1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Acting Associate General Counsel 

Colleen T. Sealander (csealander@fec.gov) 

Assistant General Counsel 

Greg J. Mueller (gmueller@fec.gov) 

Benjamin Streeter (bstreeter@fec.gov) 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

(202) 219-0260 (fax) 

UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

Jon Marcus, 

 Plaintiff, 

 v. 

United States Attorney General 

Alberto R. Gonzales; 

Federal Election Commission Chairman 

Michael E. Toner; 

In their official capacities, 

 Defendants. 

 CV07-00398-PCT EHC 

 REPLY IN SUPPORT OF 

 MOTION TO DISMISS 

REPLY IN SUPPORT OF DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS 

On May 4, 2007, Defendant Federal Election Commission (“Commission”) moved to 

dismiss plaintiff Jon Marcus’s Complaint for Declaratory Relief for failure to state a claim 

pursuant to Fed. R. Civ. P 12(b)(6). Under LRCiv. 12.1(b), plaintiff’s opposition brief, if he 

were to file one at all, was due thirty days later on June 4, 2007. That deadline has passed 

Case 3:07-cv-00398-EHC Document 24 Filed 06/18/07 Page 1 of 3
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and plaintiff has not filed any response to the Commission’s Motion to Dismiss.1 Because 

the Commission’s motion to dismiss is both unopposed and meritorious, the Court should 

grant the motion summarily and dismiss this case with prejudice as to the Commission. 

Argument 

For the reasons explained in the Commission’s motion to dismiss, and in the Attorney 

General’s motion to dismiss, this Court should dismiss the entire Complaint filed by plaintiff. 

Furthermore, plaintiff’s failure to oppose the Commission’s motion to dismiss provides an 

additional basis for dismissal of the plaintiff’s claim against the Commission. Under this 

Court’s local rules, “if the opposing party does not serve and file the required answering 

memoranda ... such non-compliance may be deemed a consent to the denial or granting of the 

motion and the Court may dispose of the motion summarily.” LRCiv. 7.2(i). 

Under this rule “the court must weigh (1) the public's interest in expeditious resolution of 

litigation, (2) the court's need to manage its docket, (3) the risk of prejudice to the 

defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the 

availability of less drastic sanctions.” Hernandez v. Arpaio, 2007 WL 1297536 at *2 (D. 

Ariz. 2007) (citing Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); Henderson v. Duncan, 

779 F.2d 1421, 1423 (9th Cir. 1986)). 

In this case all of the factors weigh heavily toward dismissal. The public interest in 

expeditious resolution of litigation and the Court’s need to manage its docket are served by 

dismissal of this case, especially since it is the plaintiff who once sought to expedite 

resolution of this litigation. See Plaintiff’s Motion to Expedite Proceedings, filed March 15, 

2007. “There is no risk of prejudice to the [d]efendant to resolve the motion in his favor,” 

Hernandez, 2007 WL 1297536 *2, and to the extent public policy favors a disposition on the 

 

1

 On May 24, 2007, plaintiff filed his Opposition to Defendant Gonzales’ Motion to 

Dismiss (“Opposition”), which explicitly confined itself to opposing the Attorney General’s 

motion to dismiss. See Opposition at 1 (captioned: “Opposition to Defendant Gonzales’s 

Motion to Dismiss”); at 9 (requesting that the Court “deny the Attorney General’s motion to 

dismiss,” but making no mention of the Commission’s pending motion). The arguments 

raised in that Opposition are fully addressed in the Defendant Attorney General’s Reply 

Memorandum in Support of his Motion to Dismiss, filed June 1, 2007 (“Attorney General’s 

Reply”). The Commission hereby incorporates by reference the arguments contained in the 

Attorney General’s Reply. 

Case 3:07-cv-00398-EHC Document 24 Filed 06/18/07 Page 2 of 3
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

merits, that interest will be served when the Court decides the sole legal issue presented by 

this case within the context of the Attorney General’s motion to dismiss. Accordingly, the 

Court should grant the Commission’s motion to dismiss summarily and dismiss plaintiff’s 

complaint as to the Commission in its entirety with prejudice. 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

_____________________________________________________________________________________________________________________________ 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker 

_____________________________________________________________________________________________________________________________ 

David Kolker 

Acting Associate General Counsel (dkolker@fec.gov) 

/s/ Colleen T. Sealander 

_____________________________________________________________________________________________________________________________ 

Colleen T. Sealander 

Assistant General Counsel (csealander@fec.gov) 

/s/ Greg J. Mueller 

_____________________________________________________________________________________________________________________________ 

Greg J. Mueller 

Attorney (gmueller@fec.gov) 

/s/ Benjamin A. Streeter III 

_____________________________________________________________________________________________________________________________ 

Benjamin A. Streeter III 

Attorney (bstreeter@fec.gov) 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND 

ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

June 18, 2007 (202) 694-1650 

Case 3:07-cv-00398-EHC Document 24 Filed 06/18/07 Page 3 of 3