                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 JULIO LOPEZ-PENA,

                 Plaintiff,

         v.                                                 Civil Action No. 19-2884 (RDM)

 DONALD TRUMP et al.,

                 Defendants.



                                              ORDER

       This case is before the Court on the Department of Justice’s motion to dismiss. Because

the motion appears to address a different Freedom of Information Act (“FOIA”) request than the

one identified in the complaint and motion for reconsideration, and because the Department only

addresses the correct FOIA request in a supplemental declaration submitted without further

briefing or explanation, the Court will deny the Department’s motion without prejudice to renew.

       Plaintiff alleges in his complaint that his “efforts to utilize” FOIA to obtain court records

regarding his criminal case were “refused, neglected, hidden, or ignored by the government.”

Dkt. 1 at 2 (Compl. ¶ 10). Plaintiff avers that he requested the documents twice, once from the

clerk of court and once through FOIA. Id. The complaint does not provide exact details about

the FOIA request at issue, but it does include a list of eight types of materials that Plaintiff

sought, including a copy of his arrest warrant, indictment, and grand jury transcripts. Id.

(Compl. ¶ 7). In his motion for reconsideration, Plaintiff repeats the same list of materials and

then specifies that his lawsuit is based on a FOIA request that he sent to the Department on

August 2, 2019. Dkt. 6 at 4. As an exhibit to his motion for reconsideration, Plaintiff attaches a
copy of that FOIA request, which was delivered to the Department on August 9, 2019. Dkt. 6-1.

The request seeks a similar, although not identical, set of materials as those listed in Plaintiff’s

complaint and motion for reconsideration, including a copy of his arrest warrant, indictment, and

grand jury transcripts. Id. at 2. The Court thus understands Plaintiff’s claims in this case to arise

from the FOIA request he allegedly submitted in 2019.

       The Department’s motion to dismiss, however, is directed at an entirely different FOIA

request—a request filed in 2013, with reference number ORACL-2014-01980, which sought

“any and all documents related to Case # S1-(05-Cr.191 DC) Southern District of New York.”

Dkt. 19-1 at 2; see also Dkt. 19-2 at 2–3 (Wilkinson Decl. ¶¶ 5–6); Id. at 7–8 (Ex. B). The

Department provides no briefing or argument with respect to the 2019 FOIA request. But one

day after filing its motion to dismiss, and without any explanation, the Department filed a

supplemental declaration addressing the Plaintiff’s 2019 FOIA request, asserting that the

Department never received that FOIA request. Dkt. 21-1 at 2 (Brinkmann Decl ¶ 5).

       Ordinarily, when a defendant appends a supplemental declaration to a motion to dismiss,

the motion must be treated as one for summary judgment. See Fed. R. Civ. P. 12(d). If the

supplemental declaration the Department offers had any bearing on the motion to dismiss that it

had previously filed and briefed, that approach might make sense. But, here, the Department has

never briefed—whether in the form of a motion to dismiss or a motion for summary judgment—

the issues that it addresses in the supplement declaration. Under these unique circumstances, the

Court concludes that the proper course is to deny the Department’s misdirected motion to

dismiss without prejudice on the ground that, as far as the Court can discern, it addresses the

wrong FOIA request, and to treat the supplemental declaration as premature on the ground that




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the Department has yet to move for summary judgment with respect to the FOIA request

addressed in that declaration.

       Accordingly, it is hereby ORDERED that the Department’s motion to dismiss is

DENIED without prejudice. If Plaintiff disagrees with the Court’s understanding that his

complaint and motion for reconsideration refer to only the 2019 FOIA request, it is hereby

ORDERED that he shall file a notice with the Court clarifying his claims on or before

September 4, 2020. It is further ORDERED that the Department shall respond to the complaint

on or before September 18, 2020, and may, to the extent it seeks to rely on materials outside the

pleadings, move for summary judgment on or before September 18, 2020.

       SO ORDERED.

                                                     /s/ Randolph D. Moss
                                                     RANDOLPH D. MOSS
                                                     United States District Judge
Date: August 11, 2020




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