Case Detail

FOIA Project Annotation: A federal court in California has ruled that pro se litigant Dennis Buckovetz may amend his FOIA complaint to challenge the adequacy of the search by the Department of the Navy since it failed to find emails the agency claimed had been deleted and to ask for attorney's fees and sanctions. The Navy argued that it would be futile to allow Buckovetz to amend his complaint at this stage since the agency had shown that the emails no longer existed. The magistrate judge found that Buckovetz's amendment reqeuest was not futile, pointing out that "plaintiff may recover emails if the Court finds Defendant's initial search was inadequate. Therefore, his amendment regarding deleted emails in not necessarily futile." The agency argued that adding counts for attorney's fees and sanctions was also futile since Buckovetz was not represented by an attorney. But the magistrate judge explained that "amendment is not futile if Plaintiff were to retain counsel. The Court advises Plaintiff that in order to receive attorney's fees he must actually hire an attorney to represent him in the action and not merely counsel him." Since a finding of sanctions is tied to an award of attorney's fees, the agency claimed amending the complaint to include a sanction count was also futile. However, the magistrate judge noted that "amendment, therefore, is not necessarily futile because the Court may ultimately 'order the production of any agency records' in connection with the dispute and 'assess against the United States reasonable attorney fees and other litigation costs.'"
Issues: Litigation - Jurisdiction - Failure to State a Claim

FOIA Project Annotation: A federal court in California has ruled that Dennis Buckovetz failed to show that the Department of the Navy's policy of refusing to process duplicative requests constituted a pattern or practice violation of the FOIA because the Navy disclosed all records responsive to his requests. Based on the Eleventh Circuit's ruling in Sikes v. Dept of Navy, 896 F. 3d 1227 (11th Cir. 2018), finding that the Navy violated FOIA by refusing to process a second request submitted by Sikes because it was deemed duplicative of a prior request, Buckovetz made the same claim, alleging that the agency had also rejected his duplicative request. While the court indicated that Buckovetz had met the first two prongs identified by the Ninth Circuit in Hajro v. U.S. Citizenship and Immigration Services, 811 F.3d 1086 (9th Cir. 2016) to establish a pattern or practice claim, the court explained that since the Navy ultimately disclosed all responsive records to Buckovetz he had not been harmed by the policy. The court pointed out that "despite his assertion that he has been denied responsive records, there is nothing in the record to support the allegation that records were or have been withheld. Defendants continued to service Plaintiff's 2018 FOIA request even after administratively closing the claim under its policy. The closure had no effect and, consequently, Plaintiff was not personally harmed by the administrative closure of his 2018 FOIA request." The court observed that it was not holding that Plaintiff "lacks standing because he received responsive records. If that were the case, no pattern and practice claim could survive if the agency ultimately produced responsive records."
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2018-12-05	1	COMPLAINT against Department of the Navy ( Filing fee $ 400 receipt number CAS107092.), filed by Dennis M. Buckovetz. (Attachments: # 1 proof of service, # 2 civil cover sheet) The new case number is 3:18-cv-2736-H-KSC. Judge Marilyn L. Huff and Magistrate Judge Karen S. Crawford are assigned to the case. (Dennis M. Buckovtez)(jrm)(sjt). (Additional attachment(s) added on 12/5/2018: # 3 receipt) (jrm). (Entered: 12/05/2018)
2018-12-05	2	Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jrm) (Entered: 12/05/2018)
