AVILA-MIRANDA V. REYNOLDS, ET AL.
Filing
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MEMORANDUM OPINION AND ORDER, as to NESTOR DANIEL AVILA-MIRANDA, signed by JUDGE WILLIAM L. OSTEEN, JR on 3/12/2019. ORDERED that Plaintiff's Motion for Leave to File Second Amended Complaint, (Doc. 13 ), is G RANTED. Within 7 days of the entry of this Memorandum Opinion and Order, Plaintiff shall file and serve the Second Amended Complaint in the form attached to his motion. FURTHER ORDERED that Defendant Gregory Jackson's Motion to Dismiss, (Doc. 9 ), is hereby DENIED WITHOUT PREJUDICE as MOOT. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NESTOR DANIEL AVILA-MIRANDA,
Plaintiff,
v.
ETHAN CALEB REYNOLDS,
GREGORY DWAYNE JACKSON, and
LASALLE CORRECTION TRANSPORT,
LLC,
Defendants.
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1:18CV120
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Defendant Gregory Dwayne Jackson (“Jackson”) has moved to
dismiss, (Doc. 9), Plaintiff’s First Amended Complaint (“First
Am. Compl.”), (Doc. 4), pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Because Jackson
moves to dismiss on jurisdictional grounds, (see Doc. 9), he has
filed an affidavit in support of his motion, (Doc. 9-1).
Defendant Ethan Caleb Reynolds (“Reynolds”) and Defendant
LaSalle Correction Transport, LLC (“LaSalle”) have filed answers
to the First Amended Complaint. (Def. Reynolds (Doc. 3); Def.
LaSalle (Doc. 5).)1
Plaintiff has filed a response in opposition to Jackson’s
motion to dismiss, (Doc. 15), contemporaneously filing a motion
to amend his First Amended Complaint to add more detailed
allegations and to set forth an additional claim for relief
under Bivens. (Doc. 13; see Doc. 15 at 2.) Jackson has replied
in support of his motion to dismiss. (Doc. 16.) And both Jackson
and LaSalle have responded in opposition to Plaintiff’s motion
to amend. (Doc. 17.)
By way of objection to Plaintiff’s motion to amend,
Defendants Jackson and LaSalle argue that the proposed Second
Amended Complaint (“Second Am. Compl.”), (Doc. 13-1), fails to
establish a plausible claim of street racing and that Jackson is
entitled to absolute immunity, derivative sovereign immunity,
public official immunity, and qualified immunity, (e.g., Doc. 17
at 3, 9).
This court finds that Plaintiff’s motion to amend, (Doc.
13), should be allowed. This court does not find the proposed
Because Jackson removed this case from state court, (see
Doc. 1), the early docket entry numbers are out of order.
Defendant Reynolds’s Answer was filed on or around November 29,
2017, (see Doc. 3 at 1), in response to Plaintiff’s First
Amended Complaint, which was filed on or around October 17,
2017, (see Doc. 4 at 1).
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amendments futile or any undue prejudice. The court, therefore,
will deny Jackson’s motion to dismiss, (Doc. 9), as moot.
I.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Plaintiff filed his original complaint in state court
against Reynolds. (See Doc. 2). He then filed the First Amended
Complaint in state court, adding Jackson and LaSalle as
defendants. (See First Am. Compl. (Doc. 4).) Jackson removed the
matter to this court based upon diversity of citizenship under
28 U.S.C. § 1332(a). (Doc. 1 at 2.) Defendant Reynolds and
Defendant LaSalle filed answers to the First Amended Complaint
(Doc. 4). (Docs. 3, 5, respectively; see supra at 2 n.1.)
Jackson moved to dismiss the First Amended Complaint to
Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and
12(b)(6), (Doc. 9), and filed a supporting affidavit, (Affidavit
of Gregory Dwayne Jackson (“Jackson Aff.”) (Doc. 9-1)).
Plaintiff responded, (Pl.’s Resp. to Mot. to Dismiss (“Pl.’s
Resp.”) (Doc. 15)), and filed a supporting affidavit, in which
he verified the allegations contained in the proposed Second
Amended Complaint, (Affidavit of Nestor Daniel Avila-Miranda
(“Miranda Aff.”) (Doc. 15-1) at 1). Contemporaneously, Plaintiff
separately moved to amend the First Amended Complaint. (Doc.
