Case 1:11-cv-00408-ABJ Document 104

Filed 05/30/12 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) ) OFFICE OF THE COMPTROLLER ) OF THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

REPLY IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVE RECORD Defendants are wrong in asserting that they are free to do whatever the Local Rules do not expressly prohibit them from doing. See ECF No. 103 at 3 (arguing that the rule does not preclude a proponent of a Rule 56 motion from filing a separate Statement of Facts). The relevant Local Rules are clear and prescriptive. Motions and oppositions governed by (h)(1) may be accompanied by a separate statement of facts. But motions and oppositions falling under (h)(2), which Defendants concede applies here, should include a statement of facts within them. See ECF No. 102 at 4 & n.2. There is no ambiguity: Defendants statement of factswhich is actually full of argument that is entitled to no weightshould never have been filed. Defendants may be used to making and interpreting the rules as they wish in their regulatory domain, but they are obliged to follow the rules as written in federal court. Defendants at best misread Koretoff v. Vilsack, No. 08-1558 (ESH), 2012 WL 130744, at *2 n.3 (D.D.C. Jan. 18, 2012), a case that addresses this very issue. Defendants are correct in

Case 1:11-cv-00408-ABJ Document 104

Filed 05/30/12 Page 2 of 4

noting that Koretoff criticized the plaintiffs use of extra-record materials. Id. at *1 n.1. Yet Koretoff also expressly criticized the plaintiff for filing a separately paginated statement of facts. Id. at *2 n.3. Defendants miss this second point. Defendants alternative argument that their filing should be allowed because similarly improper filings were not challenged in other cases is nonsense.1 There is no indication that any party objected to the submissions in those cases. All that can be said about them is that the courts in those cases did not strike the procedurally defective documents sua sponte.2 Cf. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 (2011) (explaining that a conclusion that is overlooked, not discussed, or assumed sub silentio is not precedent). Under the applicable rules, this is not the time for Defendants to argue that they needed more pages to explain their seizure of the Bank. See ECF No. 103 at 6 n.7. If they needed additional pages, they should have sought them from the Court before filing their memorandum. See LCvR 7(e) (barring memoranda of points and authorities exceeding 45 pages without prior approval of the court). Having failed to do so, they must live with the consequences. The separate statement of facts should be stricken.
1

Oddly, several of Defendants cited cases did not involve relevant submissions that exceeded the page limit. In Kight v. United States, No. 10-836 (D.D.C. filed May 17, 2010), the defendants separate statement of facts and memorandum totaled only 34 pages. See ECF Nos. 16-1 and 1-2. In Bean Dredging LLC v. United States, No. 08-1508 (D.D.C. filed Aug. 28, 2008), the defendants statement of facts and memorandum was 38 pages, while the plaintiffs was just 19 pages. See ECF Nos. 19 and 20. And the governments memorandum and statement of facts in Association of Civilian Technicians, Inc. v. United States, No. 07-1747, (D.D.C. filed Sept. 27, 2007), was 44 pages (excluding signature blocks). See ECF No. 6. Defendants attempt to inflate the page count in each of these cases by counting exhibits. But exhibits are not attempts to evade the page limit on argument; Defendants submissions here are. In past cases, government parties have argued that Rule 7(h)(2) bars separate statements of fact. See Def. Fed. Election Commns Mem. of Points & Auths. In Support of Its Mot. for Summ. J. and in Opp. to Pl.s Mot. for Summ. J., 2 n.2, Nader v. FEC, No. 10-989 (D.D.C. filed Feb. 23, 2011), ECF No. 17 (Because this case involves review of an administrative record, the Commission includes the statement of facts rather than a separate statement of material facts and genuine issues. See LCvR 7(h)(2). In addition to his improperly-filed statement of material facts, plaintiff also ). Applying
2

Case 1:11-cv-00408-ABJ Document 104

Filed 05/30/12 Page 3 of 4

Respectfully submitted,

/s Andrew L. Sandler Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) Michael R. Williams (D.C. Bar No. 994953) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile)

/s Kirby D. Behre Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile)

/s Theodore J. Abariotes Theodore J. Abariotes Deputy General Counsel UNITED WESTERN BANCORP, INC. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorneys for Plaintiff United Western Bank Dated: May 30, 2012

Defendants logic, one could construe courts failure to object to such arguments as tacit acceptance of their validity.

Case 1:11-cv-00408-ABJ Document 104

Filed 05/30/12 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 30th day of May 2012, a true copy of the foregoing was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Courts electronic filing system. Parties may also access this filing through the Courts electronic filing system.

. /s Liana R. Prieto Liana R. Prieto