                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
SEBASTIAN PHILLIPS, et al.,      )
                                 )
               Plaintiffs,       )
                                 )
          v.                     ) Civil Action No. 11-2021 (EGS)
                                 )
RAYMOND E. MABUS, et al.,        )
                                 )
               Defendants.       )
________________________________)

                       MEMORANDUM OPINION

     Currently pending before the Court are: (1) federal

defendants’ renewed motion to dismiss Counts I, II, and IX of

the amended complaint or, in the alternative, for summary

judgment as to Counts I and II; (2) defendant Matthew Miller’s

motion for summary judgment as to the claims against him; (3)

plaintiffs Sebastian Phillips’ and Marine Design Dynamics,

Inc.’s motion for partial summary judgment as to Count I; (4)

federal defendants’ motion to strike plaintiffs’ motion for

partial summary judgment; (5) plaintiffs’ motion for summary

judgment as to the claims against Mr. Miller; and (6) Mr.

Miller’s motion to strike plaintiffs’ summary judgment motion as

to the claims against him. Upon consideration of the motions,

the responses and replies thereto, the applicable law, and the

entire record, federal defendants’ and Mr. Miller’s motions to

strike are DENIED. Federal defendants and Mr. Miller will have


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the opportunity to file briefs in opposition to plaintiffs’

summary judgment motions, and plaintiffs, in turn, will have the

opportunity to reply. The Court will then be in a position to

resolve cross-motions for summary judgment as to Count I against

federal defendants and as to the claims against Mr. Miller.

I.   Background

     Plaintiffs’ amended complaint asserts nine counts. Count I

asserts that federal defendants——a group of Navy officials——

violated plaintiffs’ constitutional right to due process by

blacklisting them from government contracting without procedural

safeguards, and seeks declaratory and injunctive relief. Am.

Compl., ECF No. 42 ¶¶ 99-121. Count II asserts the same claims

against federal defendants Charles Traugh and Michael Bosworth

in their individual capacities and seeks damages of $2.5

million. Id. ¶¶ 122-26. Counts III-VIII assert breach of

fiduciary duty and civil conspiracy against plaintiffs’ former

employees Michael Mazzocco, Volker Stammnitz, William Muras, and

Matthew Miller, and common law defamation against Mr. Mazzocco.

Id. ¶¶ 127-92. Count IX alleges common law interference with

contractual relations by federal defendants Mr. Traugh and

William Robinson in their official and individual capacities.

Id. ¶¶ 193-200. On September 30, 2012, the Court denied federal

defendants’ motion to dismiss or, in the alternative, for

summary judgment, and denied motions to dismiss filed by Mr.

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Mazzocco, Mr. Stammnitz, and Mr. Muras. Phillips v. Mabus, 894

F. Supp. 2d 71 (D.D.C. 2012).

     On October 23, 2012, the Court issued an order giving

federal defendants and plaintiffs until December 6, 2012 to

engage in settlement discussions and, in the event that

settlement discussions were unsuccessful, giving them until

March 5, 2013 to conduct limited discovery on the issues of

scope of employment (relevant to Count IX of the amended

complaint) and qualified immunity (relevant to Count II of the

amended complaint). See Minute Entry of October 23, 2012. No

settlement occurred, and on May 14, 2013, federal defendants

filed a renewed motion to dismiss or, in the alternative, for

summary judgment. See Fed. Defs.’ Renewed Mot. to Dismiss or, in

the Alternative, for Summ. J., ECF No. 88. Mr. Miller filed a

motion for summary judgment as to the claims against him that

same day. See Def. Matthew Miller’s Mot. for Summ. J., ECF No.

87. Plaintiffs, federal defendants, and Mr. Miller engaged in a

full round of briefing as to these motions. Federal defendants

raised certain arguments for the first time in their reply brief

in support of their renewed motion. See Fed. Defs.’ Reply, ECF

No. 104-1 at 4-6. Accordingly, on March 25, 2014 the Court

stayed proceedings in this case and directed plaintiffs to file

a surreply of no more than ten pages limited to addressing the



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facts and arguments raised for the first time in federal

defendants’ reply. See Minute Entry of March 25, 2014.