13.)
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Plaintiff alleges in the First Amended Complaint that he
was injured in an automobile accident on August 15, 2016,
involving a prisoner transport van that was owned by LaSalle,
driven by Jackson, and in which Plaintiff was a shackled
passenger. (E.g., First Am. Compl. (Doc. 4) ¶¶ 10, 19.)
Plaintiff alleges that he had been detained by the United
States’ Citizenship and Immigration Services (“USCIS”) and, at
the time of the accident, was in the process of being
transported from North Carolina to Stewart Detention Center in
Georgia. (Id. ¶¶ 9-10.) Plaintiff contends that Jackson and the
driver of another automobile, Reynolds, became involved in a
speed competition. (Id. ¶ 14.)2 An accident between the two
automobiles resulted, and Plaintiff was seriously injured. (Id.
¶¶ 17, 19.) In the First Amended Complaint, Plaintiff asserts
claims of negligence, gross negligence, and punitive damages as
to each of Reynolds, (id. ¶¶ 29-39, 52-57), and Jackson. (Id. ¶¶
40-51, 58-63.) Plaintiff alleges LaSalle is vicariously liable
for the actions of Jackson. (Id. ¶ 12.)
Based on Jackson’s affidavit, (Jackson Aff. (Doc. 9-1)),
and Plaintiff’s verification of the allegations contained in the
proposed Second Amended Complaint, (Miranda Aff. (Doc. 15-1) at
1), it is clear that the parties dispute the pertinent facts of
the accident and who may have been at fault. Those facts and
that factual dispute will be further addressed as necessary
herein.
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Jackson states that, “[a]t all times immediately before,
during, and after the attack and accident, [Jackson] was acting
under the authority, control, and supervision of [the United
States Immigration and Customs Enforcement (“ICE”)] to
transport, secure, and protect the six ICE detainees being
transported in the van.” (Jackson Aff. (Doc. 9-1) ¶ 19.) Jackson
argues that he was “operating as an agent of ICE when the
accident occurred, and he is therefore entitled to immunity from
suit.” (Def. Jackson’s Mem. of Law in Supp. of Mot. to Dismiss
(“Jackson’s Br.”) (Doc. 10) at 6.)
Plaintiff’s proposed Second Amended Complaint contains
additional allegations further describing the encounter between
Jackson and Reynolds and the accident between the vehicles.
(See, e.g., Second Am. Compl. (Doc. 13-1) ¶¶ 20-28.) The
proposed Second Amended Complaint restates the causes of action
from the First Amended Complaint, though the Second Amended
Complaint does not allege punitive damages as freestanding
causes of action, and adds a cause of action pursuant to 42
U.S.C. § 1983. (Id. ¶¶ 84-94.) Jackson and LaSalle filed a
response in opposition to the motion to amend. (Defs.’ Opp’n to
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Pl.’s Mot. to File Second Amended Complaint (“Defs.’ Resp.”
(Doc. 17).)3
Additional facts will be addressed as necessary in the
analysis.
II.
ANALYSIS
Federal Rule of Civil Procedure 15(a)(1) allows a party to
amend its pleading once as a matter of course under certain
circumstances not applicable here. Otherwise, “a party may amend
its pleading only with the opposing party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should
freely give leave when justice so requires[,]” id., denying
leave “only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.” Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citation and internal
quotation marks omitted). Defendants argue that the motion to
amend should be denied on grounds of futility and prejudice.
(Defs.’ Resp. (Doc. 17) at 2.)
With respect to futility, leave to amend “should only be
denied . . . when the proposed amendment is clearly insufficient
or frivolous on its face.” Johnson v. Oroweat Foods Co., 785
Hereinafter, “Defendants” will refer to Jackson and
LaSalle together.
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F.2d 503, 510 (4th Cir. 1986) (citations omitted). “An amendment
would be futile if the amended claim would fail to survive a
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Syngenta Crop Prot.,
Inc. v. E.P.A., 222 F.R.D. 271, 278 (M.D.N.C. 2004) (citation
omitted). A Rule 12(b)(6) motion tests the legal sufficiency of
a complaint. See Neitzke v. Williams, 490 U.S. 319, 326–27
(1989).
