Opposition to Plaintiffs` Motion for Leave to File Supplemental
Transcription
Opposition to Plaintiffs` Motion for Leave to File Supplemental
1 LAURA E DUFFY United States Attorney 2 DANIEL E. BUTCHER Assistant U.S. Attorney 3 California Bar No. 144624 Office of the U.S. Attorney 4 880 Front Street, Room 6293 San Diego, CA 92101 5 Tel: (619) 546-7696 Fax: (619) 546-7751 6 Email: [email protected] 7 Attorneys for the United States 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LYCURGAN INC. dba ARES ARMOR, Plaintiff 12 13 v. 14 B. TODD JONES, in his official capacity as Head of the San Diego Bureau of 15 Alcohol, Tobacco, Firearms and Explosives; and DOES 1-10, 16 Defendants. 17 Case No.: 14CV548 JLS (BGS) OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL/AMENDED COMPLAINT DATE: October 30, 2014 TIME: 1:30 p.m. Hon. Janis L. Sammartino 18 19 20 I 21 INTRODUCTION 22 Plaintiff seeks leave of court to amend its original two claim, one defendant 23 complaint (which was mooted by subsequent events) with a 56 page, nine claim 24 complaint against multiple named and unnamed defendants. Plaintiff’s motion for 25 leave to amend should be denied because its Proposed Amended Complaint is subject 26 to dismissal on two grounds. First, the United States has not waived its sovereign 27 immunity for three of the proposed claims for relief. Second, this District is not the 28 proper venue to litigate the central issue that Plaintiff seeks to litigate in its Proposed 1 Amended Complaint: whether an individual (whom Plaintiff seeks to sue in his 2 personal capacity) acted constitutionally when he opined that the EP Arms EP80 3 lower receivers are firearms. The Court should therefore deny Plaintiff’s motion for 4 leave to file its Proposed Amended Complaint. 5 II 6 FACTUAL BACKGROUND 7 This is one of three cases that Plaintiff has filed in response to the Bureau of 8 Alcohol, Tobacco, Firearms, and Explosives (ATF) execution of a search warrant 9 issued by Magistrate Judge Skomal. See also In the Matter of the Search of: Ares 10 Armor et al., Case No. 14-cv-1424-JLS (BGS) (seeking to unseal the search warrant 11 affidavit); Lycurgan Inc. dba Ares Armor v. Jones, Case No. 14-cv-1679-JLS (BGS) 12 (seeking the return of the items seized under the Civil Asset Forfeiture Reform Act). 13 The search warrant relates to a criminal investigation of EP Arms in the Eastern 14 District of California. [See Ex. 2 to Defendant’s Motion to Dismiss in Case No. 1415 cv-1679-JLS (BGS) (ECF #7-3).] 16 EP Arms, which is located in the Eastern District of California, manufactures 17 “EP80 lower receivers”. [Id.] The EP80 lower receiver is commonly used to make 18 AR-15 style rifles. [See Ex. 1 to Defendant’s Motion to Dismiss in Case No. 14-cv19 1679-JLS (BGS) (ECF #7-2).] The AR-15 is a semi-automatic, civilian version of the 20 .223-caliber M16 machine gun used by the United States military. [Id.] 21 EP Arms (which is not a party to this lawsuit) requested ATF’s opinion whether 22 its EP80 is a firearm. [See Ex. A to Plaintiff’s Proposed Amended Complaint 23 (“PAC”).] ATF’s Firearms Technology Branch opined that it is. [See Ex. B to PAC.] 24 Because it is a firearm, the EP80 is required to bear a manufacturer’s mark and 25 a serial number, but it does not. [See Exs. 1 and 2 to Defendant’s Motion to Dismiss 26 in Case No. 14-cv-1679-JLS (BGS) (ECF #7-2 and 7-3).] And only Federal Firearms 27 Licensees can manufacture and/or engage in the business of selling firearms. [Id.] EP 28 Arms is not a Federal Firearms Licensee. [Id. (Ex. 2, ¶ 3).] Opposition to Motion for Leave to Amend 2 14cv548 1 Plaintiff possessed more than 5,000 of the EP Arms EP80s. [Id. (Ex. 1, ¶ 8).] 