State of Washington, et al., v. Trump., et al

Filing 178

RESPONSE, by Plaintiffs Commonwealth of Massachusetts, State of California, State of Maryland, State of New York, State of Washington, Intervenor Plaintiff State of Oregon, to 176 MOTION for Extension of Time to Respond to Plaintiffs' Second Amended Complaint. (Melody, Colleen)

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The Honorable James L. Robart

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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STATE OF WASHINGTON, et al.,

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Plaintiffs,
v.

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DONALD J. TRUMP, et al.,
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Defendants.
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No. 2:17-cv-00141-JLR
PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ MOTION FOR AN
EXTENSION OF TIME TO RESPOND TO
PLAINTIFFS’ SECOND AMENDED
COMPLAINT

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Eight weeks after first challenging a state’s ability to bring this case, and three days

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before the deadline to respond to the complaint, Defendants move for an extension of time to

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file a motion to dismiss. The Plaintiff States respectfully submit that a fourteen-day extension is

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sufficient. The Court should deny Defendants’ motion and order a responsive pleading by April

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17.

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I.

RELEVANT PROCEDURAL BACKGROUND

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Washington State filed this suit on January 30, seeking declaratory and injunctive relief

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against Executive Order 13769, which, among other things, banned travel from seven

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overwhelmingly Muslim countries and suspended the U.S. Refugee Admissions Program. ECF

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1. In its complaint, Washington alleged harms to its residents, students, faculty, educational

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institutions, economy, and businesses. ECF 1 ¶¶ 11-22. Minnesota joined the challenge on

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February 1, alleging similar harms. ECF 18 ¶¶ 30-36.

PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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In their February 2 opposition to the states’ request for a temporary restraining order

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(TRO), Defendants vigorously disputed state standing and the reviewability of the Executive

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Order. ECF 50 at 9-26. In granting the TRO, this Court rejected Defendants’ arguments,

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concluding that the states have standing and are likely to succeed on the merits of their claims.

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ECF 52 at 4-5. After Defendants renewed their justiciablity and merits arguments on appeal, the

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Ninth Circuit agreed that the states have standing and that the Executive Order is reviewable.

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Washington v. Trump, 847 F.3d 1151, 1158-64 (9th Cir. 2017) (per curiam).

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On March 9, the Court granted Oregon’s motion to intervene as a plaintiff. ECF 112. On

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March 13, Washington, California, Maryland, Massachusetts, New York, and Oregon (States)

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filed an amended complaint that reasserts challenges to Executive Order 13769 and adds

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challenges to Executive Order 13780, which bans travel from six majority-Muslim countries and

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again suspends the U.S. Refugee Admissions Program. ECF 118 at 2; ECF 118-1 ¶¶ 182, 185.

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The States reallege harms to an array of important proprietary, sovereign, and parens patriae

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interests, including to their residents, students, faculty, educational institutions, economy and

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businesses, health care providers, religious organizations, and to the States’ interest in preventing

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the federal government from establishing a disfavored religion or interfering with their anti-

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discrimination laws. ECF 118 at 4-13; ECF 118-1 ¶¶ 8-135. On March 17, in a sua sponte order

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imposing a limited stay of the States’ renewed TRO motion, the Court expressly stated that it

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did not “stay any other aspect of this litigation.” ECF 164 at 11.

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Defendants’ responsive pleading was due April 3. Defendants requested that the States

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agree to an extension of time to respond, and the States offered to stipulate to a fourteen-day

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extension and an April 17 due date. ECF 176 at 3. Defendants declined this offer and moved for

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an extension of time with no specified response date, pegged instead to their concurrently filed

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motion to stay all district court proceedings. ECF 176 at 1; see also ECF 175 at 1 (moving to

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PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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“stay district court proceedings”).1 Defendants filed no responsive pleading by the April 3

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deadline.

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II.

ARGUMENT

A. Relief from a Deadline Requires a Timely Motion and a Showing of Good Cause

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Federal Rule of Civil Procedure 6(b)(1) and Local Rule 7(j) govern motions for relief

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from a deadline. District courts may extend deadlines for good cause. Fed. R. Civ. P. 6(b).

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“‘[G]ood cause’ means scheduling deadlines cannot be met despite [a] party’s diligence.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting 6A Wright,

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Miller & Kane, Federal Practice and Procedure § 1522.1 at 321 (2d ed. 1990)). The good cause

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inquiry is more lenient early in a case, but nonetheless focuses on the moving party’s reasons—

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“[i]f that party was not diligent, the inquiry should end.” Johnson, 975 F.2d at 609.2 Rule 6(b)(1),

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“like all the Federal Rules of Civil Procedure,” is construed “to effectuate the general purpose

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of seeing that cases are tried on their merits.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

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1258-59 (9th Cir. 2010).

