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Case TitleStalcup v. Department of Defense Agency
DistrictDistrict of Massachusetts
CityBoston
Case Number1:2013cv11967
Date Filed2013-08-15
Date Closed2016-01-28
JudgeDistrict Judge Leo T. Sorokin
PlaintiffPro Se Party Thomas Stalcup
Case DescriptionThomas Stalcup submitted a FOIA request to the Department of Defense for records concerning any Naval or DOD activities off the coast of Long Island at the time of the crash of TWA 800 in 1996. He submitted a similar FOIA request to the Missile Defense Agency. After hearing nothing further from the agency, Stalcup filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Recovery of Costs

DefendantDepartment of Defense Agency Office of the Secretary of Defense of the United States of America
AppealFirst Circuit 16-1225
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [57]
FOIA Project Annotation: A federal court in Massachusetts has ruled that the Defense Department's affidavits describing its searches for records responsive to Thomas Stalcup's FOIA requests regarding the possibility that missile testing off the East Coast was responsible for the crash of TWA 800 in 1996 are still inadequate for summary judgment purposes. Three of Stalcup's requests to DOD were at issue " two to the Missile Defense Agency and one to the Office of the Secretary "and the agency had provided three affidavits describing the searches. The court found the agency's descriptions of its searches of MDA were adequate. The court noted that "in an attempt to rebut the presumption [of good faith], Stalcup points to evidence that missile or rocket firings occurred off the East Coast in 1996 and 1997 and, from there, he theorizes that documents must have been created by or provided to the MDA regarding those firings, and must have been retained by the MDA, such that they are still in the agency's possession. Such speculation is not sufficient to rebut the presumption of good faith and defeat summary judgment. . .Here, the MDA adequately explained its search process and established that the methods used could be reasonably expected to produce the information requested. Thus, the MDA has satisfied its obligations under FOIA." But as to the OSD searches, the court agreed with Stalcup that the current descriptions were insufficient. The court observed that "the affidavits nowhere describe in detail the scope and method by which the search was conducted of the structure of OSD's file system which makes further search difficult. The affidavits do not offer any explanation of why the two offices searched would be the only offices within the OSD reasonably likely to contain responsive documents, nor do they state whether there are any legacy filing systems that might retain responsive documents."
Issues: Adequacy - Search
Opinion/Order [110]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-08-151COMPLAINT against Department of Defense Agency, filed by Thomas Stalcup. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet and category form)(LaFlamme, Jennifer) (Entered: 08/15/2013)
2013-08-152General Order 09-1, dated January 6, 2009 regarding the E-Government Act and Personal Identifiers entered. (LaFlamme, Jennifer) (Entered: 08/15/2013)
2013-08-153ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Robert B. Collings. (Abaid, Kimberly) (Entered: 08/15/2013)
2013-08-154Summons Issued as to Department of Defense Agency. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (LaFlamme, Jennifer) (Entered: 08/15/2013)
2013-08-155Filing fee/payment: $400.00, receipt number 1BST039244 for 1 Complaint. (MacDonald, Gail) (Entered: 08/15/2013)
