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Case 1:15-cv-00238-EGS Document 11 Filed 03/03/15 Page 1 of 10

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

___________________________________
)
SHARYL THOMPSON ATTKISSON, )
JAMES HOWARD ATTKISSON, and )
SARAH JUDITH STARR ATTKISSON, )
)
Plaintiffs, )
)
v. ) Civil Action No.: 15-238(EGS)
)
UNITED STATES ATTORNEY )
GENERAL ERIC HOLDER, et al., )
)
Defendants. )
)

DEFENDANT'S OPPOSITION TO PLAINTIFFS'


MOTION TO EXPEDITED DISCOVERY [ECF No. 5]

Pursuant to the Court's February 24, 2015 Minute Order, Defendant Eric Holder, United

States Attorney General, and Defendant Patrick Donahoe, the former Postmaster General and

Chief Executive Officer (collectively “Named Defendants”) respectfully oppose Plaintiff's

Motion to Expedite Discovery [ECF No. 5]. 1 As an initial matter, to date, the Named

Defendants

have not been served with the summons and Complaint in this case. Therefore, the Named

Defendants appear specially for the very limited purpose of responding to Plaintiff's Motion, as

ordered by this Court. But for the Court's February 24th Minute Order, the Named Defendants

would not have otherwise responded to Plaintiff's Motion until after proper service has been

perfected under Fed. R. Civ. P. 4(i). Therefore, the Named Defendants do not waive proper

service of process or any other applicable defenses under Fed. R. Civ. P. 12, or laws of the

1
Plaintiff's Motion to Expedite Discovery [ECF No. 5] is referred to as "Plaintiff's
Motion" and cited as "Pl. Mot."

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United States.

In any event, the Court should summarily deny Plaintiffs' Motion as premature for two

reasons. First, neither Named Defendants nor the "Doe Defendants" have been properly served

with the summons and Complaint in this case. In fact, Plaintiffs readily acknowledge that the

"Doe [D]efendants cannot participate in a Rule 26(f) [discovery] conference without being

served." Pl. Mot. at 4. Similarly, given that the Named Defendants have not been served, they

cannot participate in any discovery conference under both Fed. R. Civ. P. 26(f) or Local Rule

16.3. Therefore, any discovery at this juncture is simply premature.

Second, given that this is a Bivens case, which implicates qualified immunity issues,

under established law, the Court should resolve those issues and similar preliminary issues

before any discovery occurs. For these reasons and those elaborated below, the Court should

deny Plaintiff's Motion for Expedited Discovery as premature.

Procedural and Factual Background

On December 30, 2014, Plaintiffs 2 (represented by counsel) filed a Complaint in the

District of Columbia Superior Court, claiming that "[t]his lawsuit is brought pursuant to Bivens"

(Compl. ¶1) and that the "present case arises under the Constitution and laws of the United

States" (Compl. ¶ 2). Given that Plaintiffs specifically sue federal officials and seek redress

under federal law, it is unclear why Plaintiffs initiated this case in a "state court" and did not file

it in federal district court, where it should have been filed in the first instance. See 28 U.S.C.

1331.

Plaintiffs sue Defendant Eric H. Holder, United States Attorney General, in his official

and individual capacity. Compl. ¶ 7. They also sue Defendant Patrick R. Donahoe, the former

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Sharyl Thompson Attkinson, James Howard Attkinson and Sarah Judith Starr Attkinson
are Plaintiffs in this case.

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Postmaster General and Chief Executive officer of the U.S. Postal Service in his official and

individual capacity. Id. at ¶ 8. The Complaint also names "Unknown Named Agents of the

Department of Justice, in their individual capacities," "Unknown Named Agents of the United

States Postal Service, in their individual capacities" and "Unknown Named Agents of the United

States, in their individual capacities." 3 Plaintiff failed to properly serve any of the listed

defendants while the case was in the District of Columbia Superior Court.

On February 18, 2105, the Named Defendants appeared specially to remove the case to

this Court under 28 U.S.C. § 1442. See Notice of Removal (ECF No. 1). Five days later, on

February 23, 2015, Plaintiffs requested summons to be issued to the Named Defendants. See

ECF Nos. 3 and 4. On that same day, while knowing that none of the defendants have been

served, Plaintiffs filed this Motion seeking to expedite discovery. See ECF No. 5. On the next

day, February 24, 2015, the Court issued summons for the Named Defendants (ECF No. 7) and

simultaneously directed the Named Defendants to respond to Plaintiffs' Motion by March 3,

2015. See Feb. 24, 2015 Minute Order.

Plaintiffs' Complaint alleges that some unidentified employee(s) of the U.S. Department

of Justice and U.S. Postal Service hacked into their electronic devices, including their laptops,

phones, and other household devices. See Compl. ¶¶ 10-76. They claim that this alleged

surveillance violated their First and Fourth Amendment rights under the Constitution. See

Compl. at Counts I and II.

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To be clear, the U.S. Attorney's Office for the District of Columbia presently does not
represent these "Unknown Named Agents."

