Case Detail

FOIA Project Annotation: A federal court in North Carolina has ruled that Ronia Weisner is not eligible for attorney's fees in her suit against the Animal and Plant Inspection Service because she did not substantially prevail. United Airlines lost Weisner's dog, which was never recovered. She then requested records from APHIS concerning the dog's disappearance. The agency responded that it was involved in an administrative action against United and withheld the records on the basis of Exemption 7(A) (interference with ongoing investigation or proceeding). Weisner filed suit and after the administrative action against United was settled, the agency disclosed the records. Weisner then asked for attorney's fees. The court noted that "Defendant withheld the records only as long as was necessary under Exemption 7(A), releasing them promptly when the exception ceased to apply." The court added that "if, as Plaintiff seems to suggest, Defendants were intent on withholding the records unreasonably, the Court fails to see why Defendants would have voluntarily released the records at any point and it stands to reason that the matter would currently be before [the court] not as to [attorney's fees], but on Plaintiff's motion for an order directing Defendants to release the records on the basis of a continuing improperly claimed exemption." The court concluded that it found "Plaintiff's position that she 'substantially prevailed' and that Defendants released the records only as a result of the instant action to be unconvincing and, therefore, finds that Plaintiff is not eligible for attorney fees in the instant action."
Issues: Litigation - Attorney's fees - Prevailing party, Exemption 7(A) - Interference with ongoing investigation

Date Filed	Doc #	Docket Text
2010-12-12	1	*DOCUMENT CORRECTED AND REFILED AT DOCKET ENTRY 4 * - COMPLAINT against Animal and Plant Health Inspection Service ( Filing fee $ 350 receipt number 0417-1431075.), filed by Ronia Weisner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Civil Cover Sheet) (Mustian, Joseph) Modified on 12/14/2010 to insert refiling information (Baker, C.). (Entered: 12/12/2010)
2010-12-12	2	FINANCIAL DISCLOSURE STATEMENT by Ronia Weisner (Mustian, Joseph) (Entered: 12/12/2010)
2010-12-12	3	NOTICE by Ronia Weisner re 1 Complaint, Summons In A Civil Action (Mustian, Joseph) (Entered: 12/12/2010)
2010-12-13		NOTICE OF DEFICIENCY re: 1 Complaint. Counsel failed to identify each exhibit as required by the Court. Counsel is directed to Section L(2)(b) of the Court's Electronic Policy and Procedure Manual which states attachments and exhibits must be identified with a clear and complete description of the document. Counsel is instructed to refile the Complaint and identify each exhibit. FURTHER, counsel must resubmit the Summons and include local counsel's name on the Summons. Counsel should use the event "Notice-Other" located under the Notice option on the main menu. (Heath, D.) (Entered: 12/13/2010)
2010-12-13	4	COMPLAINT against Animal and Plant Health Inspection Service ( Filing fee $ 350 receipt number 0417-1431075.), filed by Ronia Weisner. (Attachments: # 1 Exhibit APHIS' denial of Weisner FOIA request, # 2 Exhibit Weisner appeal of APHIS' denial of FOIA request, # 3 Exhibit Weisner letter of inquiry to APHIS in re: denial of FOIA request, # 4 Exhibit Weisner second letter of inquiry to APHIS in re: denial of FOIA request) (Mustian, Joseph) (Entered: 12/13/2010)
2010-12-13	5	NOTICE by Ronia Weisner re 4 Complaint, Summons In A Civil Action (Mustian, Joseph) (Entered: 12/13/2010)
2010-12-14	6	Summons Issued as to Animal and Plant Health Inspection Service. Counsel should print summons and effect service. (Baker, C.) Modified . (Entered: 12/14/2010)
2011-01-27	7	ANSWER to 4 Complaint, by Animal and Plant Health Inspection Service. (Boyle, W.) (Entered: 01/27/2011)
2011-02-01	8	INITIAL ORDER REGARDING PLANNING AND SCHEDULING - Discovery Plan due by 3/8/2011. Initial Conference set for 3/15/2011 at 11:00 AM in Telephonic before Chief Judge Louise Wood Flanagan. Signed by Chief Judge Louise Wood Flanagan on 02/01/2011. Copies served electronically. (Baker, C.) (Entered: 02/01/2011)
