UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

BOSTON DIVISION 

___________________________________ 

 ) 

ROBINSON COMMITTEE, LLC and ) 

JACK E. ROBINSON, ) 

 ) Case Number: 1:10-cv-11335-GAO 

Petitioners, ) District Judge George A. O’Toole, Jr. 

) 

v. ) RESPONDENT’S MEMORANDUM IN 

 ) SUPPORT OF ITS MOTION FOR LEAVE 

FEDERAL ELECTION COMMISSION, ) TO FILE A REPLY IN SUPPORT OF 

 ) ITS MOTION TO DISMISS 

 Respondent. ) 

___________________________________ ) 

RESPONDENT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN SUPPORT OF ITS MOTION FOR LEAVE 

TO FILE A REPLY IN SUPPORT OF ITS MOTION TO DISMISS 

 The Federal Election Commission (“FEC” or “Commission”) respectfully requests that 

the Court grant its motion for leave to respond to petitioners’ Memorandum in Opposition to the 

FEC’s Motion to Dismiss the Petition, because it raises new requests for relief and is, in effect, a 

motion for sanctions. On August 9, 2010, petitioners commenced this action challenging the 

FEC’s assessment of a civil monetary penalty against them for failing to timely file a campaign 

finance activity report required by the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 

431-57. (Docket No. 1.) On October 8, 2010, the FEC filed a Motion to Dismiss the Petition, 

arguing that petitioners cannot demonstrate that the Commission’s decision was arbitrary, 

capricious, an abuse of discretion, or otherwise contrary to law. (Docket No. 5.) On October 9, 

2010, petitioners filed a Memorandum in Opposition, which raises the new arguments that the 

FEC should be sanctioned for failing to comply with Local Rule 7.1(a)(2) or that the Court 

should stay the case and refer this matter to the Commission’s Alternative Dispute Resolution 

Case 1:10-cv-11335-GAO Document 9 Filed 10/19/10 Page 1 of 3
2 

Program. (Docket No. 6.) The Commission should have an opportunity to address these new 

arguments to aid the Court’s evaluation of petitioners’ requests. 

Pursuant to CM/ECF Administrative Procedure O, the FEC’s Proposed Reply in Support 

of its Motion to Dismiss the Petition is attached as Exhibit A hereto. 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

COUNSEL FOR RESPONDENT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Dated: October 19, 2010 e-mail: khancock@fec.gov 

Case 1:10-cv-11335-GAO Document 9 Filed 10/19/10 Page 2 of 3
3 

Certificate of Service

I, Kevin P. Hancock, certify that this document filed through the ECF system will be sent 

electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) 

and paper copies will be sent to those indicated as non registered participants on October 19, 

2010. 

Dated: October 19, 2010 Respectfully submitted, 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 1:10-cv-11335-GAO Document 9 Filed 10/19/10 Page 3 of 3
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

BOSTON DIVISION 

___________________________________ 

 ) 

ROBINSON COMMITTEE, LLC and ) 

JACK E. ROBINSON, ) 

 ) Case Number: 1:10-cv-11335-GAO 

Petitioners, ) District Judge George A. O’Toole, Jr. 

) 

v. ) PROPOSED REPLY MEMORANDUM 

 ) OF LAW IN SUPPORT OF MOTION 

FEDERAL ELECTION COMMISSION, ) TO DISMISS THE PETITION 

 ) 

 Respondent. ) 

___________________________________ ) 

RESPONDENT FEDERAL ELECTION COMMISSION’S 

PROPOSED REPLY MEMORANDUM OF LAW 

IN SUPPORT OF ITS MOTION TO DISMISS THE PETITION 

The First Circuit and courts in this district have consistently refused to grant the remedies 

petitioners seek — a summary denial or monetary sanctions — in disputes over pre-motion 

conferences in cases like this one involving dispositive motions. Respondent Federal Election 

Commission (“FEC” or “Commission”) regrets not conferring with petitioners’ counsel prior to 

filing its motion to dismiss. However, the FEC filed that motion in lieu of an answer in response 

to petitioners’ action seeking judicial review of the FEC’s administrative determination, and 

petitioners were certain to oppose the Commission’s motion. As participants in the 

administrative proceedings, petitioners had notice of the issues involved, and thus they have 

neither been taken off guard by, nor suffered prejudice from, the FEC’s response to their 

pleading. Indeed, such a response is required to be filed at the outset of the case by the Federal 

Rules of Civil Procedure. The sanctions petitioners request are inappropriate. 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 1 of 8
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As of October 14, 2010, the parties have now conferred regarding the merits of this case, 

and the sole issue involved in the FEC’s motion to dismiss cannot be resolved or narrowed. The 

FEC respectfully submits that the Court should proceed to the merits as to whether the 

Commission’s final determination was arbitrary or capricious, as courts have typically done 

when confronted with similar circumstances. 

