judgments); NextWave, 254 F.3d at 147 (noting that “the issue preclusion aspect of res judicata”
requires “a final judgment on the merits in a prior suit”) (quoting I.A.M. Nat’l Pension Fund, 723
F.2d at 947). Although preclusive effect may be given to certain administrative proceedings, it
does not attach to administrative determinations that are neither final nor binding. See Murray v.
Gilmore, 406 F.3d 708, 714 (D.C. Cir. 2005) (noting that “while preclusive effect may
sometimes attach to administrative proceedings, we see no reason why it should attach to
proceeding where the examiner may only make ‘recommendations’ and lacks power to issue
binding judgments”).
The DCHA’s regulations make clear that “final decisions” rendered by DCHA hearing
officers following informal hearings on HCVP challenges
are not precedent setting for DCHA or the courts and cases thereafter taken to
Superior Court of the District of Columbia are not an appeal of an administrative
decision, are not based on the record of the informal hearing and are be tried de
10
novo, as if no determination had been made by DCHA and its hearing officer
prior thereto.
14 D.C.M.R. § 8905.4(a). Indeed, the hearing officer’s informal hearing decision, which
the plaintiffs seek to give preclusive effect, concludes with a recommendation that the
DCHA reinstate plaintiff Hoffman to the HCVP. See DCHA Decision at 3. Accordingly,
the hearing officer’s decision was not a binding, final judgment entitled to preclusive
effect. See Murray, 406 F.3d at 714 (holding that the conclusions of a DCHA hearing
officer were not final or binding and therefore were not entitled to preclusive effect). The
court therefore denies the plaintiffs’ motion for partial summary judgment.
C. The Court Grants the District’s Motion to Dismiss
The District contends that the court should dismiss all claims against it. See generally
District Mot. to Dismiss. The District asserts first that all of the plaintiffs’ claims under § 1983
fail to state a claim for which relief can be granted because the plaintiffs have failed to allege that
a District policy resulted in their alleged deprivation of constitutional rights. Id. at 4-5. The
District next argues more specifically that the plaintiffs’ claim that the District retaliated against
Captain Gresham for exercising his First Amendment rights, in violation of § 1983, must be
dismissed because the plaintiffs have failed to allege that Captain Gresham was speaking as a
citizen on a matter of public concern rather than as an employee discharging his job
responsibilities.3 Id. at 5. The District also contends that the plaintiffs’ § 1983 claim premised
on purported Fourth Amendment violations must be dismissed because the plaintiffs failed to
3
After filing its motion to dismiss, the District alerted the court to the fact that another court in this
district had dismissed a § 1983 claim brought by plaintiff Gresham, which was premised on the same
facts, on the grounds that the speech that allegedly gave rise to the retaliation was merely a part of
Captain Gresham’s normal job responsibilities. See Gresham v. District of Columbia, 639 F. Supp.
2d 17, 19-20 (D.D.C. 2009) (Robertson, J.).
11
allege which statements in the affidavit supporting the search warrant at issue were false, and
failed to allege that these misrepresentations were material to the issue of probable cause. Id. at
7. Furthermore, the District argues that the plaintiffs have failed to state a claim against it under
§ 1981 because the violations underlying this claim concern actions taken by the D.C. Housing
Authority, for which the District is not liable,4 and because the plaintiffs have failed to allege any
facts suggesting that they were subjected to intentional discrimination on the basis of race. Id. at
8. Lastly, the District contends that because the plaintiffs have failed to state a claim for any of
their causes of action brought under federal law, the court should dismiss the plaintiffs’ state law
claims based on the absence of original subject matter jurisdiction. Id. at 9.
In their motion for relief upon reconsideration, the plaintiffs acknowledge that they did
not file a timely opposition to the District’s motion.5 See Pls.’ Mot. at 8 n.12. Plaintiffs’ counsel
states that he “clearly meant to oppose the motion to dismiss and will move to file an opposition
Nunc Pro Tunc.” Id. No such motion for leave to file was ever submitted to the court.6
Furthermore, the only argument concerning dismissal discussed in the plaintiffs’ “Memorandum
4
See D.C. CODE § 6-205 (providing that “[t]he District government, its officers, departments, agencies,
or other units of government shall not be liable for damages for any action, or failure to take action,
by the [D.C. Housing] Authority or its officers, employees, or agents”).