2013-12-167SUMMONS Returned Executed Department of Defense Agency served on 10/31/2013 (Flaherty, Elaine) Modified to correct date filed on 2/10/2014 (Seelye, Terri). (Entered: 02/06/2014)
2014-01-246Judge Richard G. Stearns: ORDER entered TO SHOW CAUSE pursuant to Rule 4(m), Fed. R. Civ. P., and Local Rule 4.1(b), the case will be dismissed without prejudice in twenty (21) days from the date of this Order unless a proof of service is filed or good cause shown why service has not been made. Show Cause Response due by 2/14/2014.(Seelye, Terri)cm to plaintiff 1/24/14. (Entered: 01/24/2014)
2014-02-148Judge Richard G. Stearns: ELECTRONIC ORDER entered finding as moot, Order to Show Cause, return having been entered on the docket on 2/6/14. re 7 , 6 (Seelye, Terri)cm to Mr. Stalcup on 2/14/14. (Entered: 02/14/2014)
2014-02-189Summons Issued as to US Attorney and US Attorney General. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Seelye, Terri)Mailed to plaintiff on 2/18/14. (Entered: 02/18/2014)
2014-03-2010SUMMONS Returned Executed as to US Attorney by Thomas Stalcup WSO 3/10/14. (Flaherty, Elaine) (Entered: 03/20/2014)
2014-04-0311SUMMONS Returned Executed on U.S. Atty General on 3/13/14 by Thomas Stalcup. (Flaherty, Elaine) Modified on 4/10/2014 (Seelye, Terri). (Entered: 04/09/2014)
2014-06-0312NOTICE of Appearance by Michael P. Sady on behalf of Department of Defense Agency (Sady, Michael) (Entered: 06/03/2014)
2014-06-0313Assented to MOTION for Extension of Time to August 2, 2014 to File Response/Reply by Department of Defense Agency.(Sady, Michael) (Entered: 06/03/2014)
2014-06-0414Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 13 Motion for Extension of Time to File Response/Reply. Responses due by 8/1/2014. (Zierk, Marsha) (Entered: 06/04/2014)
2014-07-1815ELECTRONIC NOTICE of Reassignment. District Judge Leo T. Sorokin added. Judge Richard G. Stearns no longer assigned to case. (Abaid, Kimberly) (Entered: 07/18/2014)
2014-08-0116Assented to MOTION for Extension of Time to 9/12/14 to File Response/Reply by Department of Defense Agency.(Sady, Michael) (Entered: 08/01/2014)
2014-08-0617District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 16 Motion for Extension of Time to File Response/Reply re 16 Assented to MOTION for Extension of Time to 9/12/14 to File Response/Reply Responses due by 9/12/2014 (Simeone, Maria) (Entered: 08/06/2014)
2014-09-2618Assented to MOTION for Extension of Time to November 12, 2014 to Respond by Department of Defense Agency.(Sady, Michael) (Entered: 09/26/2014)
2014-09-2919District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 18 Motion for Extension of Time to 11/12/14 to respond (Simeone, Maria) (Entered: 09/29/2014)
2014-11-2120District Judge Leo T. Sorokin: ORDER entered. The government is ORDERED TO SHOW CAUSE why a default should not be entered against it. See attached Order. Show Cause Response due by 12/3/2014. A copy of the Order and Docket Sheet was mailed to Plaintiff via first class mail and certified mail (Ref.#2377) (Matteson, Nicholas) (Entered: 11/21/2014)
2014-11-2521Assented to MOTION for Extension of Time to January 5, 2015 to File Response/Reply by Department of Defense Agency.(Sady, Michael) (Entered: 11/25/2014)
2014-11-2622District Judge Leo T. Sorokin: ORDER entered. The United States shall supplement its 21 MOTION for Extension of Time as set forth in the attached Order within seven days. A copy of the Order was mailed to Plaintiff via first class mail and certified mail (Ref#2391).(Matteson, Nicholas) Modified on 11/26/2014 (Montes, Mariliz). (Entered: 11/26/2014)
2014-11-2623Set Deadline: Re. Response 22 Order due by 12/3/2014. (Montes, Mariliz) (Entered: 11/26/2014)
2014-12-0224Return receipt received for certified mail (Ref# 2391) re. 22 sent to Thomas Stalcup. Delivered on 11/28/2014. (Montes, Mariliz) (Entered: 12/02/2014)
