ETZENHOUSER et al v. VILSACK et al

Filing 34

MEMORANDUM OPINION re 32 ; 33 Defendants' Motions to Dismiss: See document for details. Signed by Judge Jia M. Cobb on November 22, 2024. (lcjmc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MATTHEW ETZENHOUSER, et al.,
Plaintiffs,

Case No. 23-cv-3539 (JMC)

v.
THOMAS J. VILSACK,
Secretary of Agriculture, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Matthew Etzenhouser and Taiga S. Rohrer, individually and as proposed putative
class representatives, brought this action against Thomas J. Vilsack, the Secretary of the
Department of Agriculture (in his individual and official capacities), and former Deputy Secretary
Jewel Bronaugh (in her individual capacity only), asserting claims under the Religious Freedom
Restoration Act (RFRA) and Title VII of the Civil Rights Act of 1964. See ECF 1, 27. 1 In July
2024, Defendants filed motions to dismiss Plaintiffs’ amended complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). ECF 32, 33. 2 To date—four months later— Plaintiffs,
who are represented by counsel, have neither filed an opposition to Defendants’ motions nor
requested an extension of time to do so. And they have not filed anything else on the docket or
taken other steps to prosecute this case since Defendants moved to dismiss. Because Plaintiffs have

Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by
omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to
documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the
top of each page.
2
Defendants in their individual capacities move to dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction
and failure to state a claim. ECF 32. They also claim qualified immunity, but the Court need not address that argument
given the posture and resolution of this case. Defendant Vilsack in his official capacity moves to dismiss for failure to
state a claim and, in the alternative, for summary judgment. ECF 33. The Court resolves Defendant’s motion to dismiss
and need not (and does not) consider his alternative motion for summary judgment.
1

1

failed to respond to Defendants’ motions to dismiss, the Court GRANTS Defendants’ motions as
conceded and DISMISSES the case without prejudice.
Local Civil Rule 7(b) requires an opposing party to file a memorandum of points and
authorities in opposition to a motion within 14 days of the service of the motion, or “the Court
may treat the motion as conceded.” LCvr 7(b). Defendants moved to dismiss Plaintiffs’ complaint
on July 22, 2024, making Plaintiffs’ response due on August 5, 2024. That deadline has come and
gone with no word from Plaintiffs.
Accordingly, the Court grants the Individual-Defendants’ motion to dismiss Plaintiffs’
RFRA claims for lack of subject matter jurisdiction as conceded. In response to a Rule 12(b)(1)
motion, Plaintiffs have the burden to establish that the Court has subject matter jurisdiction. See,
e.g., Berman v. Fed. Election Comm’n, No. 23-CV-01017, 2024 WL 3887373, at *2 (D.D.C. Aug.
20, 2024) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Having filed no
response at all, Plaintiffs have not satisfied their burden.
With respect to Defendants’ Rule 12(b)(6) motions, the Court acknowledges that the D.C.
Circuit has recognized some tension between the Federal Rule, which places the burden of
persuasion on the moving party, and Local Rule 7(b) that permits the Court to grant such a motion
where a plaintiff fails to respond. See Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia,
819 F.3d 476, 480, 481 (D.C. Cir. 2016). Nonetheless, it has consistently found that a district court
does not abuse its discretion in granting a motion to dismiss as conceded, provided that the
dismissal is without prejudice. Id. at 484; see also Wash. Alliance of Tech. Workers v. U.S. Dep’t
of Homeland Sec., 892 F.3d 332, 344 (D.C. Cir. 2018) (observing that “[w]e have endorsed
dismissing a complaint pursuant to Local Rule 7(b) if the plaintiff failed to timely file a response
in opposition to the defendant’s FRCP 12(b)(6) motion to dismiss”); Jordan v. Ormond,

2

No. 15-7151, 2016 WL 4098823, at *1 (D.C. Cir. July 22, 2016) (per curiam) (holding that “[t]he
district court did not abuse its discretion in dismissing appellant’s complaint pursuant to [Local
Rule] 7(b)”); 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”). The Court exercises its discretion to grant Defendants’ Rule
12(b)(6) motions as conceded. Defendants raise fulsome legal arguments in support of their request
for dismissal. The Court assumes that Plaintiffs concede the merits of Defendants’ positions since
they have filed no responsive pleadings or taken any actions that demonstrate their interest in
continuing to pursue this litigation, even though they are represented by counsel.
Accordingly, the Court will GRANT Defendants’ motions to dismiss, ECF Nos. 32 & 33,
and DISMISS the case WITHOUT PREJUDICE. A separate order accompanies this
memorandum opinion.
SO ORDERED.
__________________________
JIA M. COBB
United States District Judge
Date: November 22, 2024

3