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014 - Memorandum in Support For Motion For Relief
014 - Memorandum in Support For Motion For Relief
BRUCE JOINER, )
)
Plaintiff, )
)
v. )
) Case No. 3:17-cv-02692
UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)
In support of the United States’ motion for relief from this Court’s order requiring a
scheduling conference and report and for a stay of discovery, the United States submits the
following:
PROCEDURAL HISTORY
The Complaint in this action (Dkt. #1) was filed on October 2, 2017. This action is
brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680, and
arises out of the alleged negligence of the Federal Bureau of Investigation (“FBI”) which
allegedly resulted in Plaintiff Bruce Joiner (“Plaintiff”) being shot in the leg. In particular,
Plaintiff alleges that he was shot in the leg while working as a security guard at an event called
the “First Annual Muhammed Art Exhibit and Contest” at the Curtis Culwell Center in Garland,
Texas on May 3, 2015 (“the event”). The shooting occurred when Elton Simpson and Nadir
United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 1
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Soofi, whom Plaintiff describes as “two members of the international terrorist organization
Plaintiff asserts four separate causes of action in the Complaint, based on the FBI’s
alleged failure to prevent the assault (by, among other things, failing to “block” a handgun
purchase by Soofi in 2010), and the alleged encouragement of the assault by an undercover FBI
agent during the course of an undercover national security counterterrorism investigation. The
causes of action are: (1) assault under Texas law; (2) a violation of the Anti-Terrorism Act
(“ATA”), 18 U.S.C. § 2333; (3) negligence under Texas law; and (4) negligent infliction of
On January 11, 2018, the United States filed a motion to dismiss pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, or, in the
alternative, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a
claim. Dkt. ## 8, 9, 10. In that motion, the United States argues that Congress has not waived
sovereign immunity for Plaintiff’s claims, and thus the Court lacks subject matter jurisdiction. In
particular, the United States argues that it retains sovereign immunity because the action is
barred in its entirety by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a).
Dkt. #9 at pp. 9-21. Additionally, the United States argues that Congress has not waived
sovereign immunity for claims brought under the ATA, Dkt. #9 at pp. 24-25, and that Plaintiff’s
claim are not cognizable under the FTCA because, under Texas law, a private person does not
owe a legal duty to prevent a person from harming another absent the existence of a special
relationship, id. at 21-23. Alternatively, the United States asserts that Plaintiff failed to state a
1
A more detailed summary of the factual allegations is set forth in the United States’
memorandum in support of its motion to dismiss. Dkt. # 9 at pp. 2-6.
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claim because he has not sufficiently pleaded a cause of action for assault under Texas law, Dkt.
# 9 at pp. 23-24; and because Plaintiff has not sufficiently alleged that the handgun Soofi
On January 16, 2018, this Court entered an order requiring the parties to hold a
scheduling conference no later than January 30, 2018, and requiring the parties to file on or
before February 6, 2018 a Report Regarding Contents of Scheduling Order (“Joint Report”).
Dkt. # 16. The United States respectfully requests that the parties be relieved from filing a Joint
Report, that the Court abstain from issuing a scheduling order, and that discovery be stayed
ARGUMENT
I. The Parties Should Be Relieved From This Court’s Order Requiring a Joint Report
While the Motion to Dismiss is Pending
Rule 16(b) of the Federal Rules of Civil Procedure authorizes federal courts to organize
the discovery process through a scheduling order. Even in situations where a motion to dismiss
is filed pursuant to Rule 12(b)(6), it is appropriate to postpone a scheduling order. As the Fifth
Circuit held, “[p]ending a case surviving a motion to dismiss under Rule 12(b)(6), however, the
district court may wish to postpone the issuance of a scheduling order until it decides whether the
case merits further factual development.” Alpha Kappa Alpha Sorority Inc. v. Converse Inc.,
175 Fed. App’x. 672, *8 (5th Cir. 2006) (citing Ehlmann v. Kaiser Found. Health Plan of Tex.,
198 F.3d 552, 554 (5th Cir.2000). “The district court cannot be said to have abused its discretion
in delaying the issuance of a scheduling order until its ruling on the Rule 12(b)(6) motion.” Id.
