Scherer v. Dept. of Education , 78 F. App'x 687 ( 2003 )


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  •                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 17 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    THOMAS E. SCHERER,
    Plaintiff-Appellant,
    v.                                              No. 03-3021
    (D.C. No. 02-CV-2075-JWL)
    UNITED STATES OF AMERICA,                         (D. Kan.)
    Department of Education, Ronald
    Paige, Secretary; MARIE TERESA
    CUEVA, in her individual capacity as
    Freedom of Information Officer,
    Department of Education; SUSAN
    WINCHELL, in her individual
    capacity with the Ethics Division,
    Office of General Counsel,
    Department of Education; ANGELA
    BENNETT, in her individual capacity
    as Director, Region VII, Civil Rights
    Division; TONY SWEATHAM, in his
    individual capacity as an attorney and
    Acting Director, Region VII,
    Department of Education; TIM
    HERMSEN, in his individual capacity
    as an Inspector, Department of
    Education, Region VII; ADRIAN
    PAYNE, in her individual capacity as
    an investigator, Region VII,
    Department of Education; JOHN DOE,
    Unnamed parties with the Department
    of Education in their individual
    capacities,
    Defendants-Appellees.
    ORDER AND JUDGMENT           *
    Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Thomas E. Scherer brought this action in district court, seeking monetary,
    injunctive, and declaratory relief for defendants’ alleged violations of the
    Freedom of Information Act (FOIA), 
    5 U.S.C. § 552
    . The district court denied
    Mr. Scherer’s motion for default judgment and his motion to strike citations of
    unpublished cases, then granted defendants’ motion to dismiss under Fed. R. Civ.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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    P. 12(b)(6).   1
    It also entered an award of costs in favor of defendants. We exercise
    jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    A district court’s rulings on motions for default judgment and motions to
    strike will not be disturbed absent an abuse of discretion.     See Ashby v. McKenna ,
    
    331 F.3d 1148
    , 1152 (10th Cir. 2003) (reviewing a denial of motion for default
    judgment); Nielsen v. Moroni Feed Co.,        
    162 F.3d 604
    , 606 n.3 (10th Cir. 1998)
    (reviewing denial of motion to strike portions of affidavit for abuse of discretion).
    Concerning Mr. Scherer’s motion for default judgment, R., Vol. 3, Doc. 13, the
    district court had two reasons to deny it. First, the motion was filed before
    defendants were properly served.       
    Id.
     , Vol. 1, Doc. 17, 22. Second, defendants
    filed their motion to dismiss in compliance with the district court’s order setting
    the deadline for defendants’ answer or other responsive pleading.        See 
    id.
     ,
    Doc. 36, 38. (The court found that good cause existed to set the date of October 8,
    2002, for defendants to file their response. R., Vol. 1, Doc. 36. A defendant is to
    “serve an answer or otherwise plead to any [FOIA] complaint . . . within thirty
    days after service upon the defendant of the pleading in which such complaint is
    made, unless the court otherwise directs for good cause shown       .
    1
    The district court’s final opinion, published as Scherer v. United States ,
    
    241 F. Supp. 2d 1270
     (D. Kan. 2003), deals with numerous issues not raised in
    this appeal.
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    5 U.S.C. § 552
    (a)(4)(C) (emphasis supplied)). Therefore, the district court did
    not abuse its discretion.
    Defendants’ motion to dismiss, complete with attached copies of cited
    unpublished opinions as required by D. Kan. R. 7.6(b), inspired Mr. Scherer to
    file his “Motion to Strike Citations and West Case(s) Attachment.” R., Vol. 1,
    Doc. 40.    2
    He argued that defendants’ attachments, copies from the Westlaw
    electronic database, violated federal copyright law and also gave an unfair
    advantage to litigants with Westlaw subscriber service.      
    Id.
     The district court
    rejected both arguments. Noting that establishment of copyright infringement
    requires a demonstration of     unauthorized copying of original work,   see Harper &
    Row, Publishers, Inc. v. Nation Enters    ., 
    471 U.S. 539
     passim (1985), the court
    concluded that defendants had produced evidence of Westlaw permission to
    provide copies of cases in judicial proceedings. Further, Mr. Scherer was not
    disadvantaged by defendants’ Westlaw access. R., Vol. 1, Doc. 48. We perceive
    no abuse of discretion in the district court’s ruling on Mr. Scherer’s motion to
    strike.
    The district court granted defendants’ dismissal motion on the ground that
    the complaint failed to allege exhaustion of administrative remedies. R., Vol. 2,
    2
    D. Kan. R. 7.6(b) provides, in pertinent part: “Unpublished decisions may
    be cited only if the unpublished decision is furnished to the court and to opposing
    parties or their counsel when the memorandum is filed.”
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    Doc. 64, at 2. “We review de novo the district court’s grant of a 12(b)(6) motion
    to dismiss.” Moffett v. Halliburton Energy Servs., Inc      ., 
    291 F.3d 1227
    , 1231
    (10th Cir. 2002) (internal quotation marks omitted).
    Mr. Scherer does not dispute that exhaustion of administrative remedies
    under FOIA is generally required before filing suit in federal court.     See Oglesby
    v. United States Dep’t of the Army    , 
    920 F.2d 57
    , 61 (D.C. Cir. 1990). Assuming
    that the allegations in the complaint are true, Mr. Scherer took a scattershot
    approach to his FOIA requests to the United States Department of Education. He
    did not administratively appeal the initial denial, even though he was notified of
    his appeal rights.   See R., Vol. 3, Doc. 13, Ex. 9;   see also 
    34 C.F.R. §§ 5.80-5.85
    (setting out appeal procedure). Instead, he fired off additional rounds of requests
    and letters of complaint—and again failed to follow the appeal process when the
    agency responses did not meet his expectations. R., Vol. 1, Doc. 1, at 6.
    Mr. Scherer’s labors may have been exhausting, but he failed to pursue any of his
    requests as far as he could within the Department of Education. The district court
    properly dismissed the complaint based on Mr. Scherer’s failure to exhaust his
    administrative remedies.
    In connection with the order of dismissal, the district court awarded costs
    to the defendants.   
    Id.
     , Vol. 2, Doc. 65. We review the district court’s award of
    costs for abuse of discretion.   See Marathon Ashland Pipe Line LLC v. Md. Cas.
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    Co., 
    243 F.3d 1232
    , 1254 (10th Cir. 2001). Under 
    28 U.S.C. § 1920
    , “[a] judge
    or clerk of any court of the United States may tax . . . costs.” Likewise, “[e]xcept
    when express provision therefor is made either in a statute of the United States or
    in these rules, costs other than attorneys’ fees shall be allowed as of course to the
    prevailing party unless the court otherwise directs.” Fed. R. Civ. P. 54(d)(1). We
    see no abuse of discretion in the district court’s award of costs.
    The judgment of the district court is AFFIRMED. The mandate shall issue
    forthwith.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
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