UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK et al.,

 Plaintiffs, Case No. 4:22-cv-00691-O

 v.

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States et al., 

 Defendants.

DEFENDANTS’ MOTION TO TRANSFER CASE 

PURSUANT TO THE FIRST-TO-FILE RULE, OR IN 

THE ALTERNATIVE, FOR AN EXTENSION OF TIME 

INTRODUCTION

The first-to-file rule provides that the court in which an action is first filed should determine 

whether later-filed cases involving substantially similar issues should proceed. This case involves 

issues that are substantially similar to, and that substantially overlap with, a case filed more than 

three months ago, Division 80 LLC v. Garland, No. 3:22-cv-00148 (Southern District of Texas). As 

demonstrated below, it is likely that the core issues in this case substantially overlap with the core 

issues in the Division 80 case. In accordance with Fifth Circuit precedent, Defendants therefore 

respectfully request that this Court transfer this case to the Southern District of Texas for a 

determination of whether these actions should be consolidated. In the alternative, Defendants 

respectfully request an extension of time to respond to Plaintiffs’ motion for preliminary injunction. 

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ARGUMENT

I. The Court Should Transfer This Case to the Southern District of Texas Under the 

First-to-File Rule.

“The federal courts long have recognized that the principle of comity requires federal district 

courts—courts of coordinate jurisdiction and equal rank—to exercise care to avoid interference with 

each other’s affairs.” W. Gulf Mar. Ass’n v. ILA Deep Sea Loc. 24, 751 F.2d 721, 728 (5th Cir. 1985) 

(citations omitted). “As between federal district courts, the general principle is to avoid duplicative 

litigation.” Id. (citation and internal punctuation omitted). “The concern manifestly is to avoid the 

waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to 

avoid piecemeal resolution of issues that call for a uniform result.” Id. at 729 (citations omitted). 

“To avoid these ills, a district court may dismiss an action where the issues presented can be 

resolved in an earlier-filed action pending in another district court,” or alternatively, “transfer the 

action or . . . stay it.” Id. at 729 & n.1. 

Accordingly, “[t]he Fifth Circuit adheres to the general rule that the court in which an action 

is first filed is the appropriate court to determine whether subsequently filed cases involving 

substantially similar issues should proceed.” Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 

(5th Cir. 1997) (citing West Gulf, 751 F.2d at 728); Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 

(5th Cir. 1971)); accord Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 606 (5th Cir. 1999). The

first-to-file rule seeks: (1) to “avoid the waste of duplication”; (2) to “avoid rulings which may trench 

upon the authority of sister courts”; and (3) to “avoid piecemeal resolution of issues that call for a 

uniform result.” Save Power, 121 F.3d at 950. 

“This concern applies where,” as here, “related cases have been filed in different districts.” 

Id. (citing Dillard v. Merrill Lynch, Pierce, Fenner & Smith, 961 F.2d 1148, 1161 n.28 (5th Cir. 1992)). 

The first-to-file rule does not “require that cases be identical;” instead, “[t]he crucial inquiry is one of 

‘substantial overlap.’” Id. (quoting Mann Mfg., 439 F.2d at 408); see also O’Hare v. Vulcan Capital,

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L.L.C., 2007 WL 996437, at *2 (“The two actions must only involve closely related questions, 

common subject matter, or core issues that substantially overlap.”) (citing Texas Instruments v. Micron 

Semiconductor, 815 F. Supp. 994, 997 (E.D. Tex. 1993)). “Courts have noted that a substantial 

relationship exists between two suits where the issues, though not identical, are similar enough that 

the cases would be consolidated if filed in the same court.” O’Hare, 2007 WL 996437, at *2 (citing 

Mann Mfg., 439 F.2d at 408 n.6). 

The first-to-file rule applies here because both this case and the Division 80 case “center on 

the question whether” the challenged Rule complies with the Administrative Procedure Act. Save 

Power, 121 F.3d at 951. Plaintiffs concede that the Division 80 case is related to this action. See

Notice of Related Case, ECF No. 3. Both cases advance very similar claims. Compare Compl., ECF 

No. 1, with Compl., Division 80 v. Garland (attached as Ex. 1). And the preliminary injunction 

motions in both cases present very similar arguments. Compare Br. in Suppl of Mot. for Prelim. Inj., 

ECF No. 16, with Emergency Mot. for Prelim. Inj., ECF No. 11, Division 80 v. Garland (attached as 

Ex. 2). 

Furthermore, “[c]omplete identity of parties is not required for dismissal or transfer of a case 

filed subsequently to a substantially related action.” Save Power, 121 F.3d at 951 (citing West Gulf, 751 

F.2d at 731 n. 5; National Health Fed’n v. Weinberger, 518 F.2d 711 (7th Cir. 1975)). National Health 

Federation warrants discussion because it was cited favorably by two Fifth Circuit decisions for the 

same point of law—see Save Power, 121 F.3d at 951; West Gulf, 751 F.2d at 729 n.1—and because it 

involved a very similar situation to that presented here. Two different sets of plaintiffs filed suit 

against the same government defendant challenging the issuance of two FDA regulations. 518 F.2d 

at 712. The court in the second-filed action dismissed, and the Seventh Circuit affirmed. Id. Noting 

that “in the exercise of its discretion the court may dismiss a declaratory or injunctive suit if the 

same issue is pending in litigation elsewhere,” and that “the issues raised in both complaints are 

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identical,” the Seventh Circuit found that “dismissal is particularly appropriate for this complaint.” 

