Opinion
No. 99-3496; Section "A" (2)
August 12, 2002
ORDER AND REASONS
Before the Court is the Federal Defendants' Motion to Dismiss Plaintiffs' First Amended Supplemental Complaint (Rec. Doc. 63) filed by the United States of America, Thomas A. Constantine, Robert E. Rubin and fictitious defendants "James West," "Harry Smith," "Thomas Smith," and "Richard Smith" (collectively "the federal defendants"). Plaintiffs oppose the motion. The motion, set for hearing on June 19, 2002, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
This suit arises out of an incident whereupon at least five law enforcement officers, as part of a "drug sting" operation, entered and searched Plaintiffs' Chalmette, Louisiana home pursuant to a search warrant. Plaintiffs were detained for approximately two hours while the home was searched. No drugs or evidence of any illegal activity was found in either the initial search or in a second search conducted with the use of drug dogs.
Plaintiffs filed their original complaint in November 1999 (Rec. Doc. 1). In their original complaint, Plaintiffs sought damages and other relief based on alleged violations of the U.S. Constitution and Louisiana state law. Claims were brought against the federal, state, and local law enforcement officers involved in the matter and their respective agencies and governmental entities including the United States.
The various state and local defendants are not enumerated here as the motion sub judice is filed only on behalf of the federal defendants. At various times up to twenty six defendants have been named in this suit, many having been dismissed due to Plaintiffs' failure to either serve them or to oppose various motions to dismiss.
"Harry Smith" was sued in his individual and official capacities as an agent of the Drug Enforcement Administration ("DEA") and Thomas Constantine was sued individually and officially as DEA's administrator. "James West" was sued in his individual and official capacities as an agent of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and Robert Rubin was sued individually and officially as Secretary of the Department of the Treasury of the United States. The United States of America was a named defendant as employer of defendants "Smith," Constantine, "West," and Rubin.
Fictitious names are indicated by inclusion in quotation marks,e.g., "Harry Smith" and "James West."
On December 6, 2000, all state law claims against defendants Constantine and Rubin were dismissed, and the United States was substituted as defendant on those claims, pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679. (Rec. Doc. 31). However, this ruling left in tact all official capacity and personal capacity federal civil rights claims pending against Constantine and Rubin.
For reasons unknown, the docket sheet was never updated to reflect that the United States had been substituted as the proper party in interest. Rather, the docket sheet reflects that the United States has been in "terminated" status since October 2, 2000, when it was dismissed due to Plaintiffs' failure to serve.
By separate motion filed on December 6, 2000, (Rec. Doc. 30), Constantine, Rubin, "Harry Smith," and "James West" then moved to dismiss Plaintiffs' claims asserting United States sovereign immunity vis-a-vis the official capacity claims and failure to serve as well as lack of personal jurisdiction vis-a-vis the personal capacity claims. Additionally, Constantine and Rubin argued that Plaintiffs had failed to exhaust their administrative remedies pursuant to 28 U.S.C. § 2675 (a) thereby depriving the Court of subject matter jurisdiction over any claims brought pursuant to the Federal Tort Claims Act. Finally, Defendants argued that the claims against fictitious defendants "Harry Smith" and "James West" should be dismissed with prejudice because the applicable statute of limitations would preclude Plaintiffs from amending their complaint to reurge their claims against these two defendants. Plaintiffs did not oppose the motion.
On April 26, 2001, the Court granted the unopposed motion and dismissed with prejudice all pending claims against DEA, ATF, Constantine, Rubin, "Harry Smith," and "James West." (Rec. Doc. 36). In granting the motion to dismiss as to these four defendants, the Court succinctly stated:
In that same ruling, the Court granted a separate motion moving for dismissal of all claims against DEA and ATF. The Court granted that unopposed motion in light of the agencies' argument that they were not amenable to suit in their own names, and that Plaintiffs had failed to seek administrative recourse for the alleged injuries caused by DEA and ATF before filing suit. Michalik v. Hermann, 2001 WL 434489, at *1-2 (E.D. La. Apr. 26, 2001) (Porteous, J.). No ruling was made as to:the United States which remained in "terminated" status although by the Government's own motion it had been substituted as the party in interest on the state law tort claims.
