UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) RESPONSE IN PARTIAL 

 ) OPPOSITION TO VOLUNTARY 

FEDERAL ELECTION COMMISSION, ) DISMISSAL AND TO 

 ) AMENDING THE COMPLAINT 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S COMBINED RESPONSE 

IN PARTIAL OPPOSITION TO PLAINTIFFS’ MOTION FOR VOLUNTARY 

DISMISSAL AND MOTION TO AMEND OR SUPPLEMENT THE COMPLAINT 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

Holly J. Baker* 

Esther D. Gyory (VA Bar # 76826) 

Kevin P. Hancock* 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

July 17, 2014 (202) 694-1650 

* Admitted Pro Hac Vice 

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TABLE OF CONTENTS

I. BACKGROUND ...........................................................................................................2 

A. The Parties and Claims .....................................................................................2 

B. Procedural History .............................................................................................4 

II. THE INNIS PLAINTIFFFS SHOULD NOT BE VOLUNTARILY DISMISSED 

UNDER RULE 41(a)(2) UNTIL THEY HAVE RESPONDED TO FEC 

DISCOVERY REQUESTS ...........................................................................................5 

A. Rule 41(a)(2) Cannot Be Used to Evade an Adverse Discovery Ruling ...........5 

B. The Circumstances of Plaintiffs’ Rule 41(a)(2) Motion Indicate That They 

Seek to Evade This Court’s Ruling Allowing the FEC to Take Discovery .......6 

1. Before the June 18 Discovery Ruling, the Innis Plaintiffs 

Stated That They Would Remain Parties to the Case Even 

if Innis Lost the June 10 Primary ...........................................................7 

2. The Innis Plaintiffs Could Have Noticed Their Own Dismissal 

for Six Days After the June 10 Election and Yet Did Not Move for 

Dismissal Until After the June 18 Adverse Discovery Ruling ..............7 

3. In the Related Tea Party Fund I Litigation, the Tea Party Fund 

and Its Candidate Coplaintiffs Similarly Sought Dismissal After 

Suffering an Adverse Discovery Ruling, and This Pattern 

Justifies a Dismissal With Prejudice ......................................................9 

C. The FEC Would Be Unfairly Prejudiced if the Innis Plaintiffs Were 

Unconditionally Dismissed at This Time Because They Likely Possess 

Unique Facts Important to the FEC’s Continuing Defense of This Case ........10 

III. PLAINTIFFS’ RULE 15 MOTION TO AMEND THE COMPLAINT SHOULD 

BE DENIED TO THE EXTENT IT SEEKS TO REMOVE THE INNIS 

PLAINTIFFS AS PARTIES PRIOR TO THE CLOSE OF DISCOVERY ................15 

 

A. Plaintiffs Cannot Circumvent Rule 41(a)(2)’s Requirement for a Court 

Order for Voluntary Dismissal by Amending the Complaint Under 

Rule 15(a)(1)(B) ...............................................................................................15 

B. The Commission Does Not Otherwise Oppose Plaintiffs’ 

Proposed Amendments ...................................................................................17 

IV. CONCLUSION ............................................................................................................18 

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Defendant Federal Election Commission (“FEC” or “Commission”) requests that the 

voluntary dismissal two plaintiffs seek under Federal Rule of Civil Procedure 41(a)(2) not take 

effect until those plaintiffs comply with their discovery obligations in this case. Niger Innis and 

Niger Innis for Congress (“Innis plaintiffs”) claim that they request dismissal because Innis lost 

the June 10 congressional primary election. But the timing and circumstances surrounding their 

motion suggest that those plaintiffs seek dismissal for the improper purpose of evading this 

Court’s June 18 ruling requiring them to provide discovery. The Innis plaintiffs claimed before 

the primary that they would stay in the case if Innis lost. And after the election, the Innis 

plaintiffs did nothing during the six days they could have dismissed as of right under Rule 

41(a)(1)(A)(i). Yet they sought dismissal soon after the adverse June 18 discovery ruling. 

If the Innis plaintiffs were unconditionally dismissed from this case at this time it would 

prejudice the FEC. The Innis plaintiffs likely have unique information that will remain 

important to the FEC’s ongoing defense of the merits of this case even if they are dismissed. 

This Court granted the FEC’s Rule 56(d) motion in part so it could seek this evidence. The FEC 

has served discovery requests on the Innis plaintiffs and intends to depose them. Dismissal of 

the Innis plaintiffs therefore should not take effect until those plaintiffs respond fully to pending 

discovery requests and have their depositions taken, and the special protections for nonparties 

should be deemed inapplicable to them for any future Rule 45 requests. In addition, dismissal 

should be with prejudice so as to prevent the Innis plaintiffs from re-filing their claims elsewhere 

in hopes of obtaining a more favorable discovery ruling, given the apparent pattern of some 

involved in plaintiffs’ lawsuit of seeking dismissal to evade discovery. 

Plaintiffs have also filed a motion under Rule 15(a) to amend their complaint. This Court 

should deny that motion to the extent plaintiffs are attempting to circumvent the Court’s power 

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under Rule 41(a)(2) to set conditions for the Innis plaintiffs’ dismissal by simply removing the 

Innis plaintiffs’ claims from the complaint under Rule 15(a)(1)(B). 

