Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-7-2007
Francis v. Joint Force HQ
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4246
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"Francis v. Joint Force HQ" (2007). 2007 Decisions. Paper 459.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4246
________________
JANET FRANCIS,
Appellant
v.
JOINT FORCE HEADQUARTERS NATIONAL GUARD;
KATHEY MCCREADY, EO; LTC LAWLOR, IG; MAJOR GENERAL REITH, TAG;
GENERAL CARLINI; COL GUARENO; LTC SCHEPENS;
COL STEPHEN HINES, Chief of Staff- Col;
MS. EVELSIZER, Chief-national Guard Bureau -NGB-EO;
DONALD BALLARD, NGB Counselor; DEPARTMENT OF ARMY; MAJOR BEALE;
WO CONLEY; COL KENT MILLIKEN; MAJOR PERRON;
COL THOMAS SULLIVAN
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-04882)
District Judge: Honorable Jerome B. Simandle
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
August 24, 2007
Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES
(Filed: September 7, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Janet Francis, acting pro se, appeals an order of the United States District
Court for the District of New Jersey denying her motion for entry of default and granting
defendants’ motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(1).
Francis is a former military technician who was discharged from the United
States Army National Guard and fired from her related civilian employment with the
Department of the Army.1 Her complaint in this case appears to allege that her military
discharge violated various statutory and constitutional rights.2 She claims that she was:
denied the right to review her military records; harassed and discriminated against
because of her sex; retaliated against for filing a complaint with the Equal Employment
Office; denied access to materials and job opportunities necessary for promotion; and
defamed. For these alleged wrongs, she seeks $2.8 million in compensatory damages,
reinstatement at her previous rank, and removal of any negative materials from her
personnel file.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the
District Court’s denial of appellant’s motion for default judgment for abuse of discretion.
See Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250-52 (3d Cir. 1989). Our review of
1
Like the District Court, we draw many of these facts from defendants’ Motion to
Dismiss, as the complaint filed by Francis is nearly devoid of factual allegations to
support her claims.
2
Francis challenged the termination from her civilian position in a separate action.
See D.N.J. Civ. No. 05-cv-04484; C.A. Nos. 06-2973 and 06-2920.
2
the District Court’s dismissal of appellant’s complaint under Fed. R. Civ. P. 12(b)(1) is
plenary. See Taliaferro v. Darby Township Zoning Bd., 458 F.3d 181, 188 (3d Cir.
2006). In so doing we look only at “whether the allegations on the face of the complaint,
taken as true, allege facts sufficient to invoke the jurisdiction of the district court.” See
id. (quoting Turicentro, S.A. v. Am. Arlines Inc., 303 F.3d 293, 300 (3d Cir. 2000)).
The District Court properly rejected plaintiff’s motion for entry of default.
Service was not perfected until appellant sent a copy of the summonses and complaint to
the Attorney General of the United States on February 6, 2006.3 See Opinion of
September 19, 2006, at 6-9; Fed R. Civ. P. 4(i). All defendants entered a limited
appearance to contest the Court’s jurisdiction by February 23, 2006, well within the
allowable time period.
As discussed in some detail by the District Court, the military defendants in
this case are immune from claims seeking monetary damages. See Opinion of September
19, 2006, at 12-16; Jorden v. Nat’l Guard Bureau, 799 F.2d 99 (3d Cir. 1986); Chappell v.
Wallace, 462 U.S. 296, 300 (1983); Matreale v. N.J. Dep’t of Military & Veterans
Affairs, ___ F.3d ___, No. 06-2051, 2007 WL 1469661, at *3 (3d Cir. May 22, 2007).
The District Court properly dismissed these claims under Fed. R. Civ. P. 12(b)(1).
We disagree, however, with the District Court’s dismissal of appellant’s
3
The District Court’s conclusion that some of defendants were never properly served
also appears to be correct; however, we need not reach that issue here. See Opinion of
September 19, 2006, at 9-10.
3
claims for injunctive relief. As the District Court observed, this case is largely
indistinguishable from Jorden. In that case, however, we rejected the proposition
apparently adopted by the District Court here that Chappell closed the door to claims for
injunctive relief as well as for money damages. See Jorden, 799 F.2d at 109-110.
Therefore, Francis’s claims for injunctive relief were not barred by the intramilitary
immunity doctrine and should not have been dismissed under Rule 12(b)(1).
Accordingly, we will affirm the District Court’s dismissal of appellant’s
damages claims. We vacate the judgment of the District Court insofar as it dismissed
Francis’s claims for injunctive relief and shall remand the case for further proceedings.4
We note that on remand, the District Court may wish to examine the complaint for
compliance with Federal Rule of Civil Procedure 8.
4
The motion for Default Judgment filed with this Court is denied.
4