2019-03-19	3	MINUTE ORDER OF RECUSAL: Judge Marilyn L. Huff hereby recuses from this case and directs the Clerk to randomly reassign this matter to another district judge. This case is randomly reassign to Judge William Q. Hayes for all further proceedings. Judge Marilyn L. Huff is no longer assigned to this case. The new case number is 18-cv-2736-WQH-KSC. SO ORDERED by Judge Marilyn L. Huff on 3/19/2019. (All non-registered users served via U.S. Mail Service)(no document attached) (smy) (Entered: 03/19/2019)
2019-05-01	6	SUMMONS Returned Executed by Dennis M. Buckovetz. Department of the Navy served. (ag) (Entered: 05/02/2019)
2019-05-02	4	Notice of Document Discrepancies and Order Thereon by Judge William Q. Hayes Accepting Document: Letter to the Judge, from Plaintiff Dennis M. Buckovetz. Non-compliance with local rule(s), OTHER: LR 83.9 Ex Parte communication. Nunc Pro Tunc 5/1/2019. Signed by Judge William Q. Hayes on 5/2/2019.(All non-registered users served via U.S. Mail Service)(ag) (Entered: 05/02/2019)
2019-05-02	5	Letter to the Judge from Dennis M. Buckovetz. NUNC PRO TUNC 5/1/2019 (ag) (Main Document 5 replaced on 5/2/2019) (ag). (Entered: 05/02/2019)
2019-05-06	7	ORDER. This Order constitutes notice to Plaintiff that the Court will dismiss this action against Defendants without prejudice unless, on or before May 28, 2019, Plaintiff files either (1) proof that service of the summons and complaint was timely effectuated in compliance with to Rule 4(i), or (2) a declaration under penalty of perjury showing good cause for failure to timely effect service upon the Defendant accompanied by a motion for leave to serve process outside of the 90-day period. Signed by Judge William Q. Hayes on 5/6/2019.(All non-registered users served via U.S. Mail Service)(aef) (Entered: 05/06/2019)
2019-05-15	8	SUMMONS Returned Executed (Proof of Service) by Dennis M. Buckovetz. Department of the Navy served. (tcf)(jrd) (Entered: 05/15/2019)
2019-06-17	9	MOTION to Dismiss Complaint for Lack of Jurisdiction and Failure to State a Claim by Department of the Navy. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Cinthia Christopher, # 3 Proof of Service by mail)(Parker, Katherine)Attorney Katherine Lind Parker added to party Department of the Navy(pty:dft) (ag). (Entered: 06/17/2019)
2019-07-05	10	RESPONSE in Opposition re 9 MOTION to Dismiss filed by Dennis M. Buckovetz. (ag) (Entered: 07/05/2019)
2019-07-15	11	Reply in Support of Motion re 9 MOTION to Dismiss Complaint for Lack of Jurisdiction and Failure to State a Claim filed by Department of the Navy. (Attachments: # 1 Proof of Service)(Parker, Katherine) Modified text on 7/16/2019 (tcf). (Entered: 07/15/2019)
2019-07-30	12	MOTION for Leave to File Surreply by Dennis M. Buckovetz. (ag) (Entered: 07/30/2019)
2019-07-31	13	ORDER. The Motion to Dismiss filed by Defendant Department of the Navy (ECF No. 9 ) is DENIED. The Motion for Leave to File Surreply filed by Plaintiff (ECF No. 12 ) is denied as moot. Signed by Judge William Q. Hayes on 7/31/2019. (All non-registered users served via U.S. Mail Service) (tcf) Modified text and regenerated NEF on 7/31/2019 (tcf). (jao). (Entered: 07/31/2019)
2019-08-14	14	ANSWER to 1 Complaint, by Department of the Navy. (Attachments: # 1 Proof of Service)(Parker, Katherine) (ag). (Entered: 08/14/2019)
2019-08-14	15	NOTICE AND ORDER for Early Neutral Evaluation Conference. Early Neutral Evaluation set for 9/23/2019 at 2:30pm. Signed by Magistrate Judge Karen S. Crawford on 8/14/2019.(All non-registered users served via U.S. Mail Service)(jpp) (Entered: 08/14/2019)
2019-10-28	16	Notice, Consent and Reference of a Civil Action to a Magistrate Judge by Dennis M. Buckovetz, Department of the Navy. Case reassigned to Magistrate Judge Mitchell D. Dembin. The new case number is 18cv2736-MDD. Signed by Judge William Q. Hayes on 10/26/2019.(All non-registered users served via U.S. Mail Service)(jdt) (Entered: 10/28/2019)