Here, the United States moved to dismiss the entire action pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction (with grounds for dismissal pursuant to Rule 12(b)(6) argued
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in the alternative) on the ground that the United States has sovereign immunity for Plaintiff’s
claims. As discussed more fully below in Section II, cases should not proceed until the issue of
sovereign immunity is resolved. Therefore, delaying the issuance of a scheduling order is even
further warranted when immunity has been asserted in a motion to dismiss pursuant to Rule
12(b)(1). See Sanders v. Agnew, 306 Fed. App’x. 844, *4 (5th Cir. 2009) (upholding decision of
district court to delay issuance of scheduling order while motion to dismiss asserting immunity
was pending); Ybarra v. Lubbock Police Dept. #1 Officer, 2017 WL 78509, *1 (N.D. Tex. Jan. 6,
2017) (deciding to not issue a scheduling order until motion to dismiss asserting immunity was
juncture for case management deadlines to be set, given that the parties’ briefing on the
sovereign immunity issue is not yet complete and it is thus unknown when the issue will be
resolved. See Pedroli ex rel. Microtune, Inc. v. Bartek, 251 F.R.D. 229 , 230-31 (E.D. Tex.
2007) (suspending scheduling conference and order because “concrete dates or deadlines” could
not be created at that time). The United States respectfully submits that, at this juncture, the best
course of action would be to relieve the parties from the case management reporting
requirements and postpone the entry of a scheduling order until the pending motion to dismiss is
decided. If the motion is granted, then the need for a scheduling order will no longer exist.
Alternatively, if the motion is denied or granted in part, this Court’s ruling may reduce the
number of claims and narrow the scope of discovery. At that point, the parties and this Court
will be in a better position to determine an appropriate scheduling order for this case, should one
be necessary. The United States believes that this approach would be the most efficient use of
the parties’ and the Court’s resources. See LaHaye v. AstraZeneca, LP, 2014 WL 6609456, *1
(M.D. La. Nov. 7, 2014) (“Issuing a scheduling order at this time will force the parties to engage
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in discovery which likely will be costly and which may be unnecessary if the defendant’s motion
is granted, and the scope of any necessary discovery may be narrowed if the motion is only
granted in part.”); Griffin v. American Zurich Insurance Co., 2015 WL 12748322, *3 (N.D. Tex.
Mar. 20, 2015) (staying discovery and relieving parties from Rule 26(f) conference and
When, as here, a motion to dismiss raises threshold legal issues relating to subject matter
jurisdiction, and seeks to dispose of an action in its entirety, a stay of discovery should be
granted. “A trial court has broad discretion and inherent power to stay discovery until
preliminary questions that may dispose of the case are determined.” Petrus v. Bowen, 833 F.2d
581, 583 (5th Cir. 1987); see also Ingram Corp. v. J. Ray McDermott & Co., 698 F.2d 1295,
1304 n.13 (5th Cir. 1983) (“A decision to prevent unnecessary discovery because the case could
well be decided on the parties’ motions is not, on its face, fundamentally unfair to a party
desiring discovery.”). As this Court also held, staying discovery is “appropriate where the
disposition of a motion to dismiss ‘might preclude the need for the discovery altogether thus
saving time and expense.’” Von Drake v. Nat'l Broad. Co., Inc. No. 3-04-CV-0652-R, 2004 WL
1144142, *1 (N.D. Tex. May 20, 2004) (quoting Landry v. Air Line Pilots Ass'n Int'l AFL-CIO,
901 F.2d 404, 436 (5th Cir. 1990)). Staying discovery while a motion to dismiss is pending is
especially warranted when that motion asserts a lack of subject matter jurisdiction. See Johnson
v. Ashmore, 2016 WL 8453918, *1 (N.D. Tex. Jan. 22, 2016) (staying discovery until the issue
Staying discovery in this action while the motion to dismiss is pending is more than
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noted, the United States filed a motion to dismiss for lack of subject matter jurisdiction based on
sovereign immunity. As the Fifth Circuit held, “immunity is intended to shield the defendant
from the burdens of defending the suit, including the burdens of discovery.” Freeman v. United
States, 556 F.3d 326, 342 (5th Cir. 2009). 2 In fact, when, as here, the United States seeks to
dismiss the action based on the discretionary function exception, the Fifth Circuit has made clear
that discovery should not proceed. Id. at 343 (“Congress intended the discretionary function
exception to shelter the government from the burdens of answering a lawsuit—including those
A stay of discovery is especially justified here given the nature of the information likely
to be sought during discovery by Plaintiff. On its face, the Complaint makes clear that it
challenges alleged Government conduct taken during the course of a national security
2
See also Liverman v. Comm. On The Judiciary, U.S. House Of Representatives, 51 Fed.
Appx. 825, 827-828 (10th Cir. 2002) (applying the rationale behind staying discovery when
immunity has been raised by government officials, stating as follows: “Finding no logical reason
why this rule should not apply where the defendant raises the defense of sovereign immunity and
the defense is primarily one of law, we conclude that the district court did not abuse its discretion
in staying discovery pending resolution of the Committee’s motion to dismiss.”); Bragg v.
