Case 1:15-cv-00372-RP Document 73 Filed 04/26/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEFENSE DISTRIBUTED and Case No. 15-CV-372-RP

SECOND AMENDMENT FOUNDATION, INC.,

Plaintiffs,

v.

U.S. DEPARTMENT OF STATE, et al.,

Defendants.
________________________________________________

PLAINTIFFS OPPOSED MOTION TO STRIKE

INDIVIDUAL CAPACITY DEFENDANTS REQUEST TO LIFT STAY,
OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A RESPONSE TO INDIVIDUAL CAPACITY
DEFENDANTS REQUEST TO LIFT STAY

Plaintiffs move to strike the individual capacity Defendants request to lift stay, as

embedded in their Response (Dkt. 72) to the official capacity Defendants Motion to Stay

Proceedings (Dkt. 70) because Defendants sought this relief without complying with Federal

Civil Rule 7(b)(1) or the conference requirements of Local Civil Rule 7(i). Alternatively,

Plaintiffs request leave to respond to the individual capacity Defendants request for relief

from stay.

I. MOTION TO STRIKE

Despite the clarity of the Courts October 1, 2015 Order (Dkt. 66), the official capacity

Defendants filed a Motion to Stay Proceedings. Now, embedded within the individual capacity

Defendants Response to the official capacity Defendants motion is a de facto separate

 Case 1:15-cv-00372-RP Document 73 Filed 04/26/17 Page 2 of 4

motion, requesting that the Court enter an order lifting the stay set forth in the Courts October 1,

2015 Order as it applies to claims against the individual capacity Defendants.

The individual capacity Defendants presentation of arguments in their Response goes

well beyond stating a position on the official capacity Defendants motion. Further evident of

the individual capacity Defendants intent to make a de facto motion to lift stay in their

Response, the individual capacity Defendants do not state any intention to file a separate

motion.

The Court should strike the individual capacity Defendants request to lift stay because

the request violates Federal Rule of Civil Procedure Rule 7(b)(1), which provides, [a] request

for a court order must be made by motion.1

This Court should also strike the individual capacity Defendants request to lift stay

because the individual capacity Defendants did not confer with Plaintiffs regarding their

request, as required by Local Rule CV-7(i).

II. ALTERNATIVE MOTION FOR LEAVE TO RESPOND TO REQUEST TO LIFT STAY

The individual capacity Defendants request to lift stay incorrectly claims that there is

no overlap between the questions upon which Plaintiffs seek certiorari and their defenses and

that possible resolution of injunctive claims by the Supreme Court will not affect their

defensesdespite the common constitutional questions subject to possible Supreme Court

review, which underlie every claim in this action.

The individual Defendants request to lift stay also misrepresents the Court of Appeals

April 4, 2017 mandate as containing reasoning that does not exist, and it makes other arguments

to which Plaintiffs have a right to respond. Accordingly, should the Court deny Plaintiffs
1
Plaintiffs Response (Dkt. 71) to the official capacity Defendants Motion to Stay requests
that the Court maintain its October 1, 2015 Orderrelief that does not require any order.

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Motion to Strike, Plaintiffs respectfully request leave to respond to the individual capacity

Defendants request for stay.

Proposed forms of order, in the alternative, are attached.

Undersigned counsel consulted with counsel for the individual capacity and official

capacity Defendants before filing this Motion to Strike. Defendants advised they oppose the

motion.

Dated: April 26, 2017 Respectfully submitted,

GURA PLLC FISH & RICHARDSON P.C.

Alan Gura* William T. Tommy Jacks

Virginia Bar No. 68842 Texas State Bar No. 10452000
Gura PLLC David S. Morris
916 Prince Street, Suite 107 Texas State Bar No. 24032877
Alexandria, Virginia 22314 FISH & RICHARDSON P.C.
Tele. 703.835.9085 / Fax 703.997.7665 One Congress Plaza, Suite 810
alan@gurapllc.com 111 Congress Avenue
Austin, Texas 78701
/s/ Matthew A. Goldstein* Tele. 512.472.5070 / Fax 512.320.8935
D.C. Bar No. 975000 jacks@fr.com
Matthew A. Goldstein, PLLC dmorris@fr.com
1875 Connecticut Avenue, N.W
Washington, DC 20009 William B. Mateja
Tele. 202.550.0040 / Fax 202.683.6679 Texas State Bar No. 13185350
matthew@goldsteinpllc.com POLSINELLI P.C.
2950 N. Harwood, Suite 2100
Josh Blackman Dallas, Texas 75201
Virginia Bar No. 78292 Tele. 214.397.0030 / Fax 213.397.0033
1303 San Jacinto Street mateja@polsinelli.com
Houston, Texas 77002
Tele. 202.294.9003 / Fax 713.646.1766
joshblackman@gmail.com

*Admitted pro hac vice

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a) on April 26, 2017, and was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(b)(1).

/s/ Matthew A. Goldstein

Matthew A. Goldstein