Tobey v. Napolitano et al

Filing 43

MOTION for Extension of Time To Move for Joinder of Additional Party Defendants by Aaron Tobey. (Knicely, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,
Plaintiff,
V.
JANET NAPOLITANO, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Civil Action No. 3:11cv154-HEH

PLAINTIFF’S MOTION TO EXTEND TIME TO
MOVE FOR JOINDER OF ADDITIONAL PARTY DEFENDANTS
COMES NOW Plaintiff Aaron Tobey, by counsel, and herewith respectfully
requests, pursuant to Local Rule 7(I), that the Court grant an extension of the time set
forth in the Scheduling Order entered on July 5, 2011, in which to join additional party
Defendants, and for his reasons states as follows:
The Scheduling Order entered by the Court on July 5, 2011 (docket #37) requires
Plaintiff to move for joinder of additional parties within twenty-one (21) days of the entry
of the Order, or by July 26, 2011. Although Defendants have disclosed the names of
certain additional “John Doe” and “John Smith” defendants, the disclosure of the facts
and the scope and extent of the involvement of the individual defendants has been
extremely limited, particularly in the case of the Federal defendants, and the twenty-one
(21) day cut-off for joinder of additional party Defendants does not provide Plaintiff with
an adequate opportunity to obtain the necessary information to determine constitutional
liability of all persons for the injuries inflicted on Plaintiff.
Because of the fact-bound nature of this action, Plaintiff’s counsel is concerned

1

that while discovery (which has yet to commence) may very well yield additional
information justifying the addition of unknown defendant(s), Plaintiff would not have the
opportunity to add such parties to the action since the current Scheduling Order does not
allow any time for such discovery and/or joinder.
Plaintiff therefore requests amendment of the Scheduling Order either (1) to
include “joinder of additional parties on or before twenty (20) days prior to the discovery
cutoff” so that motions for joinder of additional parties, if any, would be required to be
filed on or before twenty (20) days prior to discovery cutoff, or (2) in the alternative, to
set a trial date further out as to allow a longer period of time for joinder prior to the
discovery cutoff, so that additional defendants may be added with adequate time and fair
opportunity to defend.
It is respectfully submitted that the requested extension would allow Plaintiff a
reasonable, fair and just opportunity to conduct discovery relating to the identity of
potential additional defendants and to join additional parties in the event that discovery
identifies the involvement of additional parties in the sequence of events culminating in
the violation of his rights. Further, such an extension is justified by the fact-specific
nature of the claims made in this litigation, the important constitutional interests alleged,
and the due process principles inherent in the provisions of Fed.R. Civ. P. Rule 15
permitting liberal amendment or supplementation of pleadings when justice so requires.
Plaintiff further avers that this proposed amendment to the Scheduling Order
allows sufficient and appropriate time for Defendants to make necessary preparations to
their case because Plaintiff will be compelled to raise any necessary motions for joinder
of necessary parties at least seventy-five (75) days prior to trial.

2

WHEREFORE, for the reasons stated herein, Plaintiff respectfully requests that
the Court extend the time in which Plaintiff may move for the joinder of additional party
Defendants, if any.
Dated this 22nd of July, 2011
Respectfully submitted,
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
Robert Luther III (VSB #78766)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
[e-mail]
Anand Agneshwar (admitted pro hac vice)
Alan C. Veronick (admitted pro hac vice)
ARNOLD & PORTER, LLP
399 Park Avenue
New York, New York 10022-4690
[phone] (phone)
(212) 212-715.1399 (fax)
[e-mail]
John W. Whitehead (VSB #20361)
Douglas R. McKusick (VSB #72201)
The Rutherford Institute
1440 Sachem Place
Charlottesville, Virginia 22906
Of Counsel
Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

3

CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2011, the foregoing Plaintiff’s Motion to Extend
Time for Joinder of Additional Party Defendants was electronically filed with the Clerk
of Court using the CM/ECF system, which will send notification of such filing to:
Carlotta P. Wells, Esquire
U.S. Department of Justice – Civil Division
20 Massachusetts Avenue NW – Rm. 7152
Washington, D.C. 20530
[e-mail]
Debra J. Prillaman, Esquire
Robin Perrin Meier, Esquire
Office of the United States Attorney for the Eastern District of Virginia
600 East Main St., Suite 1800
Richmond, Virginia 23219-2447
[e-mail]
[e-mail]
Paul W. Jacobs, II, Esquire
Henry I. Willett, Esquire
Belinda D. Jones, Esquire
CHRISTIAN & BARTON, LLP
909 East Main St., Suite 1200
Richmond, Virginia 23219-3095
[e-mail]
[e-mail]
[e-mail]
Respectfully Submitted,
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
[e-mail]
Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

4