UNITED STATES DISTRICT COURT
Joint Motion of Plaintiffs' for extention of time
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2742
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
JOINT MOTION OF CONCEPCION PICCIOTTO AND ELLEN THOMAS
FOR LEAVE TO FILE OUT OF TIME
REPLIES TO THE DOCUMENTS FILED BY DEFENDANTS ON JANUARY 24, 1995
On January 27th and February 1, 1995 the Court filed Orders, which raise a serious question as to whether plaintiffs will be permitted to fully brief their position.
Unless (despite reasonable caution) plaintiffs are mistaken, presently outstanding are Plaintiffs replies to the opposition filed by defendants on January 23th, and replies to the opposition filed by plaintiffs on January 24th. After a great deal of time-consuming effort plaintiffs are pretty sure that the Court has allowed defendants until February 9, 1995 in which to file their reply, but, in what seems a somewhat unusual Order (filed February 1, 1995), the Court required that plaintiffs file their reply by yesterday (February 2, 1995).
[1 Attempting to identify any possible error on January 31, 1995 plaintiff Thomas called Ms. Wood to ask her what she thought the judge meant. Ms. Woods and Thomas had a little trouble identifying exactly what was what, but Ms. Woods advised Thomas to do "exactly as the judge instructed." See, Plaintiffs' Motion for Adequate Notice, filed this date. ]
Unless the Court decides this matter is entirely frivolous,  as discussed below, plaintiffs would like to know whether, they need to file a Motion for Leave to File Out of Time, and assuming they do, whether the Court will grant it.
In its notable effort to swiftly execute justice, the honorable Court has set a commendably tight briefing schedule, which appears to have caused plaintiffs some confusion. Footnote 1, supra. Despite everyone's most diligent efforts, as defendants note in their Motion for an Enlargement of Time (infra), sometimes little things can conspire to slow us down.
Since the Court has assured plaintiffs that their papers are pondered with great care, we can understand that some of this confusion might be attributed to plaintiffs own pro se imprecision. See, William Thomas' Second Errata, filed this date. 
On January 24, 1995, plaintiffs explained why the Court should permit them to "File Out of Time an Opposition to the United States' Motion to Dismiss," the proposed Order, read:
"Upon consideration of plaintiffs' Motion for Leave to File
[2 Presently pending before the Court is a Motion by Plaintiff William Thomas to Dismiss the Complaint for Frivolity (filed January 11, 1995), an Opposition by Defendants to Plaintiff Thomas' Motion to Dismiss for Frivolity (filed January 23, 1995), Cross-Motions Opposing the Motion to Dismiss for Frivolity by Plaintiffs Ellen Thomas and Concepcion Picciotto (February 2, 1995), and a Joint Motion by Ellen and Concepcion for Sanctions with respect to Defendants Opposition to the Motion to Dismiss for Frivolity. ]
[3 The record shows, however, that defense counsel doesn't always identify documents with absolute precision either. E.g., Defendants' Motion for an Enlargement of Time, infra.]
Out of Time a Response
to United States' Motion to Dismiss, this ____ day of January, 1995, it hereby is,
ORDERED, that plaintiffs' Motion for Sanctions may be filed."
Plaintiffs think they agree with defendants on what documents are which, when defendants were asking for:
In it's January 27, 1995 Order, the Court acknowledged:
"The Court is in receipt of the
Plaintiffs' "Motion for leave to File Out of Time Plaintiffs' Response to the United
- "an enlargement of time of two business days, to and including January 31, 1995, within which to file their reply in support of their pending motion to dismiss to certain claims; In support of this motion, defendants state as follows
- "In the Court's Order setting the pending schedule, the Court asked for the defendants reply to be filed by 4:00 p.m. on January 27, 1995. In that same Order, the plaintiffs' were required to file their opposition to the motion to dismiss by January 23rd. The plaintiffs sought and were granted a one-day extension, but filed their opposition a day later, on January 25th. Counsel for the defendants did not receive a copy of the plaintiffs' opposition until the afternoon of the 25th. Counsel was in a deposition on the 26th and has been unable today to prepare an adequate reply." Defendants Motion for an Enlargement of Time, filed January 27, 1995.
