Case 2:12-cv-01605-SRB-BSB Document 48 Filed 09/30/13 Page 1 of 5

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STUART F. DELERY
Assistant Attorney General
ELIZABETH J. SHAPIRO
Deputy Branch Director
BRAD P. ROSENBERG (D.C. Bar No. 467513)
Trial Attorney
KIMBERLY L. HERB (Illinois Bar No. 6296725)
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 514-3374
Facsimile: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel David Rigmaiden,

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Plaintiff,
vs.

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Federal Bureau of Investigation, et al.,

No. CV-2012-01605-PHX-SRB(BSB)
CONSENT MOTION TO STAY
BRIEFING ON PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT AND TO CONTINUE
DEADLINE FOR JOINT STATUS
REPORT
(SECOND REQUEST)

Defendants.

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Defendants Federal Bureau of Investigation (“FBI”), Executive Office for United

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States Attorneys, Office of Information Policy, and United States Department of Justice

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(hereinafter, “Defendants”), by and through their undersigned counsel, hereby seek to

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stay briefing on Plaintiff’s Motion for Partial Summary Judgment, (ECF No. 42), and

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seek to continue the deadline for the filing of a joint status report, (ECF No. 41), from

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October 8, 2013 to October 18, 2013. As grounds for this motion, Defendants state as

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follows:

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1.

On August 12, 2013, the Court ordered that the parties “file dispositive

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motions by October 8, 2013, or file a status report with an update on the status of the

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litigation and the parties’ attempts to resolve or narrow the issues for the Court to

 Case 2:12-cv-01605-SRB-BSB Document 48 Filed 09/30/13 Page 2 of 5

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decide.” (ECF No. 41 at 1-2.)
2.

According to Plaintiff’s certificate of service, Plaintiff filed a Motion for

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Partial Summary Judgment and mailed it on August 28, 2013; the motion then was

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lodged on ECF on September 4, 2013, (ECF No. 42). Under Federal Rules of Civil

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Procedure 5(b)(2)(C), 6(a), and 6(d), as well as LRCiv. 56.1(d), Defendants’ deadline to

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respond may be as early as September 30, 2013.

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3.

While the FBI previously had determined that it could neither confirm nor

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deny the existence of records that were responsive to Plaintiff’s request under the

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Freedom of Information Act (“FOIA”), as it was considering how to respond to

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Plaintiff’s Motion for Partial Summary Judgment, the FBI reached a different

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determination. On September 25, 2013, the FBI sent Plaintiff a letter stating that it could

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now confirm the existence of records responsive to his request. Furthermore, the FBI

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outlined the number of pages associated with the request, the fees required to process it,

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and the formats in which the responsive records could be provided.

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4.

On September 26, 2013, undersigned counsel for Defendants spoke with

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Plaintiff by telephone. Counsel conveyed that the FBI had located responsive records

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and discussed the options for the processing of Plaintiff’s FOIA request.1 While the

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parties believe they may be able to reach an agreement related to the processing of

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Plaintiff’s FOIA request, they were unable to do so at that time, as each party wanted to

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consider issues raised by the other. Nonetheless, undersigned counsel proposed that the

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parties speak again on October 3, 2013 so that they could make a determination as to how

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to proceed.2 With respect to Plaintiff’s Motion for Partial Summary Judgment, the

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parties agreed that some issues discussed in the motion would be rendered moot by the

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At the time of the conference call, Plaintiff had not yet received the FBI’s letter
dated September 25, 2013.
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In the event of a government shut down on October 3, 2013, undersigned counsel
will not be able to speak with Plaintiff. However, counsel will seek to arrange a
telephone call with Plaintiff as soon as possible after the resumption of normal
government operations.

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FBI’s determination that it would respond to Plaintiff’s FOIA request. Accordingly, the

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parties also agreed to seek a stay of the briefing schedule on Plaintiff’s Motion for Partial

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Summary Judgment until they determined how to proceed on the underlying FOIA

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request.3

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5.

The parties seek to continue to confer regarding the processing of

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Plaintiff’s FOIA request, whether issues can be resolved or narrowed prior to summary

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judgment, and a proposed summary judgment schedule. The parties propose that they

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file a joint status report on October 18, 2013 regarding these issues.

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WHEREFORE, Defendants respectfully request that the Court adopt the following

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Order: 1. The parties shall file a new status report on or before October 18, 2013.

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Counsel for the government shall be responsible for coordinating the preparation of the

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status report; and 2. Briefing on Plaintiff’s Motion for Partial Summary Judgment, (ECF

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No. 42), shall be stayed pending the submission of a new status report on October 18,

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2013.

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DATED: September 30, 2013

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STUART F. DELERY
Assistant Attorney General

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ELIZABETH J. SHAPIRO
Deputy Branch Director

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/s/ Kimberly L. Herb
BRAD P. ROSENBERG
D.C. Bar No. 467513
KIMBERLY L. HERB
Illinois Bar No. 6296725
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044

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Respectfully submitted,

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Plaintiff was not able to see a draft of this motion before it was filed. Instead,
counsel for Defendants orally described the nature of their request and sought Plaintiff’s
consent on that basis.

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Telephone: (202) 514-3374
Facsimile: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov

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Attorneys for Defendants

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 Case 2:12-cv-01605-SRB-BSB Document 48 Filed 09/30/13 Page 5 of 5

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CERTIFICATE OF SERVICE
I hereby certify that on September 30, 2013, I served the attached document by

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first-class mail, postage pre-paid, on the following, who is not a registered participant of

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the CM/ECF system:

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Daniel D. Rigmaiden
Agency # 10966111
CCA-CADC
PO Box 6300
Florence, AZ 85132

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/s/ Kimberly Herb
BRAD P. ROSENBERG
D.C. Bar No. 467513
KIMBERLY L. HERB
Illinois Bar No. 6296725
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 514-3374
Facsimile: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov

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Attorneys for Defendants

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