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Carolyn Martin v. Naval Criminal Investigative Service

May 3, 2012

CAROLYN MARTIN,
PLAINTIFF,
v.
NAVAL CRIMINAL INVESTIGATIVE SERVICE, ("NCIS") ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are: (1) the Motion for Leave to File First Amended Complaint filed by Plaintiff Carolyn Martin (ECF No. 53); (2) the Cross-Motion to Stay Proceedings Pending Appeal filed by the United States on behalf of Defendants Mark D. Clookie, Wade Jacobson, Ray Mabus, Gerald Martin, Naval Criminal Investigative Service, and Sean Sullivan (ECF No. 55); and (3) the Supplemental Brief Seeking Leave to File Supplemental Pleading filed by Plaintiff Carolyn Martin (ECF No. 64).

I. Background

On September 9, 2010, Plaintiff initiated this action by filing a Complaint for Declaratory and Injunctive Relief and Damages against Defendant Gerald Martin, NCIS Special Agent ("Agent Martin"); Defendant Naval Criminal Investigative Service ("NCIS"); Defendant Mark D. Clookie, in his official capacity as NCIS Director ("Clookie"); Defendant Wade Jacobson, in his official capacity as NCIS Acting Special Agent in Charge ("Jacobson"); Defendant Marine Corps West Field Office; Defendant Sean Sullivan, in his official capacity as Staff Judge Advocate ("Sullivan"); Defendant Marine Corps Recruit Depot San Diego; and Defendant Ray Mabus, in his official capacity as Secretary of the Navy ("Mabus") (ECF No. 1).

On December 17, 2010, Agent Martin filed a Motion to Dismiss. (ECF No. 31). On that same day, the United States filed a Motion to Dismiss on behalf of Defendants NCIS, Clookie, Jacobson, Marine Corps West Field Office, Sullivan, Marine Corps Recruit Depot San Diego, and Mabus. (ECF No. 32).

On August 3, 2011, the Court granted in part and denied in part the Motions to Dismiss filed by Agent Martin and the United States. (ECF No. 42). The Court found that Agent Martin was not entitled to qualified immunity for the claim against him in his individual capacity for damages pursuant to Bivens from Plaintiff's claim of violation of the First Amendment due to retaliation for protected speech at this stage in the proceeding.

On October 3, 2011, Agent Martin filed a Notice of Appeal of the Order finding that Agent Martin was not entitled to qualified immunity for the claim against him in his individual capacity for damages pursuant to Bivens from Plaintiff's claim of violation of the First Amendment due to retaliation for protected speech. (ECF No. 48).

On January 6, 2012, Plaintiff filed a Motion for Leave to File a First Amended Complaint. (ECF No. 53). The proposed amended complaint realleges the claims which were not dismissed and adds tort claims under the Federal Tort Claims Act for intentional infliction of emotional distress, battery, malicious trespass, abuse of process, and false imprisonment against the United States.

On January 30, 2012, Defendants Agent Martin, Clookie, Jacobson, NCIS, and Sullivan filed a Response in Opposition to Plaintiff's Motion for Leave to Amend and a Cross-Motion to Stay Proceedings Pending Appeal. (ECF No. 55).

On March 12, 2012, Plaintiff filed a Supplemental Brief Seeking Leave to File Supplemental Pleading. (ECF No. 64). The proposed first supplemental complaint adds tort claims under the Federal Tort Claims Act for intentional infliction of emotional distress, battery, malicious trespass, abuse of process, and false imprisonment against the United States.

II. Contentions of the Parties

Plaintiff seeks leave to file an amended complaint. Plaintiff contends that the FTCA claims are alleged against the United States and qualified immunity is not an available defense to the claims. Plaintiff contends that the Court has jurisdiction to allow the amended complaint on the grounds that: "the FTCA claims are 'legally distinct' from the Bivens claims though the underlying facts may 'overlap,' and the FTCA claims 'do not implicate' Agent Martin's 'right to qualified immunity' or 'interfere with any aspect of [Agent Martin's] appeal." (ECF No. 57 at 9) (citation omitted). Plaintiff seeks leave to file a supplemental complaint alleging claims pursuant to the Federal Tort Claims Act ("FTCA") which could not have previously been asserted because the administrative remedies had not been not exhausted. Plaintiff contends that the supplemental complaint would not supercede the Complaint which is currently the subject of Agent Martin's appeal; therefore, the supplemental complaint does not raise jurisdictional difficulties. Plaintiff contends that the entire case should not be stayed pending the appeal of the narrow issue of whether Agent Martin is entitled to qualified immunity.

Defendants contend that this Court lacks jurisdiction to allow Plaintiff to file an amended complaint because Agent Martin's qualified immunity claim is currently on appeal and allowing Plaintiff to amend her Complaint will moot the current appeal because the Court of Appeals for the Ninth Circuit "would no longer be reviewing the operative complaint." (ECF No. 54 at 3). Defendant contends that a supplemental complaint is not appropriate on the grounds that the factual basis for the new claims are identical to the factual basis for the FTCA claims did not occur after the Complaint was filed. Defendants contend that the Court should stay the case pending completion of the appeal because Agent Martin is entitled to protection from discovery and other pre-trial matters. Defendants contend that: "[t]he similarities between the individual-and official-capacity claims amplifies the need for stay, as allowing the case to proceed against the United States and the official-capacity defendants would in practice be indistinguishable from allowing the case to proceed against ...


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