It is the finding of the Court that the arguments asserted on behalf of the defendants are meritorious. The Court hereby adopts the arguments asserted in this matter by the defendants as the opinion of the Court and finds that a dismissal of all claims against these defendants is warranted under the circumstances.
Given that the Court merely recited Defendants' proferred arguments before making the aforementioned succinct statement, Defendants characterization of the ruling as specific holdings of the Court is not completely accurate. See Defendants' Memorandum in Support at 6 n. 6.
Although the only arguments before the Court that could have resulted in a dismissal with prejudice were the statute of limitations arguments proffered by "Harry Smith" and "James West," the Court nevertheless dismissed all claims against all of the federal defendants with prejudice. Id. Plaintiffs made no attempt to move for reconsideration or clarification of that ruling.
A dismissal for failure to properly serve for lack of personal jurisdiction is not an adjudication on the merits and therefore does not typically result in a dismissal with prejudice. The same would typically apply to a plaintiff's failure to exhaust administrative remedies. See note 13, infra.
Rather, nearly seven months later, on November 20, 2001, Plaintiffs filed their First Amended and Supplemental Complaint (Rec. Doc. 44). With respect to the federal defendants, the Amended Complaint alleged that Plaintiffs had now exhausted their administrative remedies vis-a-vis ATF and DEA as those agencies had administratively denied Plaintiffs' claims on May 23, 2001, and July 3, 2001, respectively. Id. at ¶ 55. Thus, Plaintiffs sought to add a claim against the United States for the actions of ATF and DEA pursuant to the Federal Tort Claims Act 28 U.S.C. § 2671, et seq. The Amended Complaint also referenced two new fictitious federal agents, "Thomas Smith" and "Richard Smith."Id. at ¶ 69. "Thomas Smith" was alleged to be an investigator with DEA and "Richard Smith" was alleged to be acting in a supervisory role over agents "Harry Smith" and "Thomas Smith" of DEA. Finally, Plaintiffs again named "James West" and "Harry Smith" in the Amended Complaint. Shortly, after the Amended Complaint was filed, the Court continued the trial at Plaintiffs' request. (Rec. Doc. 46). Although the Amended Complaint contained no allegations regarding Constantine and Rubin, they were inexplicably named in the caption of the Amended Complaint. From what the Court can glean from the lengthy Amended Complaint, Plaintiffs have not attempted to reurge any claims against ATF and DEA directly. On February 19, 2002, the case was reassigned to this section of the Court.
The FTCA is one instance in which Congress has waived the United States' sovereign immunity from suit. Pursuant to the FTCA, the United States is liable for damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." Houston v. U.S. Postal Serv., 823 F.2d 896, 898 (5th Cir. 1987) (citing 28 U.S.C. § 2675 (a)). The FTCA applies state law to determine the government's liability for torts within the FTCA waiver of immunity. Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999) (citing 28 U.S.C. § 1346 (b), 2674).
Similarly, Plaintiffs realleged claims against the City of New Orleans and former Chief Pennington even though they were also dismissed with prejudice, for failure to serve, in the April 2001, order.
The continuance was granted at what was scheduled to be the final ore-trial conference. Rec. Doc. 42. The Court granted the continuance in order to allow Plaintiffs to amend their complaint following the administrative denials by ATF and DEA. However, the prior district judge also threatened to dismiss the entire lawsuit if Plaintiffs failed to amend as a sanction for their failure to comply with the Court's scheduling order. Id.
