Federal Election Commission v. O'Donnell et al
MEMORANDUM ORDER re Defendants' motions (D.I. 76, 79) are DENIED. Signed by Judge Leonard P. Stark on 5/19/17. (ntl)
. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FEDERAL ELECTION COMMISSION,
C.A. No. 15-17-LPS
CHRISTINE O'DONNELL, et al.,
Pending before the Court are Defendants' motions for various extensions of time (D.I. 76)
and to supplement the record (D.I. 79). For the reasons stated below, the Court will deny the
Defendants first request that the Court extend the time for them to file a notice of
appeal. (D.I. 76 at 9) Defendants ask for a 30-day extension to the 30-day deadline for filing an
appeal under Federal Rule of Appellate Procedure ("FRAP") 4(a)(l)(A); that is, Defendants
request 60 days to appeal. (Id. 8-9) This case, however, involves a United States agency as a
party (the Federal Election Commission ("FEC")), meaning that Defendants have 60 days to file
a notice of appeal, pursuant to FRAP 4(a)(l )(B)(ii). Thus, Defendants already ~ave the relief
To the extent that Defendants are requesting an extension beyond 60 days, they
have failed to demonstrate the required "excusable neglect or good cause." FRAP 4(a)(S)(A).
Defendants' request is premised primarily on their need for additional time to hire appellate"
counsel. (See D.I. 76 at 7) But that is not the type of ''unforeseen or uncontrollable event" that is
sufficient to show good cause to extend an appeal deadline. See Joseph v. Hess Oil Virgin
Islands Corp., 651 F.3d 348, 355-56 (3d Cir. 2011). Nor do the relevant circumstances,
including the need to hire new counsel, establish any excusable neglect on Defendants' part. See
Ragguette v. Premier Wines & Spirits, 691F.3d315, 324-28 (3d Cir. 2012). To the contrary,
Defendants have known since September 2016 - when the Court granted summary judgment to
the· FEC on liability, which is the issue Defendants contend they have always been planning to
appeal (see, e.g., D.I. 76 at 2 ("[T]he core of this case has always been the validity and
enforcement of a regulation that will be fully explored on appeal."); D.I. 81at5 ("[T]his case has
always been aimed at an appeal.")-that they would need appellate counsel.
Defendants further request an extension of the deadlines for filing post-judgment
motions, such as a motion for reargument under Local Rule 7 .1. 5, a motion for amended or
additional filings under Federal Rule of Civil Procedure ("FRCP") 52(b), or a motion to alter or
amend the judgment under FRCP 59. (D.I. 76 at 9) The Court, however, cannot grant extensions
to the time limits provided in Rules 52(b) and 59(b), (d), and (e). See FRCP 6(b)(2). In any
event, there is no good reason to do so - Defendants' search for appellate counsel does not
warrant an extension, and in any case Defendants have had since last September to contemplate
Defendants also request a stay in the execution of the judgment pending a decision ;
on Defendants' post-judgment motions and pending appeal. (D.I. 76 at 9) Under FRCP 62(b),
"[o]n appropriate terms for the opposing party's security, the court may stay the ·execution of a
judgment," pending disposition of motions under Rules 50, 52(b), 59, or 60. Defendants have
not offered "appropriate terms" for the FEC's .security; nor have they attempted to demonstrate
that "providing adequate security is impossible or impractical." See Gallatin Fuels v.
Westchester Fire Ins. Co., 2006 WL 952203, at *2 (W.D. Pa. Apr. 12, 2006). Thus, the Court
will not grant a stay pending post-judgment motions.
With respect to a stay pending appeal, Rule 62(d) provides that an appellant may
obtain a stay of monetary judgment pending appeal by posting a supersedeas bond. The Court,
however, "may forego that requirement when there are other means to secure the judgment
creditor's interests." In re Diet Drugs, 582 F.3d 524, 552 (3d Cir. 2009). As with the requested
stay pending post-ju4gment motions, the Court is not convinced that the judgment is adequately
secured, and Defendants' arguments on this issue do not address the FEC' s concerns about the
security of the judgment. (See D .I. 76 at 8; D .I. 81 at 3) 1
Defendants further ask the Court to suspend the judgment to retain jurisdiction
over the case to consider post-judgment motions. (D.I. 76 at 9) But the Court need not take any
action to maintain jurisdiction over post-judgment motions of the sort that Defendants have
suggested they would file. See FRAP 4(a)(4).
