Opinion
CIVIL ACTION No. 99-3496 SECTION "T"(2)
April 26, 2001
Pending before the Court are three separate motions, (1) a Motion to Dismiss filed on behalf of defendants, United States Drug Enforcement Administration ("DEA") and Bureau of Alcohol, Tobacco and Firearms ("ATF"), (2) a Motion to Dismiss filed on behalf of defendants, Thomas A. Constantine, Robert E. Rubin and fictitious defendants, "Harry Smith" and "James West", and (3) a Motion to Dismiss filed on behalf of defendants, City of New Orleans, Chief Richard Pennington, and fictitious defendant, "John Doe". These matters were set for hearing on a previous date with oral argument waived by the parties. The Court, having considered the arguments of counsel, the failure of plaintiffs to file any opposition, the record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
This suit arises out of an incident whereupon at least five law enforcement officers, as part of a "drug sting" operation, entered and searched the plaintiffs' home pursuant to a search warrant. The plaintiffs were detained for approximately two hours while the home was searched. No drugs or evidence of any illegal activity was found in either the initial search or in a second search conducted with the use of drug dogs. Plaintiffs seek compensatory and punitive damages and other relief based on alleged violations of state law and the U.S. Constitution. This action is brought pursuant to 42 U.S.C. § 1983 and various provisions of the U.S. Constitution. Each motion will be addressed individually.
MOTION TO DISMISS filed on behalf of the DEA and ATF
The DEA and ATF argue first that the claims must be dismissed pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1), for lack of subject matter jurisdiction on the grounds of sovereign immunity. "The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). In this case, plaintiffs have failed to identify a waiver of sovereign immunity.
Moreover, the DEA and ATF contend that they are not "persons" within the meaning of § 1983 and thus cannot be sued under that statute. See, District of Columbia v. Carter, 409 U.S. 418, 424-5, 93 S.Ct. 602, 606, 34 L.Ed.2d 613 (1973). While the plaintiffs do allege a claim against these defendants under the Federal Tort Claims Act ("FTCA"), which does supply a limited waiver to sovereign immunity, the FTCA precludes tort suits against federal agencies. 28 U.S.C. § 1346(b), 2671-2680. The proper defendant in a FTCA action is the United States; however, plaintiffs cannot maintain such an action against the United States as they have not satisfied the statutory requirements. The plaintiffs have not alleged compliance with § 2675(a). Plaintiffs filed this action prior to presenting an administrative claim with the DEA and ATF and prior to any final disposition of those claims. The DEA and ATF have not denied said claims and said claims cannot be "deemed denied" as they were presented to these agencies in November 2000. Plaintiffs clearly filed suit without first exhausting their administrative remedies as required by 28 U.S.C. § 2675(a). The FTCA, therefore, confers no jurisdiction on this Court to adjudicate plaintiffs' claims. Thus, plaintiffs have not sufficiently alleged a basis for subject matter jurisdiction for the claims against the DEA and ATF.
Secondly, defendants assert that the claims must be dismissed pursuant to FRCP 12(b)(6), for failure to state a claim upon which relief may be granted on the grounds that the DEA and ATF may not be sued in their own names. There is no specific statutory authority permitting plaintiffs to bring suit against the DEA or ATF in its own name. See, Hawkins v. Henderson County, 22 F. Supp.2d 573, 577-8 (E.D. Tex. 1998), aff'd, 180 F.3d 265 (5th Cir. 1999); Castleberry v. Alcohol. Tobacco and Firearms Div. of Treasury Dept. of U.S., 530 F.2d 672, 673 n. 3 (5th Cir. 1976). Therefore, the claims against the DEA and ATF must be dismissed pursuant to Rule 12(b)(6).
Upon thorough review of the arguments of counsel, the applicable law and jurisprudence, and the failure of plaintiff to oppose said motion, this Court finds merit to defendants' arguments and hereby finds that the dismissal of all claims asserted against the DEA and ATF is warranted under the circumstances.
MOTION TO DISMISS filed on behalf of Thomas A. Constantine, Robert E. Rubin, and fictitious defendants. "Harry Smith" and "James West"
First, defendants, Constantine and Rubin, argue that the claims asserted against them in their official capacities must be dismissed for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) on grounds of sovereign immunity, and pursuant to FRCP 12(b)(6) for failure to state a claim upon which relief may be granted on the grounds that they did not hold office when plaintiffs filed suit. Next, defendants, Constantine and Rubin, argue that the claims asserted against them in their individual capacities based on the U.S. Constitution must be dismissed pursuant to FRCP 4(m), for failure to effect service of process and FRCP 12(b)(2), for lack of personal jurisdiction. Finally, it is asserted that the claims against fictitious defendants, "Harry Smith" and "James West", must be dismissed pursuant to FRCP 4(m) for failure to effect service of process.
