IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA JED WHITTAKER, Plaintiff, v. Case No. 3:16-cv-00220-SLG BYRON MALLOTT, in his official capacity as Lieutenant Governor of the State of Alaska, Defendant. ORDER RE MOTIONS FOR SUMMARY JUDGMENT Before the Court at Docket 8 is Plaintiff Jed Whittaker’s Motion for Summary Judgment and at Docket 15 is Defendant Byron Mallott’s Motion for Summary Judgment. Defendant did not respond to Plaintiff’s motion, which was filed before Defendant was served with the Complaint. Plaintiff opposed Defendant’s motion at Docket 19. No reply was filed.1 Also before the Court, at Docket 17, is Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment. Defendant opposed this motion to strike at Docket 19. Oral argument was not requested and was not necessary to the Court’s decision. BACKGROUND This case concerns the constitutionality of Alaska’s ballot access requirements as codified at Alaska Statute (AS) 15.25.160. Plaintiff Jed Whittaker was a candidate for United States Senator for Alaska in 2016; he was not affiliated with a “political party” as that term is defined by Alaska law.2 To have his name printed on the official ballot, Mr. 1 Plaintiff filed a notice of supplemental authority at Docket 25 and Docket 26. 2 See AS 15.80.010(27) (defining a “political party” as one whose candidate obtained three percent of the vote in the immediately preceding general election for governor, U.S. Senator, or Case 3:16-cv-00220-SLG Document 27 Filed 04/27/17 Page 1 of 23 Whittaker was required to submit a petition “signed by qualified voters of the state equal in number to at least one percent of the number of voters who cast ballots in the preceding general election.”3 For the 2016 election, a petition was valid if it contained at least 2,854 signatures.4 Mr. Whittaker’s petition contained only 2,081 signatures; the division of elections accordingly rejected his petition in August 2016.5 Mr. Whittaker subsequently filed as a “write-in” candidate for the senate seat pursuant to AS 15.25.105.6 Mr. Whittaker filed his Complaint in September 2016 naming Lieutenant Governor Byron Mallott as Defendant, in his official capacity. Mr. Whittaker sought an injunction ordering the Alaska Division of Elections to include his name on the ballot and enjoining enforcement of AS 15.25.160. Mr. Whittaker did not dispute that he did not meet the statutory requirements to appear on the ballot. Instead, he contended that those requirements impermissibly infringed on his First and Fourteenth Amendment rights.7 Because Mr. Whittaker sought leave to proceed in forma pauperis,8 the Court reviewed the Complaint pursuant to 28 U.S.C. § 1915(e). On October 5, 2016, the Court found that U.S. Representative). 3 AS 15.25.160. 4 Docket 4-1 (Aug. 20, 2016 ltr. from Josie Bahnke, Director, Div. of Elections to Jed Whittaker). 5 Docket 4-1. 6 See Docket 15 at 3 n.4. The Court takes judicial notice of this fact pursuant to Federal Rule of Evidence 201. 7 See Docket 4 (Pl.’s Supplemental Documents) at 2. 8 See Docket 3. Case No. 3:16-cv-00220-SLG, Whittaker v. Mallott Order re Motions for Summary Judgment Page 2 of 23 Case 3:16-cv-00220-SLG Document 27 Filed 04/27/17 Page 2 of 23 Mr. Whittaker’s Complaint stated a plausible claim for relief and could proceed.9 But in the Court’s initial screening order, the Court denied Mr. Whittaker’s motion for expedited consideration because it did not relate to any specific motion.10 There were 706 write-in votes cast in the November 2016 senate election, but Mr. Whittaker was not elected.11 DISCUSSION I. Jurisdiction The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff’s claim arises under the U.S. Constitution. II. Standard for Summary Judgment Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of showing the absence of a genuine dispute of material fact lies with the moving party.12 The parties appear not to dispute any material fact in this case; the only question is which party is entitled to judgment as a matter of law in light of those undisputed facts. 9 See Docket 7 (Screening Order) at 4. 10 Docket 7 at 4. 11 See State of Alaska General Election Official Results, November 8, 2016, available at http://www.elections.alaska.gov/results/16GENR/data/results.pdf (updated Nov. 30, 2016). Defendant indicates there were only 545 write-in votes, see also Docket 15 at 4 n.8, and this discrepancy is unexplained. It may be that only 545 votes had been tabulated at the time of Defendant’s motion, which was filed shortly after the election. 