I. BACKGROUND 

A. The Parties and Claims 

The FEC is the independent agency of the United States government with statutory 

authority over the administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act (“FECA”), 2 U.S.C. §§ 431-57. See 2 U.S.C. §§ 437c(b)(1), 437d(a)(7)-(8), 

437g, 438(a)(8). Congress enacted FECA primarily “to limit the actuality and appearance of 

corruption resulting from large individual financial contributions.” Buckley v. Valeo, 424 U.S. 1, 

26 (1976) (per curiam). To that end, FECA, inter alia, places dollar limitations on contributions 

to candidates for federal office and to political committees. See 2 U.S.C. § 441a(a). 

Plaintiffs are four political committees and Niger Innis, a former candidate for federal 

office. Their complaint’s three claims challenge the constitutionality of parts of FECA. (Compl. 

¶¶ 39-59 (Docket No. 1).) 

In support of Claims 1 and 2, plaintiff Stop Reckless Economic Instability caused by 

Democrats PAC (“Stop PAC”) alleges that it contributed $2,600 to Innis for the June 10, 2014 

primary for the Republican nomination for Congress from Nevada’s fourth congressional district. 

(Compl. ¶¶ 22-23 (Docket No. 1).) Stop PAC wished to contribute an additional $2,400 (for a 

total of $5,000) to Innis for that election. (Id. ¶¶ 23-24.) FECA, however, limits contributions 

from political committees like Stop PAC to federal candidates to $2,600 per election. 2 U.S.C. § 

441a(a)(1)(A). Stop PAC will be able to contribute $5,000 per election to any federal candidate 

when it becomes a “multicandidate” political committee (commonly known as a “PAC”) under 

FECA in less than two months, on September 11, 2014. See id. § 441a(a)(2)(A). On that date, 

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Stop PAC will have met all three of FECA’s requirements for a PAC to become a multicandidate 

PAC: a PAC must (1) receive contributions from more than 50 persons; (2) contribute to at least 

five federal candidates; and (3) have been registered with the FEC for at least six months. 2 

U.S.C. § 441a(a)(4). 

The Supreme Court has upheld the constitutionality of these requirements, explaining that 

they “serve the permissible purpose of preventing individuals from evading the applicable 

contribution limitations by labeling themselves committees,” while “enhance[ing] the 

opportunity of bona fide groups to participate in the election process.” Buckley, 424 U.S. at 35-

36. But in Claims 1 and 2 of the complaint, Stop PAC and the Innis plaintiffs assert that the sixmonth registration period of section 441a(a)(4) violates the First Amendment (Compl. ¶¶ 47-51) 

and that the lower $2,600 contribution limit of section 441a(a)(1)(A) violates the equal 

protection guarantee of the Fifth Amendment (Compl. ¶¶ 39-46). 

In support of Claim 3, plaintiff Tea Party Leadership Fund (“Tea Party Fund”), a 

multicandidate PAC, alleges that it has contributed $5,000 to plaintiff Alexandria Republican 

City Committee (“Alexandria Committee”), a local political party committee. (Compl. ¶ 34.) 

The Tea Party Fund wishes to contribute an additional $5,000 (for a total of $10,000) to the 

Alexandria Committee in 2014. (Id. ¶ 35.) FECA, however, limits contributions from 

multicandidate PACs like the Tea Party Fund to state and local political party committees to 

$5,000 per calendar year. 2 U.S.C. § 441a(a)(2)(C). The Tea Party Fund also alleges that it 

wishes to contribute a total of $32,400 in 2014 to the National Republican Senatorial Committee 

(“NRSC”), a national political party committee. (Compl. ¶ 35.) But FECA limits such 

contributions to $15,000 per calendar year. 2 U.S.C. § 441a(a)(2)(B). Claim 3 asserts that these 

contribution limits, id. § 441a(a)(2)(B)-(C), violate the Fifth Amendment because individuals 

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and PACs that have yet to achieve multicandidate PAC status may give the increased amounts 

that the Tea Party Fund wishes to contribute. (Compl. ¶¶ 52-59.) 

B. Procedural History 

Twenty-two days after filing their complaint, plaintiffs moved for summary judgment. 

(Docket No. 6.) On May 23, 2014, the FEC opposed that motion by seeking time to take 

discovery under Rule 56(d). (Docket No. 27.) On June 16, the FEC answered the complaint. 

(Docket No. 31.) Two days later, on June 18, this Court agreed with the FEC that plaintiffs’ 

motion was “premature,” and thus granted the FEC’s Rule 56(d) motion while denying plaintiffs’ 

motion for summary judgment without prejudice. (Docket No. 33.) The Court explained that 

“an adequate factual record is necessary for proper consideration of plaintiff’s constitutional 

claims” and that the FEC “is entitled to a reasonable opportunity to obtain discovery for that 

purpose.” (Id.) The Court also issued a separate order scheduling pre-trial conferences and 

stating that discovery must be complete by September 12, 2014. (Docket No. 32.) 

