Nat'l Pub. Radio, Inc. v. U.S. Cent. Command, No. 21-1079, 2021 WL 5234414 (S.D. Cal. Nov. 10, 2021) (Anello, J.)

Nat'l Pub. Radio, Inc. v. U.S. Cent. Command, No. 21-1079, 2021 WL 5234414 (S.D. Cal. Nov. 10, 2021) (Anello, J.)

Re:  Request for records concerning suspected friendly fire incident that took place in Fallujah, Iraq

Disposition:  Denying defendants' motion to dismiss

• Litigation Considerations, Jurisdiction:  The court relates that "Defendants now move to dismiss the Complaint for lack of subject matter jurisdiction pursuant to the first-to-file rule."  "Defendants inform the Court of another FOIA case pending before the United States District Court for the Northern District of California."  "Defendants argue that the present action should be dismissed or stayed given the similarity of the parties and issues to the Northern District Action."  "[T]he Court finds the first-to-file rule does not apply." 
  
  First, the court finds that "there is no dispute that the Northern District Action was filed before the present action."  However, the court then finds that "the parties in both cases are not substantially similar."  "In the Northern District Action, [plaintiff and another plaintiff] bring suit against U.S. Marine Corps, U.S. Navy, and DoD."  "In the present case, [plaintiff and a different plaintiff] bring suit against [U.S. Central Command ("CENTCOM")] and DoD."  "[Plaintiff] is a plaintiff in the present action and a plaintiff in the Northern District Action."  "DoD is also a defendant in both actions."  "While exact identity is not required, the difference of including CENTCOM, rather than U.S. Marine Corps, is important because CENTCOM is the responding DoD component for the present FOIA request and U.S. Marine Corps is the responding DoD component in the Northern District Action's FOIA request."  "In the Northern District Action, the U.S. Marine Corps FOIA program is responsible for the FOIA request."  "In the present case, CENTCOM, a different DoD component, is responsible for the FOIA request."  "Because the DoD designates separate components to respond to their respective FOIA requests, each DoD component in these two cases would thus be responsible for their respective FOIA requests."  "Therefore, the parties are not substantially similar."  Finally, the court finds that "the issues in the two cases are not substantially similar because they admittedly involve two different FOIA requests."  "And importantly, the requests were submitted to different components of the DoD."  "Though there could be overlap in production between the two FOIA requests, the extent to which the requests overlap is unknown." 
  
  "Finally, as noted above, '[t]he most basic aspect of the first-to-file rule is that it is discretionary.'"  "Thus, even if the parties and issues were 'substantially similar,' the Court has the discretion to apply the first-to-file rule, at which point the Court would disregard the rule in the interests of equity."  "The FOIA requests themselves are different in the two cases and deferring completely to the Northern District Action may not provide Plaintiffs with the opportunity to have their FOIA request fully considered in a timely manner – doing so could result in the present request being overshadowed by the other."  "Moreover, it would be inequitable to dismiss or stay this action merely because a separate FOIA request was previously made; otherwise, Defendants would essentially be exempted from their duty to respond to subsequent, albeit similar requests."  "Consequently, Plaintiffs may not be fully remedied if the case is dismissed or stayed due to the existence of a different FOIA request made to a different FOIA component using different requesting language."