5
The plaintiffs’ motion for relief upon reconsideration was filed more than two months after the
District filed its motion to dismiss. See generally Pls.’ Mot.; District Mot. to Dismiss.
6
Indeed, the only submission regarding the District’s motion to dismiss filed by the plaintiffs after
their motion for relief upon reconsideration is a notice of “subsequent authority,” filed on October 13,
2009. See generally Pls.’ Notice of Subsequent Auth. (Oct. 13, 2009). In the notice, the plaintiffs
appear to argue that even if the court dismisses the plaintiffs’ federal law claims against the District, it
would retain diversity jurisdiction over the plaintiffs’ state law claims against the District. See
generally id. This argument, made nearly three months after the District moved to dismiss, is plainly
without merit, as the Circuit has held that “the District, like the fifty states, is not subject to diversity
jurisdiction.” Long v. District of Columbia, 820 F.2d 409, 414 (D.C. Cir. 1987). Furthermore, the
court notes that plaintiffs Hoffman, Gresham are Morris are citizens of the District, see Am. Compl.
¶¶ 4, 6, 8, which would also preclude diversity jurisdiction, see Lincoln Prop. Co. v. Roche, 546 U.S.
81, 89 (2005) (noting that 28 U.S.C. § 1332 requires “complete diversity between all plaintiffs and all
defendants”).
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in Support of Plaintiff’s [sic] Motion to Reinstate the United States and to Deny the District of
Columbia’s Motion to Dismiss” is the District’s reliance on Judge Robertson’s decision in
Gresham v. District of Columbia, 639 F. Supp. 2d 17 (D.D.C. 2009). See Pls.’ Mot. at 8-9. The
court notes, however, that Judge Robertson’s ruling pertain to but one of the arguments raised by
the District in support of dismissal of the plaintiffs’ § 1983 First Amendment claim. See District
Mot. to Dismiss at 4-6. The District’s additional arguments, which include the fact that the
plaintiffs failed to allege that a District policy resulted in the deprivation of their constitutional
rights, were not addressed by the plaintiffs. See generally Pls.’ Mot.
Local Civil Rule 7(b) provides that
[w]ithin 11 days of the date of service or at such other time as the Court may
direct, an opposing party shall file and serve a memorandum of points and
authorities in opposition to [a] motion. If such a memorandum is not filed with
the prescribed time, the Court may treat the motion as conceded.
LCvR 7(b). Indeed, it is well settled that a plaintiff’s failure to respond to a motion to dismiss
permits a court to grant the motion as conceded. See Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1294-95 (D.C. Cir. 2004) (affirming the district court’s dismissal of a complaint based on the
plaintiff’s failure to comply with Local Civil Rule 7(b) and file a timely response to the
defendant’s motion to dismiss); Twelve John Does v. District of Columbia, 117 F.3d 571, 577
(D.C. Cir. 1997) (observing that “[w]here the district court relies on the absence of a response as
a basis for treating the motion as conceded, [the Circuit will] honor its enforcement of the rule”);
see also Cooper v. Farmers New Century Ins. Co., 607 F. Supp. 2d 175, 180 (D.D.C. 2009)
(granting the defendant’s motion to dismiss as conceded based on the plaintiff’s failure to
respond to arguments raised in the motion). The court need not provide the plaintiff notice or an
opportunity to explain its failure to comply with Rule 7(b) prior to granting a motion to dismiss
as conceded. See Fox, 389 F.3d at 1295 (observing that “[r]equiring [the trial court] to provide
13
notice, an opportunity to explain and weigh alternatives before enforcing Rule 7(b) would hinder
effective docket management”).
Here, the plaintiffs have failed to respond to the District’s arguments for dismissal of the
plaintiffs’ claims against it. The plaintiffs have not offered any excuse for their failure to
respond in a timely fashion, nor have they moved for leave to late-file an opposition.
Accordingly, the court grants the District’s motion to dismiss as conceded and dismisses all
claims asserted against the District. See, e.g., Cooper, 607 F. Supp. 2d at 180.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs’ motion for relief upon
reconsideration, denies the plaintiffs’ motion for partial summary judgment and grants the
District’s motion to dismiss. An Order consistent with this Memorandum Opinion is separately
and contemporaneously issued this 4th day of February, 2010.
RICARDO M. URBINA
United States District Judge
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