On June 27, the parties held a Rule 26(f) conference, and on July 2, they filed a joint 

proposed discovery plan. (Docket No. 34.) A day later, on July 3, plaintiffs moved to 

voluntarily dismiss the Innis plaintiffs under Rule 41(a)(2). (Docket No. 35.) Then on July 7, 

plaintiffs moved to amend and supplement the complaint under Rule 15. (Docket No. 36.) The 

parties appeared for an initial pretrial conference on July 9 and filed an amended joint discovery 

plan on July 11. (Docket Nos. 38-39.) On July 16, the Court issued a Rule 16(b) Scheduling 

Order. (Docket No. 40.) On that same day, the FEC served its first round of written discovery 

requests upon plaintiffs. Any objections by plaintiffs to those requests are due within 15 days of 

service, and plaintiffs’ responses to those requests are due within 30 days of service. (See First 

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Sets of Discovery Requests to Plaintiffs Niger Innis and Niger Innis for Congress, dated July 16, 

2014, FEC Exh. 1.) 

II. THE INNIS PLAINTIFFS SHOULD NOT BE VOLUNTARILY DISMISSED 

UNDER RULE 41(a)(2) UNTIL THEY HAVE RESPONDED TO FEC 

DISCOVERY REQUESTS 

A. Rule 41(a)(2) Cannot Be Used to Evade an Adverse Discovery Ruling 

 A plaintiff may unilaterally notice his or her dismissal from a lawsuit “before the 

opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 

41(a)(1)(i). After that point, however, a court must order a dismissal under Rule 41(a)(2) “on 

terms that the court considers proper.” When considering whether to deny or impose conditions 

on dismissal, a court “must focus primarily on protecting the interests of the defendant” and 

whether the defendant “will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 

(4th Cir. 1987).1

 

A plaintiff may not use voluntary dismissal to evade the effect of an adverse court ruling. 

See Francis v. Ingles, 1 Fed. App’x. 152, 154 (4th Cir. 2001) (per curiam) (affirming denial of 

Rule 41(a)(2) motion where plaintiff’s “motivation for the motion appeared to be to circumvent 

the court’s [evidentiary] decision”); Skinner v. First Am. Bank of Va., 64 F.3d 659, No. 93-2493, 

1995 WL 507264, at *2-3 (4th Cir. 1995) (per curiam) (holding that voluntary dismissal and 

complaint amendment are not required where it would “permit [plaintiffs] to dismiss their federal 

claim and thereby avoid an adverse ruling in federal court”); RMD Concessions, LLC v. 

Westfield Corp., Inc., 194 F.R.D. 241, 243 (E.D. Va. 2000) (“[P]laintiffs may not use Rule 

                                                           

1

 Factors that are relevant to this analysis include: “the opposing party’s effort and 

expense in preparing for trial, excessive delay and lack of diligence on the part of the movant, 

and insufficient explanation of the need for a voluntary dismissal, as well as the present stage of 

litigation.” Howard v. Inova Health Care Servs., 302 F. App’x 166, 178-79 (4th Cir. 2008) 

(internal quotation marks omitted). 

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41(a)(2) to avoid or undo the effect of an unfavorable order or ruling.”); Teck Gen. P’ship v. 

Crown Cent. Petroleum Corp., 28 F. Supp. 2d 989, 992 (E.D. Va. 1998) (“[I]t is settled that a 

plaintiff may not obtain a non-prejudicial voluntary dismissal simply to circumvent adverse 

rulings.”). 

As a result, courts have imposed conditions on voluntary dismissal to prevent evasion of 

adverse discovery rulings, particularly where the plaintiff’s continued compliance with its 

discovery obligations was important to the defendant’s continued defense of the action. See, 

e.g., Alliance For Global Justice v. D.C., Civ. No. 01-0811, 2005 WL 469593, at *3 (D.D.C. 

Feb. 7, 2005) (recommending dismissal upon condition that plaintiffs respond to discovery; 

stating that “[i]t is simply unfair to allow plaintiffs to walk away from these [discovery] 

obligations when it appears that they have information pertinent to the case that they initiated 

and that defendants must continue to defend,” particularly where “plaintiffs admittedly sought 

voluntary dismissal to avoid complying with discovery”); see also In re Wellbutrin XL, 268 

F.R.D. 539, 544 (E.D. Pa. 2010) (“The Court considers it proper to condition RDC’s voluntary 

dismissal upon its production of the Court-ordered discovery described in the March 11 Order,” 

which “go[es] to the heart of the defendants’ anticipated defense”); In re Vitamins Antitrust 

Litig., 198 F.R.D. 296, 304 (D.D.C. 2000) (conditioning dismissal on plaintiffs responding to 

discovery where “it seems fairly obvious that these plaintiffs wish to dismiss their actions merely 

to avoid having to give defendants the discovery authorized by the Special Master’s Report”). 

B. The Circumstances of Plaintiffs’ Rule 41(a)(2) Motion Indicate That They 

Seek to Evade This Court’s Ruling Allowing the FEC to Take Discovery 

The Innis plaintiffs claim that they seek dismissal because Niger Innis is no longer a 

federal candidate after losing the June 10, 2014 primary election. (Mem. in Supp. of Pls.’ Mot. 

to Dismiss Pls. Niger Innis and Niger Innis for Congress Pursuant to Rule 41(a)(2) (“Pls.’ Rule 

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41 Br.”) at 1, 7 (Docket No. 35-1).) But, for three reasons, the circumstances surrounding their 

motion indicate that they seek to evade this Court’s June 18 ruling allowing the FEC to take 

merits discovery from them. 

