Garrett v. Morgan County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Lisa Garrett, Case No. 1:23CV2011

Individually and as

Administrator of the Estate

Of Nathan Alexander Garrett JUDGE PAMELA A. BARKER

Plaintiff,

-vs-

MEMORANDUM OPINION & ORDER

Morgan County Sheriff’s Office,

et al.,

Defendants.

Currently pending is the “Notice of Deficient Service” filed by Defendants the Ohio National

Guard (“ONG”) c/o Major General John C. Harris, Jr.; Jack Gillum; Angela Wilker; and Lawrence

Bogan (hereinafter referred to collectively as “the ONG Defendants”). (Doc. No. 66.) Plaintiff Lisa

Garrett, Individually and as Administrator of the Estate of Nathan Alexander Garrett (hereinafter

“Plaintiff”), filed a Response on March 27, 2024. (Doc. No. 69.) Pursuant to an Order of this Court

dated April 15, 2024, the ONG Defendants filed a Supplemental Brief on April 29, 2024. (Doc. No.

87.) Plaintiff filed a Response on May 13, 2024, to which the ONG Defendants replied on May 20,

2024. (Doc. Nos. 90, 93.)

The issue before the Court is whether, for purposes of the allegations and claims in Plaintiff’s

Amended Complaint, the ONG Defendants are federal actors and, therefore, required to be served in

accordance with Fed. R. Civ. P. 4(i). The ONG Defendants assert that they are, indeed, federal actors

because they were acting in their federal capacities during the time periods covered by the Amended

Complaint. Plaintiff insists that the ONG Defendants were acting under color of state law for all

relevant purposes and, further, that the ONG Defendants have been properly served under Fed. R.

Civ. P. 4(e). For the following reasons, the Court finds, based on the limited record before it and for

purposes of this Opinion only, that the ONG Defendants are federal actors with respect to at least

some of Plaintiff’s claims and, therefore, must be served in accordance with Fed. R. Civ. P. 4(i).

I. Relevant Factual Allegations

To fully evaluate the service issue raised by the parties, the Court must begin with a careful

discussion of the allegations and claims set forth in the Amended Complaint.

In October 2021, Nathan Alexander Garrett (“Garrett”) was a member of the ONG, 2nd

Battalion, 174th Air Artillery Defense Brigade (“AAD”), located on Hawk Drive in McConnelsville,

Ohio. (Doc. No. 44 at ¶¶ 7, 23.) Defendants Cruz Allen, Trance Van Liere, Thomas Develin, James

Meade, Christopher Leach, and Jordan Haas (hereinafter referred to collectively as “the Guardsmen

Defendants”) were also members of the ONG AAD at all relevant times. (Id. at ¶¶ 7, 11-16.)

Plaintiff alleges that the ONG “is and was, at all times relevant herein, an agency of the State

of Ohio, the administration of which is the responsibility of Major General Harris.”1 (Id. at ¶ 7.) See

also id. at ¶ 24. Plaintiff alleges that “Major General John C. Harris, Jr. is responsible for the

command of the ONG and supervises the day-to-day operations and management of the readiness,

fiscal, personnel, equipment and real property resources of the ONG.” (Id. at ¶ 7.) According to the

Amended Complaint, at all times relevant herein, Defendant Gillum was the “ONG First Sergeant of

the AAD;” Defendant Wilker was the “ONG Captain of the AAD;” and Defendant Bogan was “the

ONG Commanding Officer of the AAD.” (Id. at ¶¶ 8, 9, 10.)

1 Plaintiff acknowledges, however, that “[t]he ONG also serves, when properly designated, [as] a reserve component of

the U.S. Military consisting of a variety of combat, combat support, and combat service support units headquartered in

Columbus, Ohio.” (Id. at ¶ 7.)

2

On October 20, 2021, Garrett and the Guardsmen Defendants “were generally present in

McConnelsville, Morgan County, Ohio, under orders from the ONG for extended basic training –

also known as ‘drill’ – from Tuesday, October 19 through Sunday, October 24.”2 (Id. at ¶¶ 23, 24.)

Garrett, Allen, Develin, Meade, Leach and Haas3 were released from “drill” at around 5:30 p.m. on

that day, and “given permission to spend the evening socializing at an off-base residence as they had

done on multiple occasions in the past.” (Id. at ¶ 26.) Garrett, Allen, Develin, Meade, Leach, and

Haas traveled in separate private vehicles off the AAD base to a private residence owned by Meade’s

grandmother (hereinafter referred to as “the Cabin”). (Id.) According to Plaintiff, “[t]he unit of

guardsmen were planning on an evening of drinking and discharging handguns, as they had engaged

in on many occasions in the past.” (Id.)

Van Liere and Defendant Brenna Nye arrived at the Cabin between 10:00 and 11:00 p.m. (Id.

at ¶ 28.) As the evening progressed, Garrett, the Guardsmen Defendants, and Nye “made their way

to the kitchen table telling stories and drinking alcohol.” (Id. at ¶ 29.) A Ruger 9mm semi-automatic

pistol owned by Leach, and a Glock 19 9mm and .40 caliber Sig 420 handgun owned by Develin,

were on the kitchen table. (Id.) Additionally, several rifles owned by Meade were “located in various

areas around the Cabin.” (Id.)

2 Plaintiff further alleges that: “The particular crew that the Guardsman Defendants (and Nathan Garrett) were part of is

the missile artillery unit ‘Bravo Battery.’ There are two components of each of the four batteries at the 174th, a mobile

radar unit, and a mobile missile unit. In Bravo Battery, the radar unit’s code name was ‘Golf’, and the missile unit’s

[code name was] ‘Sierra.’ Garrett and the other six soldiers at the Cabin that night were all assigned to the Golf radar

unit.” (Id. at ¶ 25.)

3 Defendant Van Liere was earlier granted leave to be off the entire day on October 20, 2021 to attend a funeral. (Id. at ¶

26.) As set forth infra, later that evening, Van Liere and his friend, Defendant Brenna Nye, joined Garrett, Allen, Develin,

Meade, and Haas at the off-base residence where the incident involving Garrett occurred.

3

Leach and Develin discussed and demonstrated the different components of the three

handguns and began to remove the magazines, pull back on the slides, reinsert empty magazines,

close the slide and pull the trigger to achieve what is known as a “dry fire” with what should be an

unloaded weapon. (Id. at ¶ 30.) Plaintiff alleges that, “[a]t this point, the circumstances transformed

… to a disturbing and dangerous variation of” Russian Roulette.” (Id. at ¶ 31) Specifically, Plaintiff

alleges that, “instead of safely dry firing the weapons in a safe direction (such as the floor), those

around the table began to pass a gun from one person to another.” (Id.) “When it was handed-off,

the recipient would eject the magazine, pull the slide back to purportedly verify the gun was not

loaded, replace the empty magazine, and cause the slide to return to position resulting in what is

supposed to be an unloaded, but charged weapon.” (Id.) “The person would then take the firearm,

point it at their temple, and while consuming more alcohol, dry fire the trigger resulting in the ‘click’

of the firing pin.” (Id.) Plaintiff alleges that the Guardsmen Defendants had previously engaged in

this “game” or “exercise” at the Cabin, but that Garrett refused to participate. (Id. at ¶¶ 33, 34.)

At approximately 11:00 p.m. on October 20, 2021, Garrett was standing in the kitchen, leaning

against the counter, facing the kitchen table where the Guardsman Defendants and Nye were seated.

(Id. at ¶ 35.) The Guardsman Defendants and Nye later explained that they were simultaneously

looking in different directions when they heard Leach’s gun discharge. (Id.) All individuals then

looked in Garrett’s direction to see him fall to the floor with blood pouring out of a gunshot wound

to his head. (Id.) At approximately 11:05 p.m., one of the Guardsmen Defendants called 911. (Id.

at ¶ 36.)

Paramedics arrived first, followed by Defendant Morgan County Sheriff’s Deputy Alex

Mayle. (Id. at ¶¶ 36, 38.) Plaintiff alleges that, before the paramedics arrived, the Guardsman

4

Defendants and Nye coordinated their “stories” to be as similar as possible— “all denying seeing any

gunfire, and ultimately falsely identifying the shooter as the one person who had no voice – Nathan

Garrett.” (Id. at ¶ 37.) Deputy Mayle arrived at the scene at approximately 11:26 p.m. (Id. at ¶ 36.)

Upon his arrival, the paramedics informed him that Garrett was deceased. (Id. at ¶ 40.) After entering

the Cabin and surveying the scene, Deputy Mayle contacted the Morgan County Sheriff’s Office

(“MCSO”) dispatch and requested a supervisor’s presence. (Id.) Shortly thereafter, Defendant

Morgan County Sergeant Thomas Jenkins arrived, was advised of the situation by Deputy Mayle, and

assisted in gathering information from the individuals present. (Id.)

According to Plaintiff, “neither Deputy Mayle nor Sgt. Jenkins made any attempt to initially

secure the firearms, detain or segregate the individuals, take any blood-alcohol readings or any other

trace evidence from the Guardsman Defendants, Nye, or Garrett.” (Id. at ¶ 41.) Instead, Deputy

Mayle “attempted to gather information from the individuals in a group setting while the individuals

were clearly in view and earshot of one another.”4 (Id. at ¶ 42.) Deputy Mayle and Sergeant Jenkins

were told by the soldiers that it had been Leach’s Ruger that fired the shot that killed Garrett. (Id. at

¶ 44.) Leach told Deputy Mayle that, after Garrett was killed, Leach took possession of the weapon

and removed it to the adjoining bedroom where he placed it into a carrying case and set the case on

the floor under a desk.5 (Id.) When the Ruger was presented to the Deputies, it “did not have any

4 Deputy Mayle did attempt to contact Defendant Morgan County Sheriff Douglas McGrath to come to the scene so that

he could request further assistance from State investigators. (Id. at ¶ 43.) Sheriff McGrath, however, refused to do so,

which resulted in the inability to request assistance from the Ohio State Highway Patrol and/or Ohio Bureau of Criminal

Investigation. (Id.)

