Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
UWBK 5-30-2012 UWBK REPLY IN SUPPORT OF MOTION TO STRIKE

UWBK 5-30-2012 UWBK REPLY IN SUPPORT OF MOTION TO STRIKE

Ratings: (0)|Views: 110|Likes:
Published by Griswold
UNITED WESTERN BANK, )
)
Plaintiff, )
)
v. )
)
OFFICE OF THE COMPTROLLER )
OF THE CURRENCY, et al., )
)
Defendants. )
_______________________________________)
1:11-cv-00408
The Honorable Amy Berman Jackson
REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVE
RECORD
UNITED WESTERN BANK, )
)
Plaintiff, )
)
v. )
)
OFFICE OF THE COMPTROLLER )
OF THE CURRENCY, et al., )
)
Defendants. )
_______________________________________)
1:11-cv-00408
The Honorable Amy Berman Jackson
REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVE
RECORD

More info:

Published by: Griswold on May 30, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

05/30/2012

pdf

text

original

 
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
_______________________________________)UNITED WESTERN BANK, ))Plaintiff, ))v.
 
))OFFICE OF THE COMPTROLLER )OF THE CURRENCY,
et al.
, ))Defendants. )_______________________________________)1:11-cv-00408The Honorable Amy Berman Jackson
REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVERECORD
Defendants are wrong in asserting that they are free to do whatever the Local Rules donot expressly
 prohibit 
them from doing.
See
ECF No. 103 at 3 (arguing that “the rule does notpreclude a proponent of a Rule 56 motion from filing a separate Statement of Facts”). Therelevant Local Rules are clear and prescriptive. Motions and oppositions governed by (h)(1)may be “accompanied” by a “separate” statement of facts. But motions and oppositions fallingunder (h)(2), which Defendants concede applies here, should “include” a statement of factswithin them.
See
ECF No. 102 at 4 & n.2. There is no ambiguity: Defendants’ “statement of facts”—which is actually full of argument that is entitled to no weight—should never have beenfiled. Defendants may be used to making and interpreting the rules as they wish in theirregulatory domain, but they are obliged to follow the rules as written in federal court.Defendants at best misread
Koretoff v. Vilsack 
, No. 08-1558 (ESH), 2012 WL 130744, at*2 n.3 (D.D.C. Jan. 18, 2012), a case that addresses this very issue. Defendants are correct in
Case 1:11-cv-00408-ABJ Document 104 Filed 05/30/12 Page 1 of 4
 
 2noting that
Koretoff 
criticized the plaintiff’s use of extra-record materials.
 Id.
at *1 n.1. Yet
Koretoff 
also expressly criticized the plaintiff for filing a “separately paginated” statement of facts.
 Id.
at *2 n.3. Defendants miss this second point.Defendants’ alternative argument that their filing should be allowed because similarlyimproper filings were not challenged in other cases is nonsense.
1
There is no indication that anyparty objected to the submissions in those cases. All that can be said about them is that thecourts in those cases did not strike the procedurally defective documents
sua sponte
.
2
 
Cf. Ariz.Christian Sch. Tuition Org. v. Winn
, 131 S. Ct. 1436, 1448 (2011) (explaining that a conclusionthat is overlooked, not discussed, or assumed
sub silentio
is not precedent).Under the applicable rules, this is not the time for Defendants to argue that they neededmore pages to explain their seizure of the Bank.
See
ECF No. 103 at 6 n.7. If they neededadditional pages, they should have sought them from the Court before filing their memorandum.
See
LCvR 7(e) (barring memoranda of points and authorities exceeding 45 pages “without priorapproval of the court”). Having failed to do so, they must live with the consequences. Theseparate statement of facts should be stricken.
1
Oddly, several of Defendants’ cited cases did not involve relevant submissions that exceeded thepage limit. In
Kight v. United States
, No. 10-836 (D.D.C. filed May 17, 2010), the defendant’s separatestatement of facts and memorandum totaled only 34 pages.
See
ECF Nos. 16-1 and 1-2. In
 Bean Dredging LLC v. United States
, No. 08-1508 (D.D.C. filed Aug. 28, 2008), the defendant’s statement of facts and memorandum was 38 pages, while the plaintiff’s was just 19 pages.
See
ECF Nos. 19 and 20.And the government’s memorandum and statement of facts in
 Association of Civilian Technicians, Inc. v.United States
, No. 07-1747, (D.D.C. filed Sept. 27, 2007), was 44 pages (excluding signature blocks).
See
ECF No. 6. Defendants attempt to inflate the page count in each of these cases by counting exhibits.But exhibits are not attempts to evade the page limit on argument; Defendants’ submissions here are
.
 
2
In past cases, government parties have argued that Rule 7(h)(2) bars separate statements of fact.
See Def. Fed. Election Comm’n’s Mem. of Points & Auths. In Support of Its Mot. for Summ. J. and inOpp. to Pl.’s Mot. for Summ. J.
, 2 n.2,
 Nader v. FEC 
, No. 10-989 (D.D.C. filed Feb. 23, 2011), ECF No.17 (“Because this case involves review of an administrative record, the Commission includes thestatement of facts rather than a separate statement of material facts and genuine issues.
See
LCvR7(h)(2). In addition to his improperly-filed statement of material facts, plaintiff also …”). Applying
Case 1:11-cv-00408-ABJ Document 104 Filed 05/30/12 Page 2 of 4
 
 3Respectfully submitted, /s Andrew L. Sandler. Andrew L. Sandler (DC Bar No. 387825)Samuel J. Buffone (DC Bar No. 161828)Liana R. Prieto (DC Bar No. 987287)Michael R. Williams (D.C. Bar No. 994953)B
UCKLEY
S
ANDLER
LLP1250 24th St., NW, Suite 700Washington, DC 20037(202) 349-8001 (Telephone)(202) 349-8080 (Facsimile) /s Kirby D. Behre. Kirby D. Behre (DC Bar No. 398461)Lawrence D. Kaplan (DC Bar No. 415186)P
AUL
H
ASTINGS
LLP875 15th Street NWWashington, DC 20005(202) 551-1719 (Telephone)(202) 551-0119 (Facsimile) /s Theodore J. Abariotes. Theodore J. AbariotesDeputy General CounselU
NITED
W
ESTERN
B
ANCORP
,
 
I
NC
.700 17th Street, Suite 2100Denver, Colorado 80202(720) 932-4216 (Telephone)(720) 946-1218 (Facsimile)
 Attorneys for Plaintiff United Western Bank 
Dated: May 30, 2012
Defendants’ logic, one could construe courts’ failure to object to such arguments as tacit acceptance of their validity.
Case 1:11-cv-00408-ABJ Document 104 Filed 05/30/12 Page 3 of 4

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->