Hymas v. USA

Filing 116

ORDER denying 114 Motion for an Answer, Jury Trial, Discovery, Scheduling Conference, and Oral Argument; denying 115 Defendant's Motion to Dismiss for Lack of Prosecution. Signed by Judge Salvador Mendoza, Jr. (CV, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jul 13, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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SEAN F. MCAVOY, CLERK

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JAY HYMAS, d/b/a DOSMEN
FARMS,
Plaintiff,

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v.

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UNITED STATES DEPARTMENT OF
INTERIOR; RYAN ZINKE, Secretary
of the United States Department of the
Interior; JAMES W. KURTH, Acting
Director of the United States Fish and
Wildlife Service; and DOES I-X,

No. 4:16-CV-05091-SMJ

ORDER DENYING PLAINTIFF’S
MOTION FOR AN ANSWER AND
DEFENDANTS’ MOTION TO
DISMISS FOR LACK OF
PROSECUTION

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Defendants.
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On March 20, 2017, the Court dismissed each of Plaintiff Jay Hymas’s claims

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except for his claim in Count III of the Amended Complaint that the Fish and

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Wildlife Service’s awards of cooperative farming agreements in 2012, 2013, 2014,

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and 2015 were arbitrary, capricious, an abuse of discretion, and contrary to law.

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ECF No. 96 at 17–19. With respect to this remaining claim, the Court entered a

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scheduling order for anticipated summary judgment motions. ECF No. 101. The

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order directed the government to file the Administrative Record no later than May

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19, 2017, and directed Hymas to file a summary judgment motion no later than June

ORDER - 1

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19, 2017. Id. The government complied with this order, filing the Administrative

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Record on May 12, 2017. ECF No. 112.

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Hymas did not file a motion for summary judgment on or before June 19,

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2017. Instead, on July 10, 2017, he filed a Motion for an Answer, Jury Trial,

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Discovery, Scheduling Conference and Oral Argument. ECF No. 114. Because this

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case involves a challenge to administrative decisions documented by an extensive

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administrative record, it is likely this case may be resolved without further

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discovery. The Court therefore concludes it is not necessary to enter a scheduling

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order for discovery and trial until the Court considers whether to enter summary

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judgment based upon the administrative record. Accordingly, Hymas’s motion is

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denied.

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The government moves to dismiss Hymas’s remaining claim for failure to

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prosecute because Hymas failed to file a merits brief on his remaining claim in

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compliance with the Court’s scheduling order. ECF No. 115. While Rule 41(b)

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permits a court to dismiss for failure to prosecute or comply with a court order,

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dismissal on this procedural basis would be unfair here where Plaintiff is proceeding

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pro se and another court has found that Hymas’s claim has merit, see Hymas v.

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United States, 117 Fed. Cl. 466, 503–06 (2017). Accordingly, Hymas’s remaining

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claim should be resolved on the merits.

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ORDER - 2

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Hymas’s filings to date suggest that giving him another opportunity to file

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the first summary judgment motion would be unproductive. The Court therefore

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vacates the existing scheduling order, ECF No. 101, and sets new dates for briefing

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summary judgment as specified at the end of this order.

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The government has not answered or otherwise responded to the remaining

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claims in Hymas’s complaint. Pursuant to Federal Rule of Civil Procedure

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12(a)(4)(A) the government’s responsive pleading was due within 14 days after the

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Court’s order granting partial dismissal. See Sun v. Rickenbacker Collections, No.

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5:10-cv-1055-EJD, 2012 WL 2838782, at *2 (N.D. Cal. July 10, 2012) (“The

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majority of courts have held that Rule 12(a)(4)(A) also applies in circumstances

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where, as here, the defendant files a motion to dismiss that is only partially

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dispositive.”) The Court is unaware of any statute or rule excusing the government

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from its obligation to file a responsive pleading in this case. However, because the

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Court’s summary judgment scheduling order could have created confusion about

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the government’s obligation to file an answer, the Court now grants the government

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leave to file an appropriate responsive pleading within 14 days of this order.

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Accordingly, IT IS HEREBY ORDERED:

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1.

Plaintiff’s Motion for an Answer, Jury Trial, Discovery, Scheduling
Conference, and Oral Argument, ECF No. 114, is DENIED.

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ORDER - 3

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is DENIED.

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3.

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Defendant shall serve and file a motion for summary judgment no
later than August 11, 2017.

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Defendants shall file a responsive pleading to the remaining claims in
Plaintiff’s Amended complaint within 14 days of this order.

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Defendants’ Motion to Dismiss for Lack of Prosecution, ECF No. 115,

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Plaintiff shall serve and file any response to Defendant’s motion or a

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cross-motion for summary judgment no later than September 11,

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2017.

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summary judgment no later than September 25, 2017.

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The parties’ motions shall be noted for hearing on October 9, 2017 at
6:30 p.m. without oral argument.

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Defendants shall serve and file any reply in support of its motion for

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

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provide copies to all counsel and pro se plaintiff.

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DATED this 13th day of July 2017.

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__________________________
SALVADOR MENDOZA, JR.
United States District Judge

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ORDER - 4