      Plaintiffs not only filed the surreply, see Pls.’ Surreply,

ECF No. 109, but also filed a motion for partial summary

judgment as to Count I of their amended complaint and a motion

for summary judgment as to the claims against Mr. Miller. See

Pls.’ Mot. for Partial Summ. J., ECF No. 107; Pls.’ Mot. for

Summ. J. Against Def. Matthew Miller, ECF No. 113. Federal

defendants then filed a motion to strike plaintiffs’ motion for

partial summary judgment as to Count I, see Fed. Defs.’ Mot. to

Strike Pls.’ Mot. for Partial Summ. J., ECF No. 108, and Mr.

Miller filed a motion to strike plaintiffs’ summary judgment

motion as to the claims against him. See Def. Matthew Miller’s

Mot. to Strike Pls.’ Mot. for Summ. J., ECF No. 115.

II.   Analysis

      Plaintiffs principally argue that the Court should deny the

motions to strike their summary judgment motions because Federal

Rule of Civil Procedure 12(f) only contemplates motions to

strike a “pleading,” and a motion for summary judgment is not

included in Federal Rule of Civil Procedure 7(a)’s list of

“pleadings.” Pls.’ Opp. to Fed. Defs.’ Mot. to Strike, ECF No.

110 at 1-2; Pls.’ Opp. to Def. Matthew Miller’s Mot. to Strike,

ECF No. 116 at 1-2. This argument fails, however, as the Court

does retain the discretionary authority to strike summary

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judgment motions if necessary “to tame . . . tempestuous

litigation.” Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d

2, 11 (D.D.C. 2004). Even so, the Court declines to exercise

that authority in this case. As detailed below, the Court finds

federal defendants’ and Mr. Miller’s arguments in support of

their motions to strike unavailing and is of the opinion that

the best course for this case is to permit one last set of

opposition and reply briefs, thereby permitting the Court to

resolve cross-motions for summary judgment as to Count I against

federal defendants and as to Counts VI and VIII against Mr.

Miller.

     A.   Federal Defendants’ and Mr. Miller’s Arguments in
          Favor of Striking Plaintiffs’ Summary Judgment Motions
          Are Unavailing

     Federal defendants and Mr. Miller argue that plaintiffs

have failed to comply with the Court’s March 25, 2014 order and,

consequently, plaintiffs’ summary judgment motions should be

stricken. Specifically, they allege that plaintiffs did not file

a surreply and did not limit their arguments to the facts and

arguments raised for the first time in federal defendants’ reply

in support of their renewed motion. Fed. Defs.’ Mem. Supp. Mot.

to Strike, ECF No. 108 at 3.1 But this argument fails——and


1 Mr. Miller “incorporates by reference all of the arguments made
by the federal defendants in their motion to strike” into his
motion to strike. Def. Miller’s Mem. Supp. Mot. to Strike, ECF
No. 115-1 at 3.
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federal defendants abandon it, see generally Fed. Defs.’ Reply

to Pls.’ Opp. to Mot. to Strike, ECF No. 111——because, as

plaintiffs explain, plaintiffs filed a timely and appropriately

limited surreply. See Pls.’ Opp. to Fed. Defs.’ Mot. to Strike,

ECF No. 110 at 2-3.

     Mr. Miller, however, advances a stronger argument when he

asserts that plaintiffs’ motions for summary judgment should be

stricken on the ground that plaintiffs violated the Court’s

March 25, 2014 order because that order stayed the proceedings

in this case and plaintiffs’ summary judgment motions were filed

after the stay. Def. Miller’s Mem. Supp. Mot. to Strike, ECF No.

