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Martin v. Naval Criminal Investigative Service

United States District Court, Ninth Circuit

June 11, 2013

CAROLYN MARTIN, Plaintiff,
v.
NAVAL CRIMINAL INVESTIGATIVE SERVICE, (

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are Plaintiff's Objections to the Magistrate Judge's Orders Determining Joint Motions for Discovery Disputes. (ECF Nos. 96, 102).

BACKGROUND

I. Complaint

On September 9, 2010, Plaintiff initiated this action by filing a Complaint for Declaratory and Injunctive Relief and Damages against Defendants. (ECF No. 1).

Plaintiff alleges that she has worked as a federal contract investigator for the past ten years, performing mostly personnel security investigations and military criminal defense investigations. See id. at ¶ 17. Plaintiff alleges that, [s]ince around June 2009, military law enforcement personnel, including [Naval Criminal Investigative Service (NCIS')] Special Agent [Gerald] Martin, an unknown agent... and various Military Police... have harassed and intimidated [Plaintiff] on account of her defense investigations." Id. at ¶ 26.

Plaintiff alleges that her vehicle was pulled over by Military Police Officers on three occasions in June and July of 2009 as she came to and from Camp Pendleton for work. Id. at ¶ 27-29. Plaintiff alleges that she was detained by Military Police Officers, purportedly for speeding, when she attempted to leave Camp Pendleton on July 23, 2009. See id. at ¶ 29-37. Plaintiff alleges that Defendant Agent Gerald Martin ("Agent Martin") arrived after an hour and forty-five minutes and told Plaintiff that a Military Police Officer reported that she "had presented NCIS credentials at the Camp Pendleton gate." Id. at ¶ 37. Plaintiff denies that "false allegation." Id. Plaintiff alleges that her Defense Intelligence Agency credentials were confiscated and she was then escorted off the military base. See id. at ¶ 38. Plaintiff alleges that the California Bureau of Security and Investigative Services sent Plaintiff a cease and desist letter on August 17, 2009, ordering her to stop operating as a private investigator. See id. at ¶ 44.

Plaintiff alleges that, on May 3, 2010, Agent Martin and the Military Police Officer who detained Plaintiff on July 23, 2009 appeared at Plaintiff's home. See id. at ¶ 48. Plaintiff alleges that Agent Martin threw a piece of paper at her - a District Court Violation Notice purporting to charge her with impersonating a federal officer at Camp Pendelton on July 23, 2009. See id. at ¶ 49-50. Plaintiff alleges that the document "str[uck] [Plaintiff] in the face" and that Agent Martin muttered "You've been served.'" Id. at ¶ 49. Plaintiff alleges that the notice was defective and that she "has never received a court date or other further notice regarding this purported charge." Id. at ¶ 50.

Plaintiff alleges that Lt. Col. Sean Sullivan "recently informed the chief military defense counsel at [the Marine Corps Recruit Depot] San Diego that [Plaintiff] was banned from Building 12 at [the Marine Corps Recruit Depot] San Diego which includes the military criminal defense office, the legal assistance office, and the courtroom at [the Marine Corps Recruit Depot] San Diego." Id. at ¶ 53.

The Complaint purports to assert the following claims for relief: (1) retaliation for protected speech in violation of the First Amendment against Defendants Agent Martin, Doe 1, Mabus, NCIS, Clookie and Jacobson; (2) unreasonable search and seizure in violation of the Fourth Amendment against Defendants Agent Martin and Does 1-7; (3) unreasonable interference with employment in violation of the Fifth Amendment against Defendants NCIS, Clookie, Jacobson, Mabus, Agent Martin, and Doe 1; and (4) interference with right of access to court in violation of the First Amendment against Defendant Sullivan.

II. Motions to Dismiss the Complaint/Qualified Immunity

On December 17, 2010, Agent Martin filed a Motion to Dismiss the claims of retaliation in violation of the First Amendment and unreasonable search and seizure in violation of the Fourth Amendment. (ECF No. 31). On that same day, the United States of America ("United States") filed a Motion to Dismiss Plaintiff's claims for retaliation in violation of the First Amendment, unreasonable interference with employment in violation of the Fifth Amendment, and interference with right of access to court in violation of the First Amendment on behalf of Defendants Naval Criminal Investigative Service, Mark D. Clookie; Wade Jacobson, Marine Corps West Field Office; Sean Sullivan, Marine Corps Recruit Depot San Diego, and Ray Mabus. (ECF No. 32).