1. Before the June 18 Discovery Ruling, the Innis Plaintiffs Stated That 

They Would Remain Parties to the Case Even if Innis Lost the June 

10 Primary 

In support of its Rule 56(d) motion to allow discovery, the FEC pointed out that the Innis 

plaintiffs’ claims might become moot if Innis lost the June 10 primary and had no intention to 

run for office again. (Decl. of Counsel in Supp. of FEC’s Mot. to Allow Time for Disc. Under 

Rule 56(d) (“Hancock Decl.”) ¶ 8(b) (Docket No. 27-2).) Plaintiffs responded on May 27 that 

“discovery into Innis’ future electoral plans [would be] unnecessary,” because if he lost the June 

10 primary, “Plaintiffs intend to argue that” the Innis plaintiffs’ claims are capable of repetition 

yet evading review as a matter of law regardless of Innis’s future intentions. (Pls.’ Rebuttal Br. 

in Supp. of Mot. for Summ. J. and Against Def.’s Rule 56(d) Mot. at 12-13 n.12 (Doc. No. 29).) 

But now, after becoming subject to discovery under the Court’s June 18 ruling, the Innis 

plaintiffs seek dismissal in part based on an asserted new-found belief that Innis’s June 10 

primary loss “potentially undermin[es] their standing.” (Pls.’ Rule 41 Br. at 1, 8 (Docket No. 35-

1).) While plaintiffs are entitled to alter their litigation strategy, the fact that this change of heart 

has occurred only after this Court’s adverse discovery ruling suggests that their motivation for 

dismissal is to avoid complying with that ruling. 

2. The Innis Plaintiffs Could Have Noticed Their Own Dismissal for Six 

Days After the June 10 Election and Yet Did Not Move for Dismissal 

Until After the June 18 Adverse Discovery Ruling 

After Innis lost the June 10 primary, the Innis plaintiffs had a six-day window during 

which they could have noticed their voluntary dismissal from this case as of right under Rule 

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41(a)(1)(A)(i). The Commission did not answer the Complaint until June 16 and it has not 

moved for summary judgment. But on June 18, this Court held that plaintiffs must answer 

discovery. (Docket No. 33.) Only then did the Innis plaintiffs seek voluntary dismissal, 

purportedly because Innis lost the June 10 election. Their failure to unilaterally dismiss their 

claims after Innis lost the election but before they were subject to discovery further undermines 

their asserted justification. See Teck Gen. P’ship, 28 F. Supp. 2d at 992-93 (denying dismissal 

where plaintiff failed to “promptly move[] for a non-prejudicial dismissal soon after” he first 

could have and only waited until after an adverse discovery ruling); In re Vitamins Antitrust 

Litig., 198 F.R.D. at 304 (conditioning dismissal where “the timing of plaintiffs’ Motion does 

appear suspect” since they waited until “after the Special Master had already ruled against them” 

on a discovery issue). 

The Innis plaintiffs claim that they did not unduly delay seeking dismissal after the June 

10 primary because “a portion of [Innis’s] time since was spent investigating legal options for 

contesting the results” (Pls. Rule 41 Br. at 6-7 (Docket No. 35-1)), but available information 

suggests otherwise. The Innis campaign’s own June 12 press release makes clear that Innis had 

conceded the election despite his call for an “audit” of the results, which he and his campaign 

manager admitted would not change the outcome. See Thomas Mitchell, Candidate Innis calls 

on secretary of state to investigate unusual results in CD4 race, 4TH ST8 (June 12, 2014) 

(quoting Innis press release: “‘At this point in time, Crescent Hardy has won the Republican 

nomination to face [the Democratic opponent] in the November General Election, and we need 

to move forward.’”)2

; see also Innis Wants Audit of Election Results, CBS Las Vegas (June 13, 

                                                           

2

 See http://4thst8.wordpress.com/2014/06/12/candidate-innis-calls-on-secretary-of-stateto-investigate-unusual-results-in-cd4-race/. The Innis campaign posted this article quoting its 

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2014) (“[Innis] acknowledged that Hardy won the nomination and ‘we need to move 

forward.’”).3

 Indeed, Innis only questioned the vote tally of an opponent who also lost the 

election, not the election’s winner, id., whom Innis trailed by “about 10 percentage points,” 

Laura Myers, Hardy nabs win in 4th Congressional District’s GOP primary, Las Vegas ReviewJournal (June 10, 2014).4

 Thus, there was ample time after Innis conceded the election for 

voluntary dismissal as of right, but he did not choose to seek such dismissal until after the 

Court’s Rule 56(d) ruling. 

3. In the Related Tea Party Fund I Litigation, the Tea Party Fund and 

Its Candidate Coplaintiffs Similarly Sought Dismissal After Suffering 

an Adverse Discovery Ruling, and This Pattern Justifies a Dismissal 

With Prejudice 

Finally, this is not the first time plaintiff Tea Party Fund and its candidate coplaintiffs 

have sought a dismissal apparently to avoid an adverse discovery ruling. In 2012, the Tea Party 

Fund and two then-federal candidates, Sean Bielat and John Raese, asserted essentially the same 

claims that Stop PAC and the Innis plaintiffs do here against the FEC. See Tea Party Leadership 

Fund, et al. v. FEC, Civ. No. 12-1707 (D.D.C.) (“Tea Party Fund I”). In the prior case, the 

plaintiffs moved for summary judgment soon after the start of discovery and the FEC responded 

with a Rule 56(d) motion. See Tea Party Fund I (Docket No. 20). A magistrate judge 

subsequently ordered the plaintiffs, including Bielat and Raese, to respond to FEC discovery 

requests. See Mem. Order at 12, Tea Party Fund I (Docket No. 35). On the day the discovery 

                                                                                                                                                                                               

press release on its Facebook page on June 12. See https://www.facebook.com/pages/NigerInnis/165079270285540 (last viewed July 16, 2014). 

