1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

________________________________ 

 )

SEBASTIAN PHILLIPS, et al., )

 )

Plaintiffs, )

 ) 

v. ) Civil Action No. 11-2021 (EGS) 

 )

RAYMOND E. MABUS, et al., ) 

 )

Defendants. )

________________________________) 

MEMORANDUM OPINION

 Currently pending before the Court are: (1) federal 

defendants’ renewed motion to dismiss Counts I, II, and IX of 

the amended complaint or, in the alternative, for summary 

judgment as to Counts I and II; (2) defendant Matthew Miller’s 

motion for summary judgment as to the claims against him; (3) 

plaintiffs Sebastian Phillips’ and Marine Design Dynamics, 

Inc.’s motion for partial summary judgment as to Count I; (4) 

federal defendants’ motion to strike plaintiffs’ motion for 

partial summary judgment; (5) plaintiffs’ motion for summary 

judgment as to the claims against Mr. Miller; and (6) Mr. 

Miller’s motion to strike plaintiffs’ summary judgment motion as 

to the claims against him. Upon consideration of the motions, 

the responses and replies thereto, the applicable law, and the 

entire record, federal defendants’ and Mr. Miller’s motions to 

strike are DENIED. Federal defendants and Mr. Miller will have 
2 

the opportunity to file briefs in opposition to plaintiffs’ 

summary judgment motions, and plaintiffs, in turn, will have the 

opportunity to reply. The Court will then be in a position to 

resolve cross-motions for summary judgment as to Count I against 

federal defendants and as to the claims against Mr. Miller. 

I. Background

 Plaintiffs’ amended complaint asserts nine counts. Count I 

asserts that federal defendants——a group of Navy officials——

violated plaintiffs’ constitutional right to due process by 

blacklisting them from government contracting without procedural 

safeguards, and seeks declaratory and injunctive relief. Am. 

Compl., ECF No. 42 ¶¶ 99-121. Count II asserts the same claims 

against federal defendants Charles Traugh and Michael Bosworth 

in their individual capacities and seeks damages of $2.5 

million. Id. ¶¶ 122-26. Counts III-VIII assert breach of 

fiduciary duty and civil conspiracy against plaintiffs’ former

employees Michael Mazzocco, Volker Stammnitz, William Muras, and 

Matthew Miller, and common law defamation against Mr. Mazzocco. 

Id. ¶¶ 127-92. Count IX alleges common law interference with 

contractual relations by federal defendants Mr. Traugh and 

William Robinson in their official and individual capacities. 

Id. ¶¶ 193-200. On September 30, 2012, the Court denied federal 

defendants’ motion to dismiss or, in the alternative, for 

summary judgment, and denied motions to dismiss filed by Mr. 
3 

Mazzocco, Mr. Stammnitz, and Mr. Muras. Phillips v. Mabus, 894 

F. Supp. 2d 71 (D.D.C. 2012). 

 On October 23, 2012, the Court issued an order giving 

federal defendants and plaintiffs until December 6, 2012 to 

engage in settlement discussions and, in the event that 

settlement discussions were unsuccessful, giving them until 

March 5, 2013 to conduct limited discovery on the issues of 

scope of employment (relevant to Count IX of the amended 

complaint) and qualified immunity (relevant to Count II of the 

amended complaint). See Minute Entry of October 23, 2012. No 

settlement occurred, and on May 14, 2013, federal defendants 

filed a renewed motion to dismiss or, in the alternative, for 

summary judgment. See Fed. Defs.’ Renewed Mot. to Dismiss or, in 

the Alternative, for Summ. J., ECF No. 88. Mr. Miller filed a 

motion for summary judgment as to the claims against him that 

same day. See Def. Matthew Miller’s Mot. for Summ. J., ECF No. 

87. Plaintiffs, federal defendants, and Mr. Miller engaged in a 

full round of briefing as to these motions. Federal defendants 

raised certain arguments for the first time in their reply brief 

in support of their renewed motion. See Fed. Defs.’ Reply, ECF 

No. 104-1 at 4-6. Accordingly, on March 25, 2014 the Court 

stayed proceedings in this case and directed plaintiffs to file 

a surreply of no more than ten pages limited to addressing the 
4 

facts and arguments raised for the first time in federal 

defendants’ reply. See Minute Entry of March 25, 2014. 