2 The EP80s bear neither a manufacturer’s mark nor a serial number, and therefore are 3 untraceable. [Id. (Ex. 2, ¶ 5)] Plaintiff also is not a Federal Firearms Licensee, and 4 presumably was selling the EP80s without performing background checks on the 5 purchasers. [Id. (Ex. 1, ¶ 7).] 6 ATF attempted to resolve this matter informally with Plaintiff. ATF (through 7 its division counsel) and Plaintiff (through its retained attorney) successfully 8 negotiated Plaintiff’s voluntarily surrender of the EP80s in its possession. [See 9 Declaration of Paul Ware, ¶¶ 2-6 (submitted with Defendant’s Response in Opposition 10 to Motion for a Temporary Restraining Order) (ECF #9-1).] But, while agreeing 11 through one retained attorney to voluntarily surrender the EP80s, Plaintiff 12 (unbeknownst to ATF) retained a second attorney to file this case and apply for and 13 obtain (without notice to the United States) a temporary restraining order prohibiting 14 ATF from taking possession of the EP80s, which it served on the ATF agents who 15 appeared to take possession of the EP80s. [Id., ¶ 7; see also Declaration of Dimitros 16 Karras (ECF #1-2) at 2, ¶ 9(b).] The United States then obtained ex parte relief from 17 this Court permitting ATF to apply for and obtain a search warrant to seize the EP80s. 18 [See ECF #5 and #6.] Magistrate Judge Skomal issued the warrant, and ATF agents 19 executed it on March 15, 2014. [See Ex. 1, ¶ 8 to Defendant’s Motion to Dismiss in 20 Case No. 14-cv-1679-JLS (BGS) (ECF #7-2).] 21 Plaintiff’s original complaint in this case contained two claims against ATF: (1) 22 that ATF’s desire to obtain EP80s and customer lists in Plaintiff’s possession violated 23 its “protected right to be free from seizure of its inventory and customer list” under the 24 Fourth Amendment [see Complaint (ECF #1) at 8-9], and (2) that “BATFE’s planned 25 action violates the rights of Ares Armor’s Customers.” [Id. at 9.] These claims were 26 mooted by ATF’s execution of the search warrant issued by Judge Skomal. [See 27 Order Granting Joint Motion to (1) Take Hearing on Preliminary Injunction of 28 Calendar (ECF #12) at 1.] Opposition to Motion for Leave to Amend 3 14cv548 1 Plaintiff now seeks leave of court to file a 56 page, 200 paragraph amended 2 complaint. Ironically (because Plaintiff’s own agreement to voluntarily surrender the 3 EP80s caused ATF to forego obtaining a search warrant at the outset), Plaintiff’s 4 Proposed Amended Complaint seeks to sue ATF agents in their personal capacities, 5 alleging that their application for a search warrant was an unconstitutional retaliation 6 against Plaintiff for obtaining a temporary restraining order. See Proposed Amended 7 Complaint at 39-41, ¶¶ 127-34. 8 But the gravamen of Plaintiff’s Proposed Amended Complaint concerns a letter 9 that Earl Griffith, the Chief of ATF’s Firearms Technology Branch, wrote in response 10 to EP Arms request for an opinion whether its EP80s are firearms. (Confirming the 11 centrality of the Griffith letter to its new claims, Plaintiff has attached the 12 correspondence between EP Arms’ attorney and Mr. Griffith as Exhibits A, B, C, and 13 D to its Proposed Amended Complaint.) Plaintiff (which is not the party that 14 requested Mr. Griffith’s opinion) now seeks to sue Mr. Griffith personally for 15 providing the opinion that EP Arms (which is not a party to this litigation) requested. 16 Plaintiff’s Proposed Amended Complaint alleges that Mr. Griffith’s letter opining that 17 the EP80 receivers are firearms violated the First, Second, Fourth, and Fifth 18 Amendments of the United States Constitution. 19 Specifically, Plaintiff’s Proposed Amended Complaint alleges that Mr. 20 Griffith’s opinion letter violated the Constitution in the following claims for relief: 21 22 23 24 Claim Allegation Defendants 1 Griffith’s letter opining that the EP80 lower Jones (official receivers are firearms constitutes a prior restraint capacity) on speech in violation of the First Amendment. See Proposed Amended Complaint (PAC) (ECF #35-4) at 35-38, ¶¶ 99-117. 