3

 See http://lasvegas.cbslocal.com/2014/06/13/innis-wants-audit-of-election-results/. Innis 

abandoned his audit effort on June 23. See Innis Abandons Bid for Recount, CBS Las Vegas 

(June 24, 2014), http://lasvegas.cbslocal.com/2014/06/24/innis-abandons-bid-for-recount/. 

4

 See http://www.reviewjournal.com/politics/elections/hardy-nabs-win-4th-congressionaldistrict-s-gop-primary. 

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was due, instead of responding, the plaintiffs moved to “withdraw” Bielat and Raese; Bielat 

sought dismissal explicitly because he thought the FEC’s discovery requests were “burdensome” 

and “irrelevant,” while Raese cited his desire to avoid “imposition on his time and resources.” 

See Motions to Withdraw Sean Bielat and John Raese, Tea Party Fund I (Docket Nos. 39-40).5

 

A little over a month later, all plaintiffs including the Tea Party Fund voluntarily dismissed their 

lawsuit with prejudice under Rule 41(a)(1)(A)(ii). (Tea Party Fund I (Docket No. 50).) Now, 

nearly the same sequence of events has occurred again in this forum. This pattern further 

suggests that the Innis plaintiffs’ motivation for dismissal is to evade this Court’s discovery 

ruling. 

In addition, such an illegitimate motivation is a “decisive factor weighing against nonprejudicial dismissal.” Teck Gen. P’ship, 28 F. Supp. 2d at 992. Thus, if this Court grants the 

Innis plaintiffs’ Rule 41(a)(2) motion it should do so with prejudice to prevent the Innis plaintiffs 

from re-filing in hopes of obtaining a more favorable discovery ruling elsewhere. 

C. The FEC Would Be Unfairly Prejudiced if the Innis Plaintiffs Were 

Unconditionally Dismissed at This Time Because They Likely Possess Unique 

Facts Important to the FEC’s Continuing Defense of This Case 

The FEC would be unfairly prejudiced if the Innis plaintiffs were unconditionally 

dismissed because they have information that will be important to the FEC’s continuing defense 

against Stop PAC’s claims. See Alliance For Global Justice, 2005 WL 469593, at *3 (“It is 

simply unfair to allow plaintiffs to walk away from these [discovery] obligations when it appears 

                                                           

5

 The Commission chose not to oppose Raese and Bielat’s dismissal from the Tea Party 

Fund I case. (See Docket Nos. 48-49.) Their absence did not threaten to prejudice the 

Commission’s ability to take merits discovery that was essential to its defense of that lawsuit, 

and the Commission had not yet been faced with a pattern of withdrawn claims following 

adverse discovery rulings. The same is not true in this case for the Innis plaintiffs’ proposed 

dismissal. See infra Part II.C. 

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that they have information pertinent to the case that they initiated and that defendants must 

continue to defend.”). 

Plaintiffs allege that the FECA provisions they challenge are unconstitutional because 

they are “not closely tailored to furthering an important government interest.” (Compl. ¶¶ 45, 58 

(Docket No. 1).) The FEC will demonstrate, however, that the statutes at issue further the 

important government interests of lessening the threats of (1) actual corruption; (2) the 

appearance of corruption; and (3) circumvention of FECA’s contribution limits.6 (See Def. 

FEC’s Mem. in Supp. of Mot. to Allow Time for Disc. Under Rule 56(d) and in Opp’n to Pls.’ 

Mot. for Summ. J. (“FEC Rule 56(d) Br.”) at 12 (Docket No. 27-1).) To that end, one important 

area of discovery involves the circumstances of Stop PAC’s creation, operation, and relationship 

with the Innis campaign. As the FEC discussed in its Rule 56(d) brief and declaration, public 

information indicates that Stop PAC’s chairman appears to be a contributor and political 

consultant to the Innis campaign, as well as a former colleague of Innis’s. (FEC Rule 56(d) Br. 

at 12-13 (Docket No. 27-1); Hancock Decl ¶ 7(e) (Docket No. 27-2).) Further, Stop PAC’s 

litigation counsel, treasurer, and custodian of records is also a consultant to, and the treasurer and 

custodian of records for, Niger Innis for Congress. (Hancock Decl. ¶ 7(e) & n.2 (Docket No. 27-

2).) So discovery is needed to determine the extent to which Innis and his campaign are 

responsible for the formation and operation of Stop PAC and the extent to which Stop PAC may 

have been created to enable circumvention of the limits on contributions to Innis. (Id.) The 

close relationship between Stop PAC and the Innis plaintiffs appears to be particularly indicative 

                                                           

6

 While the statutes plaintiffs’ challenge are constitutional because they can satisfy this 

level of scrutiny — often called “closely drawn” or “intermediate” scrutiny — the Commission 

will also argue that a lower level of scrutiny applies to plaintiffs’ equal protection claims. (See

FEC Rebuttal Mem. in Supp. of Mot. to Allow Time for Disc. Under Rule 56(d) at 4-5 n.3 

(Docket No. 30).) 