II. The Federal Defendants' Motion to Dismiss
The federal defendants now move to dismiss the claims asserted against them in the Amended Complaint as follows:
A. Claims Against the United States
The United States argues that Plaintiffs' claims must be dismissed pursuant to Rule 12(b)(1) (lack of subject matter jurisdiction) on grounds of sovereign immunity. The United States, as sovereign, is immune from suit except in those circumstances where it consents to be sued, and absent a waiver of sovereign immunity the district court should dismiss the claims for lack of subject matter jurisdiction. Further, although the Federal Tort Claims Act ("FTCA") contains a waiver of sovereign immunity, a plaintiff cannot avail himself of that immunity without first exhausting administrative remedies pursuant to 28 U.S.C. § 2675 (a) of the FTCA. Although Plaintiffs have now clearly exhausted their administrative remedies' with ATF and DEA, they did not do so prior to filing this lawsuit. Plaintiffs cannot cure this jurisdictional defect by amending their original complaint but rather were required to file an entirely new lawsuit. However, the FTCA would require that any new lawsuit be filed no later than 6 months after the administrative claims were denied — now an impossibility given that the claims were administratively denied well over 6 months ago. Given that the 6 month window for filing suit has now expired, Plaintiffs' claims against the United States should now be dismissed with prejudice.
In opposition, Plaintiffs argue that they made no attempt to pursue FTCA claims prior to exhaustion of administrative remedies because no FTCA claims were alleged in their Original Complaint. Rather, all claims in the Original Complaint were civil rights claims.
In reply, the United States asserts that Plaintiffs err in asserting that the Original Complaint was limited to civil rights claims and contained no tort claim allegations. The United States points out that the Original Complaint asserted claims for false arrest, trespass, assault and battery, etc., all state law tort claims. Because the FTCA is merely the procedural device pursuant to which a plaintiff asserts a state law tort claim against the United States, his invocation of those tort claims against the United States was in effect a FTCA claim. That Plaintiffs failed to expressly characterize them as such is legally insignificant.
Discussion: Claims Against the United States
The FTCA provides in pertinent part:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401 (b).
Notwithstanding the disjunctive phraseology, a claimant must file his administrative claim within two years of accrual and file suit within six months of its denial. Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (citing Houston v. United States Postal Serv., 823 F.2d 896 (5th Cir. 1987)).
The FTCA also declares that "an action shall not be instituted" unless plaintiff has filed an administrative claim and either obtained a written denial or waited six months. Price v. United States, 69 F.3d 46, 54 (5th Cir. 1993) (emphasis added) (quoting 28 U.S.C. § 2675 (a)). In McNeil v. Unites States, 508 U.S. 106, 112, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993), the Supreme Court held that failure to completely exhaust administrative remedies prior to filing an FTCA claim is a jurisdictional defect that cannot be cured by administrative exhaustion after suit is filed. Even where no substantial progress has taken place in the litigation before the administrative remedies are exhausted, plaintiff must refile his lawsuit. Id. In McNeil the Court reached that conclusion notwithstanding that plaintiff was a prisoner proceeding pro se and that the dismissal of his complaint left him with no recourse against the United States given that his six month window of opportunity to file a new FTCA has already elapsed. See Id.
McNeil did not specifically address whether plaintiff could supplement an existing complaint that had not previously asserted an FTCA claim but the Court assumes that such an amendment would not be contrary to McNeil. That issue is of no moment to this case, however, as the Court concludes that Plaintiffs' Original Complaint did allege FTCA claims.
Subsequent to McNeil the Fifth Circuit has reaffirmed that exhaustion of administrative remedies is jurisdictional where the United States is a defendant, and the requirement cannot be waived. Price, 69 F.3d at 54 (citing Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981)). In short, a prematurely filed FTCA claim "cannot become timely by the passage of time after the complaint is filed," Id. (citing McNeil, 508 U.S. at 106, 113 S.Ct. at 1983), and a court has no authority to equitably expand its jurisdiction beyond the limits established by Congress. Ramming, 281 F.3d at 165 (citing Houston, 823 F.2d at 898, 902). Although the result is a harsh one, it is in keeping with the well-established principle that waivers of immunity on behalf of the United States are given a very narrow construction.
