UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

et al., ) OPPOSITION TO MOTION 

 ) TO AMEND COMPLAINT

 Defendants. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR LEAVE TO FILE AMENDED COMPLAINT 

Defendant Federal Election Commission (“Commission”) hereby opposes Plaintiffs’ 

Motion for Leave to File Amended Complaint (“Mot. to Amend”) (Docket No. 51). Plaintiffs’ 

motion should be denied because Plaintiffs delayed two months in seeking leave to amend, 

during which time the Commission conducted discovery and briefed three pending, dispositive 

motions predicated on the original complaint. To permit Plaintiffs to amend at this late stage 

would prejudice the Commission by foreclosing any opportunity for Defendants to conduct 

discovery into the allegations and assertions of the proposed new Plaintiff and to incorporate 

such discovery into the factual record upon which the Court will decide this case. 

I. PROCEDURAL HISTORY 

Plaintiffs’ original complaint alleged that “Robert M. (Mike) Duncan is . . . the 

[Republican National Committee] Chairman, in which capacity he is RNC’s chief executive 

officer.” (Compl. ¶ 14.) On January 26, 2009, the Commission filed a motion to dismiss the 

complaint; that motion was based, in part, on Duncan’s having been a plaintiff in McConnell v. 

FEC, 540 U.S. 93 (2003), and therefore precluded by res judicata from bringing this action. 

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(See Def. FEC’s Mot. to Dismiss (Docket No. 20).) On the same day, Duncan and the other 

Plaintiffs filed a motion for summary judgment. (Docket No. 21.) 

Later that week, on January 30, Michael Steele was elected Chairman of the RNC (Mot. 

to Amend at 1), and Duncan’s term as Chairman accordingly ended. The Commission 

commenced discovery in early February and — having heard nothing from Plaintiffs regarding 

the change in Duncan’s status — noticed under Fed. R. Civ. P. 30(b)(6) the depositions of three 

of the four Plaintiffs: The RNC, the California Republican Party, and the Republican Party of 

San Diego County. Because Duncan was no longer Chairman of the RNC, deposing him became 

less important, given that any testimony he might have provided regarding the future activities of 

the RNC would have been speculative. Furthermore, the Commission was already in possession 

of sworn testimony by Duncan regarding the activities at issue in this case — i.e., his declaration 

in the McConnell action. As to Steele, he could not have provided competent testimony as to 

Duncan’s individual allegations. Although Steele’s deposition might have provided relevant 

evidence regarding the RNC’s claims, he was not a plaintiff, and he had provided no testimony 

regarding the RNC’s proposed future activities or its proposed self-imposed restrictions 

regarding interactions with federal candidates and officeholders. Thus, the Commission made 

the conscious determination, based on Steele’s not being a plaintiff and not having testified in 

support of the RNC’s factual allegations, not to direct discovery specifically at Steele. In 

addition to his apparent decision to not participate in the case diminishing the probative value of 

his testimony, the Commission was sensitive to the fact that he had just been elected as a leader 

of one of the two major American political parties, which had obvious practical ramifications on 

the demands on his time. 

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The Commission deposed the three organizational Plaintiffs in late February and early 

March and filed its opposition to Plaintiffs’ summary judgment motion on March 9 (Docket No. 

39). In their oppositions, Defendants relied on the fact that Plaintiff-affiant Duncan was no 

longer the Chairman of the RNC. (See Def. FEC’s Statement of Genuine Issues ¶¶ 4, 27-31 

(Docket No. 39); Van Hollen Mem. of P. & A. in Opp. to Pls.’ Mot. for S.J. at 36-37 (Docket 

No. 41).) On March 30 — two full months after Steele was elected RNC Chairman — Plaintiffs 

filed their motion for leave to amend the complaint. On the same day, Plaintiffs informed 

Defendants that Plaintiffs would not respond substantively to Intervenors’ discovery requests 

(which had been served on February 23) and, in fact, would not permit any discovery to go 

forward until the Court ruled on Plaintiffs’ motion for summary judgment and the Commission’s 

motion to dismiss. Plaintiffs thereby unilaterally ruled out the possibility of further discovery on 

Steele, despite simultaneously seeking to add him to this case as a plaintiff. 