I. The Court Should Not Deny the Motion to Dismiss For a Failure to Confer Because 

as a Dispositive Motion It Was Certain to be Opposed 

The Court should reject petitioners’ request to deny without prejudice the FEC’s motion 

to dismiss. The Court of Appeals for the First Circuit has specifically disapproved of such relief 

when the motion was certain to be opposed, such as with a potentially dispositive motion to 

dismiss. See Edwards v. New England Tel. and Tel. Co., 86 F.3d 1146 (Table), 1996 WL 

267276, at *1 (1st Cir. May 21, 1996) (stating in an unpublished decision that “neglecting to 

confer prior to filing a motion to dismiss, which was certain to be opposed, does not warrant the 

summary denial of the motion”) (summarizing Gerakaris v. Champagne, 913 F. Supp. 646, 651 

(D. Mass. 1996)); see also Nasuti v. Kimball, No. 09-30183-MAP, 2010 WL 2639850, at *3 n.3 

(D. Mass. Feb. 1, 2010) (refusing to deny motion to dismiss due to Local Rule 7.1(a)(2) 

violation, because “[g]iven the nature of the motion [the failure to confer was] inconsequential 

and . . . mandating compliance would inappropriately delay addressing the underlying issues”), 

rep’t and rec. adopted in part, rejected in part by, 2010 WL 2639854 (D. Mass. Jun. 29, 2010) 

(granting the motion to dismiss); Struzziero v. Lifetouch Nat’l School Studios, Inc., 677 F. Supp. 

2d 350, 354 (D. Mass. 2009) (citing Edwards and stating that “although parties should always 

comply with [Local Rule 7.1(a)(2)], the Court declines to decide the pending [summary 

judgment] motions based on such grounds”); Walley v. Agri-Mark, Inc., No. 00-11393-RWZ, 

2003 WL 22244957, at *3 n.2 (D. Mass. Sept. 30, 2003) (“[O]mitting to confer prior to filing a 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 2 of 8
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motion certain to be opposed does not warrant so severe a sanction as summary denial.” (citation 

and internal quotation marks omitted)).1

 

II. The Court Should Not Order Monetary Sanctions Because Petitioners Participated 

in the Administrative Proceedings, Had Notice of the Motion’s Narrow Issue, 

Suffered No Prejudice, and Would Have Found Conferring Futile 

Monetary sanctions would also be inappropriate in the particular circumstances of this 

case. The administrative proceedings before the Commission already served to narrow and 

crystallize the only issue to be adjudicated before this Court: whether the Commission’s final 

determination imposing a fine for late reporting of campaign finance information was arbitrary 

or capricious.2

 As participants in that administrative process, petitioners had notice of the issues 

and the Commission’s positions on those issues. As a result, petitioners were not prejudiced by 

the lack of a specific meet-and-confer before the FEC’s motion to dismiss their challenge to the 

Commission’s final determination. Cf. Travelers Prop. Cas. Co. of Am. v. Noveon, Inc., 248 

F.R.D. 87, 91-92 (D. Mass. 2008) (stating that the “spirit of [Local Rule 7.1(a)(2)] is satisfied,” 

and a failure to confer is “not prejudicial,” where a party “clearly had notice of potential direct 

claims against them” and were “well apprised of the status of the litigation” prior to the motion); 

Abbott v. Rabe, No. 04-10777-NMG, 2005 WL 1000258, at *4 n.6 (D. Mass. Mar. 17, 2005) 

(rejecting allegation of Local Rule 7.1(a)(2) violation where the parties’ representations 

“demonstrate[d] that there was sufficient discussion between counsel prior to the filing of the 

motion to dismiss to constitute compliance with the Local Rules”). 