States' Motion to Dismiss...."
"The Court is also in receipt of the Plaintiffs' "Motion for Rule 11 Sanctions or
Other Disciplinary Action, or Alternatively to Dismiss the Complaint as Frivolous."
Defendants and plaintiffs perceive a connection between these two documents, the Court acknowledges their existence, but still something just doesn't seem to add up. Hopefully, the Court will be able to explain where both parties are mistaken, and, in the interests of meaningful access to the courts, get everybody on the same page:
"Plaintiffs shall ... file their response to the Defendants' Motion to Dismiss on or
before 4:00 p.m. on February 3, 1994 (sic)."
Even if the Court disagrees, plaintiffs are pretty sure defendants will find no option but to back us up on this: On
January 27, 1995, defendants asked for:
"an enlargement of time of two business days, to and including January 31, 1995, within
which to file their reply in support of their pending motion to dismiss to
The "reply in support of their pending motion to dismiss" to which defendants referred was actually a "reply" to what the Court rightly identified as "Plaintiffs' 'Motion for Rule 11 Sanctions or Other Disciplinary Action...'," which plaintiffs filed January 24, 1995.
Although, at first, the Court seemed very generous to plaintiffs (supra, n. 1), it also seemed the Court was being extraordinarily generous toward defendants, i.e.,
"and the Defendants may file any reply (to whatever it was plaintiffs had just been
granted 'until 4:00 p.m. on February 3, 1994 (sic)'  to file) on or before
4:00 p.m.on February 9, 1995."
This is where things seem to start getting a little complicated.
According to plaintiffs' calculations, predicated in turn, upon the Court's "pending schedule" articulated in Defendants Motion for Enlargement (supra), the Court's January 27th Order seemed to allow plaintiffs' a fairly handsome seven additional days in which to respond to an opposition filed on January 27th. True it also awarded defendants an incredibly beautiful thirteen days to reply to an opposition file the same day. "So what?" Plaintiffs thought at first, "We got what we wanted. Let the
[4 At first plaintiffs assumed this was a harmless typo. Now, we find ourselves wondering if it might be an ex post facto attempt to exclude plaintiffs' replies to defendants' opposition under the statute of limitations.]
Court be magnanimous to defendants if it wants."
At first blush February 3rd seemed extremely generous of the Court. The Court's January 27, 1995 Order, was the same day  plaintiffs' had filed a (First) Motion for an Extension of Time Within Which to Reply to Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO..., and Defendants' Motion for Stay of Discovery Pending Resolution of the Individual Defendants' Motion to Dismiss.
Understandably perhaps, plaintiffs assumed the February 3rd date, responded to their Motion for Extension of Time (filed January 27th), and reflected the wisdom of a patient judge, who, in the interests of insuring pro se plaintiffs meaningful access to the courts, was willing to give them a little extra time more time because he figured they could use it.
Admittedly, there were a couple of problems with this theory. For example, on January 27, 1995, the Court:
"ORDERED that the Plaintiffs' "Motion for an Extension of Time Within Which to Reply
to Defendants' ... Motion for Stay of Discovery Pending Resolution of the Individual
Defendants' Motion to Dismiss," shall be, and hereby is, GRANTED... on or before
4:00 p.m. on January 30, 1995,"
From the Court's Order of February 1, 1995, it seems as if
[5 IT SHOULD BE NOTED THIS IS ALSO THE SAME DATE DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME UNTIL "JANUARY 31, 1995, WITHIN WHICH TO FILE THEIR REPLY IN SUPPORT OF THEIR PENDING MOTION TO DISMISS TO CERTAIN CLAIMS." Supra. Defendants requested an extension until January 31st,plaintiffs' requested January 30th.]
