State of Washington et al v. United States of America et al
Filing
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RESPONSE, by Plaintiff State of Washington, to #23 MOTION for Relief from deadlines. (Glasgow, Rebecca)
Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 1 of 5
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The Honorable Marsha J. Pechman
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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.
THE UNITED STATES OF AMERICA;
DONALD TRUMP, in his official capacity as
President of the United States of America,
et al.,
NO. 2:18-cv-00939-MJP
STATES’ OPPOSITION TO
DEFENDANTS’ MOTION TO
RE-NOTE/NOTE ALL PENDING
MOTIONS FOR THE SAME DATE
AND CONSOLIDATE FOR ORAL
ARGUMENT
NOTING DATE: JULY 20, 2018
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Defendants.
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STATES’ RESPONSE TO
MOTION TO RE-NOTE/NOTE ALL
PENDING MOTIONS FOR SAME DATE
2:18-cv-00939-MJP
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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 2 of 5
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I.
INTRODUCTION
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The States urge the Court to deny Defendants’ request to re-note the hearing date on the
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States’ Motion for Expedited Discovery. Dkt. 15. For all of the reasons set out in that Motion,
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which is fully briefed and ready for the Court’s review, further delay will only exacerbate the
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ongoing harms Defendants’ practices inflict on the States and their residents. Defendants’
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unrelated motion to dismiss or transfer (Dkt. 22) is properly noted as a fourth Friday motion, and
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the States will vigorously oppose that motion in due course. There is no legitimate basis to
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continue the States’ pending Motion in deference to the Defendants’ ill-conceived request to
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transfer this case elsewhere, stay it, or dismiss the lawsuit altogether.
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II.
ARGUMENT
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As explained in the States’ Motion for Expedited Discovery (Dkt. 15), time is of the
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essence because the States are challenging unconstitutional and harmful misconduct, but may
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lose access to key witnesses and evidence due to the immediate movement of separated parents
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and children across the nation and internationally. Defendants’ own rapidly changing policies
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and practices make them difficult to document as time passes. Delay will only prejudice the
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States.
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Contrary to Defendants’ suggestion, the motions are not so interrelated that they must be
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heard together simply because Defendants’ primary basis for resisting discovery is that they
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would rather have the case transferred, stayed, or dismissed. Defendants cite no authority for
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their position that a motion to dismiss should be decided prior to a motion for expedited
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discovery, especially where—as here—the States seek discovery precisely to better understand
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the impact Defendants’ misconduct has had on the States. See Dkt. 23 at 3 (arguing that “States’
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standing is relevant to the disposition of their motion for expedited discovery” and thus the motion
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STATES’ RESPONSE TO
MOTION TO RE-NOTE/NOTE ALL
PENDING MOTIONS FOR SAME DATE
2:18-cv-00939-MJP
2
ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 3 of 5
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for expedited discovery “should not be considered before the court rules on standing.”). To the
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contrary, the “good cause” test for expedited discovery does not overlap with standards governing
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motions to dismiss. See, e.g., Music Group Macao Commercial Offshore Limited, 2014 WL
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11010724 at *2 (good cause exists where there is a danger responding party will not preserve
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relevant information). Indeed, courts can and have allowed expedited discovery notwithstanding a
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pending motion to dismiss. OMG Fidelity, Inc. v. Sirius Tech., Inc., 239 F.R.D. 300, 304-05
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(N.D.N.Y. 2006) (ordering pre-answer, pre-conference discovery during the pendency of motion
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to dismiss).
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Defendants’ assertion that allowing this case to proceed would somehow “interfere with
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the orderly administration of the Ms. L class action, its injunction, and potentially risk inconsistent
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adjudications and obligations tied to the same claims,” is equally misplaced. Dkt. 23 at 3. This
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speculation is unwarranted, as the States have no interest in disrupting the reunification efforts
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required by the Ms. L Order. More importantly, litigation in another judicial district that touches on
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the same misconduct does not bar expedited discovery elsewhere, where the parties, claims, and
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relief sought are different and broader. Indeed, even if they were identical, courts have and can
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allowed parallel proceedings to go forward. See New York v. Pruitt, No. 18-cv-1030, 2018 WL
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2411595, at *4 (S.D.N.Y. May 29, 2018) (“[W]e should not automatically assume that it is better
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for a nationwide issue to be decided by a single court,” because “[i]t is a bedrock principle of
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our federal court system that the adjudication of novel and difficult issues of law is best served
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by letting questions percolate among the lower federal courts”). 1
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For example, District Courts for Western Washington, California, D.C, and Maryland issued preliminary
injunctions suspending the U.S.’s transgender military ban in whole or in part. Karnoski v. Trump, No. C17-1297MJP, 2017 WL 6311305 (W.D. Wash. Dec. 11, 2017); Stockman v. Trump, 2017 WL 9732572 (C.D. Cal. Dec. 22,
2017); Doe 1 v. Trump, 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Stone v. Trump, 2017 WL 5589122 (D. Md.
Nov. 21, 2017). Likewise, courts in three consolidated actions issued overlapping injunctions halting the U.S.’s
termination or phase out of the Deferred Action for Childhood Arrivals (DACA) program. Batalla Vidal v. Nielson,
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STATES’ RESPONSE TO
MOTION TO RE-NOTE/NOTE ALL
PENDING MOTIONS FOR SAME DATE
2:18-cv-00939-MJP
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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 4 of 5
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III.
CONCLUSION
For all of these reasons, as well as those set out in their Motion for Expedited Discovery,
the States respectfully request that the Court deny Defendants’ Motion to Re-Note (Dkt. 23).
DATED this 13th day of July, 2018.
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ROBERT W. FERGUSON
Attorney General
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/s/ Rebecca Glasgow
REBECCA GLASGOW, WSBA #32886
Deputy Solicitor General
NOAH G. PURCELL, WSBA #43492
Solicitor General
COLLEEN M. MELODY, WSBA #42275
Civil Rights Division Chief
LAURA K. CLINTON, WSBA #29846
MEGAN D. LIN, WSBA #53716
Assistant Attorneys General
Attorneys for Plaintiff State of Washington
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1:16-cv-04756 (E.D.N.Y.), Dkt. 208; Regents of the University of California v. DHS, No. 3:17-cv-05211 (N.D.
Cal.), Dkt. 234; NAACP v. Trump, 1:17-cv-01907 (D.D.C.), Dkt. 23.
STATES’ RESPONSE TO
MOTION TO RE-NOTE/NOTE ALL
PENDING MOTIONS FOR SAME DATE
2:18-cv-00939-MJP
4
ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 5 of 5
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DECLARATION OF SERVICE
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I hereby certify that on July 13, 2018, I electronically filed the foregoing document with
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the Clerk of the Court using the CM/ECF system, which will serve a copy of this document upon
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all counsel of record.
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DATED this 13th day of July, 2018, at Olympia, Washington.
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/s/ Rebecca Glasgow
REBECCA GLASGOW
Deputy Solicitor General
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STATES’ RESPONSE TO
MOTION TO RE-NOTE/NOTE ALL
PENDING MOTIONS FOR SAME DATE
2:18-cv-00939-MJP
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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
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