Case 1:11-cv-00408-ABJ Document 102

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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

PLAINTIFFS MOTION TO STRIKE DEFENDANTS STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVE RECORD Plaintiff United Western Bank (the Bank) respectfully moves to strike Defendants Statement of Facts with References to the Administrative Record. See ECF No. 100-2. Such a statement is not permitted in administrative review cases. See LCvR 7(h)(2). Thus, Defendants summary judgment submissions exceed the page limit of 45 pages set by the Local Rules of the United States District Court for the District of Columbia. See LCvR 7(e). Pursuant to Local Rule 7(m), Plaintiff informed Defendants of the intended motion. The Bank did not receive any response.

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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/ Lawrence D. Kaplan 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 22, 2012

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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

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS STATEMENT OF FACTS WITH REFERENCES TO THE ADMINISTRATIVE RECORD Defendants have filed 77 pages of briefing on a motion that is limited to 45 pages. Defendants first submitted a 40-page memorandum in support of their motion for summary judgment (and in opposition to United Western Banks motion for summary judgment). See ECF No. 100-1. But they also included a separate 37-page Statement of Facts With References to the Administrative Record. See ECF No. 100-2. This second document contains 107 separate paragraphs detailing Defendants view of the case.1 Having outlined the facts in this supplemental filing, Defendants separate memorandum then opines on various aspects of the case without providing a full recitation of the relevant facts. Defendants separate Statement of Facts should be stricken in its entirety, as the document is nothing more than an attempt to

In addition to facts, the statement is rife with argument. See, e.g., ECF No. 100-2 at 20 (The Investment Agreement was neither the first nor the last time the Bank proposed an unrealistic recapitalization plan to its regulators.); id. at 22 n.24 (The fact is that the Anchor Investors contingent promises were no more reliable than the Banks many previous promises that recapitalization was just a short period away.).

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evade the page limit set by the Local Rules. See LCvR 7(e). Defendants complete summary judgment submission should have been no more than 45 pages, including a statement of facts with references to the administrative record. See LCvR (h)(2). To be sure, in an ordinary civil case, motions for summary judgment should be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue. LCvR 7(h)(1) (emphasis added). Likewise, an opposition should include a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated. Id. But as Defendants in fact acknowledge in their improper statement of facts, ECF No. 100-2 at 1 n.1, this requirement shall not apply where, as here, judicial review is based solely on the administrative record. LCvR 7(h)(2); see Alliance for Natural Health U.S. v. Sebelius, 775 F. Supp. 2d 114, 118 (D.D.C. 2011). In those instances, the opposition or motion must include a statement of facts with references to the administrative record. LCvR 7(h)(2) (emphasis added). In other words, rather than submitting a separate document, Defendants should have included their facts within their opposition.2 See, e.g., Koretoff v. Vilsack, No. 08-1558, 2012 WL 130744, at *2 n.3 (D.D.C. Jan. 18, 2012) (In filing their motion for summary judgment, plaintiffs appended a separately paginated Statement of Material Facts in Support of Plaintiffs Motion for Summary Judgment. Defendant is correct in arguing that Plaintiffs submission was improper. (citations omitted)); Davis v. Pension Benefit Guaranty Corp., 815 F.Supp.2d 283, 292 (D.D.C. 2011) (Plaintiffs motion cites extensively to the attached statement of material facts not in genuine
2

The difference in language between LCvR 7(h)(1) and 7(h)(2) dictates this outcome. While the first paragraph states that the separate statement shall accompany[y] the motion, the second paragraph (applicable here) indicates that the statement of facts must be include[d] in the motion. Using the word include reflects that the facts would be provided within the motion. Compare Blacks Law Dictionary (9th ed. 2009) (defining include to mean [t]o contain as part of something), with id. (defining accompany to mean [t]o go along with; to attend).

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dispute, which does not belong in an administrative record case.).3 Because the complete submission exceeds the page limit by more than 30 pages, Defendants statement of facts should be stricken.4 Enforcing page limits and other restrictions on litigants is rather ordinary practice. Watts v. Thompson, 116 F.3d 220, 224 (7th Cir. 1997). Courts in this Circuit have stricken documents submitted on summary judgment that do not comply with the Local Rules, including page limitations. See, e.g., Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153-54 (D.C. Cir. 1996) (affirming decision to grant motion to strike statement of facts where statement did not comply with Local Rules); OAO Alfa-Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, 39 (D.D.C. 2005) (noting that the Court granted a motion to strike a motion for summary judgment for exceeding page limits and required offending party to file a renewed motion); Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2, 9-11 (D.D.C. 2004) (striking summary judgment submissions which did not conform to the requirements of Local Civil Rule 7(h), including the page limit). Local rules, after all, have the force of law. Hollingsworth v. Perry, 130 S.Ct. 705, 710 (2010) (quotation marks omitted); see also Gardels v. Cent. Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980) (Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rules purposes). Defendants should not be permitted to
3

This approach is consistent with the nature of review in a case concerning agency action. [W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote omitted). Ordinarily, appellant litigants include a statement of facts relevant to the issues submitted for review with appropriate reference to the record in the body of their briefs, not in a separate statement. Fed. R. App. 28(a)(7).

Although Federal Rule of Civil Procedure 12(f) speaks only to motions to strike pleadings, courts still may strike other documents as part of their inherent power to manage their dockets. See In re Johnson, 236 B.R. 510, 521-22 (D.D.C. 1999); see also Jones v. Metro. Life Ins. Co., No. C-08-03971JW, 2010 WL 4055928, *6 (N.D. Cal. Oct. 15, 2010) (listing cases). Courts in this Circuit have also invoked Local Civil Rule 7(h) as a basis to strike documents not in compliance with that rule. See, e.g.,

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ignore these mandates at significant expense to the Court, which is forced to expend precious judicial resources to digest all these extra pages. Defendants noncompliance also unfairly prejudices United Western, whose motion for summary judgment complied with the 45-page limit. Quite obviously, striking Defendants entire statement is a significant act. And certainly, in the usual case, relief on a motion to strike should be narrowly tailored. Yet using a more exacting method is not possible here, where the supplemental statement itself is the problem and portions cannot be selectively excised. What is more, the U.S. Court of Appeals for the D.C. Circuit has already cautioned that counsel should not ignore the rules in an effort to squeeze the maximum amount of text into his [or her] briefs. Williams Enters. Inc. v. Sherman R. Smoot Co., 938 F.2d 230, 238 (D.C. Cir. 1991). Lawyers must comply with the rules and [the Courts] orders rather than hope to put one over on the court and to apologize when caught. The penalty for a violation should smart. Even if only negligence was at work, counsel must learn to be alert. Id. at 239 (quotation marks omitted). In sum, the Court should strike Defendants Statement of Facts and order them to comply with the Local Rules.

Bridgeforth v. Salazar, No. 10-0080, 2011 WL 6369055, at *6 (D.D.C. Dec. 20, 2011); Sloan ex rel Juergens v. Urban Title Servs., Inc., 689 F. Supp. 2d 123, 126 (D.D.C. 2010).

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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/ Lawrence D. Kaplan 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 22, 2012

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd 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

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

Civil Action No. 11-0408 (ABJ)

[PROPOSED] ORDER Pursuant to Local Civil Rule 7(h)(2), it is hereby ORDERED that Defendants Statement of Facts With References to the Administrative Record [Dkt. # 100-2] is stricken. SO ORDERED.

______________________________ AMY BERMAN JACKSON United States District Judge

DATE: __________, 2012