115-1 at 2-3. Plaintiffs’ primary retort that the Court’s order

staying proceedings in this case made “no reference whatsoever

to Defendant Miller,” Pls.’ Opp. to Def. Matthew Miller’s Mot.

to Strike, ECF No. 116 at 2, is not persuasive for two reasons.

First, the stay was with regard to the “proceedings in this

case” and was not expressly limited to proceedings involving

just federal defendants. See Minute Entry of March 25, 2014.

Second, even if the stay had been limited to proceedings

involving just federal defendants, plaintiffs filed a post-stay

motion for partial summary judgment as to one of their claims

against federal defendants. Plaintiffs did therefore violate the

terms of the stay by filing their two summary judgment motions

after the stay was put in place, which authorizes the Court to

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strike their motions. Cf. Edisync Sys., Inc. v. Centra Software,

Inc., No. 03-1587, 2006 WL 1980633, at *1 (D. Colo. July 13,

2006); Brinco Mining Ltd. v. Fed. Ins. Co., 552 F. Supp. 1233,

1240 (D.D.C. 1982) (describing a court’s “inherent authority

over its own docket”).

     The Court, however, declines to exercise that authority

because, as plaintiffs accurately explain, federal defendants

and Mr. Miller have not been prejudiced by plaintiffs’ motions

for summary judgment. See Pls.’ Opp. to Fed. Defs.’ Mot. to

Strike, ECF No. 110 at 4; Pls.’ Opp. to Def. Matthew Miller’s

Mot. to Strike, ECF No. 116 at 3. There is no merit to federal

defendants’ and Mr. Miller’s assertion that they are

“prejudiced” by arguments made for the first time in plaintiffs’

summary judgment motions, see Fed. Defs.’ Mem. Supp. Mot. to

Strike, ECF No. 108 at 3, because they will have the opportunity

to file opposition briefs. Similarly, there is no merit to the

assertion that plaintiffs’ motions should be stricken as

duplicative of their earlier-filed opposition briefs. See Fed.

Defs.’ Reply to Pls.’ Opp. to Mot. to Strike, ECF No. 111 at 4;

Def. Miller’s Mem. Supp. Mot. to Strike, ECF No. 115-1 at 3. To

the extent that plaintiffs’ summary judgment motions merely

rehash the arguments put forth in their opposition briefs,

federal defendants and Mr. Miller are free to point that out to

the Court in their own opposition briefs and simply incorporate

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by reference any arguments they have already put in front of the

Court in their prior briefing.

     Federal defendants and Mr. Miller also argue that

plaintiffs’ summary judgment motions should be stricken on the

ground that plaintiffs failed to comply with the Court’s October

23, 2012 order. That order set a briefing schedule for federal

defendants’ renewed motion in the event that federal defendants

and plaintiffs were unable to reach a settlement. Minute Entry

of October 23, 2012. Federal defendants and Mr. Miller argue

that because that order in no way contemplated that plaintiffs

would be filing a dispositive motion, plaintiffs’ subsequent

summary judgment motions were filed in violation of the order

and should be stricken. Fed. Defs.’ Mem. Supp. Mot. to Strike,

ECF No. 108 at 4; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to

Strike, ECF No. 111 at 2-4. Although the Court is sympathetic to

the position that plaintiffs could have more clearly

communicated an intent to file a dispositive motion when the

Court initially set a briefing schedule for federal defendants’

renewed motion, the Court is still not convinced that striking

plaintiffs’ motions is the proper course of action. The Court’s

October 23, 2012 order did only address federal defendants’

renewed motion, but it did not preclude the filing of other

motions. And, in any event, given the opportunity federal

defendants and Mr. Miller will have to file opposition briefs,

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refusing to strike plaintiffs’ motions will not result in any

undue prejudice.

     Finally, federal defendants and Mr. Miller argue that

plaintiffs’ motions for summary judgment are untimely under

Federal Rule of Civil Procedure 56(b). Fed. Defs.’ Mem. Supp.

