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Case 8:13-cv-03059-GJH Document 402 Filed 04/20/17 Page 1 of 2



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April 20.2017

RIO: Killlherlill \'. I'i'e.\'. Case No. G.lII- 13-3059


Dear Counsel and Mr. Kimberlin:

Pursuant to Fcderal Rule of Civil Procedure 56(1)(2). the Court is providing notice that it
is considcring whethcr summary judgment is appropriate based on grounds not raiscd by cither

The Fourth Circuit has held that a First Amcndmcnt rctaliation elaim brought under 42
U.S.c. ~ 19X3 must includc the following three elements: (I) plaintitrs spceeh was protected:
(2) dcfcndant's alleged retaliatory action adversely aflCeted the plaintitrs constitutionally
protceted spceeh: and (3) a causal relationship exists bctween the speech and the defendant's
retaliatory action. Su(/re:: Corp. Ille/us. \'. McGrail'. 202 r:Jd 676. 685 (4th Cir. 2000) (internal
citations omitted).

To establish the third element of causation. thc plaintifTmust dcmonstratc a "but-for"

connection bcl\vcen the speech and the rctaliatory conduct. See 7ilhe.\' \'. .Iolles, 706 FJd 379.
390 (4th Cir. 2013) ("As we said in I-Iu(/Ilg 1\'. Bel. o((io",'mor,,' o(Ulli\'. o(NC.. 902 F.2d 1134.
1140 (4th Cir. 1(90)1. 'It]he causation requircment is rigorous: it is not enough that the protectcd
expression played a role or was a motivating nlctor in thc retaliation: elaimant must show that
but fill" the protected expression the Igovcrnment official] \\"()uld not ha\'e taken the allegcd
retaliatory action .... ): see also f)urlllll11 \'. Ral'/'.64 F. Supp. 3d 740. 751 (D. Md. 2(14).

I Jerc. thc allcgedly protected spccch oceurrcd on or around NOI'cmber 8. 20 I O. II hen

PlaintifTlodgcd an official complaint against Defendant with his employer. the Los Angeles
County District Attorney's Office. ECF No. 391-61 at 6-X, On or around July 1.20 II. someone
made a prank call to thc sheriffs officc in Los Angeles County repurting thc murdcr of
Defcndant's wife. which resulted in what the parties refcr to as a "swatting" incident. where a
team of armed Sherrin-s deputies arrivcd at DelCndant's house. ECF No. 180-2 at 2, By August
4.2011. thc FBI had mct with Defcndant and was invcstigating thc incidcnt. Further. hy that
date. Defcndant had c~pressed a belief that the prank call was made by an allegcd associate of
Plaintiff. ECF No. 391-4X at I. On November 29. 2011. Defendant allegedly urgcd his own
office. the Los An~elcs..."'
Countv District Attorncv's"' Office. to il1\'esti~ate
.. thc swattin~ ... incident.
and again reitcrated his belief that the incidcnt was linked to PlaintilTand his associates. ECF
Case 8:13-cv-03059-GJH Document 402 Filed 04/20/17 Page 2 of 2

No. 391-29 at 2.PlaintifTalieges that actions relatcd to the claim that PlaintifTswatted thc
Defendant were in retaliation for the protected speech.

From these laets. there appears to exist. at least. a tenable argument that the speech was
not the but-for cause of the alleged retaliatory conduct bui merely "played a role" along witb
Defendant"s actual belief that he had been swatted hy Plaintiff. Ilowevcr. neither side argued the
causation element at the motion to dismiss stage of litigation and it was only briefly mentioned in
Defendant"s Reply brief

Therefore. it is hereby ORDERED that each side shall submit supplemental bricling. not
to exceed ten (10) pages each. addressing the issue of causation. Defendant' s brief is due within
fourteen (14) days of this Order. Plaintiffwill then have ftHlrteen (14) days Ii'om his receipt of
Dcfendant"s brief to submit his own response. Barring extraordinary circumstances. no
extensions regarding these deadlines will be granted.

Although inlormal. this is an Order of the Court and shall be docketed as such.

S~inCerelY ~

George J. Hazel
United States District Judge