Turning now to the instant case, the Court must first determine whether Plaintiffs have preserved their FTCA claims against the United States. As the foregoing explanation of the law demonstrates, Plaintiffs cannot continue to pursue their FTCA claims in this jurisdiction if those claims were asserted in the Original Complaint, filed November 17, 1999, prior to complete exhaustion of administrative remedies on May 23 and July 3, 2001. If the FTCA claims were asserted in the Original Complaint, Plaintiffs' only recourse would be to refile that claim which of course would be untimely at this juncture and subject to immediate dismissal. Thus, the Court must determine whether the FTCA claims were part of the Original Complaint.
An examination of the Original Complaint leaves the Court with no conclusion except that Plaintiffs were attempting to assert state law tort claims against the United States from the inception of the lawsuit. As an initial matter, Plaintiffs' assertion that the Original Complaint asserted only civil rights claims is absolutely refuted by the express allegations in the complaint. Paragraphs 50 and 51 of the complaint specifically invoke Louisiana Civil Code article 2315 and allege state law tort claims of trespass, conversion, property damage, and mental distress among a litany of other tort claims. The complaint also alleges subject matter jurisdiction under 28 U.S.C. § 1367 which gives the Court supplemental jurisdiction over the related state law claims — it does not apply to the federal civil rights claims because the Court has original jurisdiction over those claims. Thus, Plaintiffs' attempt to characterize their complaint as limited solely to civil rights claims is utterly unpersuasive.
Moreover, the Original Complaint asserts those state law claims directly against the United States as defendant. Plaintiffs expressly named the United States as a defendant in the Original Complaint and listed it as a party in the caption. Rec. Doc. 1 at ¶ 20. The tort allegations in paragraphs 50 and 51 were made as to all the defendants of which the United States was one. Further, a civil rights claim cannot be asserted against the United States, thus the only claims contained in the Original Complaint that were cognizable against the United States were the tort claims. Thus, Plaintiffs having named the United States as defendant in the Original Complaint belies their assertion that the Original Complaint did not assert tort claims against the United States.
Further, that the Plaintiffs did not expressly mention the FTCA claims is without legal significance given that the-sole purpose of the FTCA is to permit a plaintiff to do exactly what Plaintiffs did here: bring a state law tort action against the United States. See Johnston v. United States, 85 F.3d 217, 219 (5th Cir. 1996)).
Accordingly, Plaintiffs' FTCA must be dismissed pursuant to the Supreme Court's express mandate in McNeil. Furthermore, the dismissal is to be with prejudice given that the six month window for filing suit under the FTCA, following administrative denial of the claims, has now elapsed.
B. Claims Against Newly-Added Fictitious Defendants "Thomas Smith" and "Richard Smith"
The Government moves for dismissal of fictitious defendants "Thomas Smith" and "Richard Smith." It argues that the claims asserted against them in their official capacities must be dismissed on grounds of sovereign immunity. It argues that the claims asserted against them in their individual capacities must be dismissed pursuant to Rule 4(m) for failure to serve. The Government points out that more than 120 days have passed since the Amended Complaint was filed yet Plaintiffs still have not served these defendants, revealed their identities, or sought discovery on the issue of their identities. Plaintiffs have shown no good cause for failing to serve these defendants. Moreover because the statute of limitations has run on any claim against these defendants anyway, the dismissal should be with prejudice because an amendment to correctly identify the new fictitious defendants cannot "relate back" to the filing of the Original Complaint under Rule 15(c).
Rule 4(m) provides in pertinent part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed. Rule Civ. Pro. 4(m).
In opposition, Plaintiffs argue that they have in fact properly served their amended complaint upon the Attorney General and others pursuant to Rule 4(i). They do not know the identity of the newly added fictitious defendants to serve them personally because the agencies have not provided any pre-discovery disclosures on their identities, and Plaintiffs are entitled to some discovery on the issue.