A.
Futility
Defendants argue that the proposed Second Amended Complaint
is futile because: (i) it fails to state a plausible claim
against them for a violation of N.C. Gen. Stat. § 20-141.3, (ii)
it fails to state a plausible claim that Jackson was
deliberately indifferent to Plaintiff’s safety, and (iii)
Jackson is entitled to immunity. (See Defs.’ Resp. (Doc. 17) at
3-10.)
1.
Speed Competition, N.C. Gen. Stat. § 20-141.3
This court first observes that Defendants grossly misstate
the Second Amended Complaint in arguing that “[e]very cause of
action . . . is based upon the conclusory allegations that
Defendant Jackson was negligent, reckless, willful and wanton,
or deliberately indifferent because he was engaged in a ‘speed
competition.’” (Defs.’ Resp. (Doc. 17) at 3 (emphasis added).)
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In fact, Plaintiff’s claims are based on substantially more than
merely a speed competition.4 Plaintiff alleges, inter alia, that
Jackson operated a vehicle carelessly and heedlessly in
violation of N.C. Gen. Stat. § 20-140(a), without due caution
and circumspection in violation of N.C. Gen. Stat. § 20-140, by
failing to decrease speed in violation of N.C. Gen. Stat.
§ 20-141, and further that Jackson acted in reckless disregard
of the rights and safety of others. (Second Am. Compl. (Doc.
13-1) ¶¶ 61, 68.) The Second Amended Complaint provides a number
of allegations to support the negligence and gross negligence
claims, regardless of whether Jackson and Reynolds engaged in a
speed competition in violation of N.C. Gen. Stat. § 20-141.3.
For this reason alone, this court finds Defendants’ futility
arguments should be denied.
Defendants’ remaining futility arguments are no more
persuasive. First, the fact that law enforcement never charged
Jackson with a violation of N.C. Gen. Stat. § 20-141.3, (see
Defs.’ Resp. (Doc. 17) at 4-5), is not dispositive. Defendants’
argument that the absence of a criminal charge by law
Although Defendants reference the issue of joint and
several liability as to Jackson and Reynolds, (see, e.g., Defs.’
Resp. (Doc. 17) at 6), Defendants do not argue here the issue of
joint and several liability generally, or in the absence of an
allegation of speed competition, and the court will not address
it.
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enforcement renders Plaintiff’s allegations “not plausible,”
(id. at 5), is unfounded. Defendants offer no authority for such
an argument, and this court is not aware of any necessity that
law enforcement issue a criminal charge as a requirement
precedent to establishing plausible allegations arising from an
automobile accident.5 At this stage of the proceedings, the court
views the fact that law enforcement did not charge Jackson as
irrelevant.
Defendants state that N.C. Gen. Stat. § 20-141.3 provides a
cause of action where two or more vehicles engage in a street
race on a public highway but contend that the proposed
allegations are insufficient to establish such a cause of
action. (Defs.’ Br. (Doc. 17) at 5.) The statute provides:
(a) It shall be unlawful for any person to operate a
motor vehicle on a street or highway willfully in
prearranged speed competition with another motor
vehicle. Any person violating the provisions of this
subsection shall be guilty of a Class 1 misdemeanor.
Defendants argue that “[o]ne of the factors that is
weighed by North Carolina courts in determining civil liability
under the statute is that the defendant either admitted to
racing, pled guilty to a violation of the statute, or was
charged.” (Defs.’ Resp. (Doc. 17) at 4.) The fact that the
Supreme Court of North Carolina recognized a guilty plea as a
factor in the case cited by Defendants, Harrington v. Collins,
298 N.C. 535, 541, 259 S.E.2d 275, 279 (1979), is neither
surprising, nor compelling, nor persuasive to their argument at
this juncture. The Supreme Court was discussing the import of
the guilty plea in determining whether the trial court had
committed error in granting the defendant’s motion for directed
verdict. Id. at 541.