2011-02-16	9	AMENDED COMPLAINT against Animal and Plant Health Inspection Service, United Stated Department of Agriculture, filed by Ronia Weisner. (Mustian, Joseph) (Entered: 02/16/2011)
2011-02-16	10	NOTICE by Animal and Plant Health Inspection Service - re: 9 Amended Complaint, 1 Complaint, Summons In A Civil Action. (Mustian, Joseph) (Entered: 02/16/2011)
2011-02-16	11	NOTICE by Ronia Weisner - re: 9 Amended Complaint, 1 Complaint, Summons In A Civil Action. (Mustian, Joseph) (Entered: 02/16/2011)
2011-02-17	12	Summons Issued as to United Stated Department of Agriculture. Counsel should print summons and effect service. (Baker, C.) (Entered: 02/17/2011)
2011-03-01	13	ANSWER to 9 Amended Complaint by Animal and Plant Health Inspection Service, United Stated Department of Agriculture. (Boyle, W.) (Entered: 03/01/2011)
2011-03-01	14	Rule 26(f) Report (joint) by Ronia Weisner. (Mustian, Joseph) (Entered: 03/01/2011)
2011-03-03		NOTICE of DATE/TIME CHANGE of Event: Telephonic Scheduling Conference set for 3/15/2011 has been rescheduled for Wednesday, 3/16/2011 at 1:30 PM before Chief Judge Louise Wood Flanagan. (Baker, C.) (Entered: 03/03/2011)
2011-03-11		NOTICE of TIME CHANGE of Event: Telephonic Scheduling Conference set for for Wednesday, 3/16/2011 at 1:30 PM will instead convene at 10:30 AM before Chief Judge Louise Wood Flanagan. (Baker, C.) (Entered: 03/11/2011)
2011-03-16		Minute Entry for proceedings held before Chief Judge Louise Wood Flanagan: Telephonic Scheduling Conference held on 3/16/2011. Present at conference - Steven Wise and Joseph Mustian (counsel for plaintiff); W. Ellis Boyle (counsel for defendants); Caroline Batchelor, Law Clerk; Christa Baker/Susan Tripp, Deputy Clerks. Issues bearing on case management and scheduling discussed. Written case management order to follow. (Baker, C.) (Entered: 03/16/2011)
2011-03-23	15	CASE MANAGEMENT ORDER: Discovery due by 6/6/2011. Motions due by 8/31/2011. Jury Trial set for that civil term of court commencing 1/17/2012 in New Bern - Courtroom before Chief Judge Louise Wood Flanagan. Signed by Chief Judge Louise Wood Flanagan on 03/23/2011. (Baker, C.) (Entered: 03/23/2011)
2011-08-30	16	First MOTION for Extension of Time In Which To File Dispositive Motions by Ronia Weisner. (Attachments: # 1 Text of Proposed Order) (Mustian, Joseph) (Entered: 08/30/2011)
2011-08-31		Motion Submitted to Chief Judge Louise Wood Flanagan - 16 First MOTION for Extension of Time In Which To File Dispositive Motions . (Baker, C.) (Entered: 08/31/2011)
2011-09-01	17	ORDER granting 16 Motion for Extension of Time - Dispositive motions due 09/30/2011. Signed by Chief Judge Louise Wood Flanagan on 08/31/2011. (Baker, C.) (Entered: 09/01/2011)
2011-09-29	18	Joint MOTION for Extension of Time to File File Dispositive Motions by Animal and Plant Health Inspection Service, United Stated Department of Agriculture. (Attachments: # 1 Text of Proposed Order) (Boyle, W.) (Entered: 09/29/2011)
2011-09-29		Motion Submitted to Chief Judge Louise Wood Flanagan - 18 Joint MOTION for Extension of Time to File Dispositive Motions. (Baker, C.) (Entered: 09/29/2011)
2011-10-03	19	ORDER granting 18 Motion for Extension of Time to File - The parties have up to and including October 31, 2011, in which to file dispositive motions. Signed by Chief Judge Louise Wood Flanagan on 10/02/2011. (Baker, C.) (Entered: 10/03/2011)
2011-11-01		**** Set Hearing - Final Pretrial Conference set for 1/3/2012 at 2:30 PM in New Bern Courtroom before District Judge Louise Wood Flanagan. (Baker, C.) (Entered: 11/01/2011)
2011-11-01	20	Second MOTION for Extension of Time to File Dispositive Motions by Animal and Plant Health Inspection Service, United Stated Department of Agriculture. (Attachments: # 1 Text of Proposed Order) (Boyle, W.) Modified on 11/2/2011 to correct docket entry text. (Baker, C.) (Entered: 11/01/2011)
2011-11-02		Motion Submitted to District Judge Louise Wood Flanagan - 20 Second MOTION for Extension of Time to File Dispositive Motions. (Baker, C.) (Entered: 11/02/2011)
2011-11-08	21	ORDER granting 20 Motion for Extension of Time to File Dispositive Motions - The parties have up to and including November 21, 2011, in which to file dispositive motions. Trial is reset for the court's civil term beginning on February 21, 2012, in New Bern. Signed by District Judge Louise Wood Flanagan on 11/08/2011. (Baker, C.) (Entered: 11/08/2011)
