UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) TIMOTHY DEMITRI BROWN, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1931 (RWR) ) FEDERAL BUREAU OF ) INVESTIGATION et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Timothy Demitri Brown filed this pro se complaint

under the Freedom of Information Act (“FOIA”),

,

against the FBI, other components of the Department of Justice

(“DOJ”), and the DOJ itself. A December 28, 2009 memorandum

opinion (“December 28th opinion”) dismissed some of Brown’s

claims, entered summary judgment for the defendants on the

remaining claim, and denied Brown’s cross-motion for summary

judgment. Brown moves for reconsideration and to amend his

complaint. Because Brown has not provided a basis for

reconsidering the December 28th opinion, he has unduly delayed

seeking to amend the complaint, and amending would unduly

prejudice the defendants, his motion will be denied.

BACKGROUND

The background of this case is discussed fully in Brown v.

FBI,

(D.D.C. 2009). Briefly, Brown - 2 -

challenged the defendants’ responses to three FOIA requests: one

concerning records about himself and two concerning records

relating to a book he authored called “Tyrant Wanted.”

. In addition, Brown’s complaint made reference to two

“federal questions,”1 although the record did not reveal any FOIA

requests related to those questions.

Brown filed his

complaint in 2007. (Compl., Docket #1.) On August 14, 2008, the

defendants moved to dismiss for failure to state a claim or

alternatively for summary judgment under Federal Rule of Civil

Procedure 56, and Brown likewise sought summary judgment. The

December 28th opinion dismissed the FOIA claim concerning the

request for records about Brown and one of the FOIA claims

concerning a request for records about “Tyrant Wanted” for

failure to exhaust administrative remedies, dismissed the claim

concerning the “federal questions” for lack of subject matter

jurisdiction, and entered summary judgment for the defendant with

respect to the other claim concerning a request for records about

“Tyrant Wanted.”

. On January 13, 2010, Brown moved

1 “The ‘federal questions’ Brown asks are whether the federal government ‘exercised exclusive legislative jurisdiction over the property located at 3708 Third Street, Alexandria, Louisiana on or before May 31, 2001[,]’ and what is ‘the legal status of

and 846,’ prohibiting trafficking in controlled or counterfeit substances, and engaging in a narcotics conspiracy.” Brown,

(alteration in original). - 3 -

for reconsideration2 and to amend his complaint, arguing that he

submitted an additional proper FOIA request to the New Orleans,

Louisiana FBI office and headquarters that was not considered in

the December 28th opinion, and that he should be permitted to

amend his complaint to assert a claim that the “Agency’s

interpretation of the statutes (21 U.S.C. §[§] 841 and 846) are

2 Brown does not specify a federal rule under which he moves for reconsideration. A party may move “to alter or amend a judgment” under Federal Rule of Civil Procedure 59(e). Whether to alter or amend a final judgment is discretionary, and a court need not grant a Rule 59(e) motion unless it “‘finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Ciralsky v. CIA,

(D.C. Cir. 2004) (quoting Firestone v. Firestone,

(D.C. Cir. 1996)). Alternatively, a party may move for relief from a final judgment under Rule 60(b) on the grounds of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct by an opposing party.

With respect to the New Orleans request, Brown argues that “[t]he court incorrectly assume[d] plaintiff only submitted the second request to the Alexandria Office.” (Pl.’s Mot. to Reconsider, Mot. to Amend Compl. (“Pl.’s Mot.”) at 2.) With respect to the “federal questions,” Brown argues that he “never asked . . . that the federal questions be answered under the FOIA” and that “[c]learly plaintiff is stating that the Court has general federal question jurisdiction” over the “federal questions” he asks. (Pl.’s Mot. at 3-4.) However, he does not seek to alter or amend the judgment, or for relief from that judgment on these bases. Brown merely styled his motion as one for reconsideration even though the relief he seeks is to amend his complaint. (Pl.’s Mot. at 1 (“Plaintiff asserts that it is within the Court’s authority to allow plaintiff to amend the complaint to resolve any unspecific statements in the complaint and add FOIA request.”).) Thus, the motion will not be treated as one for reconsideration. - 4 -

erroneous[.]”3 (Pl.’s Mot. to Reconsider, Mot. to Amend Compl.

(“Pl.’s Mot.”) at 2, 4.)

DISCUSSION

A plaintiff may amend his complaint more than twenty-one

days after a defendant files a Rule 12(b) motion “only with the

opposing party’s written consent or the court’s leave. The court

should freely give leave when justice so requires.” Fed. R. Civ.

P. 15(a). Brown has moved for leave to amend his complaint more

than sixteen months after the defendants filed their motion to

dismiss or in the alternative for summary judgment, and the

defendants do not consent to Brown’s motion for leave to amend.

