Brady et al v. Xe Services LLC et al

MOTION to Substitute Party

E.D.N.C.April 7, 2010

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION R. DANIEL BRADY ET AL., ) ) Plaintiffs, ) ) Civil Action No. 5:09-CV-00449-BO v. ) ) XE SERVICES LLC ET AL., ) ) Defendants. ) ___________________________________ ) DEFENDANTS BALL, HEARD, LIBERTY, SLATTEN AND SLOUGH’S MOTION TO SUBSTITUTE THE UNITED STATES AS DEFENDANT PURSUANT TO THE WESTFALL ACT Defendants Donald Wayne Ball, Dustin L. Heard, Evan Shawn Liberty, Nicholas Abram Slatten, and Paul Alvin Slough (collectively “the Movants”) hereby petition this Court to certify that, pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(3), the Movants were “employee[s] of the Government . . . acting within the scope of [their] . . . employment” when the events giving rise to the above-captioned action occurred, and accordingly, to order that the United States “be substituted as the party defendant” in place of the Movants. 2 The Movants are submitting a memorandum in support of this Motion today, pursuant to Local Civil Rule 7(d), EDNC. This the 7th day of April, 2010. POYNER SPRUILL LLP By: /s/ Keith H. Johnson Keith H. Johnson (N.C. State Bar No. 17885) P.O. Box 1801 Raleigh, NC 27602-1801 Telephone: 919.783.6400 Facsimile: 919.783.1075 Email: kjohnson@poynerspruill.com ATTORNEYS FOR DEFENDANTS DONALD WAYNE BALL; DUSTIN L. HEARD; EVAN SHAWN LIBERTY; NICOLAS ABRAM SLATTEN; AND PAUL ALVIN SLOUGH 3 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing INDIVIDUAL DEFENDANTS’ MOTION TO SUBSTITUTE THE UNITED STATES IN PLACE OF ALL DEFENDANTS PURSUANT TO THE WESTFALL ACT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all counsel and parties of record. In addition, I hereby certify that, pursuant to 28 U.S.C. § 2679(d)(3) and Federal Rule of Civil Procedure 4(i)(1) (previously Federal Rule of Civil Procedure 4(d)(4)), I served this day the foregoing Motion by certified mail to each of the following: Civil Process Clerk United States Attorney’s Office Eastern District of North Carolina 310 New Bern Avenue, Suite 800 Terry Sanford Federal Building & U.S. Courthouse Raleigh, NC 27601-1461 Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 James H. Thessin Deputy Legal Advisor United States Department of State 2201 C Street, N.W., Room 6421 Washington, D.C. 20520 Jennifer Toole United States Department of State 2201 C Street, N.W., Room 6421 Washington, D.C. 20520 4 Phyllis Pyles Director, Torts Branch Civil Division U.S. Department of Justice Room 8098N 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20530 This the 7th day of April, 2010. /s/ Keith H. Johnson Keith H. Johnson RALEIGH 621309v1