5 When the paramedics arrived, they allegedly saw Develin walking out of this same bedroom where the Ruger had been

placed by Leach. (Id. at ¶¶ 39, 44.)

5

blood on it or other residue.” (Id.) According to Plaintiff, “Meade and/or Leach later confirmed that

the gun had been cleaned after the shooting.” (Id.)

At approximately 12:30 a.m. on October 21, 2021, Develin placed a call to the ONG 174th

AAD and advised them that Garrett was deceased due to a gunshot wound to the head. (Id. at ¶ 45.)

About an hour later, Defendant ONG Sergeant Jack Gillum arrived at the Cabin with a van. (Id.)

Deputy Mayle “advised them that the stories of the Guardsman Defendants and Nye were inconsistent

and that he believed that they were being deceitful.” (Id.) Despite these concerns, Deputy Mayle and

Sergeant Jenkins “permitted the ONG to remove the Guardsman Defendants from the Property and

return them to base where the ONG required each involved soldier to write statements.” (Id. at ¶ 46.)

Nye was permitted to drive home, even though she was underage and had been drinking. (Id.)

Later during the morning of October 21, 2021, Sgt. Russell of the ONG AAD contacted the

MCSO and advised that the Guardsman Defendants could be further questioned regarding Garrett’s

death “now that they had a night’s sleep and sobered-up.” (Id. at ¶ 47.) The Guardsman Defendants

arrived at the MCSO and were re-questioned by Deputy Mayle about the incident of the prior evening.

(Id. at ¶ 48.) “All Guardsman Defendants arrived in identical clothing, with shirts that read ‘ARMY’

across the front of them.” (Id.) During the October 21, 2021, interviews, “most of the Guardsman

Defendants’ stories had changed dramatically from the night before.” (Id. at ¶ 49.) “For instance,

instead of remaining consistent with his story to the MCSO that evening that he saw nothing, the next

day Trance Van Liere claimed to Deputy Mayle that he in fact had witnessed the entire progression

of the gun being loaded and Nathan Garrett being shot.” (Id.) It was also the first time any of the

Guardsman Defendants admitted to the Russian Roulette game being performed both that night, and

before. (Id.)

6

Shortly after the Guardsmen Defendants left the MCSO’s Sheriff’s Office, Sheriff McGrath

took Deputy Mayle off the case and took over the investigation. (Id. at ¶ 51.) Plaintiff claims that,

thereafter, “the MCSO did not conduct any further productive investigation into Mr. Garrett’s death.”

(Id.) In particular, Plaintiff alleges that no gunshot residue testing was completed, no fingerprints

were taken, no DNA testing was conducted, no ballistics analysis was conducted,6 and no forensic

analysis of the Cabin was performed. (Id.) Sheriff McGrath closed his investigation “just days” after

the incident at the Cabin. (Id. at ¶ 55.) No arrests were made, or criminal charges brought. (Id.)

Rather, Garrett’s cause of death was designated as an accidental self-inflicted gunshot wound. (Id.

at ¶ 55.)

Frustrated, the Garrett family began collecting information and evidence.7 (Id. at ¶ 57.) The

next year the ONG performed a review of Garrett’s death as part of a larger inquiry into the military’s

concern of the influence of seditious local militant groups, the members of which are also state

National Guardsmen. (Id. at ¶ 58.) The Garrett family was first advised on December 21, 2021, by

Sergeant Mike Harris of the 174th AAD that the ONG would only begin investigating once the

6 Plaintiff alleges that ONG Sergeant John Russell, while visiting the Cabin on October 21, 2021 to retrieve additional

property of the soldiers, discovered a shell casing near the area of the shooting. (Id. at ¶ 53.) He also observed what

appeared to be a bullet strike in the wall behind the refrigerator. (Id.) Sergeant Russell placed the casing in a bag and

took a photo of the bullet-strike before delivering them to the MCSO. (Id.) On February 14, 2022, however, “Sheriff

McGrath told the Garrett family that despite being provided the day after the shooting [with] a photograph of the location

of the subject bullet, that evidence had subsequently ‘disappeared.’” (Id. at ¶ 54.)

7 Plaintiff alleges that the Garrett family’s investigation included “a deep examination of Discord, a popular free

messaging internet platform.” (Id. at ¶ 57.) “As a result of the disturbing, sadistic, racially offensive, misogynistic, and

antisemitic posts of several of the Guardsmen Defendants on Discord that [the Garrett Family] had discovered and shared

with law enforcement, Meade and Develin were arrested and charged with criminal offenses – unrelated to the death of

Nathan Garrett.” (Id. at ¶ 61.) One of Develin’s threatening acts was directed towards the MCSO because of their refusal

to return his handguns now that the case was closed. (Id.) Plaintiff alleges that: “Federal investigators thought enough of

this and other threats (fly an airplane into the Columbus Budweiser Brewery Towers in the fashion of 9/11 and shooting

up a Columbus Jewish Synagogue) to charge Develin with hate crimes. This member of the Ohio National Guard and

fellow radar missile artillery soldier with the Guardsmen Defendants plead guilty and is currently incarcerated in Federal

Prison.” (Id. at ¶ 62.)

7

MCSO’s file was closed – even though Sheriff McGrath had closed his inquiry two months earlier.

(Id.) A month later, on January 14, 2022, Sergeant Harris told the family that a Lieutenant Snyder

was assigned by the ONG as the investigating officer for the incident that led to Garrett’s death. (Id.)

Lieutenant Snyder was “uninterested in the information the family had uncovered” and “was never

heard from thereafter.” (Id.)

On April 5, 2022, ONG Lt. Colonel Bob Lytton spoke with Plaintiff Lisa Garrett. (Id. at ¶

59.) Colonel Lytton informed Lisa Garrett that he had been assigned to investigate Lt. Snyder, who

had been removed from the inquiry into the death of Nathan Garrett. (Id.) Colonel Lytton also

revealed to the family for the first time that there were bodycam images from the MCSO of the

October 20, 2021, incident that were a part of Lt. Snyder’s file. (Id.) The Garrett family was shocked

because they had previously requested all evidence “back in the fall of 2021,” but were never provided

with any bodycam footage, nor did the MCSO or the investigating Deputies suggest the existence of

bodycam evidence. (Id.)

Plaintiff alleges that, “[a]s a consequence of the conscious wrongdoing of the MCSO, the

ONG and the Guardsman Defendants (including Brenna Nye), Plaintiff has been denied the ability to

identify the person(s) who is directly responsible for the shooting of Nathan Garrett and has been

denied a legal remedy against such tortfeasors directly for the death of her son.” (Id. at ¶ 64.)

II. Procedural History

Nearly two years later, on October 13, 2023, Plaintiff filed a Complaint in this Court against

the following defendants: (1) the MCSO; (2) the Morgan County Board of County Commissioners;

(3) Morgan County Sheriff McGrath; (4) Morgan County Deputy Mayle; (5) Morgan County Deputy

Jenkins; (6) the ONG c/o Major General Harris; (7) ONG AAD First Sergeant Gillum; (8) ONG AAD

8

Captain Wilker; (9) ONG AAD Commanding Officer Bogan; (10) Guardsmen Defendants Allen,

Van Liere, Develine, Meade, Leach, and Haas; (11) Brenna M. Nye; and (12) John Does Nos. 1

through 3. (Doc. No. 1.) Therein, Plaintiff alleged various state and federal claims arising out of

Garrett’s death on October 20, 2021.

In January 2024, Defendants Nye and Allen filed Answers and, later, Amended Answers.

(Doc. Nos. 10, 11, 14, 17.) Defendants Morgan County Sheriff’s Office, Morgan County Board of

County Commissioners, McGrath, Mayle, and Jenkins (hereinafter “the Morgan County

Defendants”) filed a Motion to Dismiss. (Doc. No. 18.) Defendants Allen, Meade, and Van Liere

also filed separate Motions to Dismiss and/or for Judgment on the Pleadings. (Doc. Nos. 12, 13, 15.)

At that time, however, Plaintiff had yet to perfect service on numerous Defendants, including

the ONG Defendants, Defendant Develin, and Defendant Haas. Thus, on February 21, 2024, the

Court notified Plaintiff that “unless good cause is shown for failure to serve the above Defendants as

provided under the Rules, the above Defendants will be dismissed without prejudice on March 6,

2024.” (Doc. No. 25.)

On March 6, 2024, Plaintiff filed a Motion for Leave to Amend Complaint, which was granted

the same day. (Doc. No. 44.) The Amended Complaint asserts a total of ten state and federal claims

against the same Defendants as in the original Complaint, including (among other things) seven

claims against the ONG Defendants.8 (Id.) Because the nature and factual bases of the claims against

the ONG Defendants are important to the resolution of the specific service issue currently pending

before the Court, the Court will discuss these claims in some detail.

8 ONG Defendants Gillum, Wilker, and Bogan are sued both in their individual capacities and in their capacities as First

Sergeant, Captain, and Commanding Officer, respectively, of the ONG AAD in McConnelsville. (Id. at p. 2.)