Mot. to Strike, ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’

Opp. to Mot. to Strike, ECF No. 111 at 4-6. Rule 56(b) states:

“Unless a different time is set by local rule or the court

orders otherwise, a party may file a motion for summary judgment

at any time until 30 days after the close of all discovery.”

Fed. R. Civ. P. 56(b). Federal defendants and Mr. Miller argue

that in its October 23, 2012 order, the Court mandated that the

parties would have until March 5, 2013 to conduct limited

discovery on the issues of scope of employment and qualified

immunity. Because plaintiffs’ summary judgment motions were

filed much later than 30 days after March 5, 2013, federal

defendants and Mr. Miller assert that plaintiffs’ motions should

be stricken as untimely. Fed. Defs.’ Mem. Supp. Mot. to Strike,

ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to

Strike, ECF No. 111 at 4-5. But plaintiffs are correct to

emphasize that the discovery schedule put in place by the Court

governed discovery limited to issues pertaining to Counts II and

IX of plaintiffs’ amended complaint. See Pls.’ Opp. to Fed.

Defs.’ Mot. to Strike, ECF No. 110 at 3-4; Pls.’ Opp. to Def.

                                9
Matthew Miller’s Mot. to Strike, ECF No. 116 at 3. No discovery

has yet occurred with regard to Counts I, VI, and VIII, which

are the Counts implicated by plaintiffs’ motions for summary

judgment. Thus “all discovery” has not yet closed with regard to

those Counts, so plaintiffs’ summary judgment motions are not

untimely under the Federal Rules. See Fed. R. Civ. P. 56(b).

     B.   Sanctions Are Not Warranted

     Plaintiffs seek attorneys’ fees and costs associated with

opposing the motions to strike should the Court determine that

the filing of federal defendants’ and Mr. Miller’s motions to

strike violates Federal Rule of Civil Procedure 11(b)(1). Pls.’

Opp. to Fed. Defs.’ Mot. to Strike, ECF No. 110 at 4-5; Pls.’

Opp. to Def. Matthew Miller’s Mot. to Strike, ECF No. 116 at 3-

4. Rule 11(b)(1) permits sanctions for the filing of a motion

that has “any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of

litigation.” Fed. R. Civ. P. 11(b)(1). Plaintiffs’ request for

sanctions is unavailing. First, it does not appear that

plaintiffs have complied with the procedural requirements of

Rule 11(c)(2). That provision states that a “motion for

sanctions must be made separately from any other motion” and

that the allegedly offending party, after being served with the

motion for sanctions, is to be given 21 days to withdraw or

correct the challenged filing before the motion for sanctions is

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presented to the court. Fed. R. Civ. P. 11(c)(2). Here,

plaintiffs’ requests for sanctions are not stand-alone motions

but rather are tacked on to their briefs in opposition to the

motions to strike, and the requests were not served on federal

defendants and Mr. Miller 21 days prior to the requests being

presented to the Court. See generally Pls.’ Opp. to Fed. Defs.’

Mot. to Strike, ECF No. 110; Pls.’ Opp. to Def. Matthew Miller’s

Mot. to Strike, ECF No. 116. Second, even assuming the proper

procedure was followed, plaintiffs have not shown that federal

defendants’ and Mr. Miller’s motions to strike have an improper

purpose. Particularly given the fact that all proceedings in

this case were stayed when plaintiffs filed their summary

judgment motions, see supra Part II.A, federal defendants and

Mr. Miller certainly had a colorable argument that the Court

should strike plaintiffs’ summary judgment motions. Accordingly,

sanctions under Rule 11(b)(1) are unwarranted.

III. Conclusion

     For the reasons stated above, federal defendants’ and Mr.

Miller’s motions to strike are DENIED. Federal defendants and

Mr. Miller will have an opportunity to file briefs in opposition

to plaintiffs’ motions for summary judgment, and plaintiffs

will, in turn, have an opportunity to reply. An appropriate

Order accompanies this Memorandum Opinion.

     SO ORDERED.

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Signed:   Emmet G. Sullivan
          United States District Judge
          November 4, 2016




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