 

1

 Indeed, the local rules of many federal jurisdictions explicitly exempt dispositive motions 

from their meet-and-confer requirements. See, e.g., D.D.C. LCvR 7(m); N.D.N.Y. Local Rule 

7.1(b)(2). 

2

 Cf. Hall v. U.S., 436 F. Supp. 505, 509 n.8 (D. Minn. 1977) (pointing out that “the prior 

administrative proceedings may narrow the issues for trial” in the district court). 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 3 of 8
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Given the very recent, unsuccessful interaction between the parties during the 

administrative proceedings, a conference before the motion to dismiss would have been futile. 

Petitioners were engaged with the FEC’s administrative proceedings from March 29, 2010, the 

date they were notified of the Commission’s “reason to believe” finding, to July 23, 2010, the 

date the FEC notified them of its final determination. (See Docket No. 7 at 5-6.) Petitioners 

filed this action just 17 days later. (Docket No. 1.) The FEC then moved to dismiss 60 days 

later. (Docket No. 5.) The Commission had no reason to believe that during this short time, 

petitioners would have become receptive to the FEC’s positions in the matter. Cf. Struzziero, 

677 F. Supp. 2d at 354 (finding that conferring before summary judgment motion would have 

been futile where “counsel conferred throughout th[e] case, [and] held a[n unsuccessful] 

settlement conference about one year” before the motion). A conference would have been 

especially futile given the dispositive nature of the FEC’s motion, which petitioners were certain 

to oppose. See Edwards, 1996 WL 267276, at *1; Nasuti, 2010 WL 2639850, at *3 n.3; Walley, 

2003 WL 22244957, at *3 n.2; Gerakaris, 913 F. Supp. at 651. 

Moreover, the FEC did not “blind-side” petitioners by filing its motion to dismiss just 

before Columbus Day weekend on Friday, October 8, 2010. October 8, 2010, is 60 days from 

August 9, 2010, the date the summons to the FEC was issued. (Docket No. 2.) Although 

petitioners had yet to (and still have yet to) perfect service of process under Rule 4(i)(2), the FEC 

chose to file on October 8, 2010, to eliminate any doubt regarding compliance with Rule 

12(a)(2), which grants United States agencies 60 days after service on the United States Attorney 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 4 of 8
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to serve a responsive pleading.3

 If petitioners need more time to file a substantive opposition to 

the motion to dismiss, the FEC would not oppose an extension. 

 In arguing that the FEC should be sanctioned, petitioners rely on Converse, Inc. v. 

Reebok Int’l Ltd., 328 F. Supp. 2d 166, 170 (D. Mass. 2004), which is nothing like this case. In 

Converse, the litigation had been dormant for over two years when the plaintiff filed an 

emergency motion to shorten the time for a simultaneously filed motion for contempt and a 

motion to enforce a consent decree, without first conferring with counsel. Id. at 171. The 

motions included “extensive legal memoranda and affidavits.” Id. Additionally, counsel 

included a Local Rule 7.1(a)(2) certification in the motion after simply leaving a voice mail for 

opposing counsel thirty minutes prior to filing, in what the district court found to be a bad faith, 

“deliberate choice to disregard the rules.” Id. at 170, 172 (internal quotation marks omitted). 

See also Casual Male Retail Group, Inc. v. Yarbrough, 527 F. Supp. 2d 172, 180 (D. Mass. 

2007) (declining to follow Converse because it involved a “much more egregious situation”). 

Here, however, only 17 days separated the conclusion of the administrative proceedings and 

petitioners’ initiation of this lawsuit. The FEC was required to respond, and its motion to 

dismiss includes only a straightforward brief largely recapitulating the arguments from the 

administrative proceedings and three exhibits from those proceedings that are referenced in the 

Petition. The FEC did not act in bad faith or deliberately choose to disregard Local Rule 

7.1(a)(2). Accordingly, Converse is inapposite, and monetary sanctions are inappropriate here. 