9

In Count One, Plaintiff alleges a claim against the ONG Defendants under 42 U.S.C. § 1983

for denial of access. (Id. at ¶¶ 65-77.) Plaintiff claims that “[a]bsent Defendants’ intentional

concealment of the true evidence of the underlying crimes, Plaintiff would have a valid wrongful

death claim for the death of Mr. Garrett against a primarily liable tortfeasor pursuant to Ohio Revised

Code Section 2515.01 et seq.” (Id. at ¶ 66.) Plaintiff alleges that “[i]Instead, at best, depending on

what action the U.S. Attorney determines to consider [sic] any of the National Guard Defendants as

federal employees under 32 U.S.C. § 502 and 28 U.S.C. §2671, Plaintiff may be limited to proceeding

with only a premises liability action against one or two individual civilian parties.”9 (Id.)

Plaintiff goes on to allege that, “[a]s employees and officers of the State of Ohio, the ONG

Defendants, in order to cover for the Guardsman Defendants, with the active assistance of the MCSO,

McGrath, Jenkins and Mayle, intentionally obstructed the investigation into the death of Mr. Garrett

by, inter alia, removing the Guardsman Defendants from the scene of the crime and later disposing

of evidence (cleaning of the scene in the following days, failing to take any trace evidence samples

from the Guardsman Defendants and letting them clean, sober-up and then report sanitized to the

MCSO the following day).” (Id. at ¶ 67.) Plaintiff further claims that “[t]he misfeasance continued

in the following months when despite overwhelming evidence that one or more soldiers were directly

involved in criminal conduct, the ONG failed to take any timely steps to interrogate witnesses, collect

and preserve evidence, and conduct any necessary scientific testing such as gunshot residue,

9 Plaintiff then explains, in a footnote, as follows: “To counsel’s knowledge there is no basis for a claim of federal

jurisdiction over the Ohio National Guard in this case. When on duty, the soldiers were on extended basic training and

not within the service, even temporary, of the United States. Nevertheless, any claims against soldiers, whether regular

Army or National Guard, are routinely reviewed by the U.S. Attorney for FTCA determination. To that extent, all claims

herein are brought against agencies and employees of the State of Ohio acting ‘under color of State law.’ In the event the

U.S. Attorney takes the position that the ONG Defendants and Guardsman Defendants were engaged in the service of the

United States, Plaintiff has delivered a Form 95 claim to the Department of the Army prior to the filing of the within

action.” (Id. at p. 20, fn 1.)

10

fingerprints, ballistics, blood splatter patterns before the evidence either became too old, unreliable,

or just completely disappeared.” (Id. at ¶ 68.)

Plaintiff alleges that “by reinstating most if not all of the Guardsmen Defendants who were

not criminally charged by law enforcement agencies other than the MCSO, the ONG Defendants have

ratified the criminal misconduct of those individuals.” (Id. at ¶ 71.) Plaintiff asserts that “[d]ue to

the intentionally obstructive actions taken by the ONG Defendants under color of state law, the

underlying wrongful death claim has been substantially prejudiced in a manner that cannot be

remedied by a state court.” (Id. at ¶ 73.) Plaintiff alleges that this “serves to deny Plaintiff access to

a state remedy in violation [of] their Due Process rights under the Fourteenth Amendment of the U.S.

Constitution, the Equal Protection Clause under the same provision, the First Amendment, and the

Privileges and Immunities Clause of Article IV.” (Id.)

In Count Two, Plaintiff asserts a state law claim against the ONG Defendants for obstruction

of justice in violation of Ohio Rev. Code § 2921.32. (Id. at ¶¶ 78-84.) In this Count, Plaintiff alleges

that the ONG Defendants, with the purpose to hinder the discovery, apprehension, prosecution,

conviction, or punishment of another, did (1) destroy or conceal physical evidence of a crime or act

and induce any person to withhold testimony or information; (2) communicate false information to

the MCSO and ONG Defendants; and (3) prevent or obstruct any person, by means of force,

intimidation, or deception, from performing any act to aid in the discovery, apprehension, or

prosecution of any person. (Id. at ¶¶ 79, 80, 81.) Plaintiff alleges that the ONG Defendants’ actions

violate Ohio Rev. Code § 2921.32 (Obstruction of Justice) and were taken with malicious purpose,

in bad faith, and in a wanton and reckless manner. (Id. at ¶¶ 82, 83.) Plaintiff asserts that she is

entitled to damages pursuant to Ohio Rev. Code § 2307.60. (Id. at ¶ 84.)

11

In Count Five, Plaintiff asserts a claim against the ONG Defendants and the Morgan County

Defendants pursuant to 42 U.S.C. § 1983 for civil conspiracy. (Id. at ¶¶ 100-104.) Plaintiff alleges

that the ONG Defendants and MCSO Defendants engaged “in a single plan with the conspiratorial

objective to intentionally deprive Plaintiff access to the courts by intentionally and maliciously

destroying evidence and obstructing the investigation into the death of Mr. Garrett.” (Id. at ¶ 101.)

Plaintiff further claims that “[t]he ONG Defendants and MCSO Defendants did commit overt acts in

furtherance of their conspiracy by way of removing the Guardsman Defendants from the scene of the

crime, allowing the Guardsman Defendants to be removed from the scene of the crime, destroying

evidence by intentionally disposing of the bullet and shell casing, and intentionally failing to conduct

an investigation into the death of Mr. Garrett.” (Id. at ¶ 102.) Plaintiff alleges that the ONG

Defendants’ and MCSO Defendants’ conspiracy injured her “by intentionally depriving her of a

wrongful death suspect for the death of Mr. Garrett.” (Id. at ¶ 103.)

In Count Seven, Plaintiff asserts a claim against the ONG Defendants, the Guardsmen

Defendants, and Nye for using weapons while intoxicated in violation of Ohio Rev. Code § 2923.15.

(Id. at ¶¶ 110-115.) Plaintiff alleges that, at the time of Garrett’s death, “the Guardsmen Defendants

and Nye in their individual capacities, and Defendant Develin as agent of the ONG” were intoxicated

and/or consumed sufficient alcohol to be impaired, and were handling firearms. (Id. at ¶¶ 111, 112.)

Plaintiff alleges that this conduct constitutes a violation of Ohio Rev. Code § 2923.15. (Id. at ¶ 113.)

Plaintiff further alleges as follows:

The injurious wrongdoing of the Guardsmen Defendants in their individual capacities

and Defendant Develin also as a supervisory agent for the ONG, creates vicarious

liability for the ONG Defendants. Further, the ONG Defendants are also liable from a

primary liability standpoint for knowing of the misconduct through the instances

before Nathan Garrett was killed, actively participating in it through Sergeant Develin,

12

and in ratifying the misconduct by retaining the Guardsman Defendants after learning

of the drunken usage of the handgun “exercise.”

(Id. at ¶ 114.)

In Count Eight, Plaintiff asserts a state law claim for civil conspiracy against all Defendants,

including the ONG Defendants. (Id. at ¶¶ 117-120.) Plaintiff alleges that “[b]y destroying evidence,

intentionally obstructing the investigation into the death of Mr. Garrett, and ratifying the misconduct

of its agents/employees by the ONG Defendants, all Defendants maliciously conspired, expressly or

tacitly, in pursuance of a common plan or design to injure Plaintiff by way of Obstructing Justice in

violation of R.C. 2921.32.” (Id. at ¶ 118.) Plaintiff claims that “[t]he conspiracy undertaken by the

Defendants did cause injury to Plaintiff by way of depriving her of a primarily liable wrongful death

tortfeasor for the death of Nathan Garrett.” (Id. at ¶ 119.)

In Count Nine, Plaintiff asserts a claim against the ONG Defendants for violation of the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (Id. at ¶¶ 121-129.) Plaintiff alleges that the

ONG “has performed at least one review that included some reference to the shooting death of Nathan

Garrett.” (Id. at ¶ 122.) The first and more comprehensive of these reviews was allegedly done “by

Captain Matthew Jacobs, USA, which was initiated to look into potential infectious influence of

radical seditious militia within the Ohio National Guard. Captain Jacob’s review included the

shooting death of Nathan Garrett.” (Id.) Plaintiff claims that the second official review is what is

called a “Loss on Duty” or (“LOD”) determination. (Id. at ¶ 123.) Pursuant to FOIA, 5 U.S.C. §

552, Plaintiff officially submitted requests for production of this information on May 10, 2022,

February 19, 2023, and June 6, 2023. (Id. at ¶¶ 124-126.) See also Doc. Nos. 44-1 through 44-3.

Plaintiff alleges, upon information and belief, that “the report prepared by Captain Jacobs has

been presented to the ONG Adjunct, Major General John C. Harris, who has not only presented it to

13

Governor Michael DeWine, but also presented it to a board of public officials including the Governor,

the Attorney General and others.” (Id. at ¶ 127.) Plaintiff demands that the Court “order the

immediate production of the unredacted Jacobs report – at the least (or at least those portions that

deal with the shooting death of Nathan Garrett) – as well as the statements completed by the

Guardsmen Defendants (and any of the ONG Defendants) on or around October 20-21, 2021.” (Id.

at ¶ 129.) Plaintiff also requests that the Court impose a penalty upon the ONG pursuant to 5 U.S.C.

§ 552 et seq. of at $100 per day from June 10, 2022 through to the present and for every day into the

future that the request remain outstanding and ignored.” (Id.)