25 26 27 28 Opposition to Motion for Leave to Amend 4 14cv548 1 2 2 3 4 4 5 6 5 7 8 9 10 7 11 12 13 14 8 Griffith’s letter opining that the EP80 lower receivers are firearms constitutes a prior restraint on speech in violation of the First Amendment. Id. at 38-39, ¶¶ 118-126. Second Amendment violated because “EP Arms Unfinished Lower Receivers” are not firearms, frames, or receivers. Id. at 41-42, ¶¶ 135-142. Griffith and unnamed defendants knew that Griffith’s opinion that the EP80s were firearms “would be used to deceive a Magistrate Judge and wrongfully obtain a search warrant,” in violation of the Fourth Amendment. Id. at 4249, ¶¶ 143-156. False or misleading affidavit submitted to a Magistrate Judge, resulting in an improper taking in violation of the Fifth Amendment. Id. at 5052, ¶¶ 166-175. Lack of promulgated standards for determining whether an item is a firearm and lack of appeal rights violates the Due Process clause of the Fifth Amendment. Id. at 52-56, ¶¶ 176-196. Griffith and Unknown Technologist (personal capacity) Jones (official capacity) Griffith, Unnamed Agent I, Unnamed Technologist, and Does (personal capacity) Unnamed Agent I and Does (personal capacity) Jones (official capacity) 15 16 The United States, however, has not waived its sovereign immunity for 17 Plaintiff’s official capacity claims. Moreover, the Southern District of California is 18 not the proper venue to litigate the conclusions in Mr. Griffith’s opinion letter, which 19 was sent from his office in West Virginia (located in the District of West Virginia) to 20 EP Arms’ attorney’s office in Mission Viejo (located in the Central District of 21 California) regarding EP Arms, which is in Bakersfield (located in the Eastern District 22 of California). III ARGUMENT 23 24 25 A. Leave to Amend Should be Denied When the Proposed Amended Complaint is Subject to Dismissal 26 27 28 A plaintiff may amend a complaint once as a matter of course within 21 days of serving it or within 21 days of service a responsive pleading (including a Rule 12(b) Opposition to Motion for Leave to Amend 5 14cv548 1 motion). See Fed. R. Civ. P. 15(a)(1). Other amendments require leave of court, 2 which generally is freely given “when justice so requires.” See Fed. R. Civ. P. 3 15(a)(2). But justice does not require freely granting leave to amend if the Proposed 4 Amended Complaint is subject to dismissal. Moore v. Kayport Package Express, Inc., 5 885 F.2d 531, 538 (9th Cir.1989) (“Leave to amend need not be given if a complaint, 6 as amended, is subject to dismissal.”). 7 Plaintiff filed its motion to file its Proposed Amended Complaint on September 8 22, 2014. [See ECF #35.] That is more than 21 days after purported service of its 9 original complaint on April 4, 2014. [See ECF #13.] Plaintiff therefore may not file 10 its amended complaint without leave of court. See Fed. R. Civ. P. 15(a)(1) and (2). 11 Because Plaintiff’s Proposed Amended Complaint is subject to dismissal, the Court 12 should deny Plaintiff’s motion for leave to amend. 13 B. Plaintiff’s Proposed Amended Complaint is Subject to Dismissal 14 Plaintiff’s Proposed Amended Complaint is subject to dismissal on at least two 15 grounds: (1) the United States has not waived its sovereign immunity for Plaintiff’s 16 constitutional claims, and (2) this district is not the proper venue to litigate Mr. 17 Griffith’s opinion letter.1 18 19 1. The United States Has Not Waived Its Sovereign Immunity for Constitutional Claims 20 The United States is immune from suit unless it consents. See generally United 21 States v. Dalm, 494 U.S. 596, 608 (1990) (“Under settled principles of