2019-10-29	17	Order Setting Telephonic Case Management Conference : A telephonic Case Management Conference will be held November 18, 2019 at 9:15 a.m. before Magistrate Judge Mitchell D. Dembin. Only counsel and Plaintiff, proceeding pro se , are required to participate. Counsel are ordered to use the dial-in information filed as a separate notice to access the Court's teleconference service. (The teleconference information sheet can be accessed through ECF using the login information assigned to an attorney of record in the case and then selecting the "report" option. On the next screen, the "docket sheet" option should be selected, prompting the user for a PACER login (assigned to the attorney of record). Once the PACER login is completed, the case number can be entered which will display the docket sheet for the case and allow the user to open the teleconference information sheet.). The teleconference information sheet will be mailed to Plaintiff. IT IS SO ORDERED by Magistrate Judge Mitchell D. Dembin on 10/29/2019.(All non-registered users served via U.S. Mail Service)(no document attached) (jb1) (Entered: 10/29/2019)
2019-10-29	18	NOTICE of Teleconference Information Sheet. Teleconference set for 11/18/2019 at 9:15AM. (All non-registered users served via U.S. Mail Service)(jb1) (Entered: 10/29/2019)
2019-11-18	19	Minute Entry for proceedings held before Magistrate Judge Mitchell D. Dembin: Case Management Conference held on 11/18/2019. Order to follow.(Plaintiff Attorney Dennis M. Buckovetz, pro se). (Defendant Attorney Katherine L. Parker). (All non-registered users served via U.S. Mail Service)(no document attached) (jb1) (Entered: 11/18/2019)
2019-11-18	20	Order Setting Briefing Schedule. A motion for summary judgment by 1/17/20. Any opposition must be filed by 2/7/20. Any reply brief must be filed by 2/14/20. Signed by Magistrate Judge Mitchell D. Dembin on 11/18/2019.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 11/18/2019)
2019-12-11	21	Notice of Document Discrepancies and Order Thereon by Magistrate Judge Mitchell D. Dembin Accepting Document: laintiffs Motion for Leave to Amend Complaint and Support Documents, from Plaintiff Dennis M. Buckovetz. Non-compliance with local rule(s), Civ. L. Rule 5.1: Missing time and date on motion and/or supporting documentation. Nunc Pro Tunc Dec 11 2019. Signed by Magistrate Judge Mitchell D. Dembin on 12/11/2019.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 12/11/2019)
2019-12-11	22	MOTION for Leave to Amend Complaint by Dennis M. Buckovetz. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Proof of Service)(mme) (Entered: 12/11/2019)
2019-12-11	23	ORDER Setting Briefing Schedule re 22 MOTION for Leave to File Amended Complaint. Defendant may file an opposition to Plaintiffs motion, if any, on or before December 27, 2019. Plaintiff may file a reply brief, if any, on or before January 3, 2020. The Court will issue a written ruling in due course upon completion of the briefing without oral argument. Signed by Magistrate Judge Mitchell D. Dembin on 12/11/2019.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 12/11/2019)
2019-12-27	24	Joint MOTION for Extension of Time to File Summary Judgment Briefs by Department of the Navy. (Attachments: # 1 Proof of Service)(Parker, Katherine) (mme). (Entered: 12/27/2019)
2019-12-27	25	RESPONSE in Opposition re 22 MOTION for Leave to File filed by Department of the Navy. (Attachments: # 1 Declaration of Katherine Parker, # 2 Proof of Service)(Parker, Katherine) (mme). (Entered: 12/27/2019)
2019-12-27	26	ORDER Granting 24 Joint Motion for Extension of Time. Any motion for summary judgment must be filed on or before January 24, 2020. Any opposition must be filed on or before February 21, 2020; and Any reply brief must be filed on or before February 28, 2020. Signed by Magistrate Judge Mitchell D. Dembin on 12/27/2019. (All non-registered users served via U.S. Mail Service)(mme) (Entered: 12/27/2019)