Finally, in Count Ten, Plaintiff asserts a claim against the ONG Defendants for Negligent

Retention. (Id. at ¶¶ 130-134.) Plaintiff alleges that “[a]s the employer of Defendant Develin, ONG

and the ONG Defendants are independently liable for the negligent retention, supervision and

promotion of Develin because the ONG Defendants chose to employ and retain Develin who had a

history of criminal, tortious or otherwise dangerous conduct about which the ONG Defendants knew

and/or could have discovered through reasonable investigation.”10 (Id. at ¶ 131.) Plaintiff further

alleges that “[a] special relationship also existed between the ONG Defendants and Nathan Garrett,

who was an off-duty employee of the ONG at the time of his death.” (Id. at ¶ 132.) Plaintiff claims

that “[s]ince the ONG Defendants knew of the dangerous firearm exercise performed by Develin,

Meade and Leach, when drinking alcohol during off-duty socializing away from the [AAD],

Defendants owed a duty to off duty employees like Garrett to prevent foreseeable injury by exercising

10 Plaintiff alleges that “the evidence in support of this claim involves, inter alia¸ the ONG Defendants’ knowledge of

Develin’s mental health condition(s), the treatment therefor, and the previous misconduct he, Meade and Leach carried

out at the Cabin with the intoxicated handgun exercise where a firearm actually discharged into the floor on a prior

occasion.” (Id.)

14

reasonable care to refrain from continuing to employ incompetent employees like Develin.” (Id.)

Plaintiff alleges that, “[h]ad the ONG Defendants complied with their duty to employees like Garrett,

Develin would never have been in the position to engage in the drunken shooting exercise/game and

Nathan Garrett would be alive today.” (Id. at ¶ 133.)

In light of the filing of the Amended Complaint, the Court denied all pending Motions to

Dismiss as moot. Thereafter, Defendants Allen, Nye, Meade, and Haas filed Answers (Doc. Nos. 45,

52, 59, 63) and the Morgan County Defendants, Van Liere, Allen, and Haas each filed Motions to

Dismiss and/or Motions for Judgment on the Pleadings (Doc. Nos. 54, 55, 57, 64, 70.) In addition,

on March 5, 2024, Defendant Nye filed a Motion to Consolidate the instant case with Garrett v. Allen,

et al., Case No. 1:24cv00471 (N.D. Ohio) (Ruiz, J.), which had been removed to this Court by the

United States from the Cuyahoga County Court of Common Pleas.11 (Doc. No. 53.) Plaintiff filed a

11 In Garrett v. Allen, et al., Case No. 24cv471, the docket reflects that Plaintiff Lisa Garrett (individually and as

administrator of the Estate of Nathan Garrett) filed a Complaint in the Cuyahoga County Court of Common Pleas on

October 13, 2023 against Allen, Van Liere, Develin, Meade, Leach, Haas, Nye, and Meade’s grandmother, Betty Jean

Greene. This Complaint also arises out of the shooting death of Nathan Garrett, and alleges state law claims for premises

liability, civil conspiracy, negligent handling/use/furnishing of a handgun; and violations of Ohio Rev. Code § 2923.15

(using weapons while intoxicated) and § 2921.32 (obstructing justice). While the case was pending in state court, Plaintiff

subpoenaed the ONG for documents and information relating to Garrett’s death. The Department of the Army responded,

via letter from Assistant U.S. Attorney Ruchi Asher. In that letter, AUSA Asher stated (in relevant part) that “Department

of Defense and Army regulations govern the disclosure of official Ohio National Guard information.” AUSA Asher

further indicated that Plaintiff’s subpoena “does not comply with the relevant regulations” and, therefore, “the Ohio

National Guard cannot evaluate your request or honor your subpoena at this time.” Plaintiff thereafter filed a Motion to

Compel. On March 11, 2024, the state court granted Plaintiff’s Motion in part, and ordered the ONG to produce the

requested records “or inform the Court the specific factors under United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951) and cited Army regulations that prevent disclosure of the records.” Two days later, on March 13, 2024, the United

States removed the action to the Northern District of Ohio, where it was randomly assigned to Judge David Ruiz. On

June 12, 2024, Judge Ruiz issued an Order finding that removal was proper “only as to the Plaintiff’s discovery requests

to ONG and the state issued subpoena.” Case No. 1:24cv471 (Doc. No. 24 at p. 4.) The Court explained that: “The issue

of whether the subpoena issued by the state court is enforceable against the ONG is severed from the core of this action

and remains before this Court. Further consideration of the subpoena before the Cuyahoga County Common Pleas Court

remains stayed until further Order of this Court. In all other respects, the principal case is REMANDED forthwith to the

Cuyahoga County Court of Common Pleas.” (Id.) In a Joint Status Report filed June 13, 2024, Plaintiff’s counsel indicated

that he and AUSA Asher reached an accommodation in which the ONG agreed to turn over a redacted version of the

Jacobs Report which is one of the issues subject to Plaintiffs’ subpoena. (Doc. No. 26.) On June 5, 2024, the ONG

produced to Plaintiffs a redacted copy of the Jacobs Report. (Id.) Following Plaintiffs’ thorough review of the Jacobs

15

Brief in Opposition to the Motion to Consolidate on March 20, 2024. (Doc. No. 58.) The Motion to

Consolidate remains pending at this time.

Meanwhile, on March 11, 2024, Plaintiff filed returns of service executed by express mail as

to the ONG Defendants. (Doc. Nos. 39, 41, 42, 48.) The returns of service reflect that Summonses

and copies of the Amended Complaint were sent to each of the ONG Defendants via express mail to

the following address: “c/o Ohio National Guard, 2825 West Dublin Granville Road, Columbus, Ohio

43235.” (Id.) Delivery was signed for by an individual named “William Sayles.” (Id.)

On March 22, 2024, the ONG Defendants filed a “Notice of Deficient Service.” (Doc. No.

66.) Therein, the ONG Defendants argue that “for the purposes of the allegations in the Complaint

and Amended Complaint, these defendants are federal actors, and the Plaintiff is required to perfect

service upon the United States of America under Fed. R. Civ. P. 4(i).” (Id. at p. 2.) Because Plaintiff

has failed to do so, the ONG Defendants assert that the time for them to respond to the Amended

Complaint “has not yet started to run.” (Id.)

On March 27, 2024, Plaintiff filed a Response in which she argues that “so far as the ONG

Defendants are concerned, this case primarily concerns the violation of Plaintiffs’ constitutional

rights by individuals acting while employees of a department of the State of Ohio under color of state

law.” (Doc. No. 69 at p. 2) (emphasis in original). Plaintiff maintains that “it is well settled under

Ohio law that unless called to active (or special) duty by lawful order, National Guardsmen are agents

of the State of Ohio for their regular activities.” (Id. at pp. 2-5.) She asserts that, as the ONG

Report, on June 10, 2024, Plaintiffs again conferred with the ONG regarding obtaining certain exhibits to the Jacobs

Report that were not produced.(Id.) According to a Status Report filed on July 8, 2024, the ONG authorized the release

of certain exhibits to Plaintiff’s counsel on July 5, 2024. (Doc. No. 28.)

16

Defendants have not been called to active duty, they are state actors and have been properly served

under Ohio law. (Id.)

Shortly thereafter, on April 12, 2024, Plaintiff filed Applications for Entry of Default in the

instant action as to each of the ONG Defendants. (Doc. Nos. 72, 73, 74, 75.) At the Court’s direction,

these Applications have not yet been entered by the Clerk of Court. Rather, on April 15, 2024, the

Court ordered additional and more thorough briefing on the issue of whether the ONG Defendants

are federal actors for purposes of service. (Doc. No. 79.) The ONG Defendants thereafter submitted

a Supplemental Brief on April 29, 2024. (Doc. No. 87.) Plaintiff filed a Response on May 13, 2024,

to which the ONG Defendants replied on May 20, 2024. (Doc. Nos. 90, 93.)

III Analysis

The ONG Defendants maintain that, for the purposes of the claims alleged in the Amended

Complaint, they are federal actors who must be served in accordance with Rule 4(i) because: (1)

Plaintiff’s claims occurred while the ONG Defendants were participating in “inactive duty federal

training” pursuant to 32 U.S.C. § 502(a); (2) Defendant Bogan was not only an ONG AAD battalion

commander but was also employed full-time with the ONG as a “Dual Status Federal Technician” at

all relevant times; (3) Plaintiff’s claims “sound in tort” and therefore fall within the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2671; and (4) the ONG is a federal “agency” for purposes of

FOIA. (Doc. Nos. 66, 87, 93.)

In response, Plaintiff maintains that “while there are times when a National Guard may be

considered a part of the federal government when called to duty under lawful authority, there is no

basis to conclude that in each and every legal action involving a National Guardsmen [] federal

jurisdiction is implicated.” (Doc. No. 69 at p. 4.) Plaintiff asserts that, under the circumstances

17

presented herein, the ONG Defendants should not be considered federal actors because there is no

evidence that they were subject to a “clear and lawful order to federal service” for purposes of the

allegations and claims in the Amended Complaint. (Doc. No. 90 at p.3.)

Some background regarding the constitutional and statutory framework of the National Guard

is necessary to put the parties’ arguments in context. The National Guard “plays a dual role, operating

under joint federal and state control.” In re Sealed Case, 551 F.3d 1047, 1048 (D.C. Cir. 2009). This

“hybrid” status stems from the Militia Clause of the U.S. Constitution, which gives to Congress the

authority “[t]o provide for organizing, arming and disciplining, the Militia, and for governing such

Part of them as may be employed in the Service of the United States,” but “reserve[es] to the States,

respectively, the Appointment of the Officers, and the Authority of training the Militia according to

the discipline prescribed by Congress.” U.S. Const., art I, § 8, cl. 16. See In re Sealed Case, 551

F.3d at 1058; Lipscomb v. Federal Labor Relations Authority, 333 F.3d 611, 614 (5th Cir. 2003).