Further, Plaintiffs argue that Defendants are incorrect in asserting that an amendment to add the new fictitious defendants (once their identities are known) would not "relate back" under Rule 15 because defendants fail to note that under Louisiana law prescription was interrupted as to all joint tortfeasor when Plaintiffs' filed suit. Because the federal defendants are solidary obligors with the previously named and served joint tortfeasor defendants, prescription was interrupted with respect to the newly added defendants.
In reply, defendants argue that service upon the Attorney General, et al. is ineffective service for the defendants in their personal capacities. Service should have been pursuant to Rule 4(e) and not Rule 4(i). On the discovery issue, Plaintiffs have taken no action to identify the newly named fictitious agents and therefore cannot point to inaction on defendants' part. The fictitious defendants obviously cannot make disclosures and neither can the United States given the pendency of its motion to dismiss.
Finally, as for the "relation back" issue, the law of the case doctrine should apply and since the April 26, 2001 ruling implicitly rejected relation back with respect to the other two fictitious defendants, "Harry Smith" and "James West," it should likewise be rejected here. Regardless of the propriety of that ruling, Plaintiffs did not oppose that motion or move for reconsideration of that ruling. Alternatively, the Court should defer ruling on the prescription issue with respect to the Bivens claims until an actual federal agent(s) is identified.
In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).
Discussion: Claims Against Newly-Added Fictitious Defendants "Thomas Smith" and "Richard Smith"
These same arguments were made to the prior district judge when the claims against fictitious defendants "James West" and "Harry Smith" were dismissed with prejudice in April 2001. The only ground for dismissing the claims against "West" and "Smith" with prejudice was prescription. Otherwise, the dismissal based upon failure to serve should have been without prejudice. See Lindsey v. United States Retirement R.R. Bd., 101 F.3d 444, 446 (5th Cir. 1996); FRCP 4(m). The Court's order and reasons does not indicate the specific ground for the dismissal.
The Court notes that a dismissal for failure to timely serve can be with prejudice in certain cases. See Porter v. Beaumont Enter. Journal, 743 F.2d 269 (5th Cir. 1984) However, the Fifth Circuit has recognized such a dismissal is "the harshest of sanctions" applicable only in the most egregious of circumstances. See Id. at 272. Given that the prior judge did not expressly find that such a severe sanction was warranted under the circumstances, the Court is compelled to conclude that the dismissal with prejudice was inadvertent.
Under a strict application of the law of the case doctrine, this Court would be compelled to dismiss the new fictitious defendants "Thomas Smith" and "Richard Smith" with prejudice just as was done with "James West" and "Harry Smith" because all four defendants are similarly situated and the same law should apply to all four. Accordingly, if this Court were to strictly apply the law of the case doctrine then the claims against the newly added fictitious defendants "Thomas Smith" and "Richard Smith" should also be dismissed with prejudice as prescribed.
However, Plaintiffs now argue that prescription should be tolled with respect to the federal defendants because under Louisiana law the filing of suit against one joint tortfeasor interrupts prescription with respect to the other tortfeasors who are solidary obligors. La. Civ. Code art. 2324(c). This argument was not considered by the prior judge because Plaintiffs filed no opposition to Defendants' motion.
Because Congress did not establish a statute of limitations applicable to actions brought in federal court under section 1983, federal courts apply the forum state's law of limitations governing an analogous state cause of action. Braden v. Texas AM Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981) (citing Board of Regents v. Tomanio, 446 U.S. 478, 483, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440, 446-48 (1980); Pegues v. Morehouse Parish Sch. Bd., 632 F.2d 1279 (5th Cir. 1980); Miller v. Smith, 615 F.2d 1037, 1039 (5th Cir. 1980); Williams v. Rhoden, 629 F.2d 1099, 1103 (5th Cir. 1980)).