 Plaintiffs not only filed the surreply, see Pls.’ Surreply, 

ECF No. 109, but also filed a motion for partial summary 

judgment as to Count I of their amended complaint and a motion 

for summary judgment as to the claims against Mr. Miller. See

Pls.’ Mot. for Partial Summ. J., ECF No. 107; Pls.’ Mot. for 

Summ. J. Against Def. Matthew Miller, ECF No. 113. Federal 

defendants then filed a motion to strike plaintiffs’ motion for 

partial summary judgment as to Count I, see Fed. Defs.’ Mot. to 

Strike Pls.’ Mot. for Partial Summ. J., ECF No. 108, and Mr. 

Miller filed a motion to strike plaintiffs’ summary judgment 

motion as to the claims against him. See Def. Matthew Miller’s 

Mot. to Strike Pls.’ Mot. for Summ. J., ECF No. 115. 

II. Analysis

 Plaintiffs principally argue that the Court should deny the 

motions to strike their summary judgment motions because Federal 

Rule of Civil Procedure 12(f) only contemplates motions to 

strike a “pleading,” and a motion for summary judgment is not 

included in Federal Rule of Civil Procedure 7(a)’s list of 

“pleadings.” Pls.’ Opp. to Fed. Defs.’ Mot. to Strike, ECF No. 

110 at 1-2; Pls.’ Opp. to Def. Matthew Miller’s Mot. to Strike, 

ECF No. 116 at 1-2. This argument fails, however, as the Court 

does retain the discretionary authority to strike summary 
5 

judgment motions if necessary “to tame . . . tempestuous 

litigation.” Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 

2, 11 (D.D.C. 2004). Even so, the Court declines to exercise 

that authority in this case. As detailed below, the Court finds 

federal defendants’ and Mr. Miller’s arguments in support of 

their motions to strike unavailing and is of the opinion that 

the best course for this case is to permit one last set of 

opposition and reply briefs, thereby permitting the Court to 

resolve cross-motions for summary judgment as to Count I against 

federal defendants and as to Counts VI and VIII against Mr. 

Miller. 

A. Federal Defendants’ and Mr. Miller’s Arguments in 

 Favor of Striking Plaintiffs’ Summary Judgment Motions 

 Are Unavailing 

 Federal defendants and Mr. Miller argue that plaintiffs 

have failed to comply with the Court’s March 25, 2014 order and, 

consequently, plaintiffs’ summary judgment motions should be 

stricken. Specifically, they allege that plaintiffs did not file 

a surreply and did not limit their arguments to the facts and 

arguments raised for the first time in federal defendants’ reply

in support of their renewed motion. Fed. Defs.’ Mem. Supp. Mot.

to Strike, ECF No. 108 at 3.1 But this argument fails——and 

 

1 Mr. Miller “incorporates by reference all of the arguments made 

by the federal defendants in their motion to strike” into his 

motion to strike. Def. Miller’s Mem. Supp. Mot. to Strike, ECF 

No. 115-1 at 3. 
6 

federal defendants abandon it, see generally Fed. Defs.’ Reply 

to Pls.’ Opp. to Mot. to Strike, ECF No. 111——because, as 

plaintiffs explain, plaintiffs filed a timely and appropriately 

limited surreply. See Pls.’ Opp. to Fed. Defs.’ Mot. to Strike, 

ECF No. 110 at 2-3. 

 Mr. Miller, however, advances a stronger argument when he 

asserts that plaintiffs’ motions for summary judgment should be 

stricken on the ground that plaintiffs violated the Court’s 

March 25, 2014 order because that order stayed the proceedings 

in this case and plaintiffs’ summary judgment motions were filed 

after the stay. Def. Miller’s Mem. Supp. Mot. to Strike, ECF No. 

115-1 at 2-3. Plaintiffs’ primary retort that the Court’s order 

staying proceedings in this case made “no reference whatsoever 

to Defendant Miller,” Pls.’ Opp. to Def. Matthew Miller’s Mot. 

to Strike, ECF No. 116 at 2, is not persuasive for two reasons. 