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of the danger new political committees pose of circumvention of the limit on contributions to 

candidate committees. Many of the FEC’s pending discovery requests to the Innis plaintiffs 

explore these matters, and the FEC’s Rule 56(d) motion, which the Court granted, was based in 

part on that key avenue of discovery. (Docket No. 33.) 

Such evidence from the Innis plaintiffs will remain important to the FEC’s defense even 

if they are dismissed because Stop PAC and its claims, which are identical to the Innis plaintiffs’ 

claims, will remain in the case. Thus, Stop PAC and Innis’s assertion of the same claims weighs 

against plaintiffs’ motion, not in favor of it, as they argue. (Pls.’ Rule 41 Br. at 2, 6 (Docket No. 

35-1).) While Stop PAC may provide the FEC with information regarding its relationship with 

Innis in discovery, such information would not take the place of evidence or unique facts 

potentially held by the Innis plaintiffs. The Innis plaintiffs’ documents and recollection of events 

may significantly differ from or add to information that Stop PAC provides. Cf. In re Wellbutrin 

XL, 268 F.R.D. at 544 (conditioning dismissal upon answering discovery where the discovery at 

issue “go[es] to the heart of the defendant’s anticipated defense” and “defendants cannot obtain 

equivalent discovery” elsewhere). 

Plaintiffs previously asserted that the Innis plaintiffs’ claims would not be moot 

regardless of Innis’s electoral plans, but now claim that possible jurisdictional problems (either 

due to mootness or under 2 U.S.C. § 437h) mean they should be unconditionally dismissed. 

(Pls.’ Rule 41 Br. at 1, 7-8 (Docket No. 35-1).) Plaintiffs ignore, however, that the merits

discovery the Innis plaintiffs are attempting to avoid providing now will likely be important to 

the FEC’s defense against Stop PAC’s identical claims. The FEC will have to defend against 

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Claims 1 and 2 on the merits, and the FEC ’s defense on the merits requires discovery from the 

Innis plaintiffs.7

If the Innis plaintiffs are unconditionally dismissed from this action, the FEC would not 

receive responses to its pending written discovery requests to those plaintiffs. The Innis 

plaintiffs would also likely resist nonparty deposition subpoenas given their apparent desire to 

evade the Court’s June 18 discovery order. Requiring the Commission to issue Rule 45 

subpoenas to obtain documents and testimony from the Innis plaintiffs is not warranted in this 

case, in which the parties have just litigated the propriety of the discovery sought and only a 

short amount of time for discovery remains. Cf. Alliance for Global Justice, 2005 WL 469593, 

at *2 (recommending conditioned dismissal where “the prejudice to defendants is not purely 

financial; it is the loss of relevant information and the burden of seeking the information they 

already demanded via other means, such as Rule 45 subpoenas.”). 

Plaintiffs characterize this prejudice as “mere inconvenience or tactical disadvantage” 

(Pls.’ Rule 41 Br. at 5 (Docket No. 35-1) (internal quotation marks and emphasis omitted)), but 

the very cases they cite for that proposition show otherwise. The court in RMD Concessions

                                                           

7

 Plaintiffs also overstate the extent to which the Commission questioned whether the 

Court has jurisdiction over the Innis plaintiffs. The Commission has not “challenged this Court’s 

jurisdiction over Innis’s claims under 2 U.S.C § 437h.” (Pls.’ Rule 41 Br. at 7 (Docket No. 35-

1).) Given the Court’s obligation to examine its own jurisdiction sua sponte, the FEC brought to 

the Court’s attention non-binding authority suggesting that it may lack jurisdiction to make a 

decision on the merits of Innis’s claims under section 437h. (See Hancock Decl. ¶ 8(a) (citing 

Wagner v. FEC, 717 F.3d 1007, 1010-17 (D.C. Cir. 2013) (per curiam) (Docket No. 27-2).) But 

the FEC has not asked this Court to follow Wagner, explicitly stated that it “may decide not to 

challenge the asserted jurisdiction for Innis’s claims” on section 437h grounds, (id.), and 

declined to file a motion to dismiss on that ground. 

 Regarding mootness, the Commission has not yet received Innis’s discovery responses 

and does not know whether he plans to run for office again. Had the Innis plaintiffs continued 

with their pre-Rule 56(d) ruling plan to remain in this case after a loss by Innis in the primary 

election, the record in this Court would not yet be complete regarding whether their claims 

present a live controversy. 

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14

held that a “defendant suffers legal prejudice . . . where a voluntary dismissal potentially 

unravels the effect of an earlier legal ruling.” 194 F.R.D. at 243. Similarly, in Teck General 

Partnership, the court denied a Rule 41(a)(2) motion where the plaintiff had brought it “to avoid 

[an] adverse discovery ruling,” concluding that the defendant there suffered prejudice, not mere 

tactical disadvantage, as a result. 28 F. Supp. 2d at 992.8

 

Finally, the FEC has expended significant effort to attempt to obtain discovery from the 

Innis plaintiffs thus far in this case. After being served with plaintiffs’ premature summary 

judgment motion on May 6, the FEC moved under Rule 56(d) to preserve its right to take 

discovery from the Innis plaintiffs and other plaintiffs. (Docket No. 27.) In a brief and 

declaration of counsel in support of that motion, the Commission explained why those facts from 

the Innis plaintiffs would likely be relevant to the merits of this case. (Docket Nos. 27-1, 27-2.) 