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Argument

1. Discovery Is Premature Because None Of The Defendants Have Been Served.

Simultaneous to seeking requests for summons to be issued, Plaintiffs filed this Motion

for expedited discovery. See ECF Nos. 3, 5. Discovery is premature without proper service of

the summons and complaint. When suing the federal government and its officials, Rule 4(i)

requires Plaintiffs to serve the summons and complaint to (1) the U.S. Attorney's Office for the

District of Columbia ("USAO-DC), (2) the civil-process clerk at the USAO-DC, and (3) the

Attorney General's office. See Fed. R. Civ. P. 4(i)(1)(A)-(B). Furthermore, given that Plaintiffs

are also suing the Named Defendants in their "individual capacity", Rule 4(i)(3) requires

Plaintiffs to perfect service on the Named Defendants individually. See Fed. R. Civ.P. 4(i)(3).

To date, there is no evidence that the federal government or the Named Defendants have been

served, either in their official or personal capacity.

Citing inapplicable cases, Plaintiffs argue that they should be given an opportunity to

conduct discovery on the Named Defendants to uncover the identities of the "Unknown Named

Agents" listed on the face of their Complaint. See Pl. Mot. at 2-3 (citing Scott v. Conley, 937 F.

Supp.2d 60 (D.D.C. 2013) and Hartley v. Wilfert, 931 F. Supp.2d 230 (D.D.C. 2013). The cited

cases are inapposite because, unlike this case, some or all of the defendants in Plaintiffs' cited

cases were served under Rule 4.

In Scott, the pro se litigant sued U.S Bureau of Prison officials and relied on the Clerk of

the Court and the Marshals Service to effectuate service. 937 F. Supp.2d at 69. The court found

service to be proper noting any potential defects lay with the Clerk's Office and the Marshals

Service. Id. The court then made a general observation that a court should not dismiss lawsuits

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against "Doe" defendants without discovery. Id. at 69. The court nevertheless dismissed Scott's

complaint because the officials had qualified immunity. Id. at 70. In Hartley, plaintiff claimed

that two Secret Service police officers unlawfully arrested her in violation of her First

Amendment rights. 931 F. Supp.2d at 231. She knew the identity of one officer, who waived

service, and sought discovery on the "Jane Doe" officer. Id. The court allowed discovery into

the "Jane Doe" officer. Id. at 233. Unlike the facts in Scott and Hartley, none of the known

Named Defendants have been served under Rule 4. Indeed Plaintiffs have not shown that they

even tried to effectuate service on the Named Defendants and failed to explain why discovery

should occur before service has been perfected under Rule 4(i).

Plaintiff next argues that good cause exists to permit expedited discovery. Pl. Mot. at 3.

According to Plaintiff, one of the "good cause" bases is that Plaintiff "cannot serve all necessary

parties within 120 days of filing suit and within the applicable statute of limitations." Id. This

argument rings hollow for two reasons. First, Plaintiff did not even attempt to serve the "known"

Named Defendants in this case. In fact, on the same day that Plaintiff sought summons to be

issued for the Named Defendants (ECF Nos. 3, 4), Plaintiffs filed this Motion for expedited

discovery, claiming that they "cannot serve all necessary parties within 120 days." See ECF No.

3, 4 and 5. Given these facts, Plaintiffs have no basis to claim that they cannot serve all

defendants under Rule 4 when they did not even try to do so. Second, Plaintiffs fail to identify

the applicable statute of limitations and the claims that may be subject to expiration. Without

more, Plaintiffs appear to manufacture a time urgency where none exists and that this is not a

"good cause" reason for expedited discovery before proper service occurs.

Next, Plaintiffs readily acknowledge that "unknown Doe defendants cannot participate in

a Rule 26(f) discovery without being served." Pl. Mot. at 4. In that vein, the Named Defendants

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similarly cannot participate in any discovery conference because they have not been served.

However, without citing a single authority, Plaintiffs argue that "the interests of justice do not

require this conference to take place prior to limited discovery." Id. Plaintiffs fail to identify

how the "interests of justice" could be advanced when the defendants "cannot participate in a

Rule 26(f) discovery" conference. Finally, Plaintiffs claim that the "scope of discovery" is

narrow as they "merely wish to ascertain the identity of agents or employees of the federal

government involved in their unauthorized and illegal surveillance." Pl. Mot. at 4. This

argument lacks merit. Plaintiffs' bare-bone allegations about some "unknown" federal

employees who allegedly hacked Plaintiffs' electronic devices dating back to "mid-to-late 2011"

do not warrant "expedited discovery" at this juncture. Indeed, Plaintiffs' request is nothing short

of a "fishing expedition" and the Court should not allow that type of discovery before service of

process is completed. See, e.g., Alexander v. FBI, 186 F.R.D. 113, 119 (D.D.C. 1998) (denying

discovery that involved "a fishing expedition under a broad theory that would allow plaintiffs to

discover information on all of the White House's alleged adversaries without any proper factual

grounds to support such discovery."). Accordingly, the Court should deny discovery at this

point.

