IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION 

THE DAILY WIRE, LLC et al.,

Plaintiffs,

v.

UNITED STATES DEPARTMENT 

OF STATE et al.,

Defendants.

 Civil Action No. 6:23-cv-00609 (JDK)

DEFENDANTS’ MOTION TO STAY DEADLINES TO RESPOND 

TO THE COMPLAINT AND PLAINTIFFS’ FORTHCOMING 

MOTIONS FOR PRELIMINARY INJUNCTION AND EXPEDITED DISCOVERY

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

JAMES J. GILLIGAN

Special Litigation Counsel, 

Federal Programs Branch

JOSH GARDNER

Special Litigation Counsel,

Federal Programs Branch

CRISTEN C. HANDLEY

CODY T. KNAPP

Trial Attorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch

DAMIEN M. DIGGS

United States Attorney

JAMES GILLINGHAM

Assistant United States Attorney

Case 6:23-cv-00609-JDK Document 8 Filed 02/05/24 Page 1 of 8 PageID #: 101
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Defendants respectfully request that the Court stay the deadline for them to respond to the

Complaint, which is currently February 12, 2024, and the deadlines for them to respond to the

preliminary injunction and expedited discovery motions Plaintiffs intend to file tomorrow. For the 

reasons below, Defendants submit that good cause exists to grant this stay. In the alternative, 

Defendants respectfully request that the Court extend the deadline for their response to the Complaint 

by 45 days. The parties have conferred and, as explained in the certificate of conference below, 

Defendants understand Plaintiffs would not oppose a stay of Defendants’ deadline to respond to the 

Complaint pending adjudication of Plaintiffs’ anticipated motions for a preliminary injunction and 

expedited discovery. 

1. Plaintiffs filed their 67-page, 313-paragraph Complaint on December 6, 2023. See ECF 

No. 1. The Complaint challenges actions allegedly taken by Defendants to “fund[] the infrastructure, 

development, and marketing and promotion” of unspecified “censorship technology” and so-called 

“private censorship enterprises.” Id. ¶ 1. The principal funding decisions challenged in the Complaint

allegedly date back to several years ago. See, e.g., id. ¶¶ 59, 125, 142. 

2. Plaintiffs served the United States Attorney for the Eastern District of Texas on 

December 14, 2023. Accordingly, pursuant to Federal Rule of Civil Procedure 12(a)(2), Defendants’ 

deadline to answer or otherwise respond to the Complaint is February 12, 2024. 

3. Within 7 days of this motion, Defendants expect to file a motion to transfer that will 

raise substantial threshold challenges to the propriety of venue in this District. The primary bases of 

that motion are that the sole Plaintiff with any connection to this District, the State of Texas, lacks 

Article III standing, and that the Complaint alleges no events or omissions giving rise to Plaintiffs’ 

claims that occurred in Texas.

4. On January 30, 2024, Defendants requested Plaintiffs’ position on the anticipated 

motion to transfer, as well as on this motion to stay Defendants’ response deadlines pending the 

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Court’s adjudication of the motion to transfer. Plaintiffs agreed to meet and confer regarding 

Defendants’ transfer motion on the afternoon of February 5, 2024. During the meet-and-confer this 

afternoon, Plaintiffs indicated that they would oppose transfer and also informed Defendants, for the 

first time, that they intend to file motions for preliminary injunction and expedited discovery as early 

as tomorrow, February 6.

5. Good cause exists to stay Defendants’ deadline to respond to the Complaint. 

6. Good cause also exists to stay Defendants’ deadline to respond to any forthcoming 

motions for preliminary injunction and expedited discovery.

7. If granted, Defendants’ motion to transfer would obviate the need for any further 

proceedings in this Court. See, e.g., In re Horseshoe Ent., 337 F.3d 429, 433 (5th Cir. 2003) (where motion 

to transfer was “timely . . . disposition of that motion should have taken a top priority in the handling 

of [the] case”); In re Apple Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020) (“Although district courts have 

discretion as to how to handle their dockets, once a party files a transfer motion, disposing of that 

motion should unquestionably take top priority.”). And a stay of Defendants’ deadlines to answer or 

otherwise respond to the Complaint, to oppose Plaintiffs’ anticipated preliminary-injunction motion, 

and to oppose Plaintiffs’ anticipated motion for expedited discovery, will allow the Court time to 

resolve Defendants’ soon-forthcoming motion to transfer before the parties proceed to briefing in 

this Court, if necessary, on the merits of Plaintiffs’ claims and requests for a preliminary injunction 

and expedited discovery. 

