[February 27, 1997]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

    ____________________________________
                                        )
    PETER D. JUNGER,                    )      CASE NO. 96 CV 1723
                                        )
         Plaintiff                      )
                                        )      JUDGE DONALD C. NUGENT
    v.                                  )
                                        )
    MADELEINE K. ALBRIGHT, Secretary of )
    State of the United States, et al1  )
                                        )
         Defendants.                    )
                                        )
    ____________________________________)

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
TO REFILE PROPOSED MEMORANDUM OPINION WITH EXHIBITS AND
DEFENDANTS' CROSS-MOTION TO STRIKE NEW AFFIDAVITS AND EXHIBITS

OPPOSITION AND CROSS-MOTION TO STRIKE

On February 10, 1997, plaintiff originally served his proposed findings of facts and conclusions of law in this case, labeled a "Proposed Memorandum Opinion," along with nine new affidavits and exhibits. On February 13, 1997, plaintiff served a "Motion to Refile

_______________________

> 1 Pursuant to Fed.R.Civ.P. 25(d), Secretary of State Albright is automatically substituted as a defendant in this action in her official capacity.

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Proposed Memorandum Opinion With Exhibits" seeking leave to file the new evidentiary material accompanying his proposed opinion. On February 24, 1997, plaintiff filed a Second (Corrected) Motion to Refile Proposed Memorandum Opinion, seeking leave to file his nine additional exhibits. Plaintiff also filed a tenth new exhibit, the Third Declaration of Gino J. Scarselli attaching a letter dated February 7, 1997, from the American Association for the Advancement of Sciences ("AAAS") to the Commerce Department.

Defendants, through their undersigned counsel, oppose plaintiff's motion to refile his new affidavits and exhibits and hereby file a cross-motion to strike these ten new affidavits and exhibits. The grounds for this motion are set forth in the following memorandum of points and authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On November 20, 1996, the Court heard argument on cross-motions for summary judgment in this matter and, thereafter, requested that the parties submit proposed findings of fact and conclusions of law. Defendants filed proposed findings and conclusions on February 6, 1997. Plaintiff filed his Proposed Memorandum Opinion four days out of time on February 10, 1997, along with nine new affidavits and exhibits, including videotaped testimony. Plaintiffs submission of these affidavits and exhibits with his proposed findings and conclusions violates the Federal Rules of Civil Procedure, and these materials should be struck by the Court.2

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2 Defendants' position herein covers plaintiff's original submission of nine exhibits on February 10, 1997, and his first motion of February 13, 1997, and second corrected motion of February 24, 1997, to refile these exhibits, including the tenth AAAS exhibit.

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ARGUMENT

PLAINTIFF'S ADDITIONAL AFFIDAVITS AND EXHIBITS SHOULD BE STRUCK

Rule 6(d) of the federal Rules of Civil procedure requires that when a motion, including a motion for summary judgment, "is supported by affidavit, the affidavit shall be served with the motion . . ." Fed.R.Civ.P. 6(d) (emphasis added).

> The language of the rule is clear. Affidavits in support of a motion must be served with the motion.

In Re Stone 588 F.2d 1316, 1321 (10th Cir. 1978).3 The Court has the discretion under Rule 6(b) to permit affidavits to be served after a motion has been filed where the failure to act in a timely fashion was due to excusable neglect. Lujan v. National Wildlife Federation, 497 U.S. 874, 894-898 (1989); Eguia v. Tompkins, 756 F.2d 1130, 1136, n. 6 (5th Cir. 1985); Useden v. Acker, 947 F.2d 1563, 1571-72 and n.11 (11th Cir. 1991), cert. denied, 508 U.S. 959 (1993).4

Plaintiff has not obtained leave of the Court to submit further evidentiary materials with his proposed findings of act and conclusions of law. Lujan, 497 U.S. at 896-98. In addition, plaintiff has not demonstrated any excusable neglect in filing these affidavits and

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> 3 Indeed, filing an affidavit on the date of the summary judgment hearing would be too late and adequate grounds for exclusion. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir. 1983), cert. denied, 465 U.S. 1081 (1984).

> 4 Affidavits may also be filed for the first time with a reply brief to address points raised in an opposition brief. Smith v. Burns Clinic Medical Center, P.C., 779 F.2d 1173, 1175 n.6 (6th Cir. 1985).

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exhibits several months after his motion for summary judgment was filed and oral argument heard.5 Indeed, plaintiff offers no reason for his delay in submitting these materials.