"Law of the case" would typically militate against a district judge reconsidering a ruling made by a prior district judge who initially presided over the action. Popeyes, Inc. v. YCALWB, Inc., 1989 WL 145979, at *3 (E.D. La. Nov. 17, 1989). However, until a final judgment or decree issues in a case the Court can properly reconsider a prior order in order to correct an error of law where failure to do so would work manifest injustice. See Id.
Because the Court finds that it might have been inadvertent error to dismiss "James West" and "Harry Smith" based upon prescript ion, the Court will not apply law of the case to dismiss the similarly situated "Thomas Smith" and "Richard Smith" defendants on the same grounds. Such an application might only serve to perpetuate an error of law that should be corrected notwithstanding Plaintiffs' failure to try to do so themselves. Accordingly, the Court will not consider the April 26, 2001, dismissal of "James West" and "Harry Smith" with prejudice as law of the case for purposes of considering the dismissal of "Thomas Smith" and "Richard Smith."
Nevertheless, the personal capacity claims against fictitious defendants "Thomas Smith" and "Richard Smith" must again be dismissed however without prejudice due to Plaintiffs' failure to properly serve these defendants. Although Plaintiffs claim to have served the fictitious defendants pursuant to Rule 4(i), that provision applies on its face to official capacity claims. FRCP 4(i)(2)(A). The individual defendants must be served in accordance with Rule 4(e), (f), or (g) in addition to service upon the governmental entity pursuant to Rule 4(i). FRCP 4(i) (2)(B).
The parties should note that the Court defers any decision regarding the applicability of Article 2324(c) to Plaintiffs' Bivens claims until such time as an actual federal agent is identified as a defendant, is properly served, and presents the issue for decision in his or her own motion to dismiss. At this juncture, no actual federal agent is before the Court on any Bivens claim and it is possible that no Bivens defendant will ever be joined in this matter. At this point, therefore, the issue how the applicable statute of limitations should be tolled is not ripe for decision and the Court therefore need not resolve that issue.
The official capacity claims are also dismissed. However, that dismissal must be with prejudice. The claims asserted against the fictitious defendants in their official capacities are in reality suits against the United States. Unimex, Inc. v. United States Dep't of Housing Urban Dev., 594 F.2d 1060, 1061-62 (5th Cir. 1979). The United States, as sovereign, is only amenable to suit when it consents to be sued. See Id. Section 1983 does not apply to federal actors and a Bivens claim can only be asserted against a federal official in his individual capacity. Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1294 n. 12 (5th Cir. 1994) (citing Williamson v. U.S. Dep't of Agriculture, 815 F.2d 363, 380 (5th Cir. 1987)). The only possible vehicle for Plaintiffs to bring a claim against the United States is via the FTCA for breaches of state law. Id. (citing Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987)). However, as discussed above, Plaintiffs failed to preserve those claims. Accordingly, the claims asserted against newly-added fictitious defendants "Thomas Smith" and "Richard Smith" in their official capacities are dismissed with prejudice.
C. Claims Against "James West" and "Harry Smith"
Plaintiffs' claims against "James West" and "Harry Smith," were dismissed with prejudice in the April 26, 2001, order. Plaintiffs did not move the Court to reconsider that ruling and offer no reason to revisit that ruling at this juncture. That ruling therefore constitutes the law of the case and the Court should adhere to its earlier decision and again dismiss all claims against "James West" and "Harry Smith."
Plaintiffs' opposition memorandum does not appear to specifically address the reasserted claims against "James West" and "Harry Smith."
Discussion: Claims Against "James West" and "Harry Smith"
For the reasons given with respect to "Thomas Smith" and "Richard Smith," the official capacity claims asserted against "James West" and "Harry Smith" are dismissed with prejudice on grounds of sovereign immunity.