Id. at 712-13. The fact that “the plaintiffs here are different plaintiffs from those involved” in the 

first-filed action did not alter the Seventh Circuit’s analysis. Id. at 714. It explained that the 

plaintiffs in the later-filed action should not “be allowed to so easily avoid real involvement in 

litigation in one forum, and then impose on a second federal forum the burden of considering anew 

the same issues.” Id.

The same is true here, and the claims presented in this case and Division 80 “substantially 

overlap.” Save Power, 121 F.3d at 950. Transferring to that forum would avoid the unnecessary 

waste of duplicative actions. The similar nature of the claims in both cases would allow for 

determinations in different courts that could create direct and irreconcilable conflict. Thus, any 

ruling by this Court would “trench upon the authority” of another district court. Id.

Because “the likelihood of substantial overlap between the two suits ha[s] been 

demonstrated,” “the ultimate determination of whether there actually [i]s a substantial overlap 

requiring consolidation of the two suits in [the Southern District of Texas] belong[s] to [that court].” 

Id. (quoting Mann Mfg., 439 F.2d at 408); see also id. at 408 n.6 (“[R]egardless of whether or not the 

suits here are identical, if they overlap on the substantive issues, the cases would be required to be 

consolidated in the jurisdiction first seized of the issues.”) (internal punctuation omitted). Here, the 

Southern District of Texas court has already received extensive briefing and conducted a hearing on 

the motion for preliminary injunction filed in that district. Defendants therefore respectfully request 

that this Court transfer this case to the Southern District of Texas for a determination of whether 

these two cases should be consolidated. 

II. In the Alternative, the Court Should Grant Defendants an Extension of Time to 

Respond to Plaintiffs’ Motion for a Preliminary Injunction. 

Alternatively, Defendants respectfully request that the Court grant Defendants an extension 

of time of seven days, through and including September 2, to respond to Plaintiffs’ motion for a 

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preliminary injunction. This additional time is necessary because of the need to coordinate 

Defendants’ response among different government agencies, because undersigned counsel for 

Defendants is recovering from an illness, and because of absences of key personnel during the 

month of August, as well as the press of business and other litigation.

This schedule is reasonable under the circumstances of this case. The agency promulgated 

the rule challenged here on April 26, 2022, and the rule announced its effective date of August 24, 

2022—120 days from the date the rule was issued—on its very first page. 87 Fed. Reg. 24,652. But 

Plaintiffs did not act in a manner reflective of a party facing a true emergency. They did not seek 

emergency injunctive relief in April, or in May, or in June, or in July. Instead, they deliberately chose 

not to seek such relief for over three-and-a-half months, until the week before the rule’s effective 

date. Having unreasonably delayed for this extended period, any purported emergency is thus 

entirely of Plaintiffs’ own making. Plaintiffs also will not suffer any prejudice from this modest 

extension, as briefing on their preliminary injunction motion will not conclude until after the rule is 

scheduled to become effective in any event. 

Further, any contention that Plaintiffs could not have filed their complaint and motion for 

preliminary injunction before now is fatally undermined by the fact that the plaintiff in Division 80

filed suit challenging the very same rule in early May 2022 and moved for a preliminary injunction in 

early June, more than two months ago. See Division 80 v. Garland, No. 3:22-cv-00148, ECF Nos. 1 

(Compl., May 9, 2022), 11 (Emergency Mot. for Prelim. Injunction, June 6, 2022).

Plaintiffs took three-and-a-half months after the rule was issued to move for a preliminary 

injunction in this Court. By contrast, Defendants are only asking for 7 more days to prepare an 

appropriate response. Accordingly, Defendants respectfully request, in the alternative, an extension 

of time to respond to Plaintiffs’ motion for preliminary injunction. 

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CONCLUSION

For the reasons stated above, Defendants respectfully request that this case be transferred to 

the Southern District of Texas. In the alternative, Defendants respectfully request an extension of 

time until September 2, 2022 to respond to Plaintiffs’ motion for preliminary injunction.

DATED: August 18, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ALEXANDER K. HAAS

Director, Federal Programs Branch

LESLEY FARBY

Assistant Director, Federal Programs Branch

/s/ Daniel Riess

DANIEL RIESS

MARTIN M. TOMLINSON

TAISA M. GOODNATURE

Trial Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

1100 L Street, NW

Washington, DC 20005

Phone: (202) 353-3098

Email: Daniel.Riess@usdoj.gov

Attorneys for Defendants

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CERTIFICATE OF CONFERENCE

I certify that, on August 17-18, 2022, I conferred with Plaintiffs’ counsel, who stated that 

Plaintiff is opposed to the relief sought in this motion.

/s/ Daniel Riess

CERTIFICATE OF SERVICE

On August 18, 2022, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I have served all parties electronically or by another manner 

authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Daniel Riess

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