2011-12-05	22	ORDER - Trial in this matter has been reset to the court's civil term beginning February 21, 2012, but the final pretrial conference remains on the calendar for January 3, 2012. For the efficient administration of justice, the final pretrial conference is continued from January 3, 2012, to a date and time to be noticed by the clerk of court in the near future. Signed by District Judge Louise Wood Flanagan on 12/05/2011. (Baker, C.) (Entered: 12/05/2011)
2011-12-06		**** Reset Hearing - Final Pretrial Conference reset for 2/3/2012 at 1:30 PM in New Bern Courtroom before District Judge Louise Wood Flanagan. (Baker, C.) (Entered: 12/06/2011)
2012-02-03	23	Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern, NC - Final Pretrial Conference held on 2/3/2012. Court reviews docket generally and notes for record that no counsel appeared for any party as noticed for today's hearing. The parties have not informed court of status of case. Clerk confirms service of notice of hearing was made to all counsel. Court dismisses this action with prejudice. Written dismissal order to follow. (Court Reporter - Harry Hagopian) (Baker, C.) (Entered: 02/03/2012)
2012-02-04	24	MOTION to Vacate 23 Minute Entry re dismissal. Dismissal by Ronia Weisner (Attachments: # 1 Supplement Memorandum in Support of Plaintiff's Motion To Vacate Dismissal of Case # 2 Affadavit of Steven M. Wise). (Mustian, Joseph) (Entered: 02/04/2012)
2012-02-06	25	ORDER granting in part 24 Motion to Vacate Dismissal - The court reopens this case for the limited purpose of filing, briefing, and disposition of plaintiff's motion for attorneys' fees. Plaintiff shall have fourteen (14) days from date of entry of this order to file motion seeking attorneys' fees, and defendants shall have fourteen (14) days thereafter to respond. Signed by District Judge Louise Wood Flanagan on 02/06/2012. (Baker, C.) (Entered: 02/06/2012)
2012-02-21	27	MOTION for Attorney Fees by Ronia Weisner. (Attachments: # 1 Memorandum in Support of Plaintiff's Motion For Attorney's Fees and Costs, # 2 Affidavit of Ronia Weisner, # 3 Affidavit of Joseph P. Mustian, # 4 Affidavit of Steven M. Wise, # 5 Exhibit A - Affidavit of Steven M. Wise, # 6 Exhibit B - Affidavit of Steven M. Wise, # 7 Exhibit C (Part 1) - Affidavit of Steven M. Wise, # 8 Exhibit C (Part 2) - Affidavit of Steven M. Wise, # 9 Exhibit C (Part 3) - Affidavit of Steven M. Wise, # 10 Exhibit C (Part 4) - Affidavit of Steven M. Wise, # 11 Exhibit C (Part 5) - Affidavit of Steven M. Wise, # 12 Exhibit C (Part 6) - Affidavit of Steven M. Wise) (Mustian, Joseph) (Entered: 02/21/2012)
2012-02-22		NOTICE OF DEFICIENCIES re: 27 Motion for Attorney Fees - Pursuant to the judge's practice preferences on the court's website, counsel must submit a proposed order. The order must be filed electronically using the event PROPOSED ORDER located in the RESPONSES AND REPLIES category. Counsel is also reminded that a Memorandum in Support should be filed as a separate entry using event codes located under 'Motions and Related Filings: Responses and Replies'. In the future, be sure to file each pleading separately and link the Memorandum to the underlying Motion. No need to refile at this time. (Baker, C.) (Entered: 02/22/2012)
2012-02-23	28	Proposed Order re 27 MOTION for Attorney Fees filed by Ronia Weisner. (Mustian, Joseph) (Entered: 02/23/2012)
2012-03-06	29	MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Attorney Fees by Animal and Plant Health Inspection Service, United Stated Department of Agriculture. (Attachments: # 1 Text of Proposed Order) (Boyle, W.) (Entered: 03/06/2012)
2012-03-08		Motion Submitted to District Judge Louise Wood Flanagan - 29 MOTION for Extension of Time to File Response as to 27 MOTION for Attorney Fees. (Baker, C.) (Entered: 03/08/2012)
2012-03-08	30	ORDER granting 29 Motion for Extension of Time to File Response re 27 MOTION for Attorney Fees - Responses due by 3/20/2012. Signed by District Judge Louise Wood Flanagan on 03/08/2012. (Baker, C.) (Entered: 03/08/2012)
