Opinion
Civil Action No. 03-1157 (RMC).
March 31, 2005
MEMORANDUM OPINION
Lieutenant Colonel Karl Elders brought suit against the Maryland Air National Guard and the National Guard Bureau under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking the disclosure of certain records that he alleges were improperly withheld. After answering, Defendants filed an initial motion for summary judgment on December 8, 2003. On September 3, 2004, the Court granted summary judgment in part and denied it in part, ordering Defendants:
1) to obtain and produce copies of the commanderdirected investigations in the possession of the Assistant U.S. Attorney;
2) to produce records pertaining to Lt. Col. Elders that might be found in the computers and work stations of all MD ANG officers specified in the November 2002 request; and
3) pending clarification by the plaintiff, to produce any "board results . . . that reflect discussions" concerning the position of Group Commander of the 175th Wing that are contained in MD ANG files.
September 3, 2004 Order at 1.
On December 13, 2004, Defendants filed the instant Renewed Motion for Summary Judgment, stating that "Defendants have conducted several searches for documents under the FOIA and have released all records responsive to plaintiff's FOIA requests. Defendants have also responded to specific concerns of the Court in its September 3, 2004, Order." Defendants' Renewed Motion for Summary Judgment ("Renewed Motion") at 11. Plaintiff failed to timely respond to the motion. On March 4, 2005, the Court ordered Plaintiff to show cause by no later than March 25, 2005 why the Renewed Motion should not be granted. No response was filed. Instead, the Court received a telephone message from counsel for Plaintiff on that date in which he conceded that the motion was sound and indicated that he would file a concession. To date, no concession has been filed.
Unless otherwise directed by the Court, Local Civil Rule 7.1(b) requires an opposing party to file a memorandum of points and authorities in opposition to a motion within eleven days of the filing of the motion or "the Court may treat the motion as conceded." LCvR 7(b); see Giraldo v. Dep't of Justice, 2002 U.S. App. LEXIS 13685, at *2 (D.C. Cir. July 8, 2002) (per curiam) (citing FDIC v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)). Accordingly, the D.C. Circuit has found that "[w]here the district court relies on the absence of a response as a basis for treating the motion as conceded, we honor its enforcement of the rule." Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997); see Fox v. Am. Airlines, 389 F.3d 1291, 1294 (D.C. Cir. 2004) (upholding dismissal under LCvR 7(b)).
The Court finds that summary judgment should be granted in favor of Defendants because: 1) Plaintiff failed to timely file an opposition to the Renewed Motion; 2) Plaintiff failed to file a response to the Court's Order to Show Cause; and 3) counsel for Plaintiff advised the Court that the motion was conceded. Accordingly, the Renewed Motion is GRANTED and the case DISMISSED. A separate Order accompanies this memorandum opinion.