After the Court granted the FEC’s Rule 56(d) motion on June 18 (Docket No. 33), the FEC 

started to prepare its discovery strategy and requests. The parties held a Rule 26(f) conference to 

discuss discovery on June 27, and filed a joint proposed discovery plan on July 2. On July 9, the 

parties attended an initial pre-trial conference before Magistrate Judge Davis, on July 11 they 

filed an amended discovery plan, and on July 16 the Court issued its Rule 16(b) Scheduling 

Order. On that same day, the FEC served discovery requests on the Innis plaintiffs, with any 

objections due within 15 days of service, and responses due within 30 days of service, in addition 

to the Innis plaintiffs’ initial disclosures, which are due tomorrow. Later in the discovery period, 

the FEC may serve deposition notices, depending in part on the answers received to the 

                                                           

8

 Plaintiffs also cite Blanzy v. Griffin Pipe Prods. Co., Inc., Civ. No. 6:11-0050, 2012 WL 

1038808, at *2-3 & n.1 (W.D. Va. Mar. 28, 2012), an inapposite case where, unlike here, the 

plaintiff had “a legitimate explanation for the need to dismiss” and had moved for dismissal with 

“sufficient promptness,” and the plaintiff had already answered discovery requests that the 

defendant had served. 

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15

Commission’s now pending requests. Plaintiffs’ contention that this constitutes “[r]elatively 

little” activity (Pls. Br. at 4 (Docket No. 35-1)) is therefore inaccurate, and indeed, a court in this 

district has held that a comparable level of activity supported a denial of Rule 41(a)(2) relief 

when taken together with a plaintiff’s lack of diligence and desire to avoid an adverse discovery 

ruling. See Teck Gen. P’ship, 28 F. Supp. 2d at 991-93. The same factors weighing against 

unconditional voluntary dismissal are present here. 

III. PLAINTIFFS’ RULE 15 MOTION TO AMEND THE COMPLAINT SHOULD BE 

DENIED TO THE EXTENT IT SEEKS TO REMOVE THE INNIS PLAINTIFFS 

AS PARTIES PRIOR TO THE CLOSE OF DISCOVERY 

A. Plaintiffs Cannot Circumvent Rule 41(a)(2)’s Requirement for a Court 

Order for Voluntary Dismissal by Amending the Complaint Under Rule 

15(a)(1)(B) 

 Just four days after requesting a court order dismissing the Innis plaintiffs under Rule 

41(a)(2), plaintiffs filed an amendment to their complaint under Rule 15(a)(1)(B) purporting to 

drop the Innis plaintiffs from the case without leave of court. (See Docket Nos. 36, 36-1, 36-2, 

36-3, 37.)9

 The Court should reject this attempt to circumvent its power under Rule 41(a)(2) to 

condition dismissal where, as here, it would cause prejudice to the defendant. 

 In a similar context, the Fourth Circuit has held that a plaintiff may not bypass a district 

court’s power to deny the joinder of a nondiverse party under 28 U.S.C. § 1447(e) by adding that 

party in a Rule 15(a)(1)(B) amendment without leave of court. Mayes v. Rapoport, 198 F.3d 

457, 462 n.11 (4th Cir. 1999). Although a plaintiff’s ability to amend the complaint under Rule 

15(a)(1)(B) has been described as “absolute,” Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 

                                                           

9

 Plaintiffs filed a redlined version of the complaint highlighting their proposed 

amendments. (See Docket No. 36-2.) The edits purporting to immediately remove the Innis 

plaintiffs, to which the Commission objects, can be found in the caption and the original 

complaint paragraphs 4, 5, 20, 22, 38, and 46. (Id.) 

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16

2010), Rule 15(a) must still be read “in connection” with the district court’s powers under other 

applicable Federal Rules of Civil Procedure and statutes, see Mayes, 198 F.3d at 462 n.11 

(“Reading Rule 15(a) in connection with [Rules] 19 and 21, and 28 U.S.C. § 1447(e), resolves 

any doubts over whether the district court has authority to pass upon any attempts — even those 

for which the plaintiff needs no leave of court — to join a nondiverse defendant.”); see also

Galustian, 591 F.3d at 730 (citing Mayes with approval); Breighner v. Neugebauer, Civ. No. 11-

0163, 2011 WL 1230828 (D. Md. Mar. 30, 2011) (following Mayes, and denying joinder via a 

Rule 15(a)(1)(B) amendment). In fact, since Galustian, the Fourth Circuit has affirmed a district 

court’s denial of a Rule 15(a)(1)(B) amendment using the district court’s power under 28 U.S.C. 

§ 1915 to control proceedings in forma pauperis — despite the district court’s recognition that 

“the Fourth Circuit very recently held that a plaintiff’s []right to amend his complaint once under 

[Rule] 15(a) is absolute.” Rutledge v. Town of Chatham, Civ. No. 4:10-0035, 2010 WL 

4791840, at *6 (W.D. Va. Nov. 18, 2010), aff’d sub nom. Rutledge v. Roach, 414 F. App’x 568 

(4th Cir. 2011) (affirming denial of plaintiff’s “motion to amend his complaint” for “the reasons 

stated by the district court”). 