The Militia in this Clause is what is now known as the National Guard. See Gilligan v. Morgan, 413

U.S. 1, 6 (1973); In re Sealed Case, 551 F.3d at 1048.

Each of the fifty states has its own National Guard unit which are known as the Army National

Guard. In re Sealed Case, 551 F.3d at 1048. “Together, all federally recognized state [Army National

Guard] units comprise one of the reserve components of the United States Army, known as the Army

National Guard of the United States.”12 Id. “The Federal Government provides virtually all of the

12 As the Supreme Court explained in Perpich v. Dep't of Def., 496 U.S. 334, 351 (1990): “Since 1933 all persons who

have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States. In

the latter capacity they became a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active

duty in the Army, they retained their status as members of a separate State Guard unit. *** [U]nder the ‘dual enlistment’

provisions of the statute that has been in effect since 1933, a member of the Guard who is ordered to active duty in the

federal service is thereby relieved of his or her status in the State Guard for the entire period of federal service.” Id. at

345. The Supreme Court further noted that, “[i]n a sense, [members of a State Guard unit] now must keep three hats in

18

funding, the materiel, and the leadership for the State Guard units.” Perpich v. Dep't of Def., 496 U.S.

334, 351 (1990). “Although states are responsible for training the Army National Guard and rely on

their units under gubernatorial command ‘to respond to local emergencies,’ Perpich, 496 U.S. at 351,

such training must conform to regulations prescribed by the Secretary of the Army, 32 U.S.C. §§

501–505.” In re Sealed Case, 551 F.3d at 1048. Thus, “[t]he Militia Clause and the statutory scheme

contemplate a shared responsibility for the National Guard, although the precise nature of that

relationship is not always obvious.” Association of Civil Technicians, Inc. v. U.S., 603 F.3d 989, 992

(D.C. Cir. 2010). Or, as the Fifth Circuit has observed, “in the modern-day federal scheme, the

national guard … has become, by design, a ‘hybrid’ entity that carefully combines both federal and

state characteristics, sometimes distinctly and sometimes not.” Lipscomb, 333 F.3d at 614.

This dual federal-state status is intended to reflect a “reasoned balance between federal and

state court control,” under which “the daily operations of the national guard units are … recognized

generally to be under the control of the states, but governed largely by substantive federal law.”

Lipscomb, 333 F.3d at 614. See also Association of Civil Technicians, Inc., 603 F.3d at 993-994.

This dual status, however, can make the determination of whether a state National Guard or

Guardsmen is acting in a state or federal capacity somewhat “murky.” In re Sealed Case, 551 F.3d

at 1049 (quoting Bowen v. United States, 49 Fed. Cl. 673, 676 (2001) (noting the “murky and mystical

duality of the National Guard system”)). As several federal courts have observed, “[a]lthough a state

National Guard may have federal status for certain statutory purposes, see, e.g., In re Sealed Case,

551 F.3d at 1053; Lipscomb, 333 F.3d at 613, whether it has federal status ‘necessarily turns on the

their closet – a civilian hat, a state militia hat, and an army hat – only one of which is worn at any particular time.” Id. at

348.

19

particular [statutory] provision at issue in each case,' In re Sealed Case, 551 F.3d at 1053.”

Association of Civil Technicians, Inc., 603 F.3d at 994.

With the above principles in mind, the Court will address each of the ONG Defendants’

arguments, separately, below.

A. Training Duty under 32 U.S.C. § 502(a)

The ONG Defendants first argue that they are federal actors who must be served in accordance

with Rule 4(i) because Plaintiff “asserts claims that occurred while” the ONG Defendants were

participating in “inactive duty federal training” pursuant to 32 U.S.C. § 502(a). (Doc. No. 87 at p.

5.) In support of this assertion, the ONG Defendants submit Declarations from Defendants Wilker

and Gillum, in which they each aver, in relevant part, that “[f]rom October 19 to October 24[,] 2021,

I was …. performing federal training overseeing the unit’s training activities in preparation for its

upcoming deployment.” (Doc. Nos. 87-1 at ¶ 2; Doc. No. 87-2 at ¶ 2.) The ONG Defendants also

submit the Declaration of Defendant Bogan in which he avers (in relevant part) that, during this time

period, he was “battalion commander and next level commander” over Defendants Wilker and

Gillum. (Doc. No. 87-3 at ¶¶ 2, 4.) The ONG Defendants thus assert that they are federal actors for

purposes of the instant action because they were “carrying out federal training responsibilities at

federal expense,” and receiving federal benefits, pay, and allowances during the relevant time period.

(Doc. No. 87 at p. 5.)

Plaintiff insists that the fact that the ONG Defendants were engaged in a “training program

created by federal regulation” is not sufficient, standing alone, to create a “federal agency connection”

requiring service of process under Rule 4(i). (Doc. No. 90 at p. 2-3.) Rather, Plaintiff asserts,

National Guardsmen are only considered to be acting in a federal capacity “where there is a clear and

20

lawful order to federal service.” (Id. at p.3.) Plaintiff maintains that the ONG Defendants have failed

to come forward with any evidence of such a “clear and lawful order” here because the Declarations

of Defendants Wilker, Gillum, and Bogan are superficial, conclusory, and self-serving, and fail to

provide “any detail of specific federal orders or job duties other than those commonly within the

scope of their activities with the ONG.” (Id. at pp. 6, 10.)

Plaintiff also argues that, even if these Defendants had reported for “federal training” at the

time of Garrett’s death, the fact remains that “none of the claims in the [Amended] Complaint concern

any training activities.” (Id. at p. 9.) Plaintiff states that “Nathan Garrett was not shot during

marksmanship instruction or any sanctioned activity during duty hours at or near the McConnelsville

base” but, rather, “was killed during an off-duty social engagement in a private cabin after hours.”

(Id. at pp. 9-10.) In sum, Plaintiff argues that, while the ONG does “have a federal role and may

receive federal funding,” “the ONG Defendants can point to nothing specifically that says that the

entire organization and its employees are exempt from the state of Ohio rules regarding service of

process when called to extended basic training.” (Id. at p. 10.)

The statutory scheme for the National Guard appears in Title 10 of the United States Code,

which addresses the armed forces generally, as well as in Title 32, which addresses the National

Guard specifically. See Association of Civil Technicians, Inc., 603 F.3d at 992-993; Stanford v. U.S.,

992 F.Supp.2d 764, 777-778 (E.D. Ky. 2014) (Thapar, J.), reconsidered in part on other grounds,

2014 WL 2574492 (E.D. Ky. June 9, 2014). “[W]hen the National Guard is called into federal active

duty pursuant to Title 10, Guardsmen are completely stripped of their state status and become fully

integrated into the United States military, subject to federal command.” Stanford, 992 F.Supp.2d at

778. See also Perpich, 496 U.S. at 345; Matreale v. New Jersey Dept. of Military & Veterans Affairs,

21

487 F.3d 150, 156 (3rd Cir. 2007). When Guardsmen serve in so-called “Title 32 status,” however,

Guardsmen can have dual federal-state status. See Matreale, 487 F.3d at 156; Stanford, 992 F.Supp.2d

at 788; U.S. ex rel. Conover v. Anthony, 781 F.Supp.2d 257, 263 (D. Md. 2011). For example, courts

have noted that “[d]espite state control, state Guardsmen are federal employees for [Federal Tort

Claims Act] purposes when they engage in service that generally corresponds to ‘full-time National

Guard duty.’” Stanford, 992 F.Supp.2d at 778. Additionally, federal law provides that, for benefits

purposes, “inactive-duty training performed by a member of the Army National Guard of the United

States in his status as a member of the Army National Guard, in accordance with regulations

prescribed under section 502 of title 32 … , shall be considered inactive-duty training in Federal

service as a Reserve of the Army.” 10 U.S.C. § 12602(a)(3) (emphasis added)

As noted above, here, the ONG Defendants argue that Defendants Wilker and Gillum are

federal actors because they “were acting in their capacities as officers performing federal training

duties under 32 U.S.C. § 502(a).” (Doc. No. 66 at p.1.) Section 502(a) requires Guardsmen to

assemble for inactive duty training at least 48 times per year under regulations issued by the federal,

not state government. See 32 U.S.C. § 502(a).13 The ONG Defendants argue that, because Wilker

and Gillum were performing training that is prescribed (and paid for) by the United States under this

statute (and Bogan was, at that time, supervising them as battalion commander), Defendants Wilker,

Gillum, and Bogan were necessarily federal actors for purposes of the instant action. Plaintiff, on the

13 Specifically, Section 502(a) provides that: “(a) Under regulations to be prescribed by the Secretary of the Army or the

Secretary of the Air Force, as the case may be, each company, battery, squadron, and detachment of the National Guard,

unless excused by the Secretary concerned, shall— (1) assemble for drill and instruction, including indoor target practice,

at least 48 times each year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other

exercises, at least 15 days each year.” 32 U.S.C. § 502(a).

22

other hand, appears to assert that Defendants Wilker, Gillum, and Bogan can only be considered

federal actors if they were called to active federal duty under Title 10.

