UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) )

v. ) ) OFFICE OF THE COMPTROLLER )OF THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ STATEMENT OF FACTS WITH

REFERENCES TO THE ADMINISTRATIVE RECORD

Plaintiff United Western Bank (“the Bank”) respectfully moves to strike Defendants’

Statement of Facts with References to the Administrative Record. See ECF No. 100-2. Such a

statement is not permitted in administrative review cases. See LCvR 7(h)(2). Thus, Defendants’

summary judgment submissions exceed the page limit of 45 pages set by the Local Rules of the

United States District Court for the District of Columbia. See LCvR 7(e).

Pursuant to Local Rule 7(m), Plaintiff informed Defendants of the intended motion. The

Bank did not receive any response.

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Respectfully submitted,

. /s/ Andrew L. Sandler . Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) Michael R. Williams (D.C. Bar No. 994953) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile)

/s/ Lawrence D. Kaplan . Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile)

/s/ Theodore J. Abariotes . Theodore J. Abariotes Deputy General Counsel UNITED WESTERN BANCORP, INC. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorneys for Plaintiff United Western Bank

Dated: May 22, 2012

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) )

v. ) ) OFFICE OF THE COMPTROLLER )OF THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ STATEMENT OF FACTS WITH REFERENCES TO THE

ADMINISTRATIVE RECORD

Defendants have filed 77 pages of briefing on a motion that is limited to 45 pages.

Defendants first submitted a 40-page memorandum in support of their motion for summary

judgment (and in opposition to United Western Bank’s motion for summary judgment). See

ECF No. 100-1. But they also included a separate 37-page “Statement of Facts With References

to the Administrative Record.” See ECF No. 100-2. This second document contains 107

separate paragraphs detailing Defendants’ view of the case.1 Having outlined the facts in this

supplemental filing, Defendants’ separate memorandum then opines on various aspects of the

case without providing a full recitation of the relevant facts. Defendants’ separate “Statement of

Facts” should be stricken in its entirety, as the document is nothing more than an attempt to

1 In addition to “facts,” the statement is rife with argument. See, e.g., ECF No. 100-2 at 20 (“The Investment Agreement was neither the first nor the last time the Bank proposed an unrealistic recapitalization plan to its regulators.”); id. at 22 n.24 (“The fact is that the Anchor Investors’ contingent promises … were no more reliable than the Bank’s many previous promises that recapitalization was just a short period away.”).

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evade the page limit set by the Local Rules. See LCvR 7(e).

Defendants’ complete summary judgment submission should have been no more than 45

pages, including a statement of facts with references to the administrative record. See LCvR

(h)(2). To be sure, in an ordinary civil case, motions for summary judgment should be

“accompanied by a statement of material facts as to which the moving party contends there is no

genuine issue.” LCvR 7(h)(1) (emphasis added). Likewise, an opposition should include a

“separate concise statement of genuine issues setting forth all material facts as to which it is

contended there exists a genuine issue necessary to be litigated.” Id. But as Defendants in fact

acknowledge in their improper statement of facts, ECF No. 100-2 at 1 n.1, this requirement

“shall not apply” where, as here, “judicial review is based solely on the administrative record.”

LCvR 7(h)(2); see Alliance for Natural Health U.S. v. Sebelius, 775 F. Supp. 2d 114, 118

(D.D.C. 2011). In those instances, the opposition or motion must “include a statement of facts

with references to the administrative record.” LCvR 7(h)(2) (emphasis added). In other words,

rather than submitting a separate document, Defendants should have included their facts within

their opposition.2 See, e.g., Koretoff v. Vilsack, No. 08-1558, 2012 WL 130744, at *2 n.3

(D.D.C. Jan. 18, 2012) (“In filing their motion for summary judgment, plaintiffs appended a

separately paginated ‘Statement of Material Facts in Support of Plaintiffs’ Motion for Summary

Judgment.’ Defendant is correct in arguing that Plaintiffs’ submission was improper.” (citations

omitted)); Davis v. Pension Benefit Guaranty Corp., 815 F.Supp.2d 283, 292 (D.D.C. 2011)

(“Plaintiffs’ motion cites extensively to the attached statement of material facts not in genuine

2 The difference in language between LCvR 7(h)(1) and 7(h)(2) dictates this outcome. While the first paragraph states that the “separate” statement shall “accompany[y]” the motion, the second paragraph (applicable here) indicates that the statement of facts must be “include[d]” in the motion. Using the word include reflects that the facts would be provided within the motion. Compare Black’s Law Dictionary (9th ed. 2009) (defining “include” to mean “[t]o contain as part of something”), with id. (defining “accompany” to mean “[t]o go along with; to attend”).