12 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Case No. 3:16-cv-00220-SLG, Whittaker v. Mallott Order re Motions for Summary Judgment Page 3 of 23 Case 3:16-cv-00220-SLG Document 27 Filed 04/27/17 Page 3 of 23 III. Mr. Whittaker’s Motion for Summary Judgment As discussed above, a motion for summary judgment will be granted if the movant shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”13 Mr. Whittaker’s motion makes no such showing; he claims entitlement to judgment in his favor based on Defendant’s alleged failure to timely answer or defend the Complaint.14 Thus, though titled a motion for summary judgment, Mr. Whittaker’s motion is better characterized as a motion for a default judgment pursuant Federal Rule of Civil Procedure 55(b). Mr. Whittaker is not entitled to a default judgment. The Court issued its screening order on October 5, 2016; Mr. Whittaker moved for summary judgment the next day.15 But Defendant was not served until October 26, 2016.16 Pursuant to Federal Rule of Civil Procedure 12(a), Defendant then had 24 days to file a responsive pleading.17 Defendant filed the motion for summary judgment on November 14, 2016, well within the prescribed time limit.18 13 Fed. R. Civ. P. 56(a). 14 See Docket 8 at 1 (“Plaintiff has received no response at all from Defendant . Therefore, Plaintiff prays this Federal District Court grant this Motion for Summary Judgment . .”). 15 See Docket 7 (Screening Order); Docket 8 (P.’s Mot. for Summ. J.). 16 See Docket 11 (Clerk’s Notice of Service) at 1; Docket 12; Docket 13. 17 See Fed. R. Civ. P. 12(a)(1)(A)(i) (providing 21 days); Fed. R. Civ. P. 6(d) (providing an additional 3 days when service is, as here, by mail). 18 See Docket 15. Case No. 3:16-cv-00220-SLG, Whittaker v. Mallott Order re Motions for Summary Judgment Page 4 of 23 Case 3:16-cv-00220-SLG Document 27 Filed 04/27/17 Page 4 of 23 Because Defendant has not “failed to plead or otherwise defend,” Mr. Whittaker is not entitled to either an entry of default or an entry of default judgment. The Court will therefore deny Mr. Whittaker’s motion for summary judgment at Docket 8. IV. Motion to Strike Defendant did not file a responsive pleading in this case, but instead moved immediately for summary judgment.19 Mr. Whittaker moves to strike this motion on the grounds that Defendant must first answer the Complaint.20 Defendant responds that “a defendant is not required to file a formal answer to a complaint prior to moving for summary judgment,”21 and that he filed a motion for summary judgment instead of a motion to dismiss because the Court had already concluded that Mr. Whittaker’s Complaint stated a plausible claim.22 Defendant points to a decision from the District Court for the District of Columbia that notes Federal Rule of Civil Procedure 56(b) permits a party to move for summary judgment “at any time.”23 That court also noted that the Federal Rules of Civil Procedure expressly permit a defendant to file a motion to dismiss under Rule 12 in lieu of filing an 19 See Docket 15. 20 Docket 17 at 1. Mr. Whittaker also maintains that Defendant’s motion should have been filed as a cross-motion for summary judgment, not a motion for summary judgment. As explained above, Mr. Whittaker’s motion is better characterized as a motion for default judgment, not one for summary judgment. And, in any event, the misnaming of a motion is not a basis for denying the relief sought by it. 21 Docket 18 at 2. 22 Docket 18 at 2 (citing Order at Docket 7). 23 See Docket 18 at 2 (citing Jones v. Dep’t of Justice, 601 F. Supp. 2d 297, 302 (D.D.C. 2009)). Case No. 3:16-cv-00220-SLG, Whittaker v. Mallott Order re Motions for Summary Judgment Page 5 of 23 Case 3:16-cv-00220-SLG Document 27 Filed 04/27/17 Page 5 of 23 answer.24 Thus, the court concluded that the filing a motion for summary judgment before answering is not different, in substance, from “filing a motion under Rule 12(b)(6) accompanied by matters outside the pleadings, which is then converted by operation of Rule 12(d) to one under Rule 56.”25 This is consistent with Ninth Circuit law.26 “[T]he filing of an answer is not a prerequisite to the filing of a motion for summary judgment.”27 The proper course in this case, then, is to treat Defendant’s motion for summary judgment as a motion converted under Rule 12(b) and Rule 12(d), particularly as both parties have referenced documents outside the pleadings, which the Court has considered.