For the following reasons, the Court rejects Plaintiff’s argument. As the ONG Defendants

correctly note, federal courts have recognized that Guardsmen serving under orders issued pursuant

to 32 U.S.C. § 502 may constitute federal actors. For example, in Matreale v. New Jersey Dept. of

Military & Veterans Affairs, 487 F.3d 150, 156 (3d Cir.2007), a member of the New Jersey Army

National Guard attempted to bring a state law discrimination claim against the state agency

overseeing his service. The plaintiff argued that the intra-military immunity doctrine announced in

Feres v. United States, 340 U.S. 135 (1950),14 did not bar his claim because his injuries were not

sustained in the course of active federal duty under Title 10, but rather in the course of training under

32 U.S.C. § 502. Id. at 154–55. According to the plaintiff, this made him a state, rather than a federal,

employee to whom the Feres doctrine did not extend.

The Third Circuit rejected this argument, explaining that the plaintiff was a federal employee,

or at best a dual federal-state employee, because he was training under orders issued pursuant to

federal law. The court explained:

Matreale's arguments in support of his position that his status as a Title 32

guardsman rendered him a state rather than a federal employee likewise are

unpersuasive. First, his reliance on Perpich v. Department of Defense, 496 U.S. 334,

110 S.Ct. 2418, 110 L.Ed.2d 312 (1990) is misplaced. There, the Supreme Court held

that Congress may authorize that members of the National Guard be assigned to active

federal duty for training outside the United States without either the consent of the

state governor or the existence of a national emergency. The Court, in addressing the

unique “dual enlistment” status of state National Guard members, observed that

“[s]ince 1933 all persons who have enlisted in a State National Guard unit have

14 In Feres, the Supreme Court held that “the Government is not liable under the [FTCA] for injuries to servicemen where

the injuries arise out of or are in the course of activity incident to service.” Id. at 146. The doctrine developed primarily

due to concerns about the “adverse impact on military discipline inherent in the judicial review of military orders,” and

has been expanded to bar a broad range of claims asserted by service members. Matreale, 487 F.3d at 154.

23

simultaneously enlisted in the National Guard of the United States.” 496 U.S. at 345,

110 S.Ct. 2418. The Court held that under this dual enlistment system, “a member of

the Guard who is ordered to active duty in the federal service is thereby relieved of his

or her status in the State Guard for the entire period of federal service.” Id. at 346, 110

S.Ct. 2418.

Matreale misconstrues the Perpich holding as implying that unless a state

guardsman has been called to active duty under Title 10 and thereby loses his

status in the state guard, he at all other times remains solely in state, not federal,

status. But the plain holding of the Court is to the contrary. Under the holding in

Perpich, Matreale attained dual status as a member of both the National Guard of the

United States and the [New Jersey Army National Guard] when he accepted his

commission as an officer. 32 U.S.C. §§ 305 and 307; N.J.S.A. 38A:7–4. And while

under Perpich a state guardsman loses his state status when he is called to active duty

under Title 10, there is nothing in Perpich from which one reasonably may infer, as

Matreale argues, that a Title 32 guardsman “loses”, or does not have, federal status

unless he is mobilized under Title 10 or engaged in drills or field training under 32

U.S.C. § 502(a). On the contrary, the Supreme Court in Perpich stressed that its

holding that a state guardsman is stripped of his state status when he is called to active

duty under Title 10 “merely recognizes the supremacy of federal power in the area of

military affairs.” Perpich, 496 U.S. at 351, 110 S.Ct. at 2428. Our conclusion that a

state guardsman serving under orders issued pursuant to Title 32, whether

serving under § 502(a) or § 502(f), has and retains his federal status, along with

his state status, even when he has not been called to active duty under Title 10,

likewise recognizes federal supremacy over military affairs.

Id. at 156-157.

Likewise, in U.S. ex rel. Conover v. Anthony, 781 F.Supp.2d 257 (D. Md. 2011), the relator,

Captain Robert Conover, was an officer with the Maryland Air National Guard employed as a dual

status technician pursuant to 10 U.S.C. § 10216(a). Relator brought a qui tam action under the False

Claims Act (“FCA”) alleging that present and former fighter pilots of the state air national guard had

submitted false claims for payment to the United States for training missions which they did not

complete. Id. at 259. Defendants moved to dismiss on the basis of the FCA’s intramilitary immunity

provision. Id. at 260. Relator contended that the intramilitary immunity provision did not extend to

24

members of the National Guard when they are not in active service of the United States. Id. The

district court rejected Relator’s argument, finding:

Even if the court assumes that a guardsman can only wear either his state militia hat

or his army hat at one time, the statutory scheme governing the training of dually

enlisted guardsmen supports the contention that the defendants were serving in the

federal, not state, capacity when conducting their [Additional Flying Training

Periods]. Section 501 of Title 32, which governs the training of state guardsmen,

states: “The training of the National Guard shall be conducted by the several States,

the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin

Islands in conformity with this title.” 32 U.S.C. § 501(b). At the same time, however,

§ 502(a) requires guardsmen to assemble for inactive duty training at least 48 times

each year under regulations issued by the federal, not state, government. See 32

U.S.C. § 502(a)(1). Section 502(f) also allows the federal government to order

guardsmen to perform training or duty in addition to that required under § 502(a). See

32 U.S.C. § 502(f). Federal laws treat training completed by guardsmen under §

502 distinctly from training completed by guardsmen strictly in their state

capacity. For example, Title 10 provides that, for the purposes of providing benefits

to guardsmen, “inactive-duty training performed by a member of the Air National

Guard of the United States in his status as a member of the Air National Guard, in

accordance with regulations prescribed under section 502 of title 32 or other express

provisions, shall be considered inactive-duty training in Federal service as a Reserve

of the Air Force.” 10 U.S.C. § 12602(b)(3) (emphasis added). The Federal Tort Claims

Act (“FTCA”) also defines federal employees to encompass “members of the National

Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505

of title 32.” 28 U.S.C. § 2671. The foregoing provisions of the statutory scheme

governing the National Guard support the contention that guardsmen training

pursuant to § 502 serve in their federal, rather than state, capacities.

Id. at 262-263 (emphasis added) (internal footnotes omitted). See also Hoffman v. Stump, 172 F.3d

48 (Table), 1998 WL 869972 at *1 (6th Cir. 1998) (noting that appellant was “on federal National

Guard duty pursuant to 32 U.S.C. § 502(f) … at the time of the incident that gave rise to his claim”);

Cordry-Martinez v. Oregon Army National Guard, 2017 WL 4778591 at *2 (D. Or. Oct. 20, 2017)

(finding that guardsmen were “in federal service” when operating under orders pursuant to 32 U.S.C.

§ 502(f)); Fanslau v. 177th Fighter Wing of the Air National Guard of the State of New Jersey, 2006

25

WL 1798653 at * 4 (D. N.J. June 28, 2006) (“Guardsmen serving on orders pursuant to § 502 are

considered federal employees for the purposes of the FTCA”) (citing 28 U.S.C. § 2671).

Plaintiff’s arguments to the contrary are without merit. While Plaintiff directs this Court’s

attention to a number of state and federal cases in which National Guardsmen have been found to be

acting in a state capacity, these cases are distinguishable from the instant action because they do not

involve tort claims against National Guardsmen performing training under 32 U.S.C. § 502. Rather,

the cases cited by Plaintiff largely consist of actions filed by or on behalf of national guardsmen

regarding the denial of various benefits (such as workers compensation, tuition reimbursement, back

pay, etc.) or asserting claims of wrongful termination. See, e.g., Sorrentino v. Ohio Nat. Guard, 53

Ohio St.3d 214, 218-219 (1990) (breach of contract action by guardsmen seeking tuition

reimbursement); State ex rel. North Olmsted Fire Fighters Ass’n v. City of North Olmsted, 64 Ohio

St.3d 530 (1992) (mandamus action by guardsmen seeking credit for vacation leave for his prior

service in the Ohio National Guard); Farrier v. Connor, 12 Ohio St.3d 219, 221-222 (1984) (action

by widow of guardsman for state workers compensation death benefits); Gnagy v. United States, 634

F.2d 574, 579 (Ct. Cl. 1980) (action by national guardsman seeking back pay); Christoffersen v.

United States, 230 Ct. Cl. 998, 1001-1004 (Ct. Cl. 1982) (action by national guardsman seeking

reinstatement, back pay, allowances, benefits and other benefits arising out of his alleged wrongful

termination).15

15 The Court also finds Plaintiff’s reliance on Scheuer v. Rhodes, 416 U.S. 232 (1974), overruled on other grounds by

Davis v. Scherer, 468 U.S. 183 (1984), to be misplaced. In that case, the personal representatives of three students who

died during a period of civil disorder on the campus of Kent State University (“KSU”) in May 1970 filed an action in

federal court against (among others) the Governor of Ohio, the Adjutant General, and various members of the Ohio

National Guard. Id. at 234. The plaintiffs asserted claims under 42 U.S.C. § 1983 for allegedly illegal actions on the part

of the ONG while deployed on the campus of KSU which resulted in the death of the plaintiffs’ decedents. Id. at 234-

235. Plaintiffs alleged that the defendants’ actions were taken under color of state law. The district court dismissed the

complaint on the grounds that the plaintiffs’ claims were effectively against the State of Ohio and, therefore, barred by

26

Accordingly, the Court agrees with the ONG Defendants that, if Defendants Wilker, Gillum,

and Bogan were, in fact, serving under orders issued pursuant to 32 U.S.C. § 502(a) at all times

relevant to the Amended Complaint, they could be considered federal actors, at least with respect to

some of Plaintiff’s claims. The Court has several concerns, however, that the ONG Defendants fail

to address.

