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finding that DEA and DOJ, among other agencies, were "not proper parties" as "[t]he FTCA only authorizes suits against the United States but not against federal agencies"
Summary of this case from Sandoval v. Dep't of Health & Human Servs.Opinion
05 Civ. 5324 (SAS).
November 15, 2006
For Plaintiffs: Doric V. Sam, Esq., Jackson Heights, New York.
For Defendants: Rebecca C. Martin, Assistant United States Attorney, New York, New York.
OPINION AND ORDER
I. INTRODUCTION
Plaintiffs brought this action against federal officers in their individual capacity pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (" Bivens") and against the United States and federal agencies under