sovereign 22 immunity, the United States, as sovereign, is immune from suit save as it consents to 23 be sued . . . and the terms of its consent to be sued in any court define that court’s 24 jurisdiction to entertain the suit.”) (internal quotations omitted). “A waiver of the 25 Government’s sovereign immunity will be strictly construed, in terms of its scope, in 26 favor of the sovereign.” Quarty v. United States, 170 F.3d 961, 972 (9th Cir. 1999) 27 1 Plaintiff’s Proposed Amended Complaint may also be subject to dismissal for lack of standing and other grounds. The United States does not intend to 28 waive any additional bases for dismissal by not raising them here. Opposition to Motion for Leave to Amend 6 14cv548 1 (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). See also United States v. Mitchell, 2 445 U.S. 535, 538 (1980) (“A waiver of sovereign immunity cannot be implied but 3 must be unequivocally expressed.”) (internal quotation omitted). 4 The United States has not waived its sovereign immunity for constitutional 5 claims. See Ingram v. Commissioner of Social Security, 401 Fed. Appx. 234, 235 6 (9th Cir. 2010) (unpublished) (“The district court properly dismissed Ingram’s 7 constitutional claims because the United States has not expressly waived its sovereign 8 immunity.”). See also FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) (Congress did 9 not waive the United States’ sovereign immunity for constitutional claims in the 10 Federal Tort Claims Act). 11 Plaintiff proposes to bring constitutional claims against the United States in the 12 first, fourth, and eighth claims for relief of its Proposed Amended Complaint. These 13 official capacity claims violate the United States’ sovereign immunity and therefore 14 are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). See Gilbert v. 15 DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (affirming dismissal of constitutional 16 claims against the United States; “It has long been the rule that the bar of sovereign 17 immunity cannot be avoided by naming officers and employees of the United States as 18 defendants. Thus, a suit against IRS employees in their official capacity is essentially 19 a suit against the United States. As such, absent express statutory consent to sue, 20 dismissal is required.”).2 21 2 Plaintiff’s Proposed Amended Complaint cites 28 U.S.C. § 1331 (federal 22 question jurisdiction), 28 U.S.C.§ 1343 (civil rights jurisdiction), and 28 U.S.C. §§ 2201 and 2202 (the Declaratory Relief Act), as the bases for jurisdiction. See 23 PAC at 2, ¶ 1. But, as the Ninth Circuit has held, Congress did not waive the United States’ sovereign immunity in any of these statutes. See United States v. Park Place 24 Associates, 563 F.3d 907, 924 (9th Cir. 2009) (“28 U.S.C. § 1331 grants district court’s jurisdiction over ‘all civil actions arising under the Constitution, laws or 25 treaties of the United States,’ but it does not waive sovereign immunity.”); Jachetta v. United States, 653 F.3d 898, 907-08 (9th Cir. 2011) (“Because we fail to see how this 26 text can be construed as an unequivocally expressed waiver of the government’s sovereign immunity, we hold that 28 U.S.C. § 1343(a)(3) does not waive sovereign 27 immunity.”); Brownwell v. Ketcham Wire & Mfg. Co., 211 F.2d 121, 128 (9th Cir. 1954) (“It is true that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, is not a 28 consent of the United States to be sued, and merely grants an additional remedy in cases where jurisdiction already exists.”). Opposition to Motion for Leave to Amend 7 14cv548 2. This District is Not the Proper Venue to Litigate the Griffith Opinion Letter 1 2 3 “Where there are multiple parties and/or multiple claims in an action, the 4 plaintiff must establish that venue is proper as to each defendant and as to each 5 claim.” Multimin USA, Inc. v. Walco Internation, Inc., 2006 WL 1046964, *2 6 (E.D.Cal. 2006). Plaintiff cannot establish venue in this district for the first, second, 7 fourth, and eighth claims for relief in its Proposed Amended Complaint. Those claims 8 for relief therefore are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(3). 