2020-01-06	27	Notice of Document Discrepancies and Order Thereon by Magistrate Judge Mitchell D. Dembin Accepting Document: Reply to Defendants Opposition, from Plaintiff Dennis M. Buckovetz. Non-compliance with local rule(s), Civ.L.R. 7.1.e Reply exceeds 10 pages and is not accompanied by a court order.. Nunc Pro Tunc 1/03/2020. Signed by Magistrate Judge Mitchell D. Dembin on 1/6/2020.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 01/06/2020)
2020-01-06	28	REPLY to Response to Motion re 22 MOTION for Leave to File filed by Dennis M. Buckovetz. Nunc Pro Tunc 1/3/2020. (mme) (Entered: 01/06/2020)
2020-01-07	29	ORDER Granting 22 Plaintiff's Motion for Leave to File First Amended Complaint. Signed by Magistrate Judge Mitchell D. Dembin on 1/7/2020. (All non-registered users served via U.S. Mail Service)(mme) (Entered: 01/07/2020)
2020-01-07	30	FIRST AMENDED COMPLAINT against U.S. Department of the Navy, filed by Dennis M. Buckovetz. (mme) (Entered: 01/07/2020)
2020-01-17	31	Joint MOTION to Dismiss (Partial) by U.S. Department of the Navy. (Attachments: # 1 Proof of Service)(Parker, Katherine) (aef). (Entered: 01/17/2020)
2020-01-21	33	ORDER Re: 31 Stipulation of Partial Dismissal without Prejudice. Plaintiff's challenge to the adequacy of Defendant's record searches is DISMISSED WITHOUT PREJUDICE. The only remaining requests for relief are those set forth in paragraphs 14, 15, 18, and 20 of Plaintiff's First Amended Complaint. (See ECF No. 30). Each party must bear its own attorney's fees and costs associated with the dismissed claims. Signed by Magistrate Judge Mitchell D. Dembin on 1/21/2020. (All non-registered users served via U.S. Mail Service)(aef) (Entered: 01/22/2020)
2020-01-22	32	ANSWER to 30 Amended Complaint by U.S. Department of the Navy. (Attachments: # 1 Proof of Service)(Parker, Katherine) (aef) (Entered: 01/22/2020)
2020-01-24	34	MOTION to Dismiss for Lack of Jurisdiction or for Summary Judgment by U.S. Department of the Navy. (Attachments: # 1 Declaration of Cinthia Camacho with Exhibits, # 2 Declaration of Katherine Parker with Exhibit, # 3 Proof of Service)(Parker, Katherine) (Entered: 01/24/2020)
2020-02-24	35	Notice of Document Discrepancies and Order Thereon by Magistrate Judge Mitchell D. Dembin Accepting Document: Plaintiffs Response to Defendants Motion to Dismiss, from Plaintiff Dennis M. Buckovetz. Non-compliance with local rule(s), Civ. L. Rule 5.1: Missing time and date on motion and/or supporting documentation, Civ. L. Rule 7.1: Lacking memorandum of points and authorities in support as a separate document, Civ.L. Rule 5.2 - Missing Proof of Service;. Nunc Pro Tunc 02/21/2020 (All non-registered users served via U.S. Mail Service)(mme) (Entered: 02/25/2020)
2020-02-24	36	RESPONSE in Opposition re 34 MOTION to Dismiss for Lack of Jurisdiction or for Summary Judgment filed by Dennis M. Buckovetz. Nunc Pro Tunc 02/21/2020. (mme) (Entered: 02/25/2020)
2020-02-28	37	REPLY to Response to Motion re 34 MOTION to Dismiss for Lack of Jurisdiction or for Summary Judgment filed by U.S. Department of the Navy. (Attachments: # 1 Declaration of Katherine Parker, # 2 Proof of Service by mail)(Parker, Katherine) (mme). (Entered: 02/28/2020)
2020-05-07	38	ORDER Granting 34 Defendant's Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge Mitchell D. Dembin on 5/7/2020. (All non-registered users served via U.S. Mail Service)(mme) (Entered: 05/08/2020)
2020-05-08	39	JUDGMENT: The Court GRANTS Defendants Motion to Dismiss the First Amended Complaint for lack of jurisdiction and DENIES Defendants Motion for Summary Judgment as moot. The First Amended Complaint is DISMISSED with prejudice as any amendment would be futile. Accordingly, the CLERK OF THE COURT is instructed to close this case. (All non-registered users served via U.S. Mail Service)(mme) (Entered: 05/08/2020)
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