ACLU FOUNDATION OF SAN DIEGO & IMPERIAL … · ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES DAVID BLAIR-LOY (229235 ... jurisdictional facts occurring after the original complaint

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ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES DAVID BLAIR-LOY (229235) SEAN RIORDAN (255752) P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 398-4485 Facsimile: (619) 232-0036 [email protected] [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CAROLYN MARTIN,

Plaintiff,

v.

NAVAL CRIMINAL INVESTIGATIVE SERVICE (“NCIS”); MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD “JERRY” MARTIN, NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7; and UNITED STATES OF AMERICA,

Defendants.

Case No. 10-cv-1879 WQH MDD

FIRST SUPPLEMENTAL COMPLAINT FOR:

1. Intentional Infliction of Emotional

Distress 2. Battery 3. Malicious Trespass 4. Abuse of Process 5. False Imprisonment

Case 3:10-cv-01879-WQH-MDD Document 68 Filed 05/07/12 Page 1 of 5

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2. CASE NO. 10-CV-1879

Pursuant to Federal Rule of Civil Procedure 15(d), Plaintiff Carolyn Martin (“Ms. Martin”

or “Plaintiff”) files this First Supplemental Complaint, which alleges the occurrence of

jurisdictional facts occurring after the original complaint was filed and pleads claims under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq., against the United States of

America that could not have been pleaded before those jurisdictional facts occurred. Plaintiff

alleges as follows:

JURISDICTION AND VENUE

1. The Court has subject matter jurisdiction over Plaintiff’s FTCA claims under 28

U.S.C. § 1331 and § 1346(b).

2. The Court has personal jurisdiction over the United States of America.

3. Venue is proper in the Southern District of California pursuant to 28 U.S.C. §

1391(e) and § 1402(b) because the events which give rise to this action occurred within this

district and Plaintiff resides within this district.

PARTIES

4. Plaintiff Carolyn Martin is, and at all times relevant was, a citizen of California

working and residing in San Diego County.

5. Defendant United States of America is sued for Plaintiff’s personal injuries caused

by the negligent or wrongful acts or omissions of its employees. Those employees were acting

within the scope of their office or employment under circumstances where the United States, if a

private person, would be liable to Plaintiff in accordance with the laws of the State of California.

See 28 U.S.C. § 1346(b).

FACTUAL ALLEGATIONS

6. On June 21, 2011, Ms. Martin mailed an administrative claim under the Federal

Tort Claims Act, comprised of a completed Standard Form 95 and supporting materials, to the

appropriate federal agencies, including the Department of the Navy (“DON”) Tort Claims Unit.

See Ex. A (Tort Claim). Ms. Martin claimed $50,035 in damages. The DON’s Tort Claims Unit


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3. CASE NO. 10-CV-1879

received the claim on June 23, 2011. Because the earliest tortious action described in Ms.

Martin’s administrative claim occurred on June 29, 2009, her claim was timely filed. See 28

U.S.C.A. § 2401(b) (two year statute of limitations for filing of administrative tort claims).

7. In a letter dated October 20, 2011, over one year after the original complaint in this

case was filed, the DON’s Tort Claims Unit denied Ms. Martin’s administrative tort claim. See

Ex. B (Denial Letter). This action under the FTCA is timely. See 28 U.S.C.A. § 2401(b) (six

month statute of limitations for filing of action after denial of administrative tort claim).

FIFTH CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

(Against the United States of America for damages)

8. Plaintiff incorporates by reference the allegations of the original Complaint as

though set forth herein.

9. Defendants Agent Martin and Doe 1 engaged in, instigated, and directed a course

of extreme and outrageous conduct with the intention of causing, or reckless disregard of the

probability of causing, emotional distress to Plaintiff.

10. As a proximate result of the acts alleged herein Plaintiff suffered severe or extreme

emotional distress, entitling her to damages in an amount to be proven at trial.