2014-12-0325RESPONSE TO COURT ORDER by Department of Defense Agency re 22 Order, Supplement to Motion for Extention of Time . (Sady, Michael) (Entered: 12/03/2014)
2014-12-0426District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 21 Motion for Extension of Time to 1/5/2015 to file (Simeone, Maria) (Entered: 12/04/2014)
2015-01-0527MOTION for Summary Judgment by Department of Defense Agency.(Sady, Michael) (Entered: 01/05/2015)
2015-01-0528MEMORANDUM in Support re 27 MOTION for Summary Judgment filed by Department of Defense Agency. (Attachments: # 1 Exhibit A)(Sady, Michael) (Entered: 01/05/2015)
2015-01-3029Plaintiff's MOTION for Extension of Time to 2/27/2015 to File Response as to 27 MOTION for Summary Judgment by Thomas Stalcup.(Montes, Mariliz) (Entered: 02/03/2015)
2015-02-0530District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 29 Motion for Extension of Time to File Response/Reply re 27 MOTION for Summary Judgment Responses due by 2/27/2015. A copy of the Electronic Order has been mailed to Plaintiff via first class mail and certified mail (Ref# 9667). (Simeone, Maria) (Entered: 02/05/2015)
2015-02-2431Return receipt received for certified mail (Ref# 9667)sent to Thomas Stalcup re. 30 . Delivered on 2/10/2015. (Montes, Mariliz) (Entered: 02/24/2015)
2015-02-2732MOTION for Summary Judgment by Thomas Stalcup.(Montes, Mariliz) Modified on 6/18/2015 (Montes, Mariliz). (Entered: 03/03/2015)
2015-02-2733MEMORANDUM in Support re 32 Plaintiff's MOTION for Summary Judgment, and Memorandum in Opposition to Defendant's Motion for Summary Judgment 27 MOTION for Summary Judgment filed by Thomas Stalcup. (Montes, Mariliz) (Entered: 03/03/2015)
2015-02-2734DECLARATION re 33 Memorandum in Support of Motion, 32 MOTION for Summary Judgment by Thomas Stalcup. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E-F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit O, # 15 Exhibit P, # 16 Exhibit Q, # 17 Exhibit R, # 18 Exhibit S, # 19 Exhibit T, # 20 Exhibit U, # 21 Exhibit V, # 22 Exhibit W, # 23 Exhibit X, # 24 Exhibit Y, # 25 Exhibit Z)(Montes, Mariliz) (Entered: 03/03/2015)
2015-03-0435AMENDED DOCUMENT: Plaintiff's Amended Motion for Summary Judgment by Thomas Stalcup. Amendment to 32 MOTION for Summary Judgment. (Montes, Mariliz) Modified on 6/18/2015 (Montes, Mariliz). (Entered: 03/11/2015)
2015-03-0436AMENDED DOCUMENT: Plaintiff's Amended Memorandum in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment by Thomas Stalcup. Amendment to 32 MOTION for Summary Judgment, 33 Memorandum in Support of Motion. (Montes, Mariliz) (Entered: 03/11/2015)
2015-03-0437AMENDED DOCUMENT Amended Declaration of Thomas Stalcup by Thomas Stalcup. Amendment to 34 Declaration,,. (Attachments: # 1 Exhibit A, # 2 Exhibit B-1, # 3 Exhibit B-2, # 4 Exhibit B-3, # 5 Exhibit B-4, # 6 Exhibit C)(Montes, Mariliz) (Additional attachment(s) added on 3/11/2015: # 8 Exhibit D-1, # 9 Exhibit D-2, # 10 Exhibit D-3, # 11 Exhibit D-4, # 12 Exhibit D-5, # 13 Exhibit E, # 14 Exhibit F, # 15 Exhibit G, # 17 Exhibit H) (Montes, Mariliz). (Additional attachment(s) added on 3/11/2015: # 18 Exhibit I-1, # 19 Exhibit I-2, # 20 Exhibit I-3, # 21 Exhibit J, # 22 Exhibit K-1, # 23 Exhibit K-2, # 24 Exhibit K-3, # 25 Exhibit K-4, # 26 Exhibit L, # 27 Exhibit M, # 28 Exhibit N, # 29 Exhibit O, # 30 Exhibit P, # 31 Exhibit Q, # 32 Exhibit R, # 33 Exhibit S, # 34 Exhibit T, # 35 Exhibit U, # 36 Exhibit W, # 37 Exhibit X, # 38 Exhibit Y, # 39 Exhibit Z) (Montes, Mariliz). (Entered: 03/11/2015)
2015-03-0438Plaintiff's MOTION to Request the Court's Permission to Sign Up For and Use the MA Court's Electronic Filing System by Thomas Stalcup.(Montes, Mariliz) (Entered: 03/11/2015)