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(b) It shall be unlawful for any person to operate a
motor vehicle on a street or highway willfully in
speed competition with another motor vehicle. Any
person willfully violating the provisions of this
subsection shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat. § 20-141.3. This statute makes unlawful racing a
crime and distinguishes the two criminal violations depending
upon whether the speed competition was prearranged or merely
willful.
Defendants argue persuasively that the speeds and driving
circumstances in the state cases they cite involving speed
competition are different from those specifically alleged in
this case. (See Defs.’ Resp. (Doc. 17) at 5-6.) The Second
Amended Complaint alleges that Jackson and Reynolds were driving
at speeds between 60 and 70 miles per hour at various times on
Interstate 40, (see Second Am. Compl. (Doc. 13-1) ¶¶ 18-19),
which might be inferred to be within the speed limit on an
interstate. However, the Second Amended Complaint also alleges
in several instances that Jackson and Reynolds sped up, (see id.
¶¶ 22-24), and that, at one point, “Jackson again quickly sped
up in the center lane, and once again passed the Reynolds
vehicle, squeezing through traffic . . . .” (Id. ¶ 23.)
This court does not read the allegations in the Second
Amended Complaint to limit the speeds at which the interaction
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between Jackson and Reynolds took place to those in compliance
with state law. This court is not persuaded by Defendants’
arguments with respect to the alleged violation of N.C. Gen.
Stat. § 20-141.3. The court is unable to conclude that Plaintiff
has failed to plausibly state a claim as a matter of law as to
that specific violation. To the contrary, this court finds that
the Second Amended Complaint permits a reasonable inference that
Jackson’s speed may well have been in excess of the posted speed
limit during the interaction with Reynolds. This court liberally
construes “the complaint, including all reasonable inferences
therefrom, . . . in the plaintiff’s favor.” Estate of WilliamsMoore v. All. One Receivables Mgmt., 335 F. Supp. 2d 636, 646
(M.D.N.C. 2004) (citation omitted). This court finds that the
allegations contained in the Second Amended Complaint related to
a speed competition are not futile.
Second, Defendants’ argument that the proposed Second
Amended Complaint is futile as to a deliberate indifference
claim under 42 U.S.C. § 1983 or Bivens is premised upon removing
“the false and unsupported conclusion that Defendant Jackson was
street racing in violation of N.C. Gen. Stat. § 20-141.3,
[leaving] no basis for even a claim of negligence against
[Jackson], let alone a Bivens claim . . . .” (Defs.’ Resp. (Doc.
17) at 8.) This court already found that the allegations as to
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N.C. Gen. Stat. § 20-141.3 were not futile. Therefore, this
court does not find this argument persuasive.
Third, Defendants further argue that the “proposed pleading
alleges that Defendant Jackson took evasive action to avoid an
accident and was traveling within the speed limit . . . .” (Id.
at 8-9.) In support, they point to Jackson’s affidavit. (Id. at
9 (citing Jackson Aff. (Doc. 9-1)).) This argument addresses the
credibility of the allegations in the Second Amended Complaint,
and the court therefore declines to credit Jackson’s affidavit
on this issue. When ruling on a motion to dismiss, this court
accepts the complaint’s factual allegations as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). And in assessing futility,
“[l]eave to amend . . . should only be denied . . . when the
proposed amendment is clearly insufficient or frivolous on its
face.” Oroweat Foods Co., 785 F.2d at 510. The proposed Second
Amended Complaint is not frivolous on its face.
2.
Jackson’s Immunity
Defendants argue at length that the proposed Second Amended
Complaint is futile because Jackson is entitled to applicable
immunity defenses. (Defs.’ Resp. (Doc. 17) at 9.) In support of
this argument, Defendants incorporate Jackson’s arguments
previously made in his memorandum and reply in support of his
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motion to dismiss. (Jackson’s Br. (Doc. 10); Doc. 16.) This
court disagrees, as a matter of law and fact, that Jackson has
sufficiently established that he is entitled to dismissal on the
grounds of immunity to require denying the motion to amend.
Jackson argues, inter alia, that federal employees enjoy
absolute immunity from acts or omissions within the scope of
their employment, citing 28 U.S.C. § 2679(b). (Jackson’s Br.