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dispute, which does not belong in an administrative record case.”).3

Because the complete submission exceeds the page limit by more than 30 pages,

Defendants’ statement of facts should be stricken.4 “Enforcing page limits and other restrictions

on litigants is rather ordinary practice.” Watts v. Thompson, 116 F.3d 220, 224 (7th Cir. 1997).

Courts in this Circuit have stricken documents submitted on summary judgment that do not

comply with the Local Rules, including page limitations. See, e.g., Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153-54 (D.C. Cir. 1996) (affirming

decision to grant motion to strike statement of facts where statement did not comply with Local

Rules); OAO Alfa-Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, 39 (D.D.C. 2005) (noting

that the Court granted a motion to strike a motion for summary judgment for exceeding page

limits and required offending party to file a renewed motion); Canady v. Erbe Elektromedizin

GmbH, 307 F. Supp. 2d 2, 9-11 (D.D.C. 2004) (striking summary judgment submissions which

did not conform to the requirements of Local Civil Rule 7(h), including the page limit). Local

rules, after all, “have the force of law.” Hollingsworth v. Perry, 130 S.Ct. 705, 710 (2010)

(quotation marks omitted); see also Gardels v. Cent. Intelligence Agency, 637 F.2d 770, 773

(D.C. Cir. 1980) (“Requiring strict compliance with the local rule is justified both by the nature

of summary judgment and by the rule’s purposes”). Defendants should not be permitted to

3 This approach is consistent with the nature of review in a case concerning agency action. “[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote omitted). Ordinarily, appellant litigants include “a statement of facts relevant to the issues submitted for review with appropriate reference to the record” in the body of their briefs, not in a separate statement. Fed. R. App. 28(a)(7). 4 Although Federal Rule of Civil Procedure 12(f) speaks only to motions to strike “pleadings,” courts still may strike other documents as part of their inherent power to manage their dockets. See In re Johnson, 236 B.R. 510, 521-22 (D.D.C. 1999); see also Jones v. Metro. Life Ins. Co., No. C-08-03971-JW, 2010 WL 4055928, *6 (N.D. Cal. Oct. 15, 2010) (listing cases). Courts in this Circuit have also invoked Local Civil Rule 7(h) as a basis to strike documents not in compliance with that rule. See, e.g.,

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ignore these mandates at significant expense to the Court, which is forced to expend precious

judicial resources to digest all these extra pages. Defendants’ noncompliance also unfairly

prejudices United Western, whose motion for summary judgment complied with the 45-page

limit.

Quite obviously, striking Defendants’ entire statement is a significant act. And certainly,

in the usual case, relief on a motion to strike should be narrowly tailored. Yet using a more

exacting method is not possible here, where the supplemental statement itself is the problem and

portions cannot be selectively excised. What is more, the U.S. Court of Appeals for the D.C.

Circuit has already cautioned that counsel should not ignore the rules in an effort to “squeeze the

maximum amount of text into his [or her] briefs.” Williams Enters. Inc. v. Sherman R. Smoot

Co., 938 F.2d 230, 238 (D.C. Cir. 1991). “Lawyers must comply with the rules and [the Court’s]

orders rather than hope to put one over on the court and to apologize when caught. The penalty

for a violation should smart. Even if only negligence was at work, counsel must learn to be

alert.” Id. at 239 (quotation marks omitted).

In sum, the Court should strike Defendants’ “Statement of Facts” and order them to

comply with the Local Rules.

Bridgeforth v. Salazar, No. 10-0080, 2011 WL 6369055, at *6 (D.D.C. Dec. 20, 2011); Sloan ex rel Juergens v. Urban Title Servs., Inc., 689 F. Supp. 2d 123, 126 (D.D.C. 2010).

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Respectfully submitted,

. /s/ Andrew L. Sandler . Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) Michael R. Williams (D.C. Bar No. 994953) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile)

/s/ Lawrence D. Kaplan . Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile)

/s/ Theodore J. Abariotes . Theodore J. Abariotes Deputy General Counsel UNITED WESTERN BANCORP, INC. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorneys for Plaintiff United Western Bank

Dated: May 22, 2012

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CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of May 2012, a true copy of the foregoing was filed

electronically. Notice of this filing will be sent by email to all parties by operation of the Court’s

electronic filing system. Parties may also access this filing through the Court’s electronic filing

system.

/s/ Liana R. Prieto Liana R. Prieto

Case 1:11-cv-00408-ABJ Document 102 Filed 05/22/12 Page 8 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) )

v. ) ) OFFICE OF THE COMPTROLLER )OF THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

Civil Action No. 11-0408 (ABJ)

[PROPOSED] ORDER

Pursuant to Local Civil Rule 7(h)(2), it is hereby ORDERED that Defendants’ Statement

of Facts With References to the Administrative Record [Dkt. # 100-2] is stricken.

SO ORDERED.

______________________________

AMY BERMAN JACKSON United States District Judge

DATE: __________, 2012

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