When defendants filed the present motion, Constantine and Rubin additionally argued that the state law claims asserted against them in their individual capacities must be dismissed based upon immunity pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988. Subsequently, the government certified that said defendants were acting within the scope of employment at the time of the incidents giving rise to plaintiffs' state-law claims. Accordingly, as a matter of law, the United States was substituted as the sole defendant with respect to the state-law causes of action alleged in plaintiffs' complaint. As such, this portion of defendants' motion is rendered moot.
Constantine and Rubin contend that official capacity suits against federal officers or employees are another way of pleading an action against an entity of which an officer is an agent. These claims must be treated as claims against the United States. See, Unimex, Inc. v. United States Dept. of Hous. Urban Dev., 594 F.2d 1060, 1061-2 (5th Cir. 1979). The United States however is immune from suit absent a waiver of sovereign immunity. In this case, plaintiffs have failed to identify a waiver of sovereign immunity. As argued previously with respect to the DEA and ATF, the waiver in the FTCA is not available to plaintiffs as they have not complied with the requirements of 28 U.S.C. § 2675(a). Therefore, this Court lacks subject matter jurisdiction over the official capacity claims asserted against these defendants.
Moreover, Constantine and Rubin did not occupy federal office when the complaint was filed. The events giving rise to this suit allegedly occurred on November 18, 1998, at which time Constantine served as DEA Administrator and Rubin served as Treasury Secretary. On July 2, 1999, both Constantine and Rubin retired from their positions. Plaintiffs did not file suit against these defendants in their "official capacities" until November 17, 1999. Case law provides that a person cannot be sued in his capacity as an official if he does not hold the office in question when suit is filed. See, Massachusetts Hosp. Ass'n Inc. v. Harris, 500 F. Supp. 1270, 1283 (D. Mass. 1980). When suit was filed, Constantine and Rubin had no official duties and had no official capacity in which to be sued. As such, the claims asserted against them in their official capacities must be dismissed pursuant to FRCP 12(b)(6). Furthermore, their successors should not be substituted into the lawsuit under FRCP 25(d)(1) because Constantine and Rubin did not retire during the pendency of this action but rather before the action was ever filed. Regardless of who may be named, sovereign immunity bars plaintiffs' claims on any official capacity claims that may be urged. Because the claims must be dismissed on lack of subject matter jurisdiction grounds, substitution is not necessary.
These defendants next argue that the claims made against them in their individual capacities based on the U.S. Constitution must be dismissed for failure to effect service of process and for lack of personal jurisdiction. The affidavits filed with the Court show that plaintiffs attempted to effect service via certified mail upon "Thomas A. Constantine, Acting Administrator" at the DEA office. DEA responded by letter stating that it was not authorized to accept service for Constantine. Likewise, the plaintiffs attempted to effect service via certified mail upon "Robert Rubin, Secretary of the Treasury" at the ATF office. The materials were signed for by an individual whose signature is illegible. The "Proofs of Service" indicate that service was being made pursuant to FRCP 4(i). A plaintiff seeking damages from a pubic official in his individual capacity, however, must effect service personally pursuant to FRCP 4(e). See, Simpkins v. District of Columbia Govt., 108 F.3d 366, 369 (D.C. Cir. 1997). Service on a defendant in his official capacity pursuant to FRCP 4(i) does not amount to service in his individual capacity. See, Robinson v. Turner 15 F.3d 82 (7th Cir. 1994). As plaintiffs failed to served Constantine and Rubin properly to maintain a cause of action in their individual capacities, the Bivens claims against Constantine and Rubin should be dismissed.