(Doc. 10) at 6-7.) However, in determining whether Jackson is
such an employee, the relevant statutory starting point is 28
U.S.C. § 2671, which provides:
‘Employee of the government’ includes . . . officers
or employees of any federal agency, members of the
military or naval forces of the United States, members
of the National Guard . . . and persons acting on
behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the
United States, whether with or without compensation.
That statute also provides that the term “‘Federal agency’ . . .
does not include any contractor with the United States.” Id.
Therefore, the question is whether Jackson was acting on behalf
of a federal agency in an official capacity or whether Jackson
was a contractor and therefore excluded from the protection of
28 U.S.C. § 2679(b).
In his memorandum in support of his motion to dismiss, two
of the cases Jackson cites in support of his argument that he is
a federal employee are Lee v. United States, 171 F. Supp. 2d
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566, 574 (M.D.N.C. 2001), and Wallen v. Domm, 700 F.2d 124, 126
(4th Cir. 1983). (See Jackson’s Br. (Doc. 10) at 7.) Both cases
appear to be cited for the unremarkable proposition that an
employer would be liable for torts committed by an employee
during the course of the employer’s business, and employees of
the United States are immune from suit except as provided by
Federal law. The cases, therefore, do not support Jackson’s
argument that he is a federal employee as a matter of law.
In Lee, the United States submitted a certification
pursuant to the Westfall Act that the defendant was acting
within the scope of his office or employment, and one of the
issues was a challenge to that certification. 171 F. Supp. 2d at
572-73. No such certification has been provided in this case.
(See Pl.’s Resp. (Doc. 15) at 3.) In Wallen, the issue addressed
by the Fourth Circuit was whether an assault committed by a
federal employee fell outside the limits of a claim of absolute
immunity. 700 F.2d at 126. Neither Lee nor Wallen supports
Jackson’s argument that he is a federal employee as a matter of
law.
The Fourth Circuit recently addressed the question of
whether an individual is a federal employee for purposes of the
Westfall Act, explaining that:
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The question of whether a defendant is a
government employee or an independent contractor under
the Act . . . is a question of federal law. Wood v.
Standard Prods. Co., 671 F.2d 825, 829 (4th Cir.
1982); see also Logue v. United States, 412 U.S. 521,
528 (1973). The test employed for distinguishing
between a contractor and an employee for FTCA purposes
was developed by the Supreme Court in Logue and United
States v. Orleans, 425 U.S. 807 (1976). Robb v. United
States, 80 F.3d 884, 887 (4th Cir. 1996). Although
there are a number of factors that can be considered,
the critical factor in making the determination is the
authority of the federal government to control the
detailed physical performance of the contractor.
Logue, 412 U.S. at 527-28; see also Orleans, 425 U.S.
at 814. Under these controlling authorities, a
contractor can be said to be an employee or agent of
the United States within the intendment of the Act
only where the Government has the power under the
contract to supervise a contractor’s day-to-day
operations and to control the detailed physical
performance of the contractor. Wood, 671 F.2d at 829.
Notably, it is not necessary that the Government
continually control all aspects of the individual’s
activities, so long as it has the authority to do so
given the nature of the task. Patterson & Wilder
Constr. Co. v. United States, 226 F.3d 1269, 1274
(11th Cir. 2000). Primarily, the distinction turns on
the absence of authority in the principal to control
the physical conduct of the contractor in performance
of the contract with the government. Robb, 80 F.3d at
888 (quoting Logue, 412 U.S. at 527) (emphasis added)
. . . . It is the right to control, rather than the
actual exercise of control, that is significant. ARA
Leisure Servs., Inc. v. N.L.R.B., 782 F.2d 456, 460
(4th Cir. 1986) (emphasis added).
U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC, 899
F.3d 236, 248-49 (4th Cir. 2018) (certain alterations,
citations, footnote, and internal quotation marks omitted).