The decision to grant or deny leave to amend is committed to

the sound discretion of the district court. Foman v. Davis,

(1962); James Madison Ltd. v. Ludwig,

(D.C. Cir. 1996). While a litigant ordinarily ought to be

afforded the opportunity to proceed on the merits of his claim,

Mead v. City First Bank of D.C., N.A.,

(D.D.C.

2009), undue delay or prejudice to the opposing party may warrant

denying leave to amend. Atchinson v. Dist. of Columbia,

(D.C. Cir. 1996); Williamsburg Wax Museum, Inc. v.

3 Brown also moves to supplement his motion for reconsideration and leave to amend. The defendants have filed a single opposition to Brown’s motions, but it does not address substantively the motion to supplement. This motion, therefore, will granted as unopposed. See FDIC v. Bender,

, 67- 68 (D.C. Cir. 1997); Buggs v. Powell,

(D.D.C. 2003). - 5 -

Historic Figures, Inc.,

(D.C. Cir. 1987)

(stating that a court may deny leave to amend a complaint “if a

party has had sufficient opportunity to state a claim and has

failed to do so”). Specifically, it is within a court’s

discretion to deny leave to amend when the motion is “an effort

to evade summary judgment[.]” Key Airlines, Inc. v. Nat’l

Mediation Bd.,

(D.D.C. 1990).

Additionally, a court may deny leave to amend if the amendment

bears “only [a] tangential relationship” to the initial claim,

which could unduly prejudice the opposing party by expanding the

scope of the litigation. Nat’l Treasury Employees Union v.

Helfer,

(D.C. Cir. 1995).

Here, Brown seeks to add to his complaint a claim regarding

a New Orleans FOIA request, which he alleges he sent to the New

Orleans office on October 31, 2007 (Pl.’s Mot. at 3), six days

after he filed this action. Although Brown claims that he “was

in the process of requesting leave to amend the complaint to

include this request when he received the court’s Final Order”

(id.), he provides no explanation for why he waited more than two

years to try to amend his complaint to include that request.

Allowing Brown to amend his complaint to add an additional FOIA

claim at this stage in the litigation –– after his other FOIA

claims were dismissed and summary judgment was entered against

him –– would allow him to circumvent the effect of the order that - 6 -

terminated this action. His motion for leave to amend therefore

will be denied with respect to the New Orleans FOIA request. See

Hoffman v. United States,

(D.D.C. 2003)

(denying leave to amend complaint when case was on verge of final

resolution because a “plaintiff, quite simply, cannot be

permitted to ‘circumvent the effects of summary judgment by

amending the complaint every time a termination of the action

threatens’” (quoting Glesenkamp v. Nationwide Mut. Ins. Co.,

(N.D. Cal. 1974))).

Brown also seeks to amend his complaint to add a claim that

the “Agency’s interpretation of the statutes (21 U.S.C. §[§] 841

and 846) are erroneous[.]” (Pl.’s Mot. at 4.) Brown’s initial

complaint alleged claims only under the FOIA. His proposed

amendment would add a claim beyond FOIA’s scope. To the extent

that Brown’s proposed amendment states a claim for relief,4

granting him leave to amend would prejudice the defendants by

denying them the litigative repose to which they are entitled

from entry of a final judgment in their favor following a fully

4 Even if, as Brown argues,

grants subject matter jurisdiction over this new claim challenging the interpretation of the statutes he cites, the “general federal- question statute does not itself give rise to a right for relief.” Van Ravenswaay v. Napolitano,

(D.D.C. 2009). Because Brown has not provided a basis upon which he may bring such a cause of action, his claim would be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Thus, the amendment is futile. See Smith v. Janey,

, 8 n.4 (D.D.C. 2009) (denying motion for leave to amend as futile). - 7 -

contested case. It would also prejudice the defendants by

expanding the scope of the litigation –– after the litigation

concluded –– beyond its initial character as solely a FOIA

action. Brown’s motion for leave to amend therefore will be

denied also with respect to this proposed amendment. Cf. Adair

v. Johnson,

(D.D.C. 2003) (granting

plaintiffs’ motion for leave to amend where the litigation was

still in an early stage and the defendants had not shown that the

proposed amendment would prejudice them by “chang[ing] the

character of the litigation”).

CONCLUSION AND ORDER

Brown has not established a basis for reconsidering the

December 28th opinion, and amending his complaint at this stage

in the litigation would unduly prejudice the defendants.

Accordingly, it is hereby

ORDERED that the plaintiff’s motion [56] to supplement be,

and hereby is, GRANTED. It is further

ORDERED that the plaintiff’s motion [55] for reconsideration

and for leave to amend be, and hereby is, DENIED.

SIGNED this 29th day of September, 2010.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge