Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 1 of 5 1 The Honorable Marsha J. Pechman 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 STATE OF WASHINGTON, et al., 9 10 11 12 Plaintiffs, v. THE UNITED STATES OF AMERICA; DONALD TRUMP, in his official capacity as President of the United States of America, et al., NO. 2:18-cv-00939-MJP STATES’ OPPOSITION TO DEFENDANTS’ MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR THE SAME DATE AND CONSOLIDATE FOR ORAL ARGUMENT NOTING DATE: JULY 20, 2018 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 STATES’ RESPONSE TO MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR SAME DATE 2:18-cv-00939-MJP 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 2 of 5 1 I. INTRODUCTION 2 The States urge the Court to deny Defendants’ request to re-note the hearing date on the 3 States’ Motion for Expedited Discovery. Dkt. 15. For all of the reasons set out in that Motion, 4 which is fully briefed and ready for the Court’s review, further delay will only exacerbate the 5 ongoing harms Defendants’ practices inflict on the States and their residents. Defendants’ 6 unrelated motion to dismiss or transfer (Dkt. 22) is properly noted as a fourth Friday motion, and 7 the States will vigorously oppose that motion in due course. There is no legitimate basis to 8 continue the States’ pending Motion in deference to the Defendants’ ill-conceived request to 9 transfer this case elsewhere, stay it, or dismiss the lawsuit altogether. 10 II. ARGUMENT 11 As explained in the States’ Motion for Expedited Discovery (Dkt. 15), time is of the 12 essence because the States are challenging unconstitutional and harmful misconduct, but may 13 lose access to key witnesses and evidence due to the immediate movement of separated parents 14 and children across the nation and internationally. Defendants’ own rapidly changing policies 15 and practices make them difficult to document as time passes. Delay will only prejudice the 16 States. 17 Contrary to Defendants’ suggestion, the motions are not so interrelated that they must be 18 heard together simply because Defendants’ primary basis for resisting discovery is that they 19 would rather have the case transferred, stayed, or dismissed. Defendants cite no authority for 20 their position that a motion to dismiss should be decided prior to a motion for expedited 21 discovery, especially where—as here—the States seek discovery precisely to better understand 22 the impact Defendants’ misconduct has had on the States. See Dkt. 23 at 3 (arguing that “States’ 23 standing is relevant to the disposition of their motion for expedited discovery” and thus the motion 24 STATES’ RESPONSE TO MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR SAME DATE 2:18-cv-00939-MJP 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 3 of 5 1 for expedited discovery “should not be considered before the court rules on standing.”). To the 2 contrary, the “good cause” test for expedited discovery does not overlap with standards governing 3 motions to dismiss. See, e.g., Music Group Macao Commercial Offshore Limited, 2014 WL 4 11010724 at *2 (good cause exists where there is a danger responding party will not preserve 5 relevant information). Indeed, courts can and have allowed expedited discovery notwithstanding a 6 pending motion to dismiss. OMG Fidelity, Inc. v. Sirius Tech., Inc., 239 F.R.D. 300, 304-05 7 (N.D.N.Y. 2006) (ordering pre-answer, pre-conference discovery during the pendency of motion 8 to dismiss). 9 Defendants’ assertion that allowing this case to proceed would somehow “interfere with 10 the orderly administration of the Ms. L class action, its injunction, and potentially risk inconsistent 11 adjudications and obligations tied to the same claims,” is equally misplaced. Dkt. 23 at 3. This 12 speculation is unwarranted, as the States have no interest in disrupting the reunification efforts 13 required by the Ms. L Order. More importantly, litigation in another judicial district that touches on 14 the same misconduct does not bar expedited discovery elsewhere, where the parties, claims, and 15 relief sought are different and broader. Indeed, even if they were identical, courts have and can 16 allowed parallel proceedings to go forward. See New York v. Pruitt, No. 18-cv-1030, 2018 WL 17 2411595, at *4 (S.D.N.Y. May 29, 2018) (“[W]e should not automatically assume that it is better 18 for a nationwide issue to be decided by a single court,” because “[i]t is a bedrock principle of 19 our federal court system that the adjudication of novel and difficult issues of law is best served 20 by letting questions percolate among the lower federal courts”). 1 21 22 23 1 For example, District Courts for Western Washington, California, D.C, and Maryland issued preliminary injunctions suspending the U.S.’s transgender military ban in whole or in part. Karnoski v. Trump, No. C17-1297MJP, 2017 WL 6311305 (W.D. Wash. Dec. 11, 2017); Stockman v. Trump, 2017 WL 9732572 (C.D. Cal. Dec. 22, 2017); Doe 1 v. Trump, 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Stone v. Trump, 2017 WL 5589122 (D. Md. Nov. 21, 2017). Likewise, courts in three consolidated actions issued overlapping injunctions halting the U.S.’s termination or phase out of the Deferred Action for Childhood Arrivals (DACA) program. Batalla Vidal v. Nielson, 24 STATES’ RESPONSE TO MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR SAME DATE 2:18-cv-00939-MJP 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 4 of 5 1 2 3 4 III. CONCLUSION For all of these reasons, as well as those set out in their Motion for Expedited Discovery, the States respectfully request that the Court deny Defendants’ Motion to Re-Note (Dkt. 23). DATED this 13th day of July, 2018. 5 ROBERT W. FERGUSON Attorney General 6 /s/ Rebecca Glasgow REBECCA GLASGOW, WSBA #32886 Deputy Solicitor General NOAH G. PURCELL, WSBA #43492 Solicitor General COLLEEN M. MELODY, WSBA #42275 Civil Rights Division Chief LAURA K. CLINTON, WSBA #29846 MEGAN D. LIN, WSBA #53716 Assistant Attorneys General Attorneys for Plaintiff State of Washington 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1:16-cv-04756 (E.D.N.Y.), Dkt. 208; Regents of the University of California v. DHS, No. 3:17-cv-05211 (N.D. Cal.), Dkt. 234; NAACP v. Trump, 1:17-cv-01907 (D.D.C.), Dkt. 23. STATES’ RESPONSE TO MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR SAME DATE 2:18-cv-00939-MJP 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 28 Filed 07/13/18 Page 5 of 5 1 DECLARATION OF SERVICE 2 I hereby certify that on July 13, 2018, I electronically filed the foregoing document with 3 the Clerk of the Court using the CM/ECF system, which will serve a copy of this document upon 4 all counsel of record. 5 DATED this 13th day of July, 2018, at Olympia, Washington. 6 /s/ Rebecca Glasgow REBECCA GLASGOW Deputy Solicitor General 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 STATES’ RESPONSE TO MOTION TO RE-NOTE/NOTE ALL PENDING MOTIONS FOR SAME DATE 2:18-cv-00939-MJP 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744