Finally, Defendants request that they be allowed to supplement the record to
As the FEC writes:
[T]here is reason to believe that defendants will fail to satisfy the
judgment. ... [D]efendant Christine O'Donnell has refused to
provide any information in this litigation about her current income
or the location of any assets. Defendant Friends of Christine
O'Donnell's latest FEC report indicates that it has only $571.96
cash on hand and $14,118.92 in debts .... At least one of
defendants' attorneys has already withdrawn from this matter citing
lack of payment.
(D.I. 78 at 7) (internal citations omitted)
introduce an article written in 2010, in which O'Donnell references security 'concerns asso,ciated
with her residence. (D.I. 79 at 3) It is within the Court's discretion to allow O'Donnell to
supplement the record; in exercising such discretion, courts generally consider "1) the timing of
the motion and the moving party's explanation for failing to introduce the evidence earlier,
2) whether the evidence sought to be introduced is especially important or probative and
3) whether reopening will cause undue prejudice to the nonmoving party." In re Chemed Corp.,
2017 WL 1712530, at *5 & n.5 (D. Del. Apr. 25, 2017). Here, the Court exercises its discretion
to deny the request.
Defendants' motion is woefully untimely. It comes more than one year after the
clos·e of discovery (D.I. 41 at 2), more than seven months after the Court granted the FEC
summary judgment on liability, and after the Court assessed an appropriate remedy. (See D.I. 82
at 4) ("[Defendants] made no attempt to contradict the FEC when it argued that the sham-address
theory was first put forward by [D]efendants at O'Donnell's deposition, and they made no
attempt to correct the Court's similar statements in the seven months between the issuance of the
liability opinion and the remedies opinion, despite the fact that defendants filed two joint status
reports and two letter briefs in those intervening months.") Defendants provide no persuasive
explanation for their untimeliness. To the contrary, there is no doubt that O'Donnell knew since
approximately 2010 that she had cited security concerns in at least one press account, 2 yet in this
litigation it was not until her February 2016 deposition that she chose first to raise this issue as
the basis for using campaign funds to pay for her personal residence.
See, e.g., D.I. 79 at 2 (Defendants arguing, "Ms. O'Donnell announced the 'security
measures explanation' (as the Court identifies) before September 2, 2010, before Melanie Sloan
filed her complaint [on September 20, 2010] and before the FEC began to investigate.").
Moreover, the article O'Donnell belatedly seeks to add to the record is not
especially important or particularly probative of any issue in the case. The inconsistency the
Court identified in O'Donnell's security measures explanation was just one of many points that
went into the Court's discretionary determination of the appropriate remedy. Contrary to
Defendants' assertion, "the Court's belief that there was only recent fabrication" is not "the most
significant and central factual proposition in the case" and is not even "a central fact upon which
the entire case turns." (D.I. 79 at 3) Most pertinent to resolution of the motion to supplement is
the fact that, as the FEC observes, "[i]t remains undisputed that defendants never argued in this
matter that security concerns justified their personal use of campaign funds until O'Donnell's
2016 deposition." (D.I. 82 at 1; see also id. at 7 ("O'Donnell may have mentioned security
concerns to a reporter in 2010, but that does not change the factual claims and legal arguments
defendants pursued before the Court."))3
To the extent that Defendants' motion to supplement is also a request under Rule
52(b) to amend findings, under Rule 59(e) to amend the Court's judgment, or under Local Rule
7.1.5 for reargument (D.I. 79 at 5; D.I. 83 at 3), Defendants do not meet the high standards to
warrant these types of relief. See Roadmaster (USA) Corp. v. Calmodal Freight Sys., Inc., 153 F.
App'x 827, 829 (3d Cir. 2005) (Rule 52(b)); N River Ins. Co. v. CIGNA Reinsurance Co., 52
F.3d 1194, 1218 (3d Cir. 1995) (Rule 59(e)); MobileMedia Ideas, LLC v. Apple Inc., 966 F.
Supp. 2d 433, 437 (D. Del. 2013) (reargument). There is no indication that-this article is newly
discovered. (See D.I. 82 at 6) And, importantly, the article does not contradict the Court's
While it appears there would be no significant prejudice to the FEC from supplementing
the record, this factor is far from dispositive in this circumstances of this cas~.
footnoted discussion about the security measures explanation, the Court's earlier analysis of the
issue in connection with determining liability, see FEC v . 0 'Donnell, 209 F. Supp. 3d 727, 73 8
(D. Del. 2016), or otherwise suggest that the Court misapprehended the relevant facts.
Accordingly, IT IS HEREBY ORDERED that Defendants' motions (D.I. 76, 79) are
May 19, 2017
HON. LEONARD P. STARK
UNITED STATES DISTRICT JUDGE
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