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Separate from the good cause standard, Local Rule 7(j) governs the timing of

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Defendants’ motion. “A motion for relief from a deadline should, whenever possible, be filed

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sufficiently in advance of the deadline to allow the court to rule on the motion prior to the

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deadline.” LCR 7(j). Where a “true, unforeseen emergency exists that prevents a party from

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meeting a deadline,” and “the emergency arose too late to file a motion for relief from the

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deadline,” that party may seek a stipulation or schedule a telephonic hearing. Id. In any event,

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Defendants request an extension until ten days after the Court resolves Defendants’ pending motion to
stay the district court proceedings in their entirety. See ECF 176 at 1; ECF 175-2 at 1 (proposed order staying “all
district court proceedings in this case”). The States will respond to Defendants’ motion to stay by the April 10
response deadline applicable to that motion. See LCR 7(d)(3).
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Defendants’ proposed extension—and particularly the indefinite extension they seek through a stay—
prejudices the States by delaying discovery of critical intent evidence and forestalling resolution of the important
merits issues in this case. Although the focus of the Rule 6(b) inquiry is “the moving party’s reasons for seeking [a
deadline] modification,” “the existence or degree of prejudice to the party opposing the modification might supply
additional reasons to deny a motion.” Johnson, 975 F.2d at 609. The States will more fully address prejudice from
delay in their response to Defendants’ stay motion.
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PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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“[p]arties should not assume that [a motion for relief from a deadline] will be granted and must

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comply with the existing deadline unless the court orders otherwise.” LCR 7(j).
B. No Good Cause—Let Alone Any Emergency—Justifies Defendants’ Motion

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Defendants have not argued, much less demonstrated, that any emergency prevented

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them from noting their motion on time. They also have not shown good cause that merits an

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extension beyond April 17 to respond to the States’ complaint.

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First, with respect to timing, Defendants had 60 days—nearly three times the period

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afforded any other defendant—to file a responsive pleading. Fed. R. Civ. P. 12(a)(2). It was due

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April 3. Defendants waited until three days before the deadline to file their motion, which is

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noted for April 7. ECF 176. Under these circumstances, Defendants’ motion is untimely, and

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only “a true, unforeseen emergency” excuses compliance with the motion deadline. LCR 7(j).

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Defendants do not cite this rule, but assert that an extension is required because (1) they are in

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the process of seeking a much longer (in fact, indefinite) extension through a stay, and (2)

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counsel have been occupied with briefing in other Executive Order litigation. See ECF 176 at 1-

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2.

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These are not unforeseen emergencies. Defendants’ stay motion is fully briefed, with no

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indication of having been conceived or drafted at the eleventh hour. And, of course, Defendants

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and their counsel were well aware of the briefing demands created by the issuance of the

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Executive Orders and resulting litigation. Neither justification explains why Defendants—with

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the ample legal resources of the Department of Justice—were unable to ensure their motion for

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an extension would be timely filed. Defendants should not benefit from a delay that overlooks

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the Local Rules.

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Even if Defendants’ motion had been timely noted, they fail to demonstrate good cause

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to be excused from the April 3 deadline. Defendants have made clear that their responsive

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pleading will be a motion to dismiss. ECF 176 at 2 (Defendants’ response “will likely be a motion

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to dismiss”); Joint Status Report & Discovery Plan, ECF 177 at 4 (“Plaintiffs’ claims are not

PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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justiciable because the States lack standing”); id. at 20 (“Defendants anticipate that the case can

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be resolved on a motion to dismiss or motion for summary judgment.”). They claim an extension

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is warranted because the appeal in Hawai‘i v. Trump, No. 17-15589 (9th Cir. Mar. 30, 2017), “is

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likely to provide substantial guidance” for their motion to dismiss. ECF 176 at 2. But Defendants

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already have significant guidance about the viability of state challenges to the Executive Orders,

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including two prior opinions in this case. Temporary Restraining Order, ECF 52 at 4-5;

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Washington, 847 F.3d at 1158-68; see also Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, ECF

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42 at 5-13 (E.D. Va. Feb. 3, 2017) (Virginia has standing to challenge Executive Order 13769);

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Aziz, No. 1:17-cv-00116-LMB-TCB, 2017 WL 580855, at *2-3, *5-9 (E.D. Va. Feb. 13, 2017)

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(Virginia’s claims are justiciable and Virginia is likely to prevail on the merits); Hawai‘i v.