II. STANDARD OF REVIEW 

After a response to a pleading has been filed, the pleading may be amended only by 

consent of the parties or with “the court’s leave.” Fed. R. Civ. P. 15(a)(2).1

 Although “[t]he 

court should freely give leave when justice so requires,” id., “[i]t is within the sound discretion 

of the district court to decide whether to grant such leave.” Williamsburg Wax Museum, Inc. v. 

Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987). Leave should not be granted if 

“undue delay . . . on the part of the movant” causes “undue prejudice to the opposing party.” See

Foman v. Davis, 371 U.S. 178, 182 (1962); Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 

 

1

 Plaintiffs’ motion also refers to Fed. R. Civ. P. 25(d). (Mot. to Amend at 2.) That rule, 

however, applies only to “public officers,” and research discloses no authority for applying it to 

any non-governmental party. Cf. Fed. R. Civ. P. 25(d) Advisory Committee Note to 1961 

Amendment (explaining that rule applies to cases “brought by public officers for the 

government”) (emphasis added). 

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1996) (quoting Forman); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 

330-31 (1971) (“[I]n deciding whether to permit . . . amendment, the trial court was required to 

take into account any prejudice that [the non-movant] would have suffered as a result . . . .”); see 

generally 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & 

Procedure § 1488 n.15 (2d ed. Supp. 2009) (“[A]n amendment clearly will not be allowed when 

the moving party has been guilty of delay in requesting leave to amend and, as a result of the 

delay, the proposed amendment, if permitted, would have the effect of prejudicing another party 

to the action.”). 

A party’s delay in moving to amend is “undue” when, despite learning of the facts 

underlying the proposed amendment during the discovery period, the movant waits until after the 

close of discovery to seek amendment. See Hollinger-Haye v. Harrison Western/Franki-Denys, 

130 F.R.D. 1, 1-2 (D.D.C. 1990) (denying leave to amend where facts on which amendment was 

based were “known to the plaintiff prior to the completion of discovery”); Anderson v. USAir, 

Inc., 619 F. Supp. 1191, 1198 (D.D.C. 1985), aff’d 818 F.2d 49, 57 (D.C. Cir. 1987) (denying 

leave to amend where, in a case litigated “with unusual speed,” plaintiff moved to amend 

complaint after close of three-month discovery period, simultaneously with parties’ crossmotions for summary judgment). The non-movant is unduly prejudiced by such a delay when 

the amendment results in “denial ‘of the opportunity to present facts or evidence which would 

have been offered had the amendment been timely.’” City of Moundridge v. Exxon Mobil Corp., 

250 F.R.D. 1, 6 (D.D.C. 2008) (internal brackets omitted) (quoting Dove v. Wash. Metro. Area 

Transit Auth., 221 F.R.D. 246, 248 (D.D.C. 2004)); Foremost-McKesson, Inc. v. Islamic 

Republic of Iran, Civ. No. 82-220, 1988 WL 122568, at *4 (D.D.C. Nov. 8, 1988), aff’d 905 

F.2d 438 (D.C. Cir. 1990) (holding that motion should be denied if non-movant demonstrates 

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“that at this stage of the litigation they are prevented in some way from asserting [a] response to 

the amendment that they otherwise would have used had the amendment been timely.”). Thus, 

the non-movant is unduly prejudiced by an amendment that justifies the non-movant’s desire to 

conduct additional discovery but that is made after the close of the discovery period. See 

Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996) (affirming district court’s 

denial of leave to amend); see also Williamsburg, 810 F.3d at 247 (affirming denial of leave to 

amend where plaintiff’s motion was untimely and would have required additional discovery); 

Hollinger-Haye, 130 F.R.D. at 2. 