Additionally, defendants argue that this Court lacks personal jurisdiction with respect to the Bivens claims. First, plaintiffs have failed to serve Constantine and Rubin in accordance with FRCP 4(e). Secondly, plaintiffs have not established that Constantine and Rubin are amenable to the jurisdiction of this Court. The allegations against these two defendants do not establish a prima facie case of personal jurisdiction in their individual capacities because they fail to show the necessary "minimum contacts" between those defendants and the State of Louisiana. There are no facts showing that Constantine and Rubin, in their individual capacities, have had substantial, systematic, and continuous contacts with Louisiana that would support an assertion of general jurisdiction. Moreover, there are no allegations that Constantine and Rubin, in their individual capacities, "purposefully directed" their activities at Louisiana residents causing injuries that gave rise to this litigation. Mere supervision over a federal agency, "the reach of which extends into every state, is insufficient to establish a basis for the exercise of personal jurisdiction" over federal officials in their individual capacities. Nwanze V. Philip Morris, Inc., 100 F. Supp.2d 215, 220 (S.D.N.Y. 2000), aff'd ___ F.3d ___, 2001 WL 409450 (2nd Cir. April 23, 2001). Accordingly, the Bivens claims against Constantine and Rubin must be dismissed pursuant to FRCP 12(b)(2).
Finally, it is submitted that the plaintiffs' claims against "Harry Smith" and "James West" must be dismissed pursuant to FRCP 4(m) for failure to effect service of process. These individuals are alleged to have been employed by the DEA and ATF, respectively, and sued in both their official and individual capacities. Furthermore, they are alleged to have been among the law-enforcement officers who executed the search warrant. Plaintiffs have failed to reveal the true identities of said defendants and further failed to seek discovery for the purpose of learning their identities. As there has been no good cause shown for plaintiffs' failure to effect service upon these individuals within 120 days of filing suit, the Court should dismiss plaintiffs' claims against "Smith" and "West" pursuant to FRCP 4(m). Moreover, these claims should be dismissed with prejudice as the claims arise from events that allegedly occurred on November 18, 1998, thus the statute of limitations expired in November 1999. As such, the statute of limitations would preclude plaintiffs from refiling following a FRCP 4(m) dismissal. The official capacity claims must likewise be dismissed on the grounds of sovereign immunity.
For these reasons, defendants request the dismissal of all claims filed against Thomas A. Constantine, Robert E. Rubin, "Harry Smith", and "James West".
It is the finding of the Court that the arguments asserted on behalf of the defendants are meritorious. The Court hereby adopts the arguments asserted in this matter by the defendants as the opinion of the Court and finds that a dismissal of all claims against these defendants is warranted under the circumstances.
MOTION TO DISMISS filed on behalf of City of New Orleans . Chief Richard Pennington, and "John Doe"
The defendants, the City of New Orleans, Chief Richard Pennington, and the unidentified New Orleans police officer, "John Doe" contend that a dismissal is warranted pursuant to FRCP 15(b)(5) for insufficiency of service of process. The plaintiffs have not identified any particular New Orleans police officer who was allegedly involved in this illegal raid, nor have plaintiffs amended their complaint to reflect any such discovery or served any particular defendant with notice of these proceedings. Furthermore, plaintiffs are time barred from amending their complaint to identify' a defendant as more than 120 days have elapsed. FRCP 4(m), FRCP 15(c). As the identity of the "John Doe" officer has not been provided timely, any claims against said defendant must be dismissed. Likewise, claims against the City of New Orleans must be dismissed. Finally, since any liability on the part of Chief Pennington is premised on the alleged wrongdoing by a New Orleans police officer under his command, and since plaintiffs have failed to reveal the identity of any such officer, it follows that all claims against Chief Richard Pennington must likewise be dismissed.
In accordance with the law and applicable jurisprudence, this Court holds that the motion discussed above is appropriate under the circumstances. As such, this Court finds in favor of the defendants, dismissing the claims against them pursuant to FRCP 12(b)(2).
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of the defendants, United States Drug Enforcement Administration and Bureau of Alcohol, Tobacco and Firearms, be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that all claims of the plaintiffs against the defendants, United States Drug Enforcement Administration and Bureau of Alcohol, Tobacco and Firearms, be and the same are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Motion to Dismiss filed on behalf of defendants, Thomas A. Constantine, Robert E. Rubin, "Harry Smith" and "James West", be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that all claims of the plaintiffs against defendants, Thomas A. Constantine, Robert E. Rubin, "Harry Smith" and "James West", be and the same are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Motion to Dismiss filed on behalf of defendants, the City of New Orleans, Chief Richard Pennington, "John Doe", be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that all claims of the plaintiffs asserted against defendants, City of New Orleans, Chief Richard Pennington, "John Doe", be and the same are hereby DISMISSED WITH PREJUDICE.