As for the individual capacity claims asserted against "James West" and "Harry Smith," the Court concludes that the April 26 2001, order should likely have dismissed these two defendants without prejudice given that the prescription issue was not expressly decided. The Court therefore revises the April 2001, dismissal such that the dismissal of "James West" and "Harry Smith" from this lawsuit shall be without prejudice due to Plaintiffs' failure to serve those defendants. And now again, the Court dismisses the claims against "James West" and "Harry Smith" without prejudice due to Plaintiffs' failure to properly serve them in their individual capacities.
As with defendants "Thomas Smith" and "Richard Smith," the Court will defer any decision regarding the applicability of Article 2324(c) to Plaintiffs' Bivens claims against these defendants until such time as an actual federal agent is identified as a defendant, is properly served, and presents the issue for decision in his or her own motion to dismiss.
For the reasons assigned with respect to newly added fictitious defendants "Thomas Smith" and "Richard Smith," the official capacity claims against fictitious defendants "James West" and "Harry Smith" are dismissed with prejudice.
D. Claims Against Constantine and Rubin
The Government notes that Plaintiffs' complaint is somewhat equivocal as to whether Plaintiffs are attempting to bring Constantine and Rubin back into this lawsuit. The caption of the Amended Complaint lists them as parties but no allegations are made with respect to these two defendants in the Amended Complaint. However, out of an abundance of caution in the event that Plaintiffs are attempting to add these defendants back in, this Court previously dismissed all claims against them with prejudice. That ruling is law of the case and should stand.
Plaintiffs' opposition memorandum does not specifically address this issue.
Discussion: Claims Against Constantine and Rubin
The Court agrees with the Government's observation that the Amended Complaint is equivocal with respect to Plaintiffs' intentions toward Constantine and Rubin who, prior to the filing of the Amended Complaint, were clearly dismissed from this lawsuit on all claims and in all capacities. The Amended Complaint makes no new allegations with respect to Constantine and Rubin upon which to base any claim. Further, Plaintiffs have also failed to oppose this aspect of the Government's motion.
Consequently, the Government's motion in GRANTED in so far as it seeks clarification that the claims against Constantine and Rubin are dismissed and that those defendants are no longer Parties to this lawsuit. All claims against defendants Constantine and Rubin remain DISMISSED as detailed in the prior orders of this Court. Rec. Docs. 31 36.
Accordingly;
IT IS ORDERED that the Federal Defendants' Motion to Dismiss Plaintiffs' First Amended Supplemental Complaint (Rec. Doc. 63) filed by the United States of America, Thomas A. Constantine, Robert E. Rubin and fictitious defendants "James West," "Harry Smith," "Thomas Smith," and "Richard Smith" should be and is hereby GRANTED IN PART AND DENIED IN PART.
The motion is GRANTED in so far as Plaintiffs' FTCA claims against the United States, and the official capacity civil rights claims against fictitious federal defendants "James West," "Harry Smith," "Thomas Smith," and "Richard Smith" are DISMISSED WITH PREJUDICE.
The motion is DENIED in so far as the government seeks dismissal of the individual capacity claims against fictitious defendants "James West," "Harry Smith," "Thomas Smith," and "Richard Smith" with prejudice. Rather, the individual capacity claims against fictitious defendants "James West," "Harry Smith," "Thomas Smith," and "Richard Smith" are DISMISSED WITHOUT PREJUDICE.
All claims against defendants Constantine and Rubin remain DISMISSED in accordance the Court's prior order;
IT IS FURTHER ORDERED that a status conference is SET in chambers before the district judge on Thursday August 22, 2002, at 3:00 p.m. Counsel are to come to the conference prepared to apprise the Court as to the status of discovery, the viability of the current scheduling deadlines, and Plaintiffs' most recent attempt to amend their complaint. If counsel have other issues for the Court to address at the conference, counsel are to submit those issues to the Court via letter copied to all lead counsel of record by Monday August 19, 2002, at 12 noon.
On June 12, 2002, Plaintiffs filed a motion to amend the pre-trial scheduling order. The Court has withheld ruling on that motion pending its ruling on the federal defendants' motion to dismiss.