Nor has plaintiff made any showing that these materials constitute newly discovered evidence or information that he could not have obtained and submitted with his summary judgment motion. This material is either cumulative of what was originally presented, or should have been submitted with plaintiff's motion. For example, Prof. Junger himself submits a second declaration that largely repeats his earlier averments. Whatever new averments he makes could have, and should have, been made in his first declaration. Plaintiff also submits the declaration of another individual, Matthew Blaze, for whom plaintiff previously submitted a declaration. Again, any averments that are not cumulative of his first declaration should have been made at that time.6

Defendants would clearly be prejudiced if the Court relied on any of these materials at this time. Defendants did not receive plaintiff's new declarations and exhibits until five days after proposed findings of facts and conclusions of law were due and, indeed, yet another on February 25, 1997. Defendants did not have an opportunity to review this material before submitting our summary judgment briefs, or before presenting argument to the Court, or before preparing our own proposed findings and conclusions. Defendants were not notified that plaintiff intended to obtain and submit narrative testimony on videotape. Accordingly, defendants have had no opportunity to address or counter any of this material

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5 Excusable neglect is not established by mere inadvertence or oversight by counsel, see Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984), or an unfortunate tactical decision. See Slaughter v. Southern Talc Co., 919 F.2d 304, 307 (5th Cir. 1990).

6 Plaintiff's new materials also contain hearsay and irrelevant evidence, and would be subject to these objections as well.

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through additional declarations, other exhibits, or specific argument. Nor have we had occasion to answer any questions that the Court might have as to this evidence. Coming at the last possible stage of summary judgment proceedings, plaintiff's submission is inappropriate.

Plaintiff's suggestion that defendants could file additional exhibits at this time does not cure his procedural error, and has little to commend it.7 In the first place, defendants have moved to dismiss this action for lack of jurisdiction, a threshold legal issue to be resolved prior to reaching the merits or considering any additional evidentiary material. With respect to the pending summary judgment motions, the parties have already submitted a voluminous record to the Court that addresses the pertinent issues. Plaintiff seeks to start the evidentiary process over again. If the Court finds that it has jurisdiction, or otherwise decides to reach the merits, or grants plaintiff's recent motion to supplement his complaint to challenge new applicable regulations,8 and determines that another round of summary judgment briefs, with more exhibits and declarations, is necessary, then additional materials could be submitted by both parties. Under the present procedural posture, however, where the Court has already heard argument on the pending motions and received evidence, and has not invited more evidence or yet decided the jurisdictional issues or how the case will proceed, plaintiffs additional affidavits and exhibits should be struck.

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7 See Plaintiff s Motion To Refile Proposed Memorandum Opinion With Exhibits at 1-2.

> 8 On February 14, 1997, plaintiff moved for leave to supplement his complaint. Defendants have filed a separate response to that motion.

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CONCLUSION

For the foregoing reasons, plaintiff s motion to file ten new affidavits and exhibits with his proposed memorandum opinion should be denied, and defendants' cross-motion to strike these new exhibits should be granted. A proposed Order is attached hereto.

Respectfully Submitted,

FRANK W. HUNGER
Assistant Attorney General

EMILY M. SWEENEY
United States Attorney

VINCENT M. GARVEY
Deputy Branch Director

[Signature]

ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, D.C. 20530
Tel. (Voice): (202) 514-4782
(FAX): (202) 616-8470 or 616-8460

Attorneys for the Defendants

Date: February 27, 1997

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

    ____________________________________
                                        )
    PETER D. JUNGER,                    )      CASE NO. 96 CV 1723
                                        )
         Plaintiff                      )
                                        )      Judge Nugent
         v.                             )
                                        )
    MADELEINE K. ALBRIGHT, Secretary of )
    State of the United States, et al   )
                                        )
         Defendants.                    )
                                        )
    ____________________________________)

ORDER

Upon consideration of Defendants' Motion To Strike New Affidavits And Exhibits submitted with plaintiff's Proposed Memorandum Opinion, the record of this case, and good cause appearing, it is

HEREBY ORDERED THAT defendants' motion to strike shall be and hereby is GRANTED; and it is

FURTHER ORDERED THAT the ten affidavits and exhibits submitted by plaintiff with his Proposed Memorandum Opinion shall be and hereby are struck from this submission.

IT IS SO ORDERED:

DATE: _____________

__________________________________
United States District Judge

[7]

CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of February 1997, a copy of the foregoing Defendants' Opposition to Refile Memorandum Opinion With Exhibits and Defendants' Cross-Motion To Strike New Affidavits And Exhibits, via overnight express mail, on:

Gino J. Scarselli
664 Allison Drive
Richmond Hts., Ohio 44143
Tel: (216) 291-8601

[Signature]

ANTHONY J. COPPOLINO