On August 3, 2011, the Court issued an Order granting in part and denying in part the motions to dismiss (ECF Nos. 31, 32) filed by Defendants Agent Martin and the United States. (ECF No. 42). The Court dismissed Plaintiff's claim for unreasonable interference with employment in violation of the Fifth Amendment against Defendants NCIS, Clookie, Jacobson and Mabus. The Court dismissed Plaintiff's Fourth Amendment claim and request for damages against Agent Martin pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court further concluded that Agent Martin was not entitled to qualified immunity on the First Amendment claims at that time because "a claim of qualified immunity is more appropriately resolved at summary judgment as opposed to the motion to dismiss stage of proceedings." See ECF No. 42 at 15 (citing Morley v. Walker, 175 F.3d 756, 760-61 (9th Cir. 1999)).

On October 3, 2011, Agent Martin gave notice that he was appealing to the Court of Appeals for the Ninth Circuit from this Court's August 3, 2011 Order (ECF No. 42 at 15) denying qualified immunity. (ECF No. 48) (citing Behrens v. Pelletier, 516 U.S. 299 (1996); Mitchell v. Forsyth, 472 U.S. 511 (1985)). This appeal remains pending. See ECF No. 86 (Ninth Circuit's August 7, 2012 Order noting that briefing on the appeal is complete).

III. First Supplemental Complaint

On May 3, 2012, the Court issued an Order granting Plaintiff's request for leave to file a supplemental complaint, and denying Defendants' motion to stay the proceedings pending resolution of Agent Martin's appeal. (ECF No. 67). The Court stated:

[T]he claim for damages against Agent Martin in his individual capacity pursuant to Bivens due to alleged violation of First Amendment rights is on appeal and is not within the jurisdiction of the Court. Agent Martin's likelihood of success on appeal would only effect his qualified immunity defense to the claim against him in his individual capacity for damages pursuant to Bivens. Agent Martin will not be subject to discovery on the claim against him in his individual capacity for damages pursuant to Bivens due to alleged violation of the First Amendment until the appeal is concluded. Defendants other than Agent Martin have not established that they will suffer any hardship or inequity if a stay is not granted. Defendants will be subject to discovery regardless of the outcome of Agent Martin's appeal. A stay of the entire case may impede the collection of information through the discovery process and will delay the timely resolution of this case. The public has an interest in the timely adjudication of alleged government misconduct. See Sammartino v. First Judicial D. Ct., 303 F.3d 959, 974 (9th Cir. 2002).

(ECF No. 67 at 7). On August 7, 2012, the Court of Appeals for the Ninth Circuit issued an Order denying Agent Martin's motion to stay all discovery as to all parties pending appeal. See ECF No. 86.

On May 7, 2012, Plaintiff filed the First Supplemental Complaint against the United States pursuant to Federal Rule of Civil Procedure 15(d). (ECF No. 68). The First Supplemental Complaint alleges "the occurrence of jurisdictional facts occurring after the original complaint was filed, " id. at 2, and purports to assert the following claims against the United States for damages pursuant to the Federal Tort Claims Act ("FTCA"): (1) intentional infliction of emotional distress; (2) battery; (3) malicious trespass; (4) abuse of process; and (5) false imprisonment. Id. at 3-5.

On June 11, 2012, the United States filed a motion to dismiss the First Supplemental Complaint. (ECF No. 78). On August 1, 2012, the Court denied the motion in its entirety. (ECF No. 85).[1]

IV. Discovery Disputes

On December 14, 2012, the Magistrate Judge issued an Order limiting Plaintiff's ability to discover certain United States Attorneys' Office ("USAO") research and internal communications. (ECF No. 94). On January 22, 2013, the Magistrate Judge issued a protective order limiting Plaintiff's ability to depose certain witnesses identified by the United States until after the deadline for filing amended pleadings. (ECF No. 99). Plaintiff filed Objections to both orders.

APPLICABLE STANDARD

"Where a magistrate is designated to hear a discovery motion, [a] judge of the court may reconsider any pretrial matter... where it has been shown that the magistrate's order is clearly erroneous or contrary to law.'" Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d 1324, 1325 (9th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)(A)); see also Fed.R.Civ.P. 72(a) ("[t]he district judge in the case must consider timely objections [to nondispositive matters] and modify or set aside any part of the order that is clearly erroneous or is contrary to law."). "Matters concerning discovery generally are considered nondispositive' of the litigation." See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). "Review under the clearly erroneous standard is significantly deferential, requiring a definite and firm conviction that a mistake has been committed." Concrete Pipe & Prod. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993) (quotation ...


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