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Trump, No. 17-cv-50-DKW-KSC, 2017 WL 1011673, at *7-9, *11-16 (D. Haw. Mar. 15, 2017)

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(Hawai‘i has standing to challenge Executive Order 13780 and is likely to prevail on the merits);

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Hawai‘i, No. 17-cv-50-DKW-KSC, 2017 WL 1167383, at *3-6 (D. Haw. Mar. 29, 2017) (same).

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With these opinions at hand, Defendants have sufficient guidance on the States’ standing and

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reviewability of the Executive Orders to permit them to respond to the complaint.

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Defendants further assert that an extension is needed to provide counsel “additional time

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to draft a response to the complaint in this case.” ECF 176 at 2. While counsel for the States are

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keenly aware of the time demands presented by this case, counsel for Defendants have already

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briefed state standing and the merits repeatedly and at length. See Defs.’ Opp. to Pl. State of

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Washington’s Mot. for Temporary Restraining Order, ECF 50 at 9-26; Emergency Mot. Under

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Circuit Rule 27-3 for Administrative Stay and Mot. for Stay Pending Appeal, Washington, No.

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17-35105, ECF 14 at 9-19 (9th Cir. Feb. 4, 2017); Mem. of Law in Opposition to the

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Commonwealth’s Mot. to Intervene, Aziz, No. 1:17-cv-116-LMB-TCB, ECF 34 at 2-9 (E.D. Va.

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Feb. 2, 2017); Resps.’ Mem. of Law in Opposition to Intervenor-Petitioner Commonwealth of

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Virginia’s Mot. for Preliminary Injunction, Aziz, No. 1:17-cv-116-LMB-TCB, ECF 80 at 9-27

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(E.D. Va. Feb. 8, 2017); Defs.’ Mem. in Opp. to Pls.’ Mot. for Temporary Restraining Order,

PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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Hawai‘i, No. 17-cv-50-DKW-KSC, ECF 145 at 14-21, 23-47 (D. Haw. Mar. 13, 2017); Defs.’

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Mem. in Opp. to Pls.’ Mot. to Convert TRO to PI, Hawai‘i, No. 17-cv-50-DKW-KSC, ECF 251

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at 14-29 (D. Haw. Mar. 24, 2017).3 At this point, justiciability and reviewability of the Executive

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Orders are familiar territory for Defendants, and two additional weeks to draft a motion to

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dismiss are sufficient.

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Finally, Defendants confess hope that they will not have to file a response at all (or at

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least not for a long time) because a response will be “unnecessary” if the Court grants the

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complete stay they seek. ECF 176 at 2. This goal is incompatible with the requirement that the

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Federal Rules of Civil Procedure, including Rule 6(b)(1), be administered to secure a just and

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speedy determination of each case on its merits. See Ahanchian, 624 F.3d at 1258-59 (citing Fed.

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R. Civ. P. 1, 6(b)). Defendants should be required to respond to the complaint no later than April

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17, the stipulated extension offered by the States.

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III.

CONCLUSION

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Defendants’ motion for an extension to file a responsive pleading is untimely and

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unsupported by good cause. The States respectfully request that the Court deny the motion and

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order Defendants to file a response by April 17.

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DATED this 5th day of April, 2017.

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Respectfully submitted,

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BOB FERGUSON, WSBA #26004
Attorney General of Washington

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_/s/ Colleen M. Melody___________
NOAH G. PURCELL, WSBA #43492
Solicitor General
COLLEEN M. MELODY, WSBA #42275
Civil Rights Unit Chief

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These citations are limited to briefs filed by Defendants in cases where a state has challenged the
Executive Orders. Defendants have submitted detailed briefing on the same or similar issues in many other cases
brought by private plaintiffs and organizations.

PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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ANNE E. EGELER, WSBA #20258
Deputy Solicitor General
MARSHA CHIEN, WSBA #47020
PATRICIO A. MARQUEZ, WSBA #47693
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]
[e-mail]

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PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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CERTIFICATE OF SERVICE

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I hereby certify that on April 5, 2017, I electronically filed the foregoing Plaintiffs’

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Response to Defendants’ Motion for an Extension of Time to Respond to Plaintiffs’ Second

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Amended Complaint using the Court’s CM/ECF system, causing a notice of filing to be served

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upon all counsel of record.

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Dated: April 5, 2017

/s/Colleen Melody__________
COLLEEN MELODY

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PLS.’ RESPONSE TO DEFS.’ MTN. FOR
EXTENSION OF TIME TO RESPOND TO
PLS.’ SECOND AMENDED COMPLAINT

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]