UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Dallas Division

ROBERT HOPKINS, III, * 

 * 

Plaintiff, * 

 * 

v. * Civil Action No. 3:22-cv-00706 (E) 

 * 

DEPARTMENT OF DEFENSE, *

 * 

Defendant. * 

 * 

* * * * * * * * * * * * * 

PLAINTIFF’S UNOPPOSED MOTION FOR RECONSIDERATION

NOW COMES Plaintiff Robert Hopkins, III (“Hopkins”), pursuant to 

Federal Rule of Civil Procedure (“FRCP”) 60(b)(1), to respectfully request 

reconsideration of the Court’s Judgment dated 25 March 2024. As explained in the 

following memorandum, which has been included in this Motion due to its short 

length, Hopkins’s failure to file a timely opposition to Defendant Department of 

Defense’s (“DOD”) dispositive motion was the product of a mutual understanding 

shared by the parties that the briefing of that motion would be stayed, and that 

misunderstanding satisfies the test for excusable neglect, which is the standard by 

which FRCP 60(b)(1) motions are measured. 

A district court’s decision on an FRCP 60(b) motion is reviewed for abuse of 

discretion on appeal. Roberts v. Wal-Mart La., LLC, 54 F.4th 852, 854 (5th Cir. 

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2022). DOD takes no position on this Motion. A proposed Order accompanies this 

Motion.

Memorandum of Points and Authorities

I. HOPKINS DEMONSTRATED EXCUSABLE NEGLECT

The undersigned sincerely apologizes to the Court for his role in the 

sequence of events which led to its decision to grant DOD’s dispositive motion as 

abandoned. Simply put, after he filed the partially unopposed motion to stay the 

briefing of DOD’s dispositive motion on 3 January 2024, he incorrectly assumed 

that the motion would be granted—if only in part—due to the fact that DOD only 

opposed part of it.

1 Hopkins requested a stay of the briefing until the Court had 

ruled on two procedural motions, and DOD did not oppose a stay until the Court 

had ruled on one of them. To the undersigned’s understanding, this meant that 

DOD had no objection to a stay of the briefing of its dispositive motion until the 

Court had ruled on the motion to unseal that he filed on 5 January. Accordingly, he 

wrongly assumed that the Court would not deny that relief in the absence of 

opposition from DOD, which meant that he did not expect any opposition to 

DOD’s dispositive motion to be due until after the Court had ruled on the motion 

to unseal.

1

 To be exact, when the undersigned first filed the stay motion, he believed that it was fully unopposed, 

and only learned later that DOD opposed it in part. However, this distinction does not bear on this 

Motion, for the reasons explained herein.

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While the undersigned’s assumption was proven to be incorrect, it cannot be 

said to be unreasonable under the circumstances, especially when one considers 

that both parties then proceeded to brief the procedural motions in question and the 

Court even granted an extension of one of the deadlines for doing so without any 

mention of the dispositive motion deadline. Furthermore, it was not unreasonable 

for the undersigned to anticipate that the motion to stay would be granted since the 

intervening procedural motions directly implicated serious evidentiary issues 

involved in the briefing of DOD’s dispositive motion, which had been generally 

accepted to be a valid reason to stay dispositive briefing in the undersigned’s 

experience. See, e.g., Min. Order (Aug. 25, 2022), Moyar v. DOD, No. 22-478 

(D.D.C.) (staying dispositive briefing without objection pending plaintiff’s motion 

to strike evidence); Min. Order (Feb. 17, 2021), Escander v. McCarthy, No. 20-589 

(E.D.N.C.) (same). In the final analysis, it would be patently unfair to apply the 

ultimate litigation sanction—dismissal with prejudice—to a plaintiff in response to 

a reasonable, albeit wrong, assumption of his counsel’s that a partially unopposed 

motion to stay briefing would be granted, if only to the extent that the defendant 

had consented. Accord Johnese v. Jani-King, Inc., No. 06-533, 2008 WL 631237, 

at *3 (N.D. Tex. Mar. 3, 2008) (“[D]ismissal is a drastic step, normally to be taken 

only after unfruitful resort to lesser sanctions.” (quoting Shepherd v. Am. 

Broadcasting Cos., Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995)).

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This case stands in stark contrast to Smith v. Alumax Extrusions, Inc., a 

comparable case in which a plaintiff filed an FRCP 60(b)(1) motion regarding an 

order granting summary judgment to a defendant due to the plaintiff’s failure to 

oppose summary judgment in a timely fashion. In that case, the plaintiff’s counsel 

never sought an extension or stay of the opposition deadline, but simply did not file 

an opposition and then filed a motion to withdraw from the case six weeks after the 

opposition was due, which was understandably found not to constitute excusable 

neglect. 868 F.2d 1469, 1471-72 (5th Cir. 1989). In this case, not only did Hopkins 

file a timely motion to stay the briefing of the dispositive motion, but that motion 

was for all practical purposes unopposed, leading the undersigned to reasonably 

assume that it would be granted. Additionally, Hopkins had affirmatively requested 

leave to file his own motion for partial summary judgment three months before 

DOD filed its dispositive motion (see Dkt. #25 (filed June 24, 2023)) but had that 

request denied, which is inconsistent with a plaintiff who has abandoned his case.

In conclusion, while the undersigned again apologizes to the Court for 

presuming that Hopkins’s stay motion would be granted, Hopkins maintains that 

dismissal of the case is a disproportionate response to this misunderstanding, and 

he respectfully requests that the Court reopen the case and adjudicate the 

procedural motions accordingly, so that the case can be decided on the merits. To 

the extent that the Court additionally grounded its decision in an assessment of the 

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evidence proffered by DOD, Hopkins maintains that that decision should also be 

vacated, since the Court’s analysis was handicapped by the lack of informed 

opposition, even to the extent that it could not review Hopkins’s own response 

document demonstrating the falsity of DOD’s claims.

II. CERTIFICATE OF CONFERENCE

The undersigned conferred with DOD’s counsel Lisa Newman regarding the 

relief requested in this Motion on 30 April 2024. DOD’s counsel responded, in 

pertinent part, “The government takes no position on the motion[.]” Accordingly, 

in the absence of opposition, this is being filed as an unopposed motion. 

Date: May 7, 2024

 Respectfully submitted,

/s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

 N.D. Tex. Bar #984704DC

 National Security Counselors

 4702 Levada Terrace

 Rockville, MD 20853

 301-728-5908

 240-681-2189 fax

 Kel@NationalSecurityLaw.org

Counsel for Plaintiff

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing filing contains 986 words.

 /s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

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