First, the Declarations submitted by Defendants Wilker, Gillum, and/or Bogan fail to either

identify the statutory basis of their “federal training” or attach and authenticate copies of the orders

under which they were acting between October 19, 2021 and October 24, 2021. See Doc. Nos. 87-1,

87-2, 87-3. Rather, the only express reference to 32 U.S.C. § 502(a) appears in the ONG Defendants’

briefing, which is not evidence. Moreover, neither the ONG Defendants’ briefing nor the Declarations

of Defendants Wilker, Gillum, and/or Bogan otherwise provide any further factual detail regarding

the nature or scope of their “federal training” or the specific orders under which they were operating.

Id. Thus, the entire factual underpinning of the ONG Defendants’ argument is not well supported,

which is surprising given the ample opportunity this Court provided to the ONG Defendants to

prepare and submit their supplemental briefing.

Second, even assuming that Defendants Wilker, Gillum, and Bogan were directly

participating in or supervising federal training under orders issued pursuant to § 502(a), the

the Eleventh Amendment. Id. The Sixth Circuit affirmed. Id. The Supreme Court reversed, finding that the Eleventh

Amendment does not, in some circumstances, bar an action for damages against a state official charged with depriving a

person of a federal right under color of state law. In Scheuer, however, there is no indication that the defendant

Guardsmen were engaged in training or otherwise operating under orders issued pursuant to 32 U.S.C. § 502. Moreover,

the parties in Scheuer did not dispute that the defendant Guardsmen were acting under color of state law and, thus, the

Supreme Court did not directly address or consider whether those defendants were acting in a federal or state capacity.

Lastly, the Court notes that Scheuer was decided prior to the 1981 amendments to the FTCA, which (as discussed in more

detail infra) expressly amended the definition of “employee of the government” to include members of the National

Guard when engaged in training or duty under 32 U.S.C. § 502.

27

Declarations provided by Defendants Wilker and Gillum state only that they were performing federal

training between October 19, 2021 and October 24, 2021. Id. However, Plaintiff’s claims (and the

factual allegations supporting them) extend well beyond this six (6) day period. Plaintiff’s denial of

access claim against the ONG Defendants, for example, involves not only the ONG Defendants’

allegedly inadequate investigation on October 20 and 21, 2021, but also their alleged inadequate

investigation during the many weeks and months that followed. Specifically, in Count One, Plaintiff

expressly alleges that the ONG Defendants’ “misfeasance continued in the following months when

…. the ONG failed to take any timely steps to interrogate witnesses, collect and preserve evidence,

and conduct any necessary scientific testing such as gunshot residue, fingerprints, ballistics, blood

splatter patterns before the evidence either became too old, unreliable, or just completely

disappeared” (Doc. No. 44 at ¶ 68) (emphasis added). Moreover, in support of this claim, Plaintiff

alleges that the ONG Defendants ratified the criminal misconduct of the Guardsmen Defendants by

reinstating most of them when they were not criminally charged, which, presumably, occurred after

October 24, 2021. (Id. at ¶ 71.) Plaintiff’s federal and state conspiracy charges (Counts Five and

Eight) can likewise be reasonably interpreted as including actions by the ONG Defendants (allegedly

in concert with the Morgan County Defendants) that occurred, at least in part, after October 24, 2021.

(Id. at ¶¶ 100-104, 117-120.)

Lastly, in her negligent retention claim (Count Ten), Plaintiff alleges that the ONG

Defendants are liable for retaining, supervising, and promoting Defendant Develin, despite his

“history of criminal, tortious or otherwise dangerous conduct about which the ONG Defendants knew

and/or could have discovered through reasonable investigation.” (Id. at ¶ 131.) Although the time

period covered by this claim is not expressly alleged, it can reasonably be assumed that it

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encompasses acts or omissions allegedly occurring prior to October 19, 2021, the alleged first day of

“federal training” mentioned in Defendant Wilker’s and Gillum’s Declarations.

The ONG Defendants fail to acknowledge or address the issue of whether they should be

considered federal actors with respect to claims which are based on alleged conduct that relates to an

incident that occurred during “federal training” (i.e., Mr. Garrett’s death) but which occurred (at least

in part) outside the time period under which they were acting under orders issued pursuant to § 502(a).

Nor do the ONG Defendants acknowledge or address the fact that there is authority supporting the

position that, at a minimum, Plaintiff’s negligent retention claim may implicate the ONG Defendants’

conduct in their state capacities, as personnel decisions regarding state Guardsmen are often found to

be reserved to the states. See, e.g., Schultz v. Wellman, 717 F.2d 301, 304 (6th Cir. 1983) (“Federal

law provides that the authority to discharge enlisted personnel from the National Guard rests with the

state.”) (citing 32 U.S.C. App. § 2201.18(b)); Sorrentino, 53 Ohio St.3d at 219 (“The federal

government has left the administration of National Guard personnel to the states”).

Nonetheless, it is important to consider the context in which this issue has arisen – i.e., service.

In order for this action to proceed against the ONG Defendants, this Court must ensure that they have

been properly served. As the Sixth Circuit has noted, the requirement of proper service of process

“is not some mindless technicality.” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.

1991). See also Federal Trade Commission v. Repair All PC, LLC, 2017 WL 2362946 at * 2 (N.D.

Ohio May 31, 2017). Rather, service of a summons and complaint “must meet constitutional due

process and the requirements of the federal rules in order for jurisdiction to exist over a defendant.”

Federal Trade Commission, 2017 WL 2362946 at * 2.

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While the Court has concerns regarding the sparse record before it at this time regarding the

federal vs. state status of the ONG Defendants, the Court must ensure that it has jurisdiction over the

ONG Defendants via proper service of the summons and Amended Complaint before proceeding

further. For the following reasons, the Court finds, based on the limited record before it, that the

ONG Defendants have come forward with sufficient evidence, at this time, to warrant at least a

preliminary finding that Defendants Wilker, Gillum, and Bogan were acting in their federal capacities

with respect to some of Plaintiff’s claims by virtue of the fact they were engaged in inactive duty

federal training under 32 U.S.C. § 502(a).

Although lacking in meaningful detail, Defendants Wilker and Gillum do aver, under penalty

of perjury, that they were performing “federal training overseeing the unit’s training activities in

preparation for its upcoming deployment” during the time period between October 19 to October 24,

2021. (Doc. Nos. 87-1, 87-2.) Defendant Bogan avers (among other things) that, during this same

time period, he was “a battalion commander and next level commander over Captain Wilker and First

Sergeant Gillum.” (Doc. No. 87-3.) In their briefing before this Court, the United States Attorney’s

Office (as counsel for the ONG Defendants) has represented that the “federal training” referenced in

Wilker’s and Gillum’s Declarations was pursuant to 32 U.S.C. § 502(a). (Doc. No. 87 at p. 3.) Taken

together, the Court finds that this is sufficient, at this stage and for purposes of this Opinion only, to

demonstrate that ONG Defendants Wilker, Gillum, and Bogan were performing inactive duty training

under 32 U.S.C. § 502(a).

As such, and based on the legal authority discussed above, the Court further finds that the

ONG Defendants were acting in a federal capacity while engaging in training pursuant to §502(a).

See Matreale, 487 F.3d at 156; U.S. ex rel. Conover, 781 F.Supp.2d 257; Hoffman,1998 WL 869972

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at * 1; Cordry-Martinez, 2017 WL 4778591 at * 2; Fanslau, 2006 WL 1798653 at * 4. This

conclusion is also consistent with, and supported by, the undisputed fact that at least some of

Plaintiff’s claims are tort claims. As noted supra, the FTCA16 expressly defines “employee of the

government” to include “members of the National Guard while engaged in training or duty under

section …. 502 … of title 32.” 28 U.S.C. § 2671. See also Allen v. Dejacimo, 1987 WL 5465 at * 3

(Ohio App. 8th Dist. Jan. 15, 1987) (noting that the FTCA was amended in 1981 to redefine federal

employees to include members of the National Guard while engaged in training or duty under 32

U.S.C. § 502 and finding that “[t]hus, the United States is liable for negligent acts by a national guard

member engaged in training or duty pursuant to” that section.)

In light of the above, the Court finds, for purposes of this Opinion only, that ONG Defendants

Wilker, Gillum, and Bogan were acting in their federal capacities with respect to Plaintiff’s tort claims

by virtue of the fact they were engaged in inactive duty federal training under 32 U.S.C. § 502(a).

Thus, the Court finds that Plaintiff is required to serve ONG Defendants Wilker, Gillum, and Bogan

under Fed. R. Civ. P. 4(i). Plaintiffs must do so by no later than ninety (90) days of the date of this

Order. The Court further directs the Clerk’s Office not to enter the Applications for Entry of Default

against the ONG Defendants, which were filed by Plaintiff on April 12, 2024. (Doc. Nos. 72-75.)

B. Defendant Bogan’s Status as a “Dual Status Technician” under 32 U.S.C. § 709

16 “When a federal employee commits a tort while acting within the scope of his employment, any private remedy for that

tort must be sought against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.” Rector v.

United States, 243 Fed. Appx. 976, 978 (6th Cir. 2007).