2015-03-2039MOTION to Stay Pending Further Search by Department of Defense Agency.(Sady, Michael) (Entered: 03/20/2015)
2015-03-2040District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. The Motion to Stay by defendant to permit further searching for documents responsive to Plaintiff's FOIA requests is ALLOWED. The Motions for Summary Judgment are terminated. In seventy days, Defendant shall either (a) file a joint report, in which Plaintiff concurs, that the additional search as resolved this lawsuit to the satisfaction of both parties or (b) file a request to reopen the motions for summary judgment along with a reply brief not to exceed five pages in which case Plaintiff can file a surreply not to exceed five pages within ten days of the filing of Defendant's reply. The Court anticipates no extensions in these deadlines. Plaintiff's Motion for permission to use the ECF system is ALLOWED, however, Plaintiff must comply with all the rules, regulations and policies governing ECF use.(Simeone, Maria) (Entered: 03/20/2015)
2015-03-2341Copy re 40 Electronic Order and a copy of the Docket Sheet mailed to Plaintiff via first class mail and certified mail (Ref# 6856) on 3/23/2015. (Montes, Mariliz) (Entered: 03/23/2015)
2015-03-3042Set Deadlines: Status Report due by 5/29/2015 (Simeone, Maria) (Entered: 03/30/2015)
2015-03-3043Set Deadlines: Status Report due by 5/29/2015 (Simeone, Maria) (Entered: 03/30/2015)
2015-03-3144Return receipt received for certified mail(Ref#6856) sent to Thomas Stalcup re. 41 . Delivered on 3/25/2015. (Montes, Mariliz) (Entered: 03/31/2015)
2015-05-2745Joint MOTION to Amend Court's March 20, 2015 Order by Department of Defense Agency.(Sady, Michael) (Entered: 05/27/2015)
2015-05-2946District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 45 Motion to Amend the filing date of the status report to 6/12/15. (Simeone, Maria) (Entered: 05/29/2015)
2015-05-2947Set Deadlines: Status Report due by 6/12/2015 (Simeone, Maria) (Entered: 05/29/2015)
2015-06-1248NOTICE by Department of Defense Agency of Request to Reopen Summary Judgment (Sady, Michael) (Entered: 06/12/2015)
2015-06-1249RESPONSE to Motion re 32 MOTION for Summary Judgment filed by Department of Defense Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sady, Michael) (Entered: 06/12/2015)
2015-06-1850Set Deadlines as to 32 MOTION for Summary Judgment, 35 MOTION for Summary Judgment.Responses due by 6/12/2015, Replies due by 6/19/2015. (Montes, Mariliz) (Entered: 06/18/2015)
2015-06-1951NOTICE by Thomas Stalcup (Stalcup, Thomas) (Entered: 06/19/2015)
2015-06-1952Proposed MOTION for Extension of Time to 06/23/2015 to File Response/Reply by Thomas Stalcup.(Stalcup, Thomas) (Entered: 06/19/2015)
2015-06-2253District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 52 Motion for Extension of Time to 6/23/15 to file Sur-reply. re 32 MOTION for Summary Judgment, 35 MOTION for Summary Judgment Responses due by 6/23/2015 (Simeone, Maria) (Entered: 06/22/2015)
2015-06-2254First SUR-REPLY to Motion re 27 MOTION for Summary Judgment filed by Thomas Stalcup. (Attachments: # 1 Exhibit Exhibit A)(Stalcup, Thomas) (Entered: 06/22/2015)
2015-06-2555NOTICE by Thomas Stalcup Leave for Overseas Travel (Stalcup, Thomas) (Entered: 06/25/2015)
2015-09-1756MOTION Leave to Depose Official(s) by Thomas Stalcup.(Stalcup, Thomas) (Entered: 09/17/2015)
2015-09-1857District Judge Leo T. Sorokin: MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT. As to the records request of the MDA, the DoD's Motion for Summary Judgment, Doc. No. 27, is ALLOWED and Stalcup's Motion for Summary Judgment, Doc. No. 32, is DENIED. The Motions otherwise remain under advisement. The DoD shall supplement the record as described above within 30 days of this Order. The plaintiff may respond 14 days thereafter. re 32 Motion for Summary Judgment (Simeone, Maria) (Entered: 09/18/2015)
