Coven v. United States Personnel Management, Office of
ORDER - IT IS ORDERED that pla's 13 Motion for Partial Summary Judgment is DENIED without prejudice; pla's 23 Motion to Compel discovery is DENIED; pla's 31 Motion for a Preliminary Injunction is DENIED; pla's 53 Motion fo r a Stay is GRANTED including extending pla's time to file and serve his reply to OPM's response to his cross-motion for summary jgm until 30 days after the OPM's Office of General Cnsl decides pla's appeal regarding the fee estimate. Signed by Judge Robert C Broomfield on 1/12/09. (SAT)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Daniel Saul Coven, Plaintiff, vs. United States Office of Personnel Management, Defendant.
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No. CIV-07-1831-PHX-RCB ORDER
Four motions are currently pending before the court: (1) plaintiff pro se Daniel Saul Coven's motion for partial summary judgment (doc. 13); (2) plaintiff's motion to compel discovery (doc. 23); (3) plaintiff's motion for a preliminary injunction (doc. 31); and (4) plaintiff's motion for a stay (doc. 53). four of these motions are readily disposable - the first two because they have been withdrawn; the third because plaintiff has not met his burden of proof and the fourth because it is unopposed. I. Withdrawn Motions As just noted, plaintiff filed a motion for partial summary judgment and a motion to compel discovery. In replying to each of All
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those motions, however, plaintiff expressly withdrew them. the motion for partial summary judgment, plaintiff sought "withdrawal . . . without prejudice." Reply (doc. 47) at 1.
the motion to compel, in his Reply, plaintiff simply "withdr[e]w th[at] motion." Reply (doc. 48) at 1. In light of these
withdrawals, the court DENIES as moot plaintiff's motions for partial summary judgment and to compel discovery. II. Preliminary Injunction Motion On June 5, 2008, the court stayed the present action pending
10 notification from the defendant, the United States Office of 11 Personnel Management ("OPM"), as to "whether or not plaintiff has 12 exhausted his administrative remedies." Doc. 24 at 1:22-23. The
13 court granted OPM 90 days in which to provide such notification. 14 While that stay was still in effect, plaintiff filed a motion
15 for a preliminary injunction (doc. 31), seeking to compel OPM's 16 compliance with a January 3, 2008, FOIA request. 17 two-fold. OPM's response is
First, denial is mandated because plaintiff is "seeking
18 to compel compliance with a FOIA request that is not the subject of 19 this litigation." Resp. (doc. 32) at 1 (emphasis added). More
20 specifically, the FOIA request which is the subject of this action, 21 as specified in plaintiff's complaint filed on September 25, 2007, 22 is for "electronic files that detail the current employment 23 announcement of vacancies as listed on [OPM's] usajobs.gov and 24 studentjobs.gov websites." Co. (doc. 1) at 3:20-22. As just noted,
25 however, the preliminary injunction pertains to a FOIA request made 26 after the commencement of this action. Further, it differs from
27 the FOIA request which is the subject of this action in that it 28 seeks "copies of the data feed that are being provided to the -2-
1 Google Base service[,]" not the electronic files just described. 2 Mot. (doc. 31) at 213-14. Second, OPM asserts that the court
3 should deny plaintiff's motion for a preliminary injunction 4 "without prejudice pending the resolution of the stay" because 5 this motion violates the court's earlier stay order. 6 32) at 2:9. 7 On September 9, 2009, OPM timely notified the court and Resp. (doc.
8 plaintiff of its "belie[f] [that] Plaintiff ha[d] exhausted his 9 administrative remedies sufficiently to proceed with briefing the 10 remaining issues in this case." See Status Rep. (doc. 36) at 1.
11 This notification lifted the court's prior stay order, and 12 correspondingly renders moot OPM's argument that plaintiff's 13 preliminary injunction motion should be denied because it violates 14 that order. 15 Nonetheless, the court finds that plaintiff is not entitled to In the first place, as set forth above,
16 a preliminary injunction.
17 he is seeking an injunction for a FOIA request which is not the 18 subject of this litigation. Moreover, in order to obtain a
19 preliminary injunction in the Ninth Circuit the "moving party must 20 show either (1) a combination of probable success on the merits and 21 the possibility of irreparable harm, or (2) that serious questions 22 going to the merits are raised, and the balance of hardships tips 23 sharply in favor of the moving party." Mattel, Inc. v. Greiner and
24 Hausser GmbH, 354 F.3d 857, 869 (9th Cir. 2003) (citation omitted). 25 Plaintiff did not identify upon which standard he is basing his 26 motion, must less explain how he has met that standard. For both
27 of these reasons, the court DENIES plaintiff's motion for a 28 preliminary injunction (doc. 31). -3-
1 III. 2
Stay Motion On October 2, 2008, OPM filed a motion for summary judgment Plaintiff responded and cross-moved for summary Two days after OPM filed its response to that
3 (doc. 38).
4 judgment (doc. 44).
5 cross-motion, on December 17, 2008, plaintiff filed a motion to 6 stay (doc. 53). He seeks a stay "to request another administrative
7 review by OPM's General Counsel on the matter of FOIA processing 8 fees." Mot. (doc. 53) at 1. In addition, plaintiff is seeking an
9 extension of time in which to file his reply in connection with his 10 cross-motion for summary judgment. In particular, plaintiff
11 requests that he have "until 30 days after [OPM's] General Counsel 12 responds and serves their response on the administrative review" 13 in which to file and serve his reply. 14 Id. at 3:708.
On January 5, 2009, OPM filed a "Response (Non-Opposition) to OPM "does not oppose [this]
15 Motion to Stay[.]" Doc. 54 at 1.
16 [m]otion to [s]tay . . . including extending [plaintiff's] Reply to 17 OPM's Response to Plaintiff's Cross-Motion for Summary Judgment 18 until 30 days after the Office of General Counsel decides his 19 appeal regarding the fee estimate." Id. Primarily because OPM
20 does not oppose this stay, but also because a stay would be in the 21 interests of justice, the court hereby GRANTS plaintiff's motion 22 for a stay (doc. 53), including his request for an extension of 23 time in which to file his reply, as specified above. 24 25 In light of the foregoing, IT IS ORDERED that: (1) plaintiff's motion for partial summary judgment (doc. 13)
26 is DENIED without prejudice; 27 (2) plaintiff's motion to compel discovery (doc. 23) is
28 DENIED; -4-
(3) plaintiff's motion for a preliminary injunction (doc. 31)
2 is DENIED; and 3 (4) plaintiff's motion for a stay (doc. 53) is GRANTED
4 including extending plaintiff's time to file and serve his reply to 5 OPM's response to his cross-motion for summary judgment until 30 6 days after the OPM's Office of General Counsel decides plaintiff's 7 appeal regarding the fee estimate. 8 9 10 11 12 13 14 Copies to counsel of record and plaintiff pro se 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5DATED this 12th day of January, 2009.
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