Secretaries' Motion for Consolidated Response Deadline — U.S. Navy SEALs 1-26 v. Austin (N.D. Tex.)
- Date
- 2022-02-01
Summary
The Secretaries' Motion for Consolidated Response Deadline, filed January 14, 2022 as Document 70 in U.S. Navy SEALs 1-26, et al. v. Lloyd J. Austin, III, et al., Civil Action No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division. Secretary of Defense Lloyd J. Austin, III and Secretary of the Navy Carlos Del Toro, sued in their individual capacities, ask the Court to set February 1, 2022 as the date for both to respond to the complaint. The motion states that Secretary Austin was personally served on November 19, 2021, and argues that leaving the papers with the Navy Litigation Office was not personal service on Secretary Del Toro under Rule 4(e). It states that plaintiffs declined proposed consolidated deadlines and that the motion is opposed under Local Rule 7.1(b). It is signed by Department of Justice Torts Branch counsel.
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Case 4:21-cv-01236-O Document 70 Filed 01/14/22 Page 1 of 4 PageID 2574
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26, et al., )
)
Plaintiffs, )
)
v. )
)
LLOYD J. AUSTIN, III, individually ) Civil Action No. 4:21-cv-
and in his official capacity as ) 01236-O
United States Secretary of Defense, et )
al., )
)
Defendants. )
)
)
)
THE SECRETARIES’ MOTION FOR CONSOLIDATED RESPONSE DEADLINE
The individual-capacity defendants, United States Secretary of Defense Lloyd J. Austin,
III and Secretary of the Navy Carlos Del Toro (collectively “the Secretaries”), respectfully
request that the Court set a consolidated date of February 1, 2022, for the Secretaries’ response to
Plaintiffs’ complaint. In support of their Motion, the Secretaries’ state as follows:
1. Plaintiffs assert claims for money damages against the Secretaries in their
personal capacity. Undersigned counsel represents the Secretaries with respect to the personal-
capacity damages claims asserted against them.
2. Federal officials sued personally must be served as individuals pursuant to Rule
4(e). See, e.g., Simpkins v. D.C. Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997) (“[E]very court of
appeals that has spoken on the question has decided that defendants in [personal-capacity]
actions must be served as individuals, pursuant to Rule 4(e).”).
3. Plaintiffs personally served Secretary Austin on November 19, 2021. Under
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Case 4:21-cv-01236-O Document 70 Filed 01/14/22 Page 2 of 4 PageID 2575
Federal Rule of Civil Procedure 12(a)(3), Secretary Austin’s response to the complaint would be
due within 60 days of service—or in this case January 18, 2022.
4. Plaintiffs have not accomplished personal service on Secretary Del Toro.
Plaintiffs’ counsel notified undersigned counsel that a private process server left a copy of the
summons and complaint with an administrative assistant in the Navy Litigation Office, which is
the office that accepts official service of process for the U.S. Department of the Navy. It does not
accept personal service of process. The administrative assistant is not the personal representative
of Secretary Del Toro, nor did she have authority to accept personal service of any lawsuit on his
behalf. As a result, there currently is no deadline for Secretary Del Toro to respond to Plaintiffs’
complaint.
5. Undersigned counsel nevertheless notified Plaintiffs’ counsel that we are
authorized to accept service of process for Secretary Del Toro, and that Plaintiffs could complete
personal service on Secretary Del Toro by simply emailing us a copy of the summons and
complaint.
6. Although Rule 12(a)(3) allows Secretary Del Toro 60 days from the date of
service to file a responsive pleading, undersigned counsel reasonably proposed March 1, 2022
(prior to the time Secretary Del Toro’s response would be due if Plaintiffs accepted our offer of
service) as a consolidated deadline for both Secretary Austin and Secretary Del Toro.
7. Plaintiffs declined this proposal and insist that leaving a copy of the complaint
with the Navy’s administrative assistant is valid personal service on Secretary Del Toro.
8. In a further effort to resolve the pleading deadline by agreement, undersigned
counsel requested Plaintiffs’ agreement on a consolidated response deadline of February 1, 2022
for both defendants, which (even assuming for purposes of argument that Plaintiffs have properly
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Case 4:21-cv-01236-O Document 70 Filed 01/14/22 Page 3 of 4 PageID 2576
served Secretary Del Toro), is when Secretary Del Toro’s response would be due. Plaintiffs also
declined this reasonable proposal.
9. The Secretaries respectfully move this Court to set a responsive pleading deadline
of February 1, 2022 for both individual-capacity defendants. A consolidated deadline of February
1 is reasonable and would facilitate the Court’s consideration of the individual-capacity claims and
defenses in a uniform manner.
10. Pursuant to Local Rule 7.1(b), undersigned counsel certifies that counsel for the
parties conferred by telephone and multiple times by email on January 12 and January 14, but an
agreement was not reached on the requested relief, such that this motion is opposed. The parties
conferring included Mr. Skinner, Mr. Luecke (for the Secretaries) and Ms. Hacker principally (for
Plaintiffs). A proposed order is attached.
Dated: January 14, 2022 Respectfully submitted,
C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch
MARY HAMPTON MASON
Senior Trial Counsel, Torts Branch
REGINALD M. SKINNER
Senior Trial Attorney, Torts Branch
/s/ Daniel C. Luecke
DANIEL C. LUECKE
Trial Attorney
California State Bar. No. 326695
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044
Phone: (202) 616-3049
Fax: (202) 616-4314
E-mail: daniel.c.luecke@usdoj.gov
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Case 4:21-cv-01236-O Document 70 Filed 01/14/22 Page 4 of 4 PageID 2577
Attorneys for Secretary of Defense Lloyd J.
Austin, III and Secretary of the Navy Carlos
Del Toro in their personal capacities
CERTIFICATE OF SERVICE
On January 14, 2022, I electronically submitted the foregoing document with the clerk of
court for the U.S. District Court, Northern District of Texas, using the electronic case filing system
of the court. I hereby certify that I have served all parties electronically or by another manner
authorized by Federal Rule of Civil Procedure 5(b)(2).
/s/ Daniel C. Luecke
DANIEL C. LUECKE
Trial Attorney
California State Bar. No. 326695
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044
Phone: (202) 616-3049
Fax: (202) 616-4314
E-mail: daniel.c.luecke@usdoj.gov
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