Case 1:18-cv-01759-PLF Document 23 Filed 08/02/18 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.M.M., on behalf of his minor child, J.M.A., et al., CIVIL ACTION NO. 18-1759 (PLF) Plaintiffs, v. Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., Defendants. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO TRANSFER VENUE Defendants’ Supplemental Brief in Support of Defendants’ Motion to Transfer, ECF No. 19 (“Defs.’ Suppl. Br.”), advances a new argument that the Court should sever Plaintiffs’ claims under Fed. R. Civ. P. 21 and transfer some of those claims to the Southern District of California. But the authorities cited in Defendants’ own brief make clear that severance is inappropriate here. Indeed, a case cited by Defendants plainly states that “Rule 21 applies when the claims asserted do not arise out of the same transaction or occurrence or do not present some common question of law or fact.” Tab Exp. Int’l, Inc. v. Aviation Simulation Tech., Inc., 215 F.R.D. 621, 623 (D. Kan. 2003) (emphasis added). Defendants’ brief expressly acknowledges this commonsense principle, arguing that “Rule 21 authorizes the severance of any claim . . . [where] they arise from different factual situations.” Defs.’ Suppl. Br. at 14 (quoting Khanna v. State Bar of California, No. C-07-2587 EMC, 2007 WL 2288116, at *2 (N.D. Cal. Aug. 7, 2007) (internal Case 1:18-cv-01759-PLF Document 23 Filed 08/02/18 Page 2 of 4 quotation marks omitted) (emphasis added)); see also id. at 13 (stating there is a “clear case” for severance where there are “one or two legal theories applied to multiple, unique factual situations”). This makes sense. Where claims are factually and legally distinct, severance does not risk duplication or inconsistent judgments. See Davidson v. Dist. of Columbia, 736 F. Supp. 2d 115, 120-21 (D.D.C. 2010) (granting severance of plaintiffs where plaintiffs were improperly joined and claims were not “logically related in any way” and did not “arise out of a common transaction or occurrence”). Here, however, all of Plaintiffs’ claims clearly do arise from the same transaction or occurrence and do present common questions of law and fact. Counts I-III of Plaintiffs’ Complaint challenge the government’s unlawful policy of deporting Plaintiffs (and other children) without first affording access to asylum procedures. See Compl. ¶¶ 108-30, ECF No. 4. Likewise, Count IV challenges the government’s unlawful policy of deporting Plaintiffs (and other children) without first affording access to asylum procedures. See id. at 40 ¶¶ 1-3 (realleging and incorporating paragraphs 1-130 of the Complaint). The claims arise from precisely the same facts and circumstances. And the relief requested for all counts is the same: (i) a declaratory judgment stating that the government’s conduct is unlawful pursuant to the INA, the APA, and/or the Fifth Amendment Due Process Clause; (ii) access to mandated asylum procedures; and (iii) the presence and assistance of Plaintiffs’ parents as they go through the process of seeking asylum. See id. at 40-41. Severance is therefore inappropriate under the very authorities cited in Defendants’ brief. See, e.g., Initiative & Referendum Inst. v. U.S. Postal Serv., 154 F. Supp. 2d 10, 13 (D.D.C. 2001) (refusing to sever and transfer claims against same defendant arising from same regulations because it would result in “duplicative litigation”). 2 Case 1:18-cv-01759-PLF Document 23 Filed 08/02/18 Page 3 of 4 Moreover, contrary to Defendants’ misleading arguments, see Defs.’ Suppl. Br. at 6-7, Counts I-III are not already before Judge Sabraw, in any shape or form. Thus, severing and transferring Counts I-III to Judge Sabraw would create (and would not eliminate) duplication and the risk of inconsistent outcomes because this Court would simultaneously hear the same claims pursuant to its exclusive jurisdiction under 8 U.S.C. § 1252(e)(3) that Judge Sabraw would then be considering under general federal question jurisdiction. The first case Defendants cite in favor of severance demonstrates that this is inappropriate. See Initiative & Referendum Inst., 154 F. Supp. 2d at 13. And Plaintiffs would be prejudiced as a result. Accord Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 104 F. Supp. 2d 279, 288 (S.D.N.Y. 2000) (“whether the party opposing the severance will be prejudiced if it is granted” is among factors to consider in determining whether severance would advance the administration of justice (internal quotation marks and citations omitted)). Finally, regardless of the Court’s decision on this issue, Plaintiffs request that the Court issue a temporary restraining order to maintain the status quo by continuing the current stay of removals at least until 48 hours after the Court resolves whether Plaintiffs are entitled to preliminary injunctive relief under 8 U.S.C. § 1252(e)(3) in the claims pending before this Court. August 2, 2018 HOGAN LOVELLS US LLP /s/ Justin Bernick Justin W. Bernick (DC Bar No. 988245) **T. Clark Weymouth **Zachary W. Best 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 justin.bernick@hoganlovells.com t.weymouth@hoganlovells.com zachary.best@hoganlovells.com 3 Case 1:18-cv-01759-PLF Document 23 Filed 08/02/18 Page 4 of 4 *Oliver J. Armas *Ira M. Feinberg 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 oliver.armas@hoganlovells.com ira.feinberg@hoganlovells.com *Katherine A. Nelson 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com *admitted pro hac vice ** admission to court pending Counsel for Plaintiffs 4