 

3

 As described in the FEC’s Memorandum in Support of its Motion to Dismiss (at 14 n.3, 

Docket No. 7), petitioners have not served the United States Attorney for the District of 

Massachusetts or the Attorney General as required under Federal Rules of Civil Procedure 

4(i)(1)(A)-(B) and (4)(i)(2). Thus, the 60 days prescribed by Rule 12(a)(2) for the FEC to file its 

motion to dismiss have yet to start running and a re-filed motion by the Commission would be 

timely if the Court were to deny the motion to dismiss without prejudice as petitioners request. 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 5 of 8
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III. The Court Cannot Refer This Case to the FEC’s Alternate Dispute Resolution 

Finally, the Court should reject petitioners’ request to stay the case and refer it to the 

FEC’s Alternative Dispute Resolution (“ADR”) Program. Petitioners’ lawsuit asks this Court to 

review the FEC’s Administrative Fines Program determination under the authority of 2 U.S.C. 

§ 437g(a)(4)(C)(iii), which only allows petitioners to “request[] that the determination be 

modified or set aside.” It does not provide petitioners a chance to second-guess the 

Commission’s decision not to employ its ADR program or to readjudicate their case using a 

second administrative process, an additional layer of process that would be directly at odds with 

the purposes of both programs. 

The Administrative Fines Program is the FEC’s usual method of prosecuting violations of 

2 U.S.C. § 434(a) by registered political committees, such as petitioners’ reporting violation. See

2 U.S.C. § 437g(a)(4)(C)(i); 11 C.F.R. §§ 111.30-111.31. In 1999, Congress established the 

Administrative Fines Program to authorize the FEC to assess civil money penalties for reporting 

violations in lieu of its general investigatory enforcement procedures, which are applicable to all 

other types of violations. See 2 U.S.C. § 437g(a)(4)(C)(i). The Administrative Fines Program 

was intended to “let the agency deal with minor violations of the law in an expeditious manner” 

and to “give the FEC more time to investigate serious violations of the law.” See 145 Cong. Rec. 

H5622 (daily ed. July 15, 1999) (statement of Congresswoman Maloney). 

The FEC’s ADR Program was similarly established to “facilitate[] a faster resolution” of 

certain disputes. See FEC’s Alternative Dispute Resolution Program, at

http://www.fec.gov/em/adr.shtml. Federal agencies were provided with specific authority to 

establish such programs by the Administrative Dispute Resolution Act, 5 U.S.C. § 572, and 

parties are not permitted judicial review of an agency’s discretionary decision whether to employ 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 6 of 8
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ADR in individual cases. See 5 U.S.C. § 581(b)(1) (“A decision by an agency to use or not use a 

dispute resolution proceeding . . . shall be committed to the discretion of the agency and shall not 

be subject to judicial review . . . .”). Petitioners have thus requested a remedy that this Court 

lacks authority to provide. 

Even if the Court had authority to issue such a remedy, a referral to the ADR Program 

makes no sense at this juncture. The ADR Program is intended to be used before the FEC’s 

traditional enforcement process begins, in hopes of avoiding that process. See FEC’s Alternative 

Dispute Resolution Program, at http://www.fec.gov/em/adr.shtml. Here, this matter has already 

been adjudicated through the administrative fines process; it is thus too late for ADR to obviate 

the need for a different process, and the Commission has already made a determination regarding 

the appropriate remedy. Moreover, adding another layer of process would undercut the 

Administrative Fines Program’s goal of handling matters in an expeditious manner. Petitioners 

cannot now request a second bite at the apple before the Commission because they are 

dissatisfied with the result of the administrative proceedings. The FEC adjudicated petitioners’ 

case in a manner consistent with FECA and the Commission’s regulations, and the only issue 

here is whether the FEC’s determination was arbitrary or capricious. The Court should reject 

petitioners’ attempt to divert attention from the fact that on the merits they cannot — and indeed, 

do not even attempt to — demonstrate that the FEC’s final determination was contrary to law. 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 7 of 8
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CONCLUSION 

 For the foregoing reasons, petitioners’ request for sanctions should be denied, and the 

FEC’s motion to dismiss should be evaluated on its merits. 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

COUNSEL FOR RESPONDENT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

 (202) 694-1650 

Dated: October 19, 2010 e-mail: khancock@fec.gov 

Certificate of Service

 I, Kevin P. Hancock, certify that this document filed through the ECF system will be sent 

electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) 

and paper copies will be sent to those indicated as non registered participants on October 19, 

2010. 

Dated: October 19, 2010 Respectfully submitted, 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 1:10-cv-11335-GAO Document 9-1 Filed 10/19/10 Page 8 of 8