First, the stay was with regard to the “proceedings in this 

case” and was not expressly limited to proceedings involving 

just federal defendants. See Minute Entry of March 25, 2014. 

Second, even if the stay had been limited to proceedings 

involving just federal defendants, plaintiffs filed a post-stay 

motion for partial summary judgment as to one of their claims 

against federal defendants. Plaintiffs did therefore violate the 

terms of the stay by filing their two summary judgment motions 

after the stay was put in place, which authorizes the Court to 
7 

strike their motions. Cf. Edisync Sys., Inc. v. Centra Software, 

Inc., No. 03-1587, 2006 WL 1980633, at *1 (D. Colo. July 13, 

2006); Brinco Mining Ltd. v. Fed. Ins. Co., 552 F. Supp. 1233, 

1240 (D.D.C. 1982) (describing a court’s “inherent authority 

over its own docket”).

 The Court, however, declines to exercise that authority 

because, as plaintiffs accurately explain, federal defendants 

and Mr. Miller have not been prejudiced by plaintiffs’ motions 

for summary judgment. See Pls.’ Opp. to Fed. Defs.’ Mot. to 

Strike, ECF No. 110 at 4; Pls.’ Opp. to Def. Matthew Miller’s 

Mot. to Strike, ECF No. 116 at 3. There is no merit to federal 

defendants’ and Mr. Miller’s assertion that they are 

“prejudiced” by arguments made for the first time in plaintiffs’ 

summary judgment motions, see Fed. Defs.’ Mem. Supp. Mot. to 

Strike, ECF No. 108 at 3, because they will have the opportunity 

to file opposition briefs. Similarly, there is no merit to the 

assertion that plaintiffs’ motions should be stricken as 

duplicative of their earlier-filed opposition briefs. See Fed. 

Defs.’ Reply to Pls.’ Opp. to Mot. to Strike, ECF No. 111 at 4; 

Def. Miller’s Mem. Supp. Mot. to Strike, ECF No. 115-1 at 3. To 

the extent that plaintiffs’ summary judgment motions merely

rehash the arguments put forth in their opposition briefs, 

federal defendants and Mr. Miller are free to point that out to 

the Court in their own opposition briefs and simply incorporate 
8 

by reference any arguments they have already put in front of the 

Court in their prior briefing. 

 Federal defendants and Mr. Miller also argue that 

plaintiffs’ summary judgment motions should be stricken on the 

ground that plaintiffs failed to comply with the Court’s October 

23, 2012 order. That order set a briefing schedule for federal 

defendants’ renewed motion in the event that federal defendants 

and plaintiffs were unable to reach a settlement. Minute Entry 

of October 23, 2012. Federal defendants and Mr. Miller argue 

that because that order in no way contemplated that plaintiffs 

would be filing a dispositive motion, plaintiffs’ subsequent 

summary judgment motions were filed in violation of the order 

and should be stricken. Fed. Defs.’ Mem. Supp. Mot. to Strike, 

ECF No. 108 at 4; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to 

Strike, ECF No. 111 at 2-4. Although the Court is sympathetic to 

the position that plaintiffs could have more clearly 

communicated an intent to file a dispositive motion when the 

Court initially set a briefing schedule for federal defendants’ 

renewed motion, the Court is still not convinced that striking 

plaintiffs’ motions is the proper course of action. The Court’s 

October 23, 2012 order did only address federal defendants’ 

renewed motion, but it did not preclude the filing of other 

motions. And, in any event, given the opportunity federal 

defendants and Mr. Miller will have to file opposition briefs, 
9 

refusing to strike plaintiffs’ motions will not result in any 

undue prejudice. 

 Finally, federal defendants and Mr. Miller argue that 

plaintiffs’ motions for summary judgment are untimely under 

Federal Rule of Civil Procedure 56(b). Fed. Defs.’ Mem. Supp. 

Mot. to Strike, ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’ 

Opp. to Mot. to Strike, ECF No. 111 at 4-6. Rule 56(b) states: 

“Unless a different time is set by local rule or the court 

orders otherwise, a party may file a motion for summary judgment 

at any time until 30 days after the close of all discovery.” 