III. ARGUMENT 

Plaintiffs’ motion to amend the complaint is untimely: It is predicated on facts known to 

Plaintiffs throughout discovery, yet Plaintiffs did not move to amend until after the parties’ 

initial summary judgment papers had been filed. Because Plaintiffs did not timely move to 

amend, Defendants’ briefs included a number of arguments regarding the significance of 

Duncan’s changed status. The Commission, for example, noted that Duncan’s term had expired 

and that he has “no authority, beyond that of any other RNC member, over the actions or 

decisions of the current RNC Chairman.” (FEC SGI ¶ 4.) Similarly, Representative Van Hollen 

pointed out that “former officers of a political party have no authority to bind current officers of 

the party or to execute any plans that current officers may have.” (Van Hollen Mem. of P. & A. 

in Opp. to Pls.’ Mot. for S.J. at 37 (Docket No. 41).) In light of this manifest reliance on Steele’s 

non-participation in this case throughout discovery and briefing, Plaintiffs’ amendment also 

would prejudice — indeed, it would foreclose — the Commission’s ability to develop an 

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6

evidentiary record regarding Steele’s claims.2

 Under the caselaw discussed above, Plaintiffs’ 

undue delay prejudiced Defendants and such prejudice warrants denial of Plaintiffs’ motion. 

If the Court were nonetheless to grant Plaintiffs’ motion and Steele were to become a 

Plaintiff, the Commission should be permitted to conduct additional discovery directed to Steele, 

including a deposition, and submit to the Court any relevant material arising from that discovery, 

as well as related legal briefing. In addition, amending the complaint would necessitate a rebriefing of the Commission’s motion to dismiss, at least as to Steele. See Fed. R. Civ. P. 

15(a)(3). It is, therefore, extremely unlikely that briefing on the Commission’s new motion to 

dismiss (including response and reply briefs) would be complete before the oral argument 

scheduled for April 29, 2009 — a consequence arising solely from Plaintiffs’ dilatory conduct 

with regard to amending their complaint. 

IV. CONCLUSION 

For the foregoing reasons, Plaintiffs’ motion for leave to file an amended complaint 

should be denied. In the alternative, the Commission should be given a reasonable opportunity 

to (a) file a motion to dismiss the amended complaint, (b) conduct discovery on Chairman Steele, 

and (c) file a supplemental summary judgment brief based on the new discovery and, should the 

Court require it, argue the revised motion to dismiss and supplemented summary judgment 

motion to the Court. 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

 

2

 During discovery, the RNC testified that Steele, if he were to provide testimony in this 

case, would concur with his predecessor’s factual assertions and allegations. (See Josefiak Dep. 

209:14-210:5.) Such a statement by the RNC’s 30(b)(6) representative about a non-party’s 

hypothetical testimony is, of course, no substitute for the opportunity to question the new 

Plaintiff directly. 

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David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: April 13, 2009 (202) 694-1650 

Case 1:08-cv-01953-RJL-RMC Document 57 Filed 04/13/2009 Page 7 of 7
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

et al., ) 

 ) 

 Defendants. ) 

_______________________________________) 

 [PROPOSED] ORDER 

This matter having come before the Court upon Plaintiffs’ Motion for Leave to File 

Amended Complaint and Defendant Federal Election Commission’s opposition thereto, it is 

hereby 

[ORDERED that Plaintiffs’ motion is DENIED.] 

[ORDERED that Plaintiffs’ motion is GRANTED, and furthermore that: 

1. The Commission shall be permitted to conduct discovery related to Plaintiff 

Steele for no more than thirty days after the date of this Order; 

2. Plaintiffs shall respond to any written discovery served within ten calendar days; 

3. (a) The FEC shall file a supplemental memorandum of points and authorities 

regarding summary judgment based any additional discovery no later than 

fifty days after the date of this order; 

(b) Plaintiffs shall file a response to the Commission’s supplemental 

memorandum no later than fourteen days after that brief is filed; 

Case 1:08-cv-01953-RJL-RMC Document 57-2 Filed 04/13/2009 Page 1 of 2
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4. (a) The Commission shall file a motion to dismiss the amended complaint 

within the time provided by Fed. R. Civ. P. 15(a)(3); 

(b) Plaintiffs shall file an opposition to the Commission’s motion to dismiss 

the amended complaint no later than fourteen days after that motion is 

filed; 

(c) The Commission shall file its reply brief no more than seven days after 

Plaintiffs file their opposition brief.] 

 _________________________________ 

BRETT M. KAVANAUGH 

United States Circuit Judge 

 _________________________________ 

RICHARD J. LEON 

United States District Judge 

 _________________________________ 

ROSEMARY M. COLLYER 

United States District Judge 

Dated: ___________________, 2009

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