8. It would waste both party and judicial resources if Defendants were forced to respond 

to the Complaint and Plaintiffs’ forthcoming motions while their threshold challenge to venue remains

pending. Indeed, for that reason, courts in this Circuit strongly discourage parties from briefing 

substantive motions prior to venue-related ones. See, e.g., Order, U.S. Navy Seals 1-26 v. Biden, No. 4:21-

cv-01236 (N.D. Tex. May 7, 2022), ECF No. 150 (rejecting venue arguments because defendants 

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raised issue after litigating preliminary injunction motion); see also In re Planned Parenthood Fed’n of Am., 

Inc., 52 F.4th 625, 631 (5th Cir. 2022) (faulting defendants’ delay in pressing venue argument, where 

the motion was not filed until “months into the discovery period” (citation omitted)). Likewise, courts 

generally adjudicate venue before reaching the merits in a case. See, e.g., Adrianza v. Trump, 505 F. 

Supp. 3d 164, 173 (E.D.N.Y. 2020) (“When defendants object to venue, a district court must address 

venue before it can decide the merits of a motion for a preliminary injunction.”), vacated and dismissed 

as moot, Adrianza v. Biden, No. 20-4165, 2021 WL 10140434 (2d Cir. Oct. 13, 2021); Proctor & Gamble 

Co. v. Ranir, LLC, No. 1:17-CV-185, 2017 WL 3537197, at *4 (S.D. Ohio Aug. 17, 2017) (“Courts 

faced with an argument that venue is improper must resolve that issue prior to addressing the merits 

of any claim, including a preliminary injunction.”).

9. Proceeding to any briefing on the merits of Plaintiffs’ claims before the Court decides 

Defendants’ venue motion would also undermine the purposes of venue provisions. Cf. Myers v. Am. 

Dental Ass’n, 695 F.2d 716, 721 (3d Cir. 1982) (“The rule [that venue should be raised promptly] 

benefits the court as well as the opposing party by requiring a litigant to raise certain technical 

objections, the basis of which should be apparent from the outset of the action, before the litigation 

has moved forward.”). Plaintiffs base their claim to venue on two grounds: first, the fact that Texas 

is a Plaintiff in this action, and second, on the contention that a substantial part of the events or 

omissions giving rise to Texas’s claims occurred here. See Compl. ¶ 9. But Texas lacks standing, and 

so venue cannot be based on its mere presence as a party (and an improper one at that). And the 

Complaint identifies no specific acts or omissions giving rise to Texas’s, much less any other Plaintiff’s, 

claims that occurred in Texas. The only specific acts by Defendants that Plaintiffs allege took place 

elsewhere, namely in the District of Columbia, meaning that venue is proper in the U.S. District Court 

for the District of Columbia, not this District. If this case were properly transferred to that district, 

D.C. Circuit law would govern the disposition of Plaintiffs’ claims. Given that, it would be inefficient 

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for the parties to brief the merits of Plaintiffs’ claims in this District prematurely, applying Fifth Circuit 

law.

10. Finally, no party will be prejudiced by the temporary deferral of merits briefing that

Defendants request. The primary actions that Plaintiffs purport to challenge occurred well before the 

date on which this action was filed. See, e.g., Compl. ¶¶ 59, 125, 142. Nearly 60 days have elapsed 

since Plaintiffs filed their Complaint. And there is no credible suggestion in Plaintiffs’ Complaint that 

they will face any imminent injury from Defendants’ alleged actions if this litigation proceeds in an 

orderly course. 

11. Accordingly, Defendants request that the Court stay their deadlines to respond to the 

Complaint, to oppose Plaintiffs’ anticipated motion for a preliminary injunction, and to oppose 

Plaintiffs’ anticipated motion for expedited discovery pending the Court’s disposition of Defendants’

forthcoming motion to transfer. Should the Court deny their motion for a stay, Defendants reserve 

the right to seek an extension of their deadlines to respond to Plaintiffs’ forthcoming preliminary 

injunction and discovery motions once Defendants have reviewed those motions.