9 The first, second, fourth, and eighth claims for relief in Plaintiff’s Proposed 10 Amended Complaint seek to litigate the conclusion in Mr. Griffith’s letter that the 11 EP80s (referred to as “EP Arms Unfinished Lower Receivers” in the Proposed 12 Amended Complaint) are firearms. The first and second claims for relief allege that 13 Mr. Griffith’s letter constituted a prior restraint on speech in violation of the First 14 Amendment. See PAC at 35-38. The fourth claim for relief alleges Mr. Griffith’s 15 letter violated the Second Amendment. Id. at 41-42. The eighth claim for relief 16 alleges that the process that resulted in Mr. Griffith’s letter violated the Fifth 17 Amendment. Id. at 52-56. 18 This district is not the proper venue for these claims. None of the bases for 19 venue in 28 U.S.C. § 1391(b) (which governs venue for the individual defendants) or 20 28 U.S.C. § 1391(e) (which governs venue for the official capacity defendants) is met. 21 First, no defendant resides in this district. See 28 U.S.C. § 1391(b)(1) and (e)(1). “A 22 public official is deemed to ‘reside’ for purposes of § 1391(e) in the judicial district 23 where he performs his official duties.” Kings County Economic Community 24 Development Ass’n v. Hardin, 333 F.Supp. 1302, 1303 n.1 (N.D.Cal. 1971)) (citing 1 25 Moore’s Federal Practice 1487-88); accord Airport Working Group of Orange 26 County, Inc. v. United States Dept. of Defense, 226 F.Supp.2d 227, 228 (D.D.C. 27 2002) (“the Department of Defense . . . [has its] official residence for venue purposes 28 in the District of Columbia”). Mr. Griffith resides in Maryland and performs his Opposition to Motion for Leave to Amend 8 14cv548 1 official duties in West Virginia. See Exhibit 1 (Declaration of Paul Ware) at ¶¶ 2-3. 2 Mr. Jones performs his official duties at ATF’s headquarters in Washington, D.C. 3 [Id., ¶ 4.] 4 Second, none of the events surrounding Mr. Griffith’s drafting of his letter 5 occurred in this district, see 28 U.S.C. § 1391(b)(2) and (e)(2), which is the basis for 6 venue invoked by Plaintiff’s complaint. See PAC at 2, ¶ 2 (“Venue is proper in the 7 Southern District of California pursuant to Title 28, United States Code, Section 8 1391€(1)(B), because a substantial part of the events or omissions giving rise to the 9 claim occurred in this district.”). The EP Arms attorney sent his letter requesting Mr. 10 Griffith’s determination whether the EP80 is a firearm from his office in Mission 11 Viejo, California (located in the Central District of California) to Mr. Griffith’s office 12 in Martinsburg, West Virginia (located in the District of West Virginia). [See PAC, 13 Ex. A.] The EP Arms attorney also sent an exemplar EP80 to West Virginia for Mr. 14 Griffith’s review and examination. [Id.] Mr. Griffith conducted his examination in 15 Martinsburg, West Virginia [Ex. 1 (Ware Declaration) at ¶ 3], and sent his response 16 from West Virginia back to EP Arms’ attorney’s office in Mission Viejo. [See PAC, 17 Ex. B.] EP Arms itself is located in Bakersfield (which is located in the Eastern 18 District of California). [See www.eparmory.com.] In sum, neither EP Arms request 19 for analysis and determination, nor Mr. Griffith’s examination and response took 20 place in this district. Venue therefore does not lie in this district under 28 U.S.C. 21 § 1391(b)(2) or (e)(2). Accord Kings County Economic Development Ass’n, 333 22 F.Supp. at 1303. 