Weisner v. Animal and Plant Health Inspection Service

Filing 25

ORDER granting in part 24 Motion to Vacate Dismissal - The court reopens this case for the limited purpose of filing, briefing, and disposition of plaintiff's motion for attorneys' fees. Plaintiff shall have fourteen (14) days from date of entry ofthis order to file motion seeking attorneys' fees, and defendants shall have fourteen (14) days thereafter to respond. Signed by District Judge Louise Wood Flanagan on 02/06/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:10-CV-568-FL

RONIA WEISNER,
Plaintiff,
v.

ANIMAL AND PLANT HEALTH
INSPECTION SERVICE and UNITED
STATES DEPARTMENT OF
AGRICULTURE,

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ORDER

Defendants.

This matter comes before the court on plaintiff s motion to vacate dismissal of case, filed
February 4,2012 (DE # 24). For the following reasons, plaintiffs motion is granted, and the case
is reopened for the limited purpose of allowing filing and disposition of plaintiffs motion for
attorneys' fees.
BACKGROUND
Plaintiff Ronia Weisner ("plaintiff') filed complaint on December 13,2010, and amended
complaint on February 16, 2011. Plaintiff sues defendants Animal and Plant Health Inspection
Service ("APHIS") and United States Department of Agriculture ("USDA") (collectively,
"defendants") for violations of the Freedom ofInformation Act, 5 U.S.C. § 552.
Plaintiff alleges that on June 11, 2010, she submitted an online request for documents to
APHIS, under the Freedom of Information Act ("FOIA"), regarding a July 2008 incident that
allegedly led to the failure ofUnited Airlines, Inc. to transport her dog, Jeddah, from Dulles Airport

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in Virginia to Saudia Arabia. Plaintiff and her husband, Lieutenant Colonel John Weisner, filed in
this court a related suit against United Airlines for damages arising out of the loss of their dog.
Case management order entered March 23, 20 II. The parties have since filed three motions
to extend time in which to file dispositive motions. In each, the parties indicated that they were
nearing settlement. Most recently, in motion filed November 1, 2011, the parties informed:
A settlement in a separate administrative proceeding has been signed between the
Defendants and United Airlines. This settlement should obviate the need for further
action by the Court and completely resolve this matter. The only action that remains
to take place in the administrative action is for the Administrative Law Judge to
approve of the settlement. The parties expect that this will happen in the next two
weeks.
The above language strongly suggested to the court that settlement was imminent. However,
the parties failed to notify the court that settlement had been reached. On December 6, 2011, the
court set final pretrial conference for February 3, 2012, at 1:30 pm, at the United States Courthouse
in New Bern, North Carolina.

Notice of the hearing was entered on the case docket and

electronically mailed to plaintiff's counsel Steven M. Wise, at [e-mail], and Joseph
Powell Mustian, at [e-mail], and to defendants' counsel, W. Ellis Boyle, at
ellis. [e-mail], [e-mail].
Neither party appeared at the February 3, 2012 hearing. The court, relying on the parties'
joint representation in motion filed November 1,2011 that settlement was imminent, and on the
parties' failure to appear, dismissed the case with prejudice.
DISCUSSION
Plaintiff now moves to reopen the case for the limited purpose of filing motion for attorneys'
fees. Plaintiff s counsel informs ofdifficulty in contacting both his client and opposing counsel, and

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further states that he was unaware of the noticed pretrial conference.

Although plaintiff

acknowledges receipt of the documents sought by the complaint, plaintiff now seeks to move for
attorneys' fees under the Freedom of Information Act.
In its discretion, where the court relied in part upon the parties' joint presentation suggesting
no issues remained, and where the attorney for the government too failed to appear at the noticed
pretrial conference, the undersigned deems it appropriate to reopen this case for the limited purpose
of allowing plaintiff to file motion for attorneys' fees.
CONCLUSION
Accordingly, plaintiff's motion is GRANTED IN PART. The court reopens this case for the
limited purpose of filing, briefing, and disposition ofplaintiffs motion for attorneys' fees. Plaintiff
shall have fourteen (14) days from date of entry of this order to file motion seeking attorneys' fees,
and defendants shall have fourteen (14) days thereafter to respond.
SO ORDERED, this the

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day of February, 2012.

LOUISE W. FLANAGAN
United States District Court Judge

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