United States, No. 2:10-0683, 2010 WL 3835080, at *2 (S.D. W.Va. Sept. 29, 2010) (“Regarding
the type of motion, the United States seeks dismissal on sovereign immunity grounds. The
Supreme Court has observed in the analogous qualified immunity setting that threshold questions
of immunity should be resolved in advance of discovery.”) (citing Siegert v. Gilley, 500 U.S 226,
232 (1991)); cf. McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1339 (11th Cir. 2007)
(immunity “not only insulates the party from liability, but also prevents the party from being
exposed to discovery and/or trial.”); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 488
(5th Cir. 2001) (If immunity is found “but only after lengthy discovery, then obviously, one of
the primary functions of qualified immunity is lost.”) (emphasis in original). Furthermore, in the
analogous situation of where a government official raises immunity to suit, the Supreme Court
has held that “[u]ntil [the] threshold immunity question is resolved, discovery should not be
allowed.” Siegert v. Gilley, 500 U.S. 226, 231 (1991) (citation omitted). The Supreme Court
explained that “[o]ne of the purposes of immunity . . . is to spare a defendant not only
unwarranted liability, but unwarranted demands customarily imposed upon those defending a
long drawn out lawsuit.” Id. at 232.
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counterterrorism investigation. As such, there is a strong likelihood that much of the information
Plaintiff will seek from the FBI is classified and law enforcement sensitive information over
which the Government will assert claims of privilege to prevent its disclosure. To be sure, in
pending federal criminal proceedings related to the events at issue in this case, the Government
continues to protect such information from disclosure. See, e.g., United States of America v.
Erick Jamal Hendricks, No. 16-DR-265 (N.D. Oh.) (Dkt. # 47) (Declaration and Claim of
Privilege of the Attorney General of the United States); Id. (Dkt. #1) (“Hare Affidavit” cited
throughout Plaintiff’s Complaint and filed in this action at Dkt. #10, Appx. 01-036, which
several FBI confidential human sources, and the social media applications used by Hendricks);
United States of America v. Abdul Malik Abdul Kareem, No. 15-CR-707 (D. Az.) (Dkt. # 194)
(Order on the Government’s Memorandum of Law and Motion For a Protective Order Pursuant
to Sections 4 and 8 of the Classified Information Procedures Act and Rule 16(d)(1) of the
Federal Rules of Criminal Procedure).3 The burden on the Government in invoking claims of
privilege and responding to discovery requests for such information should be avoided before the
motion to dismiss is decided. Moreover, given the sensitive nature of the information likely to
be sought by Plaintiff during discovery, the potential for discovery disputes necessitating Court
intervention is heightened. Again, devoting time and resources to such disputes by the parties,
3
Hendricks will be tried in March 2018 on charges of conspiracy and attempting to
provide material support to a terrorist organization. Kareem was convicted in February 2017 of
five criminal counts, including conspiracy to provide material support or resources to a terrorist
organization, and sentenced to 30 years imprisonment. The case is on appeal to Nintha Circuit.
A third pending federal prosecution relating to events surrounding the attempted terrorist attack
in Garland is set for trial in May 2018 in United States of America v. Abdul Khabir Wahid, No.
17-CR-360 (D. Az.).
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and this Court, would best be avoided given the pendency of the motion to dismiss which could
Finally, a stay of discovery while the motion to dismiss is pending will not prejudice
Plaintiff. There is nothing about this case to suggest there is any pressing need to immediately
begin discovery while the motion to dismiss is pending or for discovery to be completed by a
certain date.
Because the issue of whether the United States retains sovereign immunity from
Plaintiff’s claims is pending before this Court, and because that immunity would essentially be
lost if the United States were subjected to discovery during the pendency of its motion to
CONCLUSION
For the foregoing reasons, this Court should relieve the parties from the reporting
requirements set forth in the Court’s order dated January 16, 2018 (Dkt. # 12), abstain from
entering a scheduling order, and issue a stay of discovery while the United States’ motion to
dismiss is pending.
CHAD READLER
Acting Assistant Attorney General
RUPERT M. MITSCH
Assistant Director, Torts Branch
Civil Division
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CERTIFICATE OF SERVICE
I hereby certify that on January 30, 2018, I caused to be served upon the following
counsel a true and correct copy of the United States’ Motion For Relief From Scheduling Report
and For A Stay of Discovery and the accompanying memorandum in support via ECF filing:
Trenton Roberts
Roberts & Willie, PLLC
2000 S. Dairy Ashford, Suite 390
Houston, Texas 77077
Phone: (832) 328-7345
Email: trenton@robertsandwillie.com
Attorney for Plaintiff
/s/ Phil MacWilliams
PHILIP D. MACWILLIAMS
United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 9