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Jackson’s affidavit falls short of establishing, at this
point in the proceedings, that he is a federal employee. “A
critical element in distinguishing an agency from a contractor
is the power of the Federal Government ‘to control the detailed
physical performance of the contractor.’” Orleans, 425 U.S. at
814 (quoting Logue, 412 U.S. at 528). In Orleans, the Supreme
Court wrote:
In Logue this Court held that employees of a
county jail that housed federal prisoners pursuant to
a contract with the Federal Bureau of Prisons were not
federal employees or employees of a federal agency;
thus, the United States was not liable for their
torts. Although the contract required the county jail
to comply with Bureau of Prisons’ rules and
regulations prescribing standards of treatment, and
although the United States reserved rights of
inspection to enter the jail to determine its
compliance with the contract, the contract did not
authorize the United States to physically supervise
the jail’s employees. In short it could take action to
compel compliance with federal standards, but it did
not supervise operations.
Orleans, 425 U.S. at 814-15.
Similarly, here, Jackson’s affidavit does not persuade this
court that he is a federal employee, at least sufficiently to
permit this court to find that Plaintiff’s proposed Second
Amended Complaint is futile.
Jackson states that he is employed by and directly
compensated by LaSalle. (Jackson Aff. (Doc. 9-1) ¶ 2.) Moving
past LaSalle as his direct employer, Jackson offers several
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conclusions regarding his supervision by ICE, including that he
was at all times “acting under the authority, control, and
supervision of ICE . . . .” (Id. ¶ 19.) However, he offers very
few facts to support a conclusion that the United States
supervised his operations sufficient to find that he is a
federal employee. Jackson contends that he receives training
regarding detention standards as promulgated by ICE, (id. ¶ 5),
but neglects to explain whether LaSalle or some other entity
provides that training and, more importantly, who might
supervise and enforce those training standards other than his
employer, LaSalle. Jackson also alleges the existence of ICE
forms necessary to authorize transportation of detainees and
their property, (id. ¶¶ 6, 8, 10), but Jackson does not actually
explain or identify any ICE personnel who physically supervised
him during the discharge of his transfer responsibilities. While
he generally states that, “[d]uring the transportation
assignment in question, [he] acted under the supervision and
authority of ICE Agent Michael Kidd,” (id. ¶ 11), he also states
that he was merely provided with Agent Kidd’s telephone numbers
and “instructed and trained to contact him” with any issues,
(id. ¶ 12). Those allegations fall short of establishing that
ICE had sufficient authority to control Jackson’s conduct during
the transport of any detainees.
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Notably, Jackson states that he was “given charge of six
detainees,” (id. ¶ 14), suggesting that he, not ICE, had charge
of the prisoners and therefore the authority “to control the
physical conduct of the contractor in performance of the
contract with the government.” Robb, 80 F.3d at 888. This court
therefore finds that Jackson’s arguments as to immunity do not
establish, as a matter of law, the futility of Plaintiff’s
proposed Second Amended Complaint.
This court notes two additional matters in response to
Defendants’ argument that Jackson is entitled to some form of
governmental immunity. First, the First Amended Complaint
alleges that “LaSalle provided contract transportation services
to the [USCIS] for the transportation of USCIS detainees within
the United States . . . .” (First Am. Compl. (Doc. 4) ¶ 4.) In
its answer, LaSalle admits this allegation. (LaSalle Answer
(Doc. 5) ¶ 4.) Jackson is an employee of LaSalle, (Jackson Aff.
(Doc. 9-1) ¶ 2), apparently is not a party to the contract
between USCIS and LaSalle, and Jackson offers no fact to explain
why he was at all times acting “under the authority, control,
and supervision of ICE,” (id. ¶ 19), as opposed to his employer,
LaSalle. While the facts described above may not be sufficient
to ultimately defeat Jackson’s claim of federal employment,
those facts – a contract between LaSalle and the United States
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and Jackson’s employment by LaSalle – do not suggest the type of
control of Jackson by the United States necessary to establish
his status as a federal employee.
Second, Jackson states in his affidavit that, “[o]n
August 15, 2016, I drove a Lasalle/Irwin County Detention van to
pick up transport [sic] the six detainees from the ICE facility
in Cary, North Carolina.” (Id. ¶ 13.) It is not clear at all
what Jackson is referring to as a “Lasalle/Irwin County
Detention van.” The First Amended Complaint alleges, and LaSalle
admits, that on August 15, 2016, Jackson was driving a van owned
by LaSalle. (First Am. Compl. (Doc. 4) ¶ 10; LaSalle Answer
(Doc. 5) ¶ 10.) Although this is a relatively small matter, the
resolution of which is not necessary to this motion, Jackson’s
allegation obfuscates LaSalle’s control of Jackson’s employment,
and, relatedly, LaSalle’s direct control of the actual method
and manner of transportation of detainees.
