Case Detail

FOIA Project Annotation: A federal court in Texas has dismissed Gerald Stone's FOIA suit for lack of jurisdiction because Stone had not provided any evidence that the Justice Department had improperly withheld records. Stone requested information that AUSA Tammy Reno used at his criminal sentencing that included a requirement that he pay restitution to victims. DOJ conducted a search, but found no records. Stone then sued. DOJ contended that the court did not have jurisdiction to hear Stone's case because the agency had not improperly withheld records. The court explained that the agency had mounted a factual attack on the court's jurisdiction and noted that "if the defendant supports the motion with evidence, then the attack is factual. . .In response to a factual attack, the plaintiff, as the party seeking to invoke jurisdiction, has the burden of submitting evidence and proving by a preponderance of the evidence the existence of subject matter jurisdiction." Pointing out that under the Supreme Court's ruling in Kissinger v. Reporters Committee, 445 U.S. 136 (1980), jurisdiction was dependent on showing that the agency had improperly withheld agency records, the court noted that "Defendant presented evidence that it searched for but was unable to locate any documents responsive to Plaintiff's request for records. Defendant's evidence also details the efforts taken by the DOJ in searching for the requested records. Defendant has therefore presented evidence that it has not improperly withheld agency records." The court indicated that "Plaintiff was required to submit evidence and prove by a preponderance of the evidence the existence of subject matter jurisdiction. Plaintiff's two and one-half page response to Defendant's motion, however, consists merely of unsupported arguments. As a result, Plaintiff has not met his burden of coming forward with evidence that the DOJ improperly withheld agency records."
Issues: Litigation - Jurisdiction - Failure to Exhaust

Date Filed	Doc #	Docket Text
2012-11-09	1	New Case Notes: A filing fee has been paid. File to Judge Lindsay. Case received over counter/electronically. No prior sanctions found. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Ramirez). Clerk to provide copy to plaintiff if not received electronically. (axm) (Entered: 11/09/2012)
2012-11-09	2	Notice and Instruction to Pro Se Party. (axm) (Entered: 11/09/2012)
2012-11-09		***Clerk's Notice of delivery: (see NEF for details) Docket No:1,2. Fri Nov 9 16:06:09 CST 2012 (crt) (Entered: 11/09/2012)
2012-11-09	3	COMPLAINT against United States Department of Justice filed by Gerald Stone. (Filing fee $350.00; Receipt number 62399) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership (axm) (Entered: 11/09/2012)
2012-11-09	4	CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Gerald Stone. (axm) (Entered: 11/09/2012)
2012-11-09	5	Summons issued as to United States Department of Justice, U.S. Attorney, and U.S. Attorney General. (axm) (Entered: 11/09/2012)
2012-11-21	6	AFFIDAVIT of Service for Complaint, and Summons served on U.S. Attorney on 11/13/2012, and U.S. Attorney General on 11/16/2012. (axm) (Entered: 11/21/2012)
2012-12-12	7	Unopposed Motion for Extension of Time to File Answer filed by United States Department of Justice with Brief/Memorandum in Support. (Johnson-DOJ, T) (Entered: 12/12/2012)
2012-12-13	8	ORDER granting 7 Motion for Extension of Time to File Answer or Otherwise Respond. United States Department of Justice answer due 1/28/2013. (Ordered by Judge Sam A Lindsay on 12/13/2012) (cea) (Entered: 12/13/2012)
2013-01-28	9	MOTION to Dismiss and or Alternatively , MOTION for Summary Judgment filed by United States Department of Justice with Brief/Memorandum in Support. (Johnson-DOJ, T) (Entered: 01/28/2013)
2013-01-28	10	Appendix in Support filed by United States Department of Justice re 9 MOTION to Dismiss and or Alternatively MOTION for Summary Judgment (Johnson-DOJ, T) (Entered: 01/28/2013)
2013-01-28	11	AMENDED Certificate of Service by United States Department of Justice. Amendment to 10 Appendix in Support. (Johnson-DOJ, T) (Entered: 01/28/2013)
2013-01-29	12	Defendant's Amended MOTION to Dismiss and or Alternatively MOTION for Summary Judgment filed by United States Department of Justice with Brief/Memorandum in Support. (Johnson-DOJ, T) Modified on 1/29/2013 (aaa). (Entered: 01/29/2013)
