Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 1 of 9 PageID 227

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

BRUCE JOINER, )
)
Plaintiff, )
)
v. )
) Case No. 3:17-cv-02692
UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANT UNITED STATES OF AMERICA’S

MOTION FOR RELIEF FROM ORDER REQUIRING A SCHEDULING
CONFERENCE AND REPORT AND FOR A STAY OF DISCOVERY

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
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 2 of 9 PageID 228

Soofi, whom Plaintiff describes as “two members of the international terrorist organization

ISIS,” attempted to carry out a mass-shooting at the event.1

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

emotional distress under Texas law.

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.
United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 2
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 3 of 9 PageID 229

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

purchased in 2010 was used to shoot Plaintiff in 2015, id. at 18.

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

while the United States’ motion to dismiss is pending.

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

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 3
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 4 of 9 PageID 230

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

decided). Moreover, as a practical matter, it is especially difficult (and unnecessary) at this

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

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 4
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 5 of 9 PageID 231

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

scheduling order while motion to dismiss was pending).

II. Discovery Should Be Stayed While the Motion to Dismiss Is Pending

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

of subject matter jurisdiction is decided).

Staying discovery in this action while the motion to dismiss is pending is more than

simply appropriate – it is necessary to preserve the United States’ sovereign immunity. As

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 5
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 6 of 9 PageID 232

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

related to intrusive discovery—not just from potential monetary liability.”).

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.

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 6
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 7 of 9 PageID 233

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

maintains confidentiality of identities of FBI undercover employee, FBI cooperating witness,

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.).

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 7
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 8 of 9 PageID 234

and this Court, would best be avoided given the pendency of the motion to dismiss which could

render such efforts ultimately unnecessary.

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

dismiss, a stay of discovery should be granted until the motion is decided.

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.

Dated: January 30, 2018 Respectfully submitted,

CHAD READLER
Acting Assistant Attorney General

JAMES G. TOUHEY, JR.

Director, Torts Branch
Civil Division

RUPERT M. MITSCH
Assistant Director, Torts Branch
Civil Division

United States’ Motion for Relief From Order Requiring Scheduling Report and for Stay of Discovery- 8
 Case 3:17-cv-02692-S Document 14 Filed 01/30/18 Page 9 of 9 PageID 235

/s/ Phil MacWilliams

PHILIP D. MACWILLIAMS
Trial Attorney
E-mail: phil.macwilliams@usdoj.gov
U.S. Department of Justice
Civil Division, Torts Branch
1331 Pennsylvania Ave., NW
Room 8080N
Washington, DC 20004
Telephone: (202) 616-4285
Facsimile: (202) 616-5200

Attorneys for the United States of America

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