Case 1:15-cv-00372-RP Document 74 Filed 04/26/17 Page 1 of 4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEFENSE DISTRIBUTED, et al.,

Plaintiffs,

v. No. 1:15cv372-RP

U.S. DEPARTMENT OF STATE, et al.,
Defendants.

INDIVIDUAL DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO STRIKE

Individual Defendants Kenneth B. Handelman, C. Edward Peartree, Sarah J. Heidema,

and Glenn Smith hereby file this opposition to Plaintiffs motion to strike. (ECF 73).

On October 1, 2015, almost 18 months ago, this Court entered a stay of all proceedings

while Plaintiffs appealed this Courts denial of their motion for a preliminary injunction as to the

official-capacity claims. (ECF 66). The Fifth Circuit, however, affirmed this Courts ruling. See

Defense Distributed v. U.S. Dept of State, 838 F.3d 451 (5th Cir. 2016). The Fifth Circuit issued

its mandate on April 4, 2017, after Plaintiffs unsuccessfully sought a stay in the court of appeals.

(ECF 68). A few weeks later, on April 20, 2017, the Official Capacity Defendants filed a motion

to stay proceedings as to official-capacity claims, pending resolution of Plaintiffs anticipated

certiorari petition. (ECF 70). The Individual Defendants did not oppose that request, which was

explicitly limited to the official-capacity claims.

However, on April 24, 2017, Plaintiffs filed a response indicating their non-opposition to

a stay of proceedings as to official-capacity claims that included an affirmative request that this

Court continue to stay all proceedings pending certiorari resolution, (ECF 71, at 2), in essence

seeking to extend the relief requested by the Official Capacity Defendants. As noted above, the

Fifth Circuit had denied a request to stay the mandate pending certiorari resolution. On April 25,

2017, the Individual Defendants therefore filed a response, reiterating their longstanding position

Individual Defendants Opposition to Plaintiffs Motion to Strike 1

 Case 1:15-cv-00372-RP Document 74 Filed 04/26/17 Page 2 of 4

(ECF 64) that while they did not oppose staying proceedings as to the official-capacity claims,

they did oppose delaying any further resolution of the individual-capacity claims, including the

latest request by Plaintiffs that this Court continue to stay all proceedings pending certiorari

resolution. (ECF 72).

Plaintiffs now move to strike that response because it purportedly seeks relief without

having filed a motion and without prior consultation with Plaintiffs, allegedly in violation of

Federal Civil Rule 7(b)(1) and Local Civil Rule 7(i). (ECF 73, at 1). Before Plaintiffs filed their

motion, however, on April 26, 2017, the parties, including the Official and Individual Capacity

Defendants, conferred. Understanding from that exchange that Plaintiffs simply wanted an

opportunity to further respond, counsel for the Defendants offered their non-opposition to

Plaintiffs filing a sur-reply so their views could be heard. Counsel for the Official Capacity

Defendants even offered to file a reply this morning to flag for the Court that Plaintiffs intended

to file an unopposed motion for leave to file a sur-reply so that this Court would not rule on the

substantive motion for stay before Plaintiffs had an opportunity to further respond. Plaintiffs

unfortunately chose to file the instant collateral motion to strike, necessitating this response.

This Court should deny the motion to strike. To put it plainly, Federal Civil Rule 7(b)(1)

is not implicated because the Individual Defendants did not request for a court order, and

Local Civil Rule 7(i) is not implicated because they did not file a motion. Instead, the

Individual Defendants, in their response, simply opposed Plaintiffs request to continue to stay

all proceedings (a stay broader than that sought by the Official Capacity Defendants and one

which the Fifth Circuit in essence denied when it issued its mandate) and reiterated their

longstanding position that any delay in resolving the individual-capacity claims is unwarranted.

(ECF 72). There is nothing for this Court to do in response to that filing. The next step, after this

Individual Defendants Opposition to Plaintiffs Motion to Strike 2

 Case 1:15-cv-00372-RP Document 74 Filed 04/26/17 Page 3 of 4

Court rules on the pending motion to stay the official-capacity claims, would have been for the

Individual Defendants to file a motion for leave to refile their motion to dismiss, which they

intended to do once this Court resolves the motion filed by the Official Capacity Defendants. But

we are not there yet. The unfortunate instant motion to strike was completely unnecessary.

Although Plaintiffs do not provide a basis for their motion to strike, the rule governing

motions to strike, Federal Civil Rule 12(f), applies only to pleadings, not motions. See Centex

Homes v. Lexington Ins. Co., No. 13-719, 2014 U.S. Dist. LEXIS 38710, *5 (N.D. Tex. Mar. 25,

2014); Groden v. Allen, No. 03-1685, 2009 U.S. Dist. LEXIS 133117, *7 (N.D. Tex. May 31,

2009). In any event, motions to strike, even under Rule 12(f), are viewed with disfavor and are

infrequently granted. Florance v. Buchmeyer, 500 F. Supp. 2d 618, 645 (N.D. Tex. 2007).

Plaintiffs have not justified their request here, and this Court should deny the motion to strike.

True to their previous representation, the Individual Defendants do not oppose the alternative

request that this Court grant Plaintiffs leave to file a sur-reply, but do continue to oppose the

request by Plaintiffs that this Court continue to stay all proceedings.

Respectfully submitted,

RICHARD L. DURBIN, JR. CHAD A. READLER

United States Attorney
Western District of Texas
ZACHARY C. RICHTER
Assistant United States Attorney
Western District of Texas
Acting Assistant Attorney General, Civil Division
C. SALVATORE DALESSIO, JR.
Acting Director, Torts Branch, Civil Division
MARY HAMPTON MASON
Senior Trial Counsel, Torts Branch, Civil Division

/s/ Siegmund F. Fuchs

SIEGMUND F. FUCHS
Trial Attorney, Torts Branch, Civil Division
U.S. Department of Justice
Ben Franklin Station, P.O. Box 7146
Washington, D.C. 20044-7146
Tel (202) 616-4322; Fax (202) 616-4314
E-mail: siegmund.f.fuchs@usdoj.gov
Attorneys for the Individual Capacity Defendants

Individual Defendants Opposition to Plaintiffs Motion to Strike 3

 Case 1:15-cv-00372-RP Document 74 Filed 04/26/17 Page 4 of 4

CERTIFICATE OF SERVICE

I certify that on April 26, 2017, I electronically filed this document with the Clerk of
Court using the CM/ECF system, which will send notification to

Alan Gura, alan@gurapossessky.com

William Mateja, mateja@polsinelli.com
W. Thomas Jacks, jacks@fr.com
David Morris, dmorris@fr.com
Matthew Goldstein, matthew@goldsteinpllc.com
Josh Blackman, joshblackman@gmail.com
Attorneys for Plaintiffs

Eric Soskin, eric.soskin@usdoj.gov

Stuart Robinson, stuart.j.robinson@usdoj.gov
Zachary Richter, Zachary.c.richter@usdoj.gov
Attorneys for Defendants

/s/ Siegmund F. Fuchs

SIEGMUND F. FUCHS
Trial Attorney

Individual Defendants Opposition to Plaintiffs Motion to Strike 4