2013-02-20	13	RESPONSE filed by Gerald Stone re: 9 MOTION to Dismiss and or Alternatively MOTION for Summary Judgment (Stone, Gerald) (Entered: 02/20/2013)
2013-03-06	14	REPLY TO RESPONSE filed by United States Department of Justice re: 9 MOTION to Dismiss and or Alternatively, MOTION for Summary Judgment (Attachments: # 1 Exhibit(s)) (Johnson-DOJ, T) Modified link/text on 3/7/2013 (rlw). (Entered: 03/06/2013)
2013-03-08	15	RESPONSE filed by Gerald Stone re: 9 MOTION to Dismiss and or Alternatively MOTION for Summary Judgment (Stone, Gerald) (Entered: 03/08/2013)
2013-07-08	16	ORDER: Defendant shall file a corrected appendix in support of their Amended Motion to Dismiss and/or Alternatively Motion for Summary Judgment by 5 p.m. on 7/9/2013. (Ordered by Judge Sam A Lindsay on 7/8/2013) (skt) (Entered: 07/08/2013)
2013-07-09	17	Unopposed MOTION for Leave to File Defendant's Second Amended Motion to Dismiss and/or Alternatively, Motion for Summary Judgment and Bried in Support filed by United States Department of Justice with Brief/Memorandum in Support. (Attachments: # 1 Attachment -A) (Johnson-DOJ, T) Modified text on 7/10/2013 (dsr). (Entered: 07/09/2013)
2013-07-10	18	ORDER granting 17 Defendant's Motion for Leave to File Defendant's Second Amended Motion to Dismiss and/or, Alternatively, Motion for Summary Judgment. (Ordered by Judge Sam A Lindsay on 7/10/2013) (skt) (Entered: 07/10/2013)
2013-07-10	19	ORDER Defendant must file a corrected appendix on 7/12/13, together with Defendant's second amended dispositive motion. In light of court's 7/10/13 order, Defendant's Amended Motion to Dismiss and/or Alternatively Motion for Summary Judgment is denied as moot 12 (Ordered by Judge Sam A Lindsay on 7/10/2013) (gr) (Entered: 07/10/2013)
2013-07-12	20	Second MOTION to Dismiss and/or alternatively Motion for Summary Judgment filed by United States Department of Justice with Brief/Memorandum in Support. (Johnson-DOJ, T) (Entered: 07/12/2013)
2013-07-12	21	Appendix in Support filed by United States Department of Justice re 20 Second MOTION to Dismiss and/or alternatively Motion for Summary Judgment (Johnson-DOJ, T) (Entered: 07/12/2013)
2013-07-18	22	ORDER: Before the court is Defendant's Second Amended Motion to Dismiss and/or Alternatively Motion for Summary Judgment (Doc. 20), filed 7/12/2013. The court has reviewed the motion and, in accordance with the court's prior directive, it appears to be in all respects the same substantively in that it does not include any new or additional arguments or references to additional or new evidence. Accordingly, to avoid any further delay in the disposition of the motion, the court directs Plaintiff to advise the court no later than 7/29/2013, whether he intends to file an amended response to the motion. (Ordered by Judge Sam A Lindsay on 7/18/2013) (cea) (Entered: 07/18/2013)
2013-07-25	23	AMENDED RESPONSE filed by Gerald Stone re: 20 Second MOTION to Dismiss and/or alternatively Motion for Summary Judgment (Stone, Gerald) Modified title on 7/26/2013 (rlw). (Entered: 07/25/2013)
2013-10-07	24	ORDER GRANTING GOVERNMENT'S OMNIBUS MOTION FOR STAY OF CASES IN LIGHT OF LAPSE OF APPROPRIATIONS. (Ordered by Chief Judge Sidney A Fitzwater on 10/7/2013) (Attachments: # 1 Omnibus Motion for Stay of Case in Light of Lapse of Appropriations) (drh) (Entered: 10/07/2013)
2013-10-17	25	ORDER GRANTING GOVERNMENT'S OMNIBUS MOTION FOR LIFT OF STAY. (Ordered by Chief Judge Sidney A Fitzwater on 10/17/2013) (Attachments: # 1 OMNIBUS MOTION FOR LIFT OF STAY) (drh) (Entered: 10/17/2013)
2014-03-28	26	Memorandum Opinion and Order: The court grants 20 Defendant's Second Amended Motion to Dismiss, denies as moot Defendants' Alternative Motion for Summary Judgment, and dismisses without prejudice this action for lack of subject matter jurisdiction. (Ordered by Judge Sam A Lindsay on 3/28/2014) (jrr) (Entered: 03/28/2014)
2014-03-28	27	JUDGMENT: It is ordered that Plaintiff take nothing against Defendant; that this action is dismissed without prejudice for lack of subject matter jurisdiction. (Ordered by Judge Sam A Lindsay on 3/28/2014) (jrr) (Entered: 03/28/2014)
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