Similarly, the district court’s power to deny or impose reasonable limits on a voluntary 

dismissal under Rule 41(a)(2) is not abrogated by Rule 15(a)(1)(B). Plaintiffs had the chance to 

notice the dismissal of the Innis plaintiffs as of right under Rule 41(a)(1) before the Commission 

filed its answer on June 16. They failed to do so and as a result have sought a Court order under 

Rule 41(a)(2). This Court should not permit them to use Rule 15(a)(1)(B) as a back-up plan to 

achieve unconditional voluntary dismissal despite the prejudice that would cause to the FEC.10 

                                                           

10 At a minimum, the Innis plaintiffs should be ordered to comply with the Commission’s 

pending Requests for Production, rather than being permitted to delay discovery by requiring the 

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17

Indeed, Magistrate Judge Davis has already rejected the Innis plaintiffs’ attempt to use Rule 15 

in this way in connection with the parties’ Joint Proposed Discovery Plan. Plaintiffs requested 

that the Innis plaintiffs presumptively be relieved from making initial disclosures. (Joint 

Proposed Disc. Plan at 2-3, 7 (Docket No. 34).) But the Magistrate Judge stated at the initial 

pretrial conference that Rule 15 is read in conjunction with Rule 41, and he declined to find that 

the omission of the Innis plaintiffs from the proposed amended complaint relieved those 

plaintiffs of their initial disclosure obligations. (See Am. Joint Disc. Plan at 1 (Docket No. 

39).)11 

B. The Commission Does Not Otherwise Oppose Plaintiffs’ Proposed 

Amendments 

 Plaintiffs also ask this Court to approve amendments to the complaint (1) making 

“technical changes” and (2) adding allegations regarding contributions that Stop PAC claims to 

have made since the date of the original complaint. (Pls.’ Rule 15(a) Br. at 2, 5-6 (Docket No. 

36-3).) The Commission does not oppose these amendments, regardless of whether the Court 

considers them under Rule 15(a)(1)(B) or Rule 15(d). 

                                                                                                                                                                                               

issuance of a Rule 45 subpoena for the same materials, and the special protections in Rule 45 for 

nonparties should be deemed inapplicable. 

11 Plaintiffs argue that if the Court does not allow them to voluntarily dismiss the Innis 

plaintiffs using Rule 15(a)(1)(B), it should consider their request under Rule 15(a)(2), which 

requires “the court’s leave.” (Mot. of Pls. to Amend and Supplement Compl. Pursuant to Rule 

15(a), (d) (“Pls.’ Rule 15(a) Br.”) at 3 (Docket No. 36-3).) As plaintiffs recognize, though, the 

standard for evaluating a Rule 15(a) motion is “effectively the same” as that for plaintiffs’ Rule 

41(a)(2) motion. Pls.’ Rule 15(a) Br. at 4 (citing Miller v. Terramite Corp., 114 Fed. App’x 536, 

539 (4th Cir. 2004)); see also Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th 

Cir. 2010) (stating that a Rule 15(a)(2) motion may be denied “when the amendment would be 

prejudicial to the opposing party”); Skinner, 64 F.3d 659, 1995 WL 507264, at *2-3 (denying 

Rule 15(a) and 41(a)(2) motions where both would “permit [plaintiffs] to dismiss their federal 

claim and thereby avoid an adverse ruling in federal court”). Rule 41(a)(2) and its case law 

should therefore govern plaintiffs’ request to dismiss the Innis plaintiffs. 

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18

IV. CONCLUSION 

 For the foregoing reasons, plaintiffs’ motion for voluntary dismissal under Rule 41(a)(2) 

should not be granted unless the Innis plaintiffs are dismissed with prejudice, the dismissal does 

not take effect until those plaintiffs respond to the FEC’s pending discovery requests and the 

Commission has the opportunity to take party depositions of the Innis plaintiffs. Plaintiffs’ 

motion to amend the complaint under Rule 15(a) should be denied to the extent it seeks to 

voluntarily dismiss the Innis plaintiffs without the reasonable conditions the Commission 

requests. 

Respectfully submitted, 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

 Holly J. Baker* 

 Kevin P. Hancock* 

 Attorneys 

 /s/ 

Esther D. Gyory (VA Bar #76826) 

EGyory@fec.gov 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

July 17, 2014 (202) 694-1650 

* Admitted pro hac vice 

Case 1:14-cv-00397-AJT-IDD Document 42 Filed 07/17/14 Page 20 of 21 PageID# 421
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

CERTIFICATE OF SERVICE 

I hereby certify that on July 17, 2014, I will electronically file the foregoing with the 

Clerk of Court using the CM/ECF system, which will then send a notification of such filing to 

the following counsel for plaintiff: 

Dan Backer, Esq. 

DB Capitol Strategies PLLC 

717 King Street, Suite 300 

Alexandria, VA 22314 

DBacker@DBCapitolStrategies.com 

Michael Thomas Morley, Esq. 

Coolidge-Reagan Foundation 

1629 K Street 

Suite 300 

Washington, DC 20006 

 /s/ 

Esther D. Gyory (VA Bar # 76826) 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

EGyory@fec.gov 

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