2012-03-20	31	*DOCUMENT CORRECTED AND REFILED AT DOCKET ENTRY 33* - RESPONSE in Opposition re 27 MOTION for Attorney Fees filed by Animal and Plant Health Inspection Service, United States Department of Agriculture. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 - Emails from Wise to Boyle dated 11/16/2011 and 11/9/2011, # 3 Exhibit 2 - Emails dated 12/1/2011, # 4 Exhibit 3 - Email to Steve Wise dated 12/22/2011 with draft Stipulation of Dismissal, # 5 Exhibit 4 - Email from Wise to Boyle dated 1/27/2012, # 6 Exhibit 5- Email from Wise to Boyle dated 1/30/2012, # 7 Exhibit 6 - Email from Wise to Boyle dated 2/1/2012) (Boyle, W.) Modified on 3/21/2012 to insert refiling information. (Baker, C.) (Entered: 03/20/2012)
2012-03-20	32	*DOCUMENT CORRECTED AND REFILED AT DOCKET ENTRY 34 * - Declaration re 31 Response in Opposition to Motion by Animal and Plant Health Inspection Service, United Stated Department of Agriculture. (Boyle, W.) Modified on 3/21/2012 to insert refiling information. (Baker, C.) (Entered: 03/20/2012)
2012-03-20	33	RESPONSE in Opposition re 27 MOTION for Attorney Fees filed by Animal and Plant Health Inspection Service, United States Department of Agriculture. (Boyle, W.) Modified on 3/21/2012. (Baker, C.) (Entered: 03/20/2012)
2012-03-20	34	Declaration re 33 Response in Opposition to Motion by Animal and Plant Health Inspection Service, United States Department of Agriculture. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 - Emails from Wise to Boyle dated 11/16/11 and 11/9/11, # 3 Exhibit 2 - Emails dated 12/1/11, # 4 Exhibit 3 - Email to Wise dated 12/22/11 with draft Stipulation of Dismissal, # 5 Exhibit 4 - Email from Wise to Boyle dated 1/27/12, # 6 Exhibit 5 - Email from Wise to Boyle dated 1/30/12, # 7 Exhibit 6 - Email from Wise to Boyle dated 2/1/12) (Boyle, W.) (Entered: 03/20/2012)
2012-03-28	35	**DISREGARD ENTRY: REFILED AT 37 ** MOTION to Withdraw of Steven M. Wise, Esq. by Ronia Weisner. (Mustian, Joseph) Modified on 3/30/2012 to note correction. (Tripp, S.). (Entered: 03/28/2012)
2012-03-28	36	First MOTION to Withdraw as Attorney of Joseph P. Mustian, Esq. by Ronia Weisner. (Mustian, Joseph) (Entered: 03/28/2012)
2012-03-29		NOTICE OF DEFICIENCY re: 35 Motion to Withdraw and 36 Motion to Withdraw as Attorney. No proposed orders provided. Counsel should file the proposed orders using the event provided under the "Responses and Replies" category. Quality Control Clerk telephoned counsel as to other deficiencies in the filings. (Heath, D.) (Entered: 03/29/2012)
2012-03-29	37	First MOTION to Withdraw as Attorney by Steven M. Wise, Esq. by Ronia Weisner. (Attachments: # 1 Text of Proposed Order) (Mustian, Joseph) (Entered: 03/29/2012)
2012-03-29	38	Proposed Order re 36 First MOTION to Withdraw as Attorney of Joseph P. Mustian, Esq. filed by Ronia Weisner. (Mustian, Joseph) (Entered: 03/29/2012)
2012-03-30		Motions Submitted to District Judge Louise Wood Flanagan: 37 First MOTION to Withdraw as Attorney by Steven M. Wise, Esq. and 36 First MOTION to Withdraw as Attorney of Joseph P. Mustian, Esq. (Tripp, S.) (Entered: 03/30/2012)
2012-04-09		Motion Submitted to District Judge Louise Wood Flanagan - 27 MOTION for Attorney Fees. (Baker, C.) (Entered: 04/09/2012)
2012-04-10		MOTIONS REFERRED to Magistrate Judge David W. Daniel - 37 MOTION to Withdraw as Attorney by Steven M. Wise, Esq. , 27 MOTION for Attorney Fees, and 36 MOTION to Withdraw as Attorney of Joseph P. Mustian, Esq. (Baker, C.) (Entered: 04/10/2012)
2012-05-08	39	NOTICE of Appearance by Steven C. Lawrence on behalf of Ronia Weisner. (Lawrence, Steven) (Entered: 05/08/2012)
2012-05-23	40	ORDER granting 36 Motion to Withdraw as Attorney - Attorney Joseph Powell Mustian terminated as counsel for plaintiff. Signed by Magistrate Judge David W. Daniel on 05/23/2012. (Baker, C.) (Entered: 05/23/2012)
2012-05-23	41	ORDER granting 37 Motion to Withdraw as Attorney - Attorney Steven M. Wise terminated as counsel for plaintiff. Signed by Magistrate Judge David W. Daniel on 05/23/2012. (Baker, C.) (Entered: 05/23/2012)
2012-06-29	42	ORDER denying 27 Motion for Attorney Fees - Signed by Magistrate Judge David W. Daniel on 06/29/2012. (Baker, C.) (Entered: 06/29/2012)
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