2. Discovery Should Be Deferred Until After The Court Resolves Dispositive


Motions

This Court has broad authority to regulate discovery and "should not hesitate to exercise

appropriate control over the discovery process." Herbert v. Lando, 441 U.S. 153, 177 (1979);

see Fed. R. Civ. P. 26(c). It is particularly appropriate to stay discovery pending the outcome of

dispositive motions. See Chavous v. District of Columbia Financial Responsibility and

Management, 201 F.R.D. 1, 2 (D.D.C. 2001). It is settled law that "court has broad discretion

and inherent power to stay discovery until preliminary questions that may dispose of the case are

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determined." Farouki v. Petra Intern. Banking, Corp., 683 F.Supp.2d 23, 26 (D.D.C. 2010)

(internal quotations and citations omitted). A deferral of discovery is particularly warranted

where an action raises claims against individually sued federal defendants. For example, the

Supreme Court has frequently admonished the lower federal courts not to perpetuate lawsuits

otherwise crying out for dismissal:

Insubstantial lawsuits can be quickly terminated by federal courts alert to


the possibilities of artful pleading. Unless the complaint states a
compensable claim for relief under the Federal Constitution, it should not
survive a motion to dismiss.

Butz v. Economou, 438 U.S. 478, 507-08 (1978); see also Harlow v. Fitzgerald, 457 U.S. 800,

808, 817-18 (1982).

In this case, Plaintiffs' Complaint is subject to dismissal under Ashcroft v. Iqbal for

failure to allege that the Named Defendants were personally involved in any decision that

resulted in the alleged violation of Plaintiffs' constitutional rights. Notably, Plaintiffs' 78-

paragraph Complaint utterly fails to mention what personal involvement, if any, that the Named

Defendants played in the alleged hacking of their electronic devices or subjecting Plaintiffs to

unwarranted surveillance. In fact, according to the Complaint, the Named Defendants are

included because they "have ultimate authority" over their respective agencies. Compl. ¶¶ 7, 8.

The Supreme Court has emphatically held that a government official may only be held

personally liable under Bivens only “for his or her own misconduct” and he is not subject to

liability “for the unconstitutional conduct of [his] subordinates under a theory of respondeat

superior.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-1949 (2009); see Simpkins v. District of

Columbia, 108 F.3d 366, 369 (D.C. Cir. 1997) (“ Bivens claims cannot rest merely on respondeat

superior.”). Under the law, Plaintiffs' Complaint is legally deficient and discovery would not

cure this defect.

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Even if the Complaint claims that the Named Defendants had knowledge of the alleged

constitutional violations, this type of claim runs counter to Iqbal. Bare-bone claims of

knowledge and “tacit” authorization fall short of the sort of personal involvement required by

Iqbal, which expressly rejected the assertion that a supervisor's mere “knowledge [of] and

acquiescence'" in unconstitutional conduct by subordinates can give rise to personal Bivens

liability on the part of the supervisor. Iqbal, 129 S. Ct. 1949. Furthermore, given that this is a

Bivens case, the Named Defendants may also enjoy qualified immunity for their official acts and

immunity issues should be resolved early so as not to subject federal officials to unwarranted

litigation. See Aucier v. Katz, 533 U.S. 194, 200-201 (2001) (“[q]ualified immunity is an

entitlement not to stand trial or face the other burdens of litigation” and “a ruling on that issue

should be made early in the proceedings so that the costs and expenses of trial are avoided where

the defense is dispositive”)

There is no question that the Named Defendants will move to dismiss Plaintiffs'

unmeritorious allegations, based on the legal grounds previewed above, after they are properly

served under Rule 4(i). Therefore, the Court should exercise its discretion and deny discovery at

this juncture until the Named Defendants are properly served and after any dispositive motions

are resolved. Otherwise, discovery would impose an unnecessary burden on the Named

Defendants and their respective agencies if the Court's favorable resolution of these preliminary

issues would end the litigation.

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Conclusion

For the foregoing reasons, the Court should deny Plaintiffs' Motion for Expedited

Discovery.

March 3, 2015 Respectfully submitted,


RONALD C. MACHEN JR., D.C. Bar #447889
United States Attorney

DANIEL F. VAN HORN, D.C. Bar #924092


Chief, Civil Division

By: ________//s//_________________
JOHN C. TRUONG, D.C. BAR #465901
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
Tel: (202) 252-2524
E-mail: John.Truong@usdoj.gov
Attorneys for Defendant

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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

___________________________________
)
SHARYL THOMPSON ATTKISSON, )
JAMES HOWARD ATTKISSON, and )
SARAH JUDITH STARR ATTKISSON, )
)
Plaintiffs, )
)
v. ) Civil Action No.: 15-238(EGS)
)
UNITED STATES ATTORNEY )
GENERAL ERIC HOLDER, et al., )
)
Defendants. )
)

[PROPOSED] ORDER

Upon consideration of Plaintiffs' Motion For Expedited Discovery, Defendants'

Opposition and the entire record herein, it is this _______ day of _______, 2015,

ORDERED Plaintiffs' Motion For Expedited Discovery [ECF No. 5] be and is hereby

DENIED.

SO ORDERED.

_________________________
United States District Judge

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