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Maryland Shall Issue, Inc. v. Hogan

United States District Court, D. Maryland

October 11, 2019

MARYLAND SHALL ISSUE, INC., et al., Plaintiffs,
v.
LAWRENCE HOGAN, et al, Defendants.

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         This Memorandum resolves a motion to supplement the record filed by plaintiff/appellant Atlantic Guns, Inc. ("Atlantic Guns") in regard to an appeal pending in the United States Court of Appeals for the Fourth Circuit. See Appeal No. 19-1467 (the "Appeal"). The Appeal concerns a' suit challenging the constitutionality of Maryland's Firearm Safety Act of 2013 (the "Act"), Md. Code (2018 Repl. Vol.), § 5-117.1 of the Public Safety Article. Among other things, the Act requires a prospective handgun buyer in Maryland to obtain a Handgun Qualification License in order to purchase certain types of firearms. See id.

         Atlantic Guns, along with plaintiffs Maryland Shall Issue, Inc.; Deborah Kay Miller; and Susan Vizas, filed suit against defendants Lawrence Hogan, Jr., Governor of Maryland, and Colonel William Pallozzi, Superintendent of the Maryland State Police, challenging the Act.[1] By Memorandum Opinion (ECF 98) and Order (ECF 99) of March 31, 2019, 1 granted the defendants' summary judgment motion (ECF 59) and denied plaintiffs' cross motion for summary judgment. See ECF 75. Thereafter, on April 25, 2019, plaintiffs noted an appeal to the Fourth Circuit. ECF 103.

         On September 6, 2019, Atlantic Guns filed in this court a Motion to Supplement the Record on Appeal (ECF 106), supported by a memorandum (ECF 106-2) (collectively, the "Motion"), and an exhibit. Atlantic Guns seeks to add to the appellate record "excerpts of, and Exhibit 30 to, the deposition transcript of its president and corporate designee, Mr. Stephen Schneider." Id. at 1. The deposition excerpt (ECF 106-3) references deposition Exhibit 30, "a package" of emails from "potential customers or customers," which were "produced in discovery." Id. at 2. Neither the deposition excerpt nor the emails were submitted to this court on summary judgment. Instead, plaintiffs submitted Schneider's Declaration. See ECF 84; ECF 86 (redacted).

         Defendants/appellees (sometimes referred to as "the State") oppose the Motion. ECF 107 (the "Opposition"). Atlantic Guns has replied. ECF 108.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

         I. Procedural Summary[2]

         The Motion is rooted in statements made in the briefs submitted to the Fourth Circuit concerning events that occurred on summary judgment in this court.[3]

         In their opening appellate brief, plaintiffs/appellants asserted that "Atlantic Guns has turned away, and thus lost business from, hundreds of handgun customers because they lack a Handgun License." Appeal, Appellants' Brief, ECF 20 at 10. In support of this assertion, plaintiffs cited to the sealed Declaration of Atlantic Guns' president, Stephen Schneider. Joint Appendix ("JA") at 1412; see ECF 84 in this court. The unsealed, redacted version of the Declaration, is found at ¶ 1911 and at ECF 86 in this court. Plaintiffs/appellants also stated in their appellate brief: "To protect its customers' privacy, Atlantic Guns has not identified [the customers] by name, but did produce emails with specific individual customers' names redacted by Atlantic Guns to protect their identities during discovery." Appeal, Appellants' Brief, ECF 20 at 10. However, as noted, neither the emails nor the deposition excerpt were included with the Declaration. ECF 84.

         Defendants/appellees noted in their response brief, Appeal, Appellees' Brief, ECF 36 at 11-12:

... Plaintiffs' opening brief to this Court asserts that Atlantic Guns "has turned away, and thus lost business from, hundreds of handgun customers because they lack a Handgun License." Appellants' Br. 10. For this assertion, the brief cites only the uncorroborated declaration of Mr. Schneider. Id. Atlantic Guns goes on to suggest that in discovery it produced documentary evidence of the loss of sales in emails with customer names redacted, id, but the brief does not document that suggestion with any citation to the Joint Appendix or to the summary judgment record in the district court. Although Atlantic Guns produced in discovery emails with customer names redacted, those emails did not support Atlantic Guns' professed loss of sales, which likely explains why Plaintiffs did not rely on the emails on summary judgment...

         Thereafter, plaintiffs/appellants filed in the Fourth Circuit a "Motion For Leave To File Attachment." Appeal, ECF 39. Plaintiffs/appellants sought to add to the record the same exhibit as Atlantic Guns proposes here. They explained that the State inaccurately represented that Atlantic Guns "did not produce [the emails] in discovery." Id. at 1. Further, plaintiffs/appellants . maintained that they "did not anticipate that Appellees would misstate the discovery record in this regard and therefore did not add the proposed attachment to the record on appeal." Id. at 2.

         The State responded. Appeal, ECF 41. It argued that plaintiffs/appellants had not submitted the emails as part of the summary judgment record in this court, and did not properly seek to supplement the record in this court, pursuant to Fourth Circuit Local Rule ("LR") 10(d). Id., at 1. Defendants/appellees also argued that the emails are immaterial and constitute inadmissible hearsay. Id.

         By Order dated August 30, 2019, the Fourth Circuit denied plaintiffs/appellants' motion, without explanation. Appeal, ECF 44. The Order said, id. at 2: "Upon consideration of submissions relative to the motion to file an attachment to the reply brief, the court denies the motion, The appellants are directed to file a corrected brief that does not contain references to the proposed attachment on or before September 9, 2019." Plaintiffs/appellants filed their corrected brief on September 6, 2019. Appeal, ECF 46. On the same day, Atlantic Guns filed the ...


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