Tobey v. Napolitano et al

Filing 59

Memorandum in Support re 58 MOTION for Leave to File Document Second Amended Complaint filed by Aaron Tobey. (Attachments: # 1 Exhibit "A" - Proposed Second Amended Complaint). (Knicely, James). Corrected docket entry on 10/13/2011. (walk, ).

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

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Civil Action No. 3:11cv154-HEH

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION
FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
Plaintiff Aaron Tobey respectfully submits this memorandum of law in support of
his motion, pursuant to the Court’s August 10, 2011 Order for Extension of Time to
Move for Joinder of Additional Party Defendants (the “Order”), and Rule 15(a) of the
Federal Rules of Civil Procedure, for leave to file his Second Amended Complaint, a
copy of which is attached hereto as Exhibit A.1 Plaintiff’s Second Amended Complaint
names the TSA supervisor (hereinafter referred to as “Jane Doe”), whose identity and
involvement was first disclosed to Plaintiff during the September 26, 2011 depositions of
Defendants Anthony Mason and Calvin Vann.2
On August 10, 2011, the Court entered the Order, pursuant to which Plaintiff is
permitted to:
1

This motion has been limited to identifying an additional party defendant. Plaintiff reserves the right to
seek leave to amend to conform the complaint and its allegations with evidence developed during
discovery.
2

During his deposition, Defendant Mason identified the TSA supervisor by her first name. Defendant
Vann also confirmed Defendant Mason’s testimony as to the identification of the TSA Supervisor as the
screening manager for the checkpoint. On October 4, 2011, Plaintiff’s counsel contacted counsel for the
Federal Defendants in an effort to obtain the full name of the TSA supervisor. At the time of the filing of
this motion, the Federal Defendant's counsel has not yet disclosed the full name of the TSA supervisor.
Accordingly, Plaintiff has referred to the TSA supervisor in the Second Amended Complaint under the
pseudonym “Jane Doe.”

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move [the] Court for joinder of additional party defendants in accordance with
F.R.C.P 15(a) up to ten (10) days after his counsel learns the identity of any
persons not previously identified by the defendants who may be properly named
as a defendant(s), but not later than twenty (20) days prior to the discovery cutoff.
It is further ORDERED that any motion to join additional parties made after the
ten (10) day limit or later than twenty (20) days prior to the discovery cutoff will
be entertained by the Court only upon a showing of good cause..
See Dkt. 47. As noted below, Plaintiff meets the requirements set forth in the Order and
Rule 15(a) for adding Jane Doe as a defendant in this action. See, e.g., Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (noting that leave to amend shall
be freely given when justice so requires and should be denied only when the amendment
is offered in bad faith, is prejudicial or would be futile) (citing Forman v. Davis, 371 U.S.
178 (1962)).
Plaintiff has sought leave to add Jane Doe as a party defendant within the time
contemplated by the Order, i.e., up to ten days after Plaintiff’s counsel first learned of her
identity and not later than twenty days prior to the discovery cutoff. Indeed, it was only
during the deposition of Defendants Mason and Vann on September 26, 2011, less than
ten days ago, that Plaintiff first learned of the identity and involvement of Jane Doe in the
events of December 30, 2011. Further, discovery does not close in this action until
November 25, more than six weeks from now.
Moreover, it is clear from the testimony of Defendants Mason and Vann and
videos provided by the defendants that Jane Doe was involved in the December 30, 2010
incident at the Richmond International Airport giving rise to Plaintiff’s claims. In
particular, Ms. Doe, a TSA supervisor who was the manager of the checkpoint and was
on duty at the time of the December 30, 2010 incident, was the TSA agent who
approached Defendants Mason and Vann to inform them of the incident involving
Plaintiff and request that they take action against him. Video images supplied by the
2

defendants, and confirmed during Defendant Mason’s deposition, reveals that Ms. Doe
followed the police officers into the screening checkpoint area and took it upon herself to
search Plaintiff’s belongings at the security checkpoint prior to the search by the police,
removing an unidentified item from those belongings.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant
Plaintiff's motion for leave to file his Second Amended Complaint
Dated this 5th of October, 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]

By:

/s/ Alan C. Veronick__________________
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]
Of Counsel
John W. Whitehead (VSB #20361)
Douglas R. McKusick (VSB #72201)
The Rutherford Institute
1440 Sachem Place
Charlottesville, Virginia 22906
Of Counsel
Participating Attorneys for

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THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY
CERTIFICATE OF SERVICE
I hereby certify that on October 5, 2011, the foregoing Plaintiff’s Memorandum of
Law in Support of his Motion for Leave to File a Second Amended Complaint 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]

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Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

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