SIXTH CAUSE OF ACTION

BATTERY




12. Defendant Agent Martin caused Plaintiff to be touched with the Violation Notice

on May 3, 2010 with the intent to harm her.

13. Plaintiff did not consent to the touching.

14. As a proximate result of the acts alleged herein Plaintiff suffered harm, entitling

her to damages in an amount to be proven at trial.


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4. CASE NO. 10-CV-1879

SEVENTH CAUSE OF ACTION

MALICIOUS TRESPASS




16. Defendants Agent Martin and Doe 1 entered Plaintiffs’ property on May 3, 2010

without authorization and with the malicious intent to give her a fraudulent Violation Notice.

17. As a proximate result of the acts alleged herein Plaintiff is entitled to damages in

an amount to be proven at trial.

EIGHTH CAUSE OF ACTION

ABUSE OF PROCESS




19. Defendants Agent Martin and Doe 1 willfully and wrongfully created the

purported Violation Notice and willfully and wrongfully purported to serve the Violation Notice

on Plaintiff with the motive of using the Violation Notice to retaliate against Plaintiff for her

activities as a defense investigator and otherwise to harass and harm her.

20. As a proximate result of the acts alleged herein, Plaintiff is entitled to damages in


NINTH CAUSE OF ACTION

FALSE IMPRISONMENT




22. Through actions described herein on July 23, 2009, Does 1-7 intentionally

confined Plaintiff without lawful justification.

23. Plaintiff did not consent to such confinement.

24. As a proximate result of the acts alleged herein Plaintiff is entitled to damages in



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5. CASE NO. 10-CV-1879

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for relief and judgment as follows:

Awarding general and compensatory damages under the FTCA against the United States

in an amount to be proven at trial.

Respectfully submitted,

Dated: May 7, 2012

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES DAVID BLAIR-LOY (229235) SEAN RIORDAN (255752) /s/ Sean Riordan

SEAN RIORDAN (255752) Attorney for Plaintiff


Case 3:10-cv-01879-WQH-MDD Document 68-1 Filed 05/07/12 Page 1 of 14

















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ACLU FOUNDATION OF SAN DIEGO &

IMPERIAL COUNTIES

David Blair-Loy (SBN 229235)

Sean Riordan (SBN 255752)

P.O. Box 87131

San Diego, CA 92138-7131

Tel: (619) 232-2121

Fax: (619) 232-0036

[email protected]

[email protected]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CAROLYN MARTIN,

Plaintiff,

v.

NAVAL CRIMINAL INVESTIGATIVE

SERVICE (“NCIS”) et al.,

Defendants.

Case No. 10-CV-1879 WQH AJB

PROOF OF SERVICE

The undersigned hereby certifies that he is an employee for the ACLU Foundation of San

Diego & Imperial Counties, P.O. Box 87131, San Diego, California 92138-7131; is a person of

such age and discretion to be competent to serve papers; and that on May 7, 2012, he served

copies of the following document(s):

1. FIRST SUPPLEMENTAL COMPLAINT WITH SUPPORTING

EXHIBITS A & B

__X__ by transmitting via e-filing the document(s) listed above to the Case Management/

Electronic Case filing system, through which all counsel of record are deemed served.


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2

_____ by transmitting via facsimile the document(s) listed above to the fax number(s) specified

on this date before 5:00p.m.

_____ by placing the document(s) listed above in a sealed envelope with certified postage

thereon fully prepaid, in the United States mail at San Diego, California addressed as set

forth below.

_____ by placing the document(s) listed above in a sealed envelope with postage thereon fully

Prepaid, and deposited with UPS Overnight at San Diego, California to the addressee(s)

specified hereto.

______ by personally delivering the document(s) listed above to the person(s) at the address(es)

set forth below.

I declare under penalty of perjury, under the laws of the State of California, that the

foregoing is true and correct. Executed on May 7, 2012, at San Diego, California.

s/ Sean Riordan

Sean Riordan


Documents

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL … · ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES DAVID BLAIR-LOY (229235 ... jurisdictional facts occurring after the original complaint