12. In the alternative, Defendants request that the Court extend the deadline for their 

response to Plaintiffs’ Complaint by 45 days, to March 28, 2024. This extension would permit 

Defendants’ counsel adequate time to prepare a response to Plaintiffs’ lengthy Complaint that will be 

of maximal assistance to the Court. Moreover, the requested extension would not affect any other 

currently pending deadlines. 

13. For the foregoing reasons, Defendants respectfully submit that an order staying 

Defendants’ obligation to respond to Plaintiffs’ Complaint, as well as any briefing deadlines associated 

with Plaintiffs’ anticipated motions for a preliminary injunction and expedited discovery, until the 

Court has resolved Defendants’ forthcoming motion to transfer would promote the efficient 

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resolution of this matter. In the alternative, Defendants request that the Court extend the deadline 

for their response to the Complaint by 45 days, to March 28, 2024.

Dated: February 5, 2024 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

JAMES J. GILLIGAN

Special Litigation Counsel, 

Federal Programs Branch

JOSH GARDNER

Special Litigation Counsel,

Federal Programs Branch

/s/Cody T. Knapp 

CRISTEN C. HANDLEY (MO # 69114)

CODY T. KNAPP (NY # 5715438)

Trial Attorneys

United States Department of Justice

Civil Division

Federal Programs Branch

1100 L Street, N.W.

Washington, D.C. 20005

Tel: (202) 532-5663

Email: cody.t.knapp@usdoj.gov

DAMIEN M. DIGGS

United States Attorney

/s/ James Gillingham 

JAMES GILLINGHAM

Assistant U.S. Attorney

Eastern District of Texas

110 N. College Street; Suite 700

Tyler, Texas 75702

E-mail: James.Gillingham@usdoj.gov

Phone: (903) 590-1400 

Fax: (903) 590-1436

Texas State Bar # 24065295

Counsel for Defendants

Case 6:23-cv-00609-JDK Document 8 Filed 02/05/24 Page 6 of 8 PageID #: 106
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CERTIFICATE OF CONFERENCE

I, Cody T. Knapp, hereby certify the following: 

On February 5, 2024, counsel for the parties met and conferred via teleconference regarding 

Defendants’ forthcoming motion to transfer and the instant motion to stay Defendants’ other 

response deadlines pending resolution of the motion to transfer. During that conference, counsel for 

the parties discussed the issues to be presented in Defendants’ motions. Plaintiffs’ counsel indicated 

that Plaintiffs do not agree that venue is improper in this District. Plaintiffs’ counsel further indicated 

that Plaintiffs believe they are suffering irreparable harm from Defendants’ alleged actions. For these 

reasons, Plaintiffs’ counsel indicated that Plaintiffs would not agree to a stay of Defendants’ response 

deadlines pending adjudication of a motion to transfer and would instead be filing motions for a 

preliminary injunction and expedited discovery as early as tomorrow, February 6, 2024. Plaintiffs’ 

counsel indicated, however, that they would not oppose a stay or extension of Defendants' deadline 

to respond to the Complaint while the Court adjudicates their forthcoming motions for a preliminary 

injunction and for expedited discovery. The following counsel participated in this meet and confer: 

Margaret A Little

Margot Cleaveland

Counsel for the Media Plaintiffs

Susanna Dokupil 

Counsel for Plaintiff the State of Texas

Cristen C. Handley

Cody T. Knapp 

Counsel for Defendants

/s/ Cody T. Knapp

CODY T. KNAPP

Trial Attorney

U.S. Department of Justice

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CERTIFICATE OF SERVICE

On February 5, 2024, I electronically submitted this document to the clerk of court of the 

U.S. District Court for the Eastern District of Texas using the court’s electronic case filing system. I 

certify that I have served all parties electronically or by another manner authorized by Federal Rule 

of Civil Procedure 5(b)(2). 

/s/ James G. Gillingham 

JAMES G. Gillingham

Assistant United States Attorney

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