31

In his Declaration, Defendant Bogan also avers (in relevant part) that “[a]t all times during

the period in question, I was in the employ of the United States and was functioning in my dual status

as a federal technician GS employee and as the military battalion commander with responsibility over

CPT Wilker’s battery.” (Doc. No. 87-3 at ¶ 4.) The Court has already preliminarily determined,

supra, that Defendant Bogan was acting in a federal capacity in his role as battalion commander and

next-level commander over Defendants Wilker and Gillum during the federal training period that

occurred between October 19 and 24, 2021 pursuant to 32 U.S.C. § 502(a). The ONG Defendants

argue that Defendant Bogan should be also deemed a federal actor for purposes of the instant action

for the additional reason that he was acting as a dual status technician under 32 U.S.C. § 709. (Doc.

No. 66 at pp. 1-2; Doc. No. 93 at pp. 7-8.) Citing the Supreme Court’s decisions in Ohio Adjutant

General’s Dep’t v. FLRA, 598 U.S. 449 (2023) and Babcock v. Kijakazi, 595 U.S. 77 (2022), the

ONG Defendants assert that, as a matter of law, dual status technicians “are, at all times, federal

actors.” (Doc. No. 93 at p. 8.)

Plaintiff disagrees, asserting that dual status technicians “serve simultaneously as members

of a state national guard and as civil employees.” (Doc. No. 90 at p. 12) (emphasis in original).

Plaintiff argues that 32 U.S.C. § 709 “recognizes numerous occasions that a dual status technician is

acting as an employee of the State National Guard” and maintains that “it is clear from the statutory

framework of the Act and the interpreting case law that Defendant Bogan should be deemed a State

of Ohio employee for this matter.” (Id. at p. 13.)

Dual status technicians working for the State National Guards are a “unique category of

federal civil-service employees.” Ohio Adjutant General’s Dep’t, 598 U.S. at 453. As the Supreme

Court explained:

32

These “rare bird[s]” occupy both civilian and military roles. Babcock v. Kijakazi, 595

U. S. ––––, ––––, 142 S.Ct. 641, 644, 11 L.Ed.2d 424 (2022). They serve as “civilian

employee[s]” engaged in “organizing, administering, instructing,” “training,” or

“maintenance and repair of supplies” to assist the National Guard. 10 U.S.C. §

10216(a)(1)(C); see 32 U.S.C. §§ 709(a)(1)–(2); Babcock, 595 U. S., at ––––, 142

S.Ct., at 644. Yet, they must “as a condition of that employment ... maintain

membership in the [National Guard]” and wear a uniform while working. 10 U.S.C. §

10216(a)(1)(B); see 32 U.S.C. §§ 709(b)(2)–(4). Except when participating as

National Guard members in part-time drills, training, or active-duty

deployment, see 32 U.S.C. §§ 502(a) and 709(g)(2), dual-status technicians work

full time in a civilian capacity and receive federal civil-service pay. See Babcock,

595 U. S., at –––– – ––––, 142 S.Ct., at 644-645; see also 5 U.S.C. § 2101(a).

Importantly, under the Technicians Act of 1968, each dual-status technician is

considered “an employee of the Department of the Army or the Department of

the Air Force, as the case may be, and an employee of the United States.” 32

U.S.C. § 709(e). While it is state adjutants general who “employ and administer” dual-

status technicians working for their respective State National Guard units, they can

only do so pursuant to an express “designat[ion]” of authority by the Secretary of the

Army or the Secretary of the Air Force. § 709(d) [citation omitted].

Id. at 453-454 (emphasis added). See also Babcock, 595 U.S. at 80-81; Federal Labor Relations

Authority v Michigan Army National Guard, 878 F.3d 171, 174 (6th Cir. 2017) (noting that “[u]nder

federal law, dual-status technicians occupy a ‘hybrid military-civilian position’” and are “afforded

the benefits and rights generally provided for federal employees in the civil service”) (quoting Fisher

v. Peters, 249 F.3d 433, 438 (6th Cir. 2001) and N.J. Air Nat’l Guard v. FLRA, 677 F.2d 276, 279

(3rd Cir. 1982)).

Based on the limited record before it, the Court preliminarily finds that, whether Defendant

Bogan is considered in his supervisory role as battalion commander during the federal training period

occurring between October 19 and 24, 2021 or in his role as dual status technician under 32 U.S.C. §

709, the ONG Defendants have come forward with sufficient evidence, at this time, to show that

Defendant Bogan was acting in a federal capacity for purposes of at least some of Plaintiff’s claims.

As set forth supra, to the extent Defendant Bogan was performing, supervising, or otherwise

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participating in federal training in his role as a battalion commander between October 19 and 24,

2021 pursuant to 32 U.S.C. § 502(a), the Court preliminarily finds that he was acting in a federal

capacity for purposes of Plaintiff’s tort claims against the ONG Defendants. To the extent discovery

reveals that Defendant Bogan was instead functioning as a federal technician pursuant to 32 U.S.C.

§ 709 during this time period, the Court preliminarily finds (again, based on the limited record before

it) that he was likewise acting in a federal capacity pursuant to 32 U.S.C. § 709(e).

Section 709(e) expressly provides, in relevant part, that “[a] technician employed under

subsection (a)17 is an employee of the Department of the Army or the Department of the Air Force,

as the case may be, and an employee of the United States.” 32 U.S.C. § 709(e) (emphasis added).

Moreover, courts have recognized that dual status technicians are “afforded the benefits and rights

generally provided for federal employees in the civil service.” Michigan Army National Guard, 878

F.3d at 174 (citation omitted). Given this authority, and Defendant Bogan’s representation in his

Declaration that he was functioning in his dual status as a federal technician “at all times during the

period in question,” the Court preliminarily finds, and for purposes of the instant Opinion only, that

Defendant Bogan was acting in a federal capacity to the extent he was performing his role as a dual

status technician under 32 U.S.C. § 709 during the time period relevant to the Amended Complaint.

Accordingly, the Court finds that Plaintiff is required to serve Defendant Bogan under Fed. R. Civ.

P. 4(i) for this additional reason as well.

17 Section 709(a) provides, in relevant part, that: “(a) Under regulations prescribed by the Secretary of the Army or the

Secretary of the Air Force, as the case may be, and subject to subsections (b) and (c), persons may be employed as

technicians in-- (1) the organizing, administering, instructing, or training of the National Guard; (2) the maintenance and

repair of supplies issued to the National Guard or the armed forces; and (3) the performance of the following additional

duties to the extent that the performance of those duties does not interfere with the performance of the duties described

by paragraphs (1) and (2): (A) Support of operations or missions undertaken by the technician's unit at the request of the

President or the Secretary of Defense. (B) Support of Federal training operations or Federal training missions assigned in

whole or in part to the technician's unit. ***” 32 U.S.C. § 709(a).

34

C. Whether the ONG is a “Federal Agency” for purposes of Plaintiff’s FOIA claim

Lastly, the ONG Defendants argue that the ONG is a federal agency under FOIA, 5 U.S.C. §

552, even when it is not activated for federal duty. (Doc. No. 87 at pp. 6-7; Doc. No. 93 at p. 7.) The

ONG Defendants maintain that the ONG is, therefore, a federal actor for purposes of Plaintiff’s FOIA

claim and must be served in accordance with Rule 4(i). (Id.) Plaintiff does not acknowledge or

address the ONG Defendants’ argument the ONG is a federal actor for purposes of FOIA. (Doc. No.

90.)

As noted above, in Count Nine, Plaintiff asserts a claim against the ONG for violation of the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 in connection with the ONG’s failure to

produce records relating to its review of the shooting death of Mr. Garrett, despite Plaintiffs’ repeated

requests. (Doc. No. 44 at ¶¶ 121-129.) FOIA sets forth statutory requirements for the production of

certain information by federal “agencies.” Section 552(f)(1) of FOIA defines the term “agency” as

follows:

(f) For purposes of this section, the term—

(1) “agency” as defined in section 551(1) of this title includes any executive

department, military department, Government corporation, Government controlled

corporation, or other establishment in the executive branch of the Government

(including the Executive Office of the President), or any independent regulatory

agency

5 U.S.C. 552(f)(1) (emphasis added). Courts interpreting this language have concluded that FOIA’s

definition of the term “agency” extends to federally recognized National Guard units at all times. See

In re Sealed Case, 551 F.3d at 1049 (construing definition of “agency” in the Privacy Act, 5 U.S.C.

552a, which adopts the FOIA’s definition of agency” and finding that “[a]s long as the Secretary has

not withdrawn the Vermont Army National Guard’s federal recognition, it is part of an agency …

35

whether or not federally activated”); Citizens for Responsibility and Ethics in Washington vs. U.S.

Dep’t of the Army, 2023 WL 3995639 at * 2 (D.D.C. June 14, 2023) (finding that the South Dakota

National Guard and its adjutant general are subject to FOIA).

In light of the above, and given Plaintiff’s lack of opposition, the Court agrees that Defendant

ONG is a federal agency for purposes of Plaintiff’s FOIA claim under 5 U.S.C. § 552. Accordingly,

the Court finds that Plaintiff is required to serve Defendant ONG in accordance with Fed. R. Civ. P.

4(i). Plaintiffs must do so by no later than ninety (90) days of the date of this Order.

IV. Conclusion

Accordingly, the Court finds, based on the limited record before it and for purposes of this

Opinion only, that the ONG Defendants are federal actors with respect to at least some of Plaintiff’s

claims and, therefore, must be served in accordance with Fed. R. Civ. P. 4(i). Plaintiff is ordered to

serve the ONG Defendants in accordance with Fed. R. Civ. P. 4(i) by no later than 90 days from the

date of this Order.

IT IS SO ORDERED.

Dated: July 10, 2024 s/Pamela A. Barker

PAMELA A. BARKER

UNITED STATES DISTRICT JUDGE

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