Fed. R. Civ. P. 56(b). Federal defendants and Mr. Miller argue 

that in its October 23, 2012 order, the Court mandated that the 

parties would have until March 5, 2013 to conduct limited 

discovery on the issues of scope of employment and qualified 

immunity. Because plaintiffs’ summary judgment motions were 

filed much later than 30 days after March 5, 2013, federal 

defendants and Mr. Miller assert that plaintiffs’ motions should 

be stricken as untimely. Fed. Defs.’ Mem. Supp. Mot. to Strike, 

ECF No. 108 at 5; Fed. Defs.’ Reply to Pls.’ Opp. to Mot. to 

Strike, ECF No. 111 at 4-5. But plaintiffs are correct to 

emphasize that the discovery schedule put in place by the Court 

governed discovery limited to issues pertaining to Counts II and 

IX of plaintiffs’ amended complaint. See Pls.’ Opp. to Fed. 

Defs.’ Mot. to Strike, ECF No. 110 at 3-4; Pls.’ Opp. to Def.
10 

Matthew Miller’s Mot. to Strike, ECF No. 116 at 3. No discovery 

has yet occurred with regard to Counts I, VI, and VIII, which 

are the Counts implicated by plaintiffs’ motions for summary 

judgment. Thus “all discovery” has not yet closed with regard to 

those Counts, so plaintiffs’ summary judgment motions are not 

untimely under the Federal Rules. See Fed. R. Civ. P. 56(b). 

B. Sanctions Are Not Warranted

 Plaintiffs seek attorneys’ fees and costs associated with 

opposing the motions to strike should the Court determine that 

the filing of federal defendants’ and Mr. Miller’s motions to 

strike violates Federal Rule of Civil Procedure 11(b)(1). Pls.’ 

Opp. to Fed. Defs.’ Mot. to Strike, ECF No. 110 at 4-5; Pls.’ 

Opp. to Def. Matthew Miller’s Mot. to Strike, ECF No. 116 at 3-

4. Rule 11(b)(1) permits sanctions for the filing of a motion 

that has “any improper purpose, such as to harass, cause 

unnecessary delay, or needlessly increase the cost of 

litigation.” Fed. R. Civ. P. 11(b)(1). Plaintiffs’ request for 

sanctions is unavailing. First, it does not appear that 

plaintiffs have complied with the procedural requirements of 

Rule 11(c)(2). That provision states that a “motion for 

sanctions must be made separately from any other motion” and 

that the allegedly offending party, after being served with the 

motion for sanctions, is to be given 21 days to withdraw or 

correct the challenged filing before the motion for sanctions is 
11 

presented to the court. Fed. R. Civ. P. 11(c)(2). Here, 

plaintiffs’ requests for sanctions are not stand-alone motions 

but rather are tacked on to their briefs in opposition to the 

motions to strike, and the requests were not served on federal 

defendants and Mr. Miller 21 days prior to the requests being 

presented to the Court. See generally Pls.’ Opp. to Fed. Defs.’ 

Mot. to Strike, ECF No. 110; Pls.’ Opp. to Def. Matthew Miller’s 

Mot. to Strike, ECF No. 116. Second, even assuming the proper 

procedure was followed, plaintiffs have not shown that federal 

defendants’ and Mr. Miller’s motions to strike have an improper 

purpose. Particularly given the fact that all proceedings in 

this case were stayed when plaintiffs filed their summary 

judgment motions, see supra Part II.A, federal defendants and 

Mr. Miller certainly had a colorable argument that the Court 

should strike plaintiffs’ summary judgment motions. Accordingly, 

sanctions under Rule 11(b)(1) are unwarranted. 

III. Conclusion 

 For the reasons stated above, federal defendants’ and Mr. 

Miller’s motions to strike are DENIED. Federal defendants and 

Mr. Miller will have an opportunity to file briefs in opposition 

to plaintiffs’ motions for summary judgment, and plaintiffs 

will, in turn, have an opportunity to reply. An appropriate 

Order accompanies this Memorandum Opinion. 

 SO ORDERED. 
12 

Signed: Emmet G. Sullivan 

 United States District Judge 

 November 4, 2016