[6 At approximately midnight on January 31, 1991 plaintiffs' found it necessary to file a Second Motion for an Extension of Time Within Which to Reply to Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO..., and Defendants' Motion for Stay of Discovery Pending Resolution of the Individual Defendants' Motion to Dismiss. ]
the Court required plaintiffs to file their Reply to Defendants' Opposition to Plaintiffs Motion to Reconsider Denial of the TRO,
or Alternatively to Dismiss the Complaint as Frivolous, and Defendants' Motion for Stay of Discovery Pending Resolution of the Individual Defendants' Motion to Dismiss," (filed on January 23, 1995, a Motion which the Court GRANTED, on January 27, 1995, before Plaintiffs' even filed an Opposition, and before one was even due). I.e.:
"Finally, the Court is in receipt of ... the Defendants' 'Motion for Stay of Discovery
Pending Resolution of the Individual Defendants' Motion to Dismiss.' ... Defendants'
Motion shall be granted."
It's still a little tough to decide whether there was really any point in going to the trouble to file their replies, because it seemed as if the Court had already resolved some of the issues in defendants favor, obviating the necessity of bothering with plaintiffs' Opposition,
Then came the Court's lightening stroke Order  of February 1, 1995:
"ORDERED that the Plaintiffs' "Second Motion for an Extension of Time Within Which to
Reply to Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO,
or Alternatively to Dismiss the Complaint as Frivolous, and Defendants' Motion for
Stay of Discovery Pending Resolution of the Individual Defendants' Motion to Dismiss,"
shall be, and hereby is, GRANTED, as hereinafter provided; and it is
"FURTHER ORDERED that, on or before 4:00 p.m. on February 2, 1995, the Plaintiffs shall
file their Reply to the Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial
of the TRO...."
[7 In an effort to insure that the record was clear on at least a couple of points, the undersigned did filed some hastily prepared documents on February 2nd, but those pleadings left unaddressed certain extremely important issues regarding the documents filed by defendants on January 24th.]
Owing to the emphasis in the Court's February 1st Order, plaintiffs seemed finally absolved of any doubt as to what the Court was talking about. Footnote 1, supra. 
The undersigned plaintiffs, operating under the hopefully understandable idea that their Reply to the Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO was not due until February 3, 1995, presently have their Replies ready for filing. However, if the Court feels confident it has already satisfactorily resolved all the issues raised by defendants, and could only find the undersigned's Replies superfluous, perhaps the Court will be disinclined to grant leave for them to file their Replies out of time. Since the undersigned are very anxious not to displease the Court anymore than it may already be; the undersigned, noting a respectful but firm objection, will refrain from trying to file the Replies they were prepared to file today.
With all due respect, the undersigned note, since it doesn't seem like any further matters are scheduled in this case prior to defendants' scheduled Opposition to Plaintiffs Motion for Sanctions, presently, it seems, due on February 9th, it
[8 This does not resolve all grounds for misunderstanding. For example in another Order filed January 30, 1995 the Court declared defendants' motion for an Enlargement of Time "MOOT,"
"The Court is in receipt of the Defendants' Motion for an Enlargement of Time in
which to file a Reply to the Plaintiffs' Opposition to the Defendants' Motion to Dismiss.
By Order entered January 17 (sic), 1995, the Court granted the "Plaintiffs' Motion
for Leave to File Out of Time Plaintiffs' Response to the United States' Motion
to Dismiss," and thereby extended the date by which the Defendants may file said Reply
until 4:00 p.m. on February 9, 1995." ]
doesn't seem that defendants could possibly be prejudiced if the honorable Court were to sign the attached Order.
Therefore, on the strength of the foregoing discussion, the undersigned hereby move for permission to File Out of Time, the replies to the documents filed by defendants on January 24, 1995, and which (except for the aforementioned confusion) would have been filed today.
Respectfully submitted this 3rd day of February 1995,
Concepcion Picciotto, Plaintiff
Post Office Box 4931
Washington, D.C. 20008
Ellen Thomas, Plaintiff
2817 11th Street N.W.
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby state that, on February 3, 1995, a copy of the foregoing Joint Motion of Concepcion Picciotto and Ellen Thomas for Leave to File Out of Time Replies to the Documents Filed by Defendants on January 24, 1995, by first class U.S. mail, postage prepaid, upon the office of the United States Attorney for the District of Columbia at 555 4th Street NW, Washington, D.C.