Tobey v. Napolitano et al

Filing 75

MOTION for Leave to File Second Amended Complaint Under Seal 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.

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Civil Action No. 3:11cv154-HEH

PLAINTIFF’S RESPONSE CLARIFYING POSITION ON DEFENDANTS’
MOTION FOR STAY OF PROCEEDINGS PENDING APPEAL
and
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
UNDER SEAL
Plaintiff Aaron Tobey hereby files this response clarifying his position on the
motion for stay of proceedings pending appeal filed by Defendants Rebecca Smith and
Terri Jones (collectively the “TSOs”) and further requests leave to file under seal his
Second Amended Complaint containing the actual name of Defendant Jane Doe. 1
Position on Motion to Stay
While Plaintiff believes that federal government’s appeal and unwillingness to
participate in discovery renders a stay necessary, we respectfully request the Court to
decide Defendant Jane Doe’s pending motion to dismiss the Second Amended
Complaint. That decision can then be incorporated into the appellate proceedings in the
interests of judicial economy and to “materially advance the ultimate termination of the
litigation. . . .” Cf. 28 U.S.C. § 1292(b). Plaintiff has also been preparing a motion for
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Plaintiff was provided with Jane Doe’s full name immediately after he had filed his response to
Defendant Jane Doe’s motion to dismiss this suit on Friday, November 4, 2011.

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reconsideration of this Court’s August 30, 2011 Order based on discovery received to
date, including leave to amend the complaint to reflect the additional facts obtained
during discovery. If we file the motion before the Court rules on the stay motion, we
leave to the Court’s discretion whether to rule on it then or when and if the case is
remanded. 2
Motion For Leave to File Second Amended Complaint Under Seal
In its October 2, 2011, Order granting Plaintiff leave to file the Second Amended
Complaint, the Court directed Plaintiff “within ten (10) days of learning Jane Doe’s full
name, to notify the Court and seek further leave to amend his complaint accordingly.”
Plaintiff hereby advises the Court that his counsel received the full name of Defendant
Jane Doe on November 4, 2011, and hereby requests leave to file under seal a
supplemental Second Amended Complaint in the form previously filed, but containing in
lieu of pseudonyms for Defendants Rebecca Smith, Terri Jones and Jane Doe, the actual
names of said Defendants.
Dated this 8th of November, 2011.
Respectfully submitted,
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)

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For the Court’s information, the status of discovery at the time of the filing of the interlocutory
appeal was as follows: (i) Plaintiff and the Commission Defendants were scheduling depositions of four
additional Commission witnesses, including one Defendant, (ii) none of the three Federal Defendants had
been made available for depositions, despite repeated requests, (iii) two outstanding document subpoenas
of this Court served on the University of Cincinnati Police Department and the U. S. Department of
Homeland Security for response on November 4, 2011, were pending (and have as of this filing gone
unanswered), and (iii) Plaintiff was in the process of serving a University of Cincinnati police lieutenant
and a former airport police dispatcher with deposition subpoenas. Given the prejudice to Plaintiff from
incomplete discovery, it is respectfully submitted that further proceedings beyond those mentioned above,
and a motion to show cause and/or to compel production of the subpoenaed documents, would be
inappropriate.

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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]
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
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

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CERTIFICATE OF SERVICE
I hereby certify that on November 8, 2011, the foregoing Plaintiff’s Response
Clarifying Position On Defendants’ Motion For Stay Of Proceedings Pending Appeal and
Motion For Leave To File Second Amended Complaint Under Seal 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]
Attorneys for Plaintiff, AARON TOBEY

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