LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 71

Consent MOTION to Stay Pretrial Proceedings by Dean Caputo, Dashanta Faucette, Mary Hines, Robert Kendall, Mark Daniel Lyttle, Marilyn Stephenson, The UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order) (Cutler, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
Plaintiff,
)
CONSENT MOTION
)
FOR A STAY OF
v.
)
PRETRIAL PROCEEDINGS
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 6(b)
Defendants.
)
Local Civil Rule 6.1
____________________________________)
CONSENT MOTION FOR A STAY OF PRETRIAL PROCEEDINGS
All parties to this action respectfully request that the Court stay all pretrial proceedings,
including the Rule 26(f) planning meeting and conference report, pending the Court’s resolution
of the Federal Defendants’ motions to dismiss. See Docket Nos. 49-52.
OVERVIEW
Plaintiff, Mark Daniel Lyttle, has sued the United States, Dashanta Faucette, Dean
Caputo, and Robert Kendall (collectively referred to as the “Federal Defendants”), and Mary
Hines and Marilyn Stephenson (the “North Carolina Defendants”) in connection with his
allegedly unlawful detention and removal to Mexico. See First Amended Complaint, Docket No
44. On June 27, 2011, the individual Federal Defendants filed a motion to dismiss that raised,
among other defenses, qualified immunity. Docket Nos. 51-52. On that same date, the United
States filed its own motion to dismiss raising, among other defenses, sovereign immunity.
Docket Nos. 49-50. On October 17, 2011, the Court issued what appears to be a standard order
directing the parties to conduct a Rule 26(f) planning conference by November 18, 2011, and to

submit a planning report within 14 days of that meeting. Docket No. 69. However, in light of
the pending motions to dismiss, the parties respectfully request that the Court stay all pretrial
proceedings until it has resolved the Federal Defendants’ motions to dismiss. 1
DISCUSSION
In this case, the individual Federal Defendants have raised qualified immunity in a
motion to dismiss. See Docket Nos. 51-52. When an official raises qualified immunity, pretrial
proceedings should not go forward until that question is resolved. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1953 (2009) (The “basic thrust” of qualified immunity is “to free officials from the
concerns of litigation”); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff’s
allegations state a claim of violation of clearly established law, a defendant pleading qualified
immunity is entitled to a dismissal before the commencement of discovery.”) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Here, all the parties have consented to a stay of pretrial
proceedings pending the Court’s resolution of the Federal Defendants’ motions to dismiss.
CONCLUSION
For the foregoing reasons, the parties respectfully request a stay of all pretrial
proceedings until the Court has resolved the Federal Defendants’ motions to dismiss.

1

The North Carolina Defendants expect to file within the next few weeks a motion for
judgment on the pleadings raising, among other defenses, qualified immunity. At that time, the
parties may then request a similar stay, as the present motion requests a stay of all pretrial
proceedings only until the Court has decided the motions filed by the Federal Defendants.
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Respectfully submitted,
TONY WEST
Assistant Attorney General, Civil Division

/s/ Joseph Finarelli
Joseph Finarelli
Assistant Attorney General
North Carolina State Bar Number: 26712
North Carolina Department of Justice
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

C. SALVATORE D’ALESSIO
Acting Director, Torts Branch
JAMES R. WHITMAN
Trial Attorney, Torts Branch

Attorney for Mary Hines and Marilyn
Stephenson

/s/ David G. Cutler
DAVID G. CUTLER
Trial Attorney
United States Department of Justice
Civil Division, Torts Branch
P.O. Box 7146
Washington, D.C. 20044 7146
Tel: [phone]
Fax: [phone]
Email: [e-mail]
IL Bar No. 6303130

/s/ Michael E. Johnson
Michael E. Johnson
Georgia Bar No. 395039
[e-mail]
Brian P. Watt
Georgia Bar No. 741841
[e-mail]
Alexandria J. Reyes
Georgia Bar No. 428936
[e-mail]
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216

THOMAS G. WALKER
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney, Civil
Division
310 New Bern Avenue, Suite 800 Federal
Building
Raleigh, NC 27601-1461
Tel:
(9l9) 856-4530
Fax:
[phone]
E-mail:
[e-mail]
N.C. Bar No. 33826

Attorneys for Plaintiff Mark Daniel Lyttle

Attorneys for the United States, Dashanta
Faucette, Dean Caputo, and Robert Kendall

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CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of October, 2011, I electronically filed the foregoing
“Consent Motion For a Stay of Pretrial Proceedings” with the Clerk of Court using the Court’s
CM/ECF system, which will send notification of such filing to all parties of record.

/s/ David G. Cutler
DAVID G. CUTLER
Trial Attorney
United States Department of Justice
Civil Division, Torts Branch
P.O. Box 7146
Washington, D.C. 20044 7146
Tel: [phone]
Fax: [phone]
Email: [e-mail]
IL Bar No. 6303130

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