B.
Prejudice
Defendants argue prejudice because they “would have to
expend significant time and resources to file new Motions to
Dismiss and supporting briefs to address the new claims based
upon the same lack of conclusory allegations.” (Defs.’ Resp.
(Doc. 17) at 2.) This court finds this argument somewhat
surprising, as only Jackson has filed a motion to dismiss.
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LaSalle has not filed a motion to dismiss, choosing instead to
file an answer. (LaSalle Answer (Doc. 5).) While LaSalle
incorporated by reference any other affirmative defense raised
by any other defendant, (id. at 12), that allegation is
insufficient to raise a Rule 12 defense. (See LR7.3(a) (“All
motions, unless made during a hearing or at trial, shall be in
writing and shall be accompanied by a brief . . . . Each motion
shall be set out in a separate pleading.”).)
Nevertheless, this
court will assume both Jackson and LaSalle anticipate filing
motions to dismiss the Second Amended Complaint if Plaintiff’s
motion is allowed.
This court does not find the proposed Second Amended
Complaint causes any undue prejudice to Jackson or LaSalle.
Nearly every case in which an amendment is permitted will likely
result in additional time and costs for the parties, and “mere
delay in moving to amend is ‘not sufficient reason to deny leave
to amend . . . .’” Island Creek Coal Co. v. Lake Shore, Inc.,
832 F.2d 274, 279 (4th Cir. 1987) (quoting Oroweat Food Co., 785
F.2d at 509-10). Here, the amendment was prompted by Jackson’s
claim of immunity, a claim that might not have been readily
anticipated by Plaintiff in conducting his original
investigation. Plaintiff alleges that Jackson is employed by
LaSalle, a limited liability company providing contract
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transportation services to USCIS. (First Am. Compl. (Doc. 4)
¶ 4; see also LaSalle Answer (Doc. 5) ¶ 4.) Nothing in the
pleadings suggests Plaintiff should have anticipated Jackson
might claim to be a federal employee, and discovery has not
started.
This court finds Defendants’ complaints as to additional
expenses and effort unavailing and that the proposed Second
Amended Complaint does not unfairly prejudice Jackson or
LaSalle.
III. CONCLUSION
For the reasons explained herein, this court does not find
Plaintiff’s proposed Second Amended Complaint either futile or
unfairly prejudicial. Because “[t]he court should freely give
leave [to amend] when justice so requires,” Fed. R. Civ. P.
15(a)(2), this court finds that Plaintiff’s motion to amend,
(Doc. 13), should be granted.
“As a general rule, an amended pleading ordinarily
supersedes the original and renders it of no legal effect.”
Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)
(citations and internal quotation marks omitted). Motions
directed at a superseded pleading are to be denied as moot. See
Colin v. Marconi Commerce Sys. Emps.’ Ret. Plan, 335 F. Supp. 2d
590, 614 (M.D.N.C. 2004) (finding defendants’ earlier motions to
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dismiss and for summary judgment as to one count of the first
amended complaint rendered moot by filing of plaintiff’s second
amended complaint); Turner v. Kight, 192 F. Supp. 2d 391, 397
(D. Md. 2002) (denying as moot motion to dismiss original
complaint on grounds that amended complaint superseded original
complaint). This court will therefore deny without prejudice
Jackson’s motion to dismiss, (Doc. 9), as moot.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave
to File Second Amended Complaint, (Doc. 13), is GRANTED. Within
7 days of the entry of this Memorandum Opinion and Order,
Plaintiff shall file and serve the Second Amended Complaint in
the form attached to his motion.
IT IS FURTHER ORDERED that Defendant Gregory Jackson’s
Motion to Dismiss, (Doc. 9), is hereby DENIED WITHOUT PREJUDICE
as MOOT.
This the 12th day of March, 2019.
____________________________________
United States District Judge
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