Rollins v. Mabus et al
Filing
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ORDER RE DEFENDANT'S MOTION TO DISMISS AND CASE MANAGEMENT SCHEDULE, re 16 Proposed Order filed by Raymond E Mabus: Final Pretrial Conference set for 8/6/2013 02:00 PM in Courtroom 5, 4th Floor, San Jose. Jury Trial set for 8/19/2013 09:30 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Signed by Judge Paul S. Grewal on 8/23/2012. (ofr, COURT STAFF) (Filed on 8/23/2012)
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MELINDA HAAG (CSBN 132612)
United States Attorney
JOANN M. SWANSON (CSBN 88143)
Chief, Civil Division
JAMES A. SCHARF (CSBN 152171)
Assistant United States Attorney
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150 Almaden Boulevard, Suite 900
San Jose, CA 95113
Telephone: (498) 535-5044
Facsimile: (408) 535-5081
Attorneys for Federal Defendants
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PETER B. ROLLINS,
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)
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Plaintiff,
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v.
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RAYMOND E. MABUS, SECRETARY OF )
THE NAVY, KENNETH W. BENCH,
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JEFFREY S. PRAY, SHAYNE GARDNER )
and DOES 1 through 100, inclusive,
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Defendants.
No. C 12-2047 PSG
[PROPOSED] ORDER RE
DEFENDANT’S MOTION TO DISMISS
AND CASE MANAGEMENT SCHEDULE
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On July 5, 2012, federal defendants filed a non-dispositive motion to dismiss. Document
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9. In that motion, federal defendants argued:
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(1) Plaintiff’s tort claims for defamation, intentional infliction of emotional distress, and
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assault must be dismissed because Title VII is plaintiff’s exclusive remedy.
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(2) Plaintiff’s tort claims are defective because (a) they are barred by sovereign immunity
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because plaintiff has not exhausted his administrative remedies as required by the FTCA; (b)
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individual federal defendants are not proper defendants under the FTCA; (c) defamation and
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assault claims are excepted from the FTCA; and (d) the FTCA bars claims for punitive damages.
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PROPOSED ORDER RE DEFENDANT’S MOTION TO DISMISS AND CASE
MANAGEMENT SCHEDULE
Case No. C 12-2047 PSG
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(3) Plaintiff’s Title VII causes of action contain defective claims that fail Title VII’s
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timeliness and administrative exhaustion requirements because (a) those claims involve discrete
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acts that must meet Title VII’s timeliness and administrative exhaustion requirements; (b)
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plaintiff’s discrimination and retaliation claims regarding reassignment fail Title VII’s timeliness
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requirement; and (c) plaintiff’s discrimination claim regarding light duty assignments fail Title
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VII’s administrative exhaustion requirement.
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(4) Plaintiff’s retaliation claim regarding plaintiff’s AWOL charges must be dismissed
under Rule 12(b)(6).
On August 15, 2012, plaintiff filed a statement of non-opposition to defendants’ motion
to dismiss. Document 13.
On August 21, 2012, defendant’s motion to dismiss and a case management conference
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came on for hearing. Eugene S. Thompson appeared for plaintiff Peter B. Rollins. Assistant
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United States Attorney James A. Scharf appeared for the federal defendants. Plaintiff Peter B.
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Rollins was also present in the courtroom. At the hearing, the parties jointly proposed that the
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Court issue an order on defendant’s pending motion to dismiss, clarifying which claims survive
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defendant’s motion, and requiring defendant to file an answer to plaintiff’s Complaint for
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Damages filed April 24, 2012, Document 1, as modified by the Court’s order on defendant’s
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motion to dismiss. The Court directed AUSA Scharf to submit a proposed order after hearing,
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including a proposed case management schedule, for the Court’s review.
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For the reasons set forth in defendant’s unopposed motion to dismiss, and pursuant to the
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agreement of the parties, the Court hereby dismisses with prejudice all claims against all
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defendants except plaintiff’s claim for discrimination under Title VII against Raymond E.
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Mabus, Secretary of the Navy, based on plaintiff being charged with AWOL and receiving a
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Decision on his Proposed Suspension.
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Defendant shall file an answer to plaintiff’s Complaint for Damages filed April 24, 2012,
as modified by this Order, within 30 calendar days of the filing of this Order.
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PROPOSED ORDER RE DEFENDANT’S MOTION TO DISMISS AND CASE
MANAGEMENT SCHEDULE
Case No. C 12-2047 PSG
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Further, again pursuant to the agreement of the parties, the Court adopts the following
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case management schedule as proposed in the parties’ joint case management conference
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statement:
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Fact Discovery Cutoff:
March 1, 2013
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Plaintiff’s Expert Disclosure with Reports:
March 15, 2013
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Defendant’s Expert Disclosure with Reports:
April 12, 2013
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Rebuttal Expert Disclosure with Reports:
May 3, 2013
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Expert Discovery Cutoff
May 17, 2013
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Motions Hearing Deadline
June 4, 2013
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Final Pretrial Conference
August 6, 2013, 2:00 p.m.
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Jury Trial
August 19, 2013
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Good cause appearing, and pursuant to the stipulation of the parties, it is so ordered.
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Dated: August
, 2012
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Hon. Paul S. Grewal
United States Magistrate Judge
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APPROVED AS TO FORM AND CONTENT:
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Dated: August 22, 2012
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MELINDA HAAG
United States Attorney
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__________/S/______________
James A. Scharf
Assistant United States Attorney
Attorney for Defendant
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__________/S/______________
Eugene S. Thompson
Attorney for Plaintiff
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PROPOSED ORDER RE DEFENDANT’S MOTION TO DISMISS AND CASE
MANAGEMENT SCHEDULE
Case No. C 12-2047 PSG
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