Tobey v. Napolitano et al

Filing 65

MOTION to Dismiss Second Amended Complaint by Jane Doe, Terri Jones, Janet Napolitano, John S. Pistole, Rebecca Smith. (Meier, Robin)

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

FEDERAL DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT
Pursuant to Rule 12(b)(1), the federal defendants move to dismiss plaintiff’s Second
Amended Complaint for lack of subject matter jurisdiction over the official capacity claims for
relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). Pursuant to Federal Rule of Civil Procedure 12(b)(6), the federal defendants move
to dismiss the remainder of the official capacity and individual capacity claims on the grounds
that the Second Amended Complaint fails to state a claim on which relief can be granted.
WHEREFORE, for the reasons stated herein and in the accompanying memorandum, the
federal defendants respectfully request the Court to grant the Federal Defendants’ Motion to
Dismiss Plaintiff’s Second Amended Complaint.

Dated this 21st day of October, 2011
Respectfully submitted,
NEIL H. MACBRIDE
UNITED STATES ATTORNEY
By:

/s/
Robin P. Meier
Virginia State Bar No. 65825
Assistant United States Attorney
United States Attorney’s Office
600 East Main Street, Suite 1800
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

TONY WEST
Assistant Attorney General
SANDRA M. SCHRAIBMAN
Assistant Branch Director
CARLOTTA P. WELLS
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
[phone] (telephone)
Attorneys for Federal Defendants

-2-

CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of October, 2011, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, which will send a notification of such filing
(NEF) to the following:
Alan C Veronick
Anand Agneshwar

[e-mail]
[e-mail]

Belinda Duke Jones

[e-mail]

Henry Irving Willett , III
[e-mail]

[e-mail], [e-mail],

James Jeffrey Knicely [e-mail], [e-mail],
[e-mail], [e-mail]
Paul Wilbur Jacobs , II

[e-mail]

By:

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/s/
Robin P. Meier
Virginia State Bar #65825
Attorney for Defendant
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
[phone] (phone)
[phone] (fax)
[e-mail]