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BRUCE JOINER, )
)
Plaintiff, )
)
v. )
) Case No. 3:17-cv-02692
UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)
The United States filed a motion for relief from this Court’s order requiring a scheduling
conference and report and for a stay of discovery (Dkt. # 14), which Plaintiff opposes (Dkt. # 19,
hereinafter “Pls. Opp.”). For the reasons set forth in the United States’ motion and in this reply,
ARGUMENT
Plaintiff argues that the burden is on the Government to demonstrate good cause for
staying discovery while a motion to dismiss is pending. However, Plaintiff cites to inapposite
cases, as they involved motions to dismiss pursuant to Rule 12(b)(6), not sovereign immunity.
Pls. Opp. at 2-5. By contrast, 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 in the alternative) on the ground that the United States has sovereign immunity
for Plaintiff’s claims. Because sovereign immunity has been raised as a threshold legal issue, it
Reply to Opposition to Motion for Relief From Order Requiring Scheduling Report and for Stay of
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must be decided before the case proceeds any further. See cases cited at Dkt. # 15 at 5-6.
Even applying the standard espoused by Plaintiff, discovery still should not proceed due
to the burden it would place on the Government. As noted in the United States’ motion, the
discovery likely to be sought includes sensitive and classified information, and Plaintiff did not
dispute this. The burden of going through the painstaking process of reviewing such materials in
response to a discovery request is, quite frankly, self-evident. Placing such a burden on the FBI,
which already bears a heavy workload dealing with discovery in numerous legal actions
throughout the country as well as Congressional requests, is the very sort of intrusion into
sovereign immunity that should be avoided until the threshold legal issues are decided.
Plaintiff’s argument that discovery should proceed notwithstanding the pending issue of
sovereign immunity also misses the mark. In particular, Plaintiff’s take on Freeman v. United
States, 556 F.3d 326 (5th Cir. 2009) – to wit, that it involved a situation where a plaintiff sought
discovery after the case had been dismissed for lack of subject matter jurisdiction – is simply
wrong. Pl. Opp. at 7. In Freeman, like here, the plaintiff argued to the district court that he
should be allowed to take discovery while a motion to dismiss asserting sovereign immunity was
pending. The district court rejected the plaintiff’s argument. The Fifth Circuit upheld this
decision, based on the well-founded principle that discovery should not proceed if sovereign
immunity has been asserted because “immunity is intended to shield the defendant from the
burdens of defending the suit, including the burdens of discovery.” Id. at 342. The Fifth Circuit
did recognize, however, that a plaintiff may be able to seek discovery narrowly limited to the
issue of immunity, so long as the plaintiff carries his or her burden of demonstrating the need for
such discovery to prove that the claim is not barred by sovereign immunity. Id. at 342-43.
Plaintiff fails to appreciate this distinction between narrowly limited jurisdictional discovery and
Reply to Opposition to Motion for Relief From Order Requiring Scheduling Report and for Stay of
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full-blown discovery, and makes no attempt in his response to explain what discovery, if any, is
Insofar as Plaintiff argues in his opposition to the United States’ motion to dismiss (Dkt.
function exception, the Court should reject this request for discovery for the reasons set forth in
In sum, 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 be lost if the
United States were subjected to discovery during the pendency of its motion to dismiss, a stay of
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 A. 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 March 1, 2018, I caused to be served upon the following counsel
a true and correct copy of the United States’ Reply to Opposition to 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
Reply to Opposition to Motion for Relief From Order Requiring Scheduling Report and for Stay of
Discovery- 4