2015-09-1858Set Deadlines: Supplemental Pleadings due by 10/19/2015. Response by 11/2/15 (Simeone, Maria) (Entered: 09/18/2015)
2015-09-2959Opposition re 56 MOTION Leave to Depose Official(s) filed by Department of Defense Agency. (Attachments: # 1 Exhibit A)(Sady, Michael) (Entered: 09/29/2015)
2015-09-3060District Judge Leo T. Sorokin: ELECTRONIC ORDER entered denying 56 Motion to depose DOD officials (Simeone, Maria) (Entered: 09/30/2015)
2015-10-0761NOTICE by Thomas Stalcup Transcript Request Form Service (Attachments: # 1 Supplement Transcript Request Form)(Stalcup, Thomas) (Attachment 1 replaced on 10/9/2015) (Abaid, Kimberly). (Entered: 10/07/2015)
2015-10-1962DECLARATION of Mark H. Herrington by Department of Defense Agency. (Sady, Michael) (Entered: 10/19/2015)
2015-10-1963CERTIFICATE OF SERVICE pursuant to LR 5.2 by Department of Defense Agency re 62 Declaration . (Sady, Michael) (Entered: 10/19/2015)
2015-11-0264Second MOTION for Discovery by Thomas Stalcup. (Attachments: # 1 Exhibit Ex A: Second Stalcup Declaration)(Stalcup, Thomas) (Entered: 11/02/2015)
2015-11-0265REPLY to Response to filed by Thomas Stalcup. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Stalcup, Thomas) (Entered: 11/02/2015)
2015-11-0366District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Within fourteen days of the filing of Plaintiff's motion for discovery, defendant shall file its response, which include as well any responsive arguments to Plaintiff's reply to the supplemental affidavit filed by defendant. re 64 Second MOTION for Discovery filed by Thomas Stalcup (Simeone, Maria) (Entered: 11/03/2015)
2015-11-0967MOTION for Extension of Time to November 24, 2015 to File Response/Reply as to 64 Second MOTION for Discovery by Department of Defense Agency.(Sady, Michael) (Entered: 11/09/2015)
2015-11-1368District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 67 Motion for Extension of Time to File Response/Reply re 64 Second MOTION for Discovery Responses due by 11/24/2015 (Simeone, Maria) (Entered: 11/13/2015)
2015-11-2469Opposition re 64 Second MOTION for Discovery and Response to Reply filed by Department of Defense Agency. (Attachments: # 1 Fourth Declaration of Mark H. Herrington)(Sady, Michael) (Entered: 11/24/2015)
2015-11-2570First MOTION for Leave to File Amended Reply to Def. Supplement by Thomas Stalcup. (Attachments: # 1 Exhibit A. DOD Directive 5400.7-R)(Stalcup, Thomas) (Entered: 11/25/2015)
2015-12-0771RESPONSE to Motion re 70 First MOTION for Leave to File Amended Reply to Def. Supplement filed by Department of Defense Agency. (Sady, Michael) (Entered: 12/07/2015)
2016-01-2772District Judge Leo T. Sorokin: SUPPLEMENTAL ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFFS SECOND MOTION TO TAKE DISCOVERY entered. As set forth above, DoD has satisfactorily complied with the Courts previous order. Because DoD has complied with the Plaintiffs requests, his Second Motion for Discovery, (Doc. 64), is DENIED. 2 After review of all the papers filed, the Plaintiffs Motion for Leave to File an Amended Reply, (Doc. 70), is DENIED. DoDs Motion for Summary Judgment is ALLOWED, (Doc. 27), and Plaintiffs Cross-Motion for Summary Judgment, (Doc. 32), is DENIED. The Clerk will enter an Order closing the case. (Simeone, Maria) Modified on 1/28/2016 (Simeone, Maria). (Entered: 01/28/2016)
2016-01-2873District Judge Leo T. Sorokin: CLOSING ORDER entered. re 72 Supplemental Order on Motions. (Simeone, Maria) (Entered: 01/28/2016)
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