23 Finally, there are other districts where a challenge to the Griffith letter may be 24 brought. See 28 U.S.C. § 1391(b)(3) and (e)(3). Indeed, a lawsuit challenging the 25 Griffith letter is presently pending in the Eastern District of California, where EP 26 Arms resides. That complaint involves the same issue that Plaintiff seeks to litigate in 27 its Proposed Amended Complaint: whether Mr. Griffith correctly concluded that the 28 EP80 is a firearm. See California Rifle & Pistol Ass’n v. Bureau of Alcohol, Opposition to Motion for Leave to Amend 9 14cv548 1 Tobacco, Firearms, and Explosives, et al., Case No. 14-cv-1211-SAB (E.D. Cal.) 2 (attached as Exhibit A to Plaintiff’s Notice of Related Case filed in Case No. 14-cv3 3 1679 (ECF #5)). 4 In sum, this district lacks venue for four of the claims in Plaintiff’s Proposed 5 Amended Complaint. Leave to file the Proposed Amended Complaint therefore 6 should be denied because it is subject to dismissal pursuant to Fed. R. Civ. P. 7 12(b)(3). See Multimin, 2006 WL 1046964 at *2 (in multi-party, multi-claim cases, 8 “the plaintiff must establish that venue is proper as to each defendant and as to each 9 claim.”). 10 III 11 CONCLUSION 12 For the foregoing reasons, the Court should deny Plaintiff’s motion for leave to 13 file its Proposed Amended Complaint. 14 DATED: October 16, 2014 Respectfully submitted, LAURA E. DUFFY United States Attorney 15 16 s/ Daniel E. Butcher DANIEL E. BUTCHER Assistant United States Attorney Attorneys for Defendant 17 18 19 20 21 22 23 24 25 26 27 3 Defendant is not conceding here that venue is proper in the Eastern District of California. 28 elect to raise that issue. That is a matter that the court there must resolve if the parties Opposition to Motion for Leave to Amend 10 14cv548 EXHIBIT 1 Declaration of Paul J. Ware 1. I am the Division Counsel for the Los Angeles Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In my capacity as the Division Counsel, I have visited ATF Firearms Technology Branch (FTB) and ATF Headquarters. I have also met both Chief Griffith and Director Jones. 2. Earl Griffith is currently the Acting Chief of the Firearms and Ammunition Technology Division and was formerly Chief, Firearms Technology Branch. His official duty station is Martinsburg, W.V. Mr. Griffith is a resident of the State of Maryland where he has permanently resided since 1992. 3. As part ofMr. Griffith's official duties, he was involved in the classification of the EP Arms EP80 firearm receiver. Each examination and classification of this item was conducted in Martinsburg, W.V. In addition, Mr. Griffith reviewed and signed each classification letter in Martinsburg, W.V. 4. B. Todd Jones is the Director of ATF and exercises his official duties at ATF Headquarters located in Washington D.C. 5. I declare under penalty of perjury that the foregoing is true and correct. 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 LYCURGAN INC. dba ARES ARMOR, 5 6 Plaintiff Case No.: 14CV548 JLS (BGS) PROOF OF SERVICE v. 7 B. TODD JONES, in his official capacity 8 as Head of the San Diego Bureau of Alcohol, Tobacco, Firearms and 9 Explosives; and DOES 1-10, Defendants. 10 11 12 I, Daniel E. Butcher, am a citizen of the United States and am at least eighteen 13 years of age. My business address is 880 Front Street, Room 6293, San Diego, CA. 14 92101-8893. 15 I am not a party to the above-entitled action. I have caused service of 16 17 OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL/AMENDED COMPLAINT 18 on the following parties by: 19 ■ 20 Alan Beck, Esq. Scott McMillan, Esq. 21 22 23 24 25 26 27 28 ECF--Electronic Notice/Service : I declare under penalty of perjury that the foregoing is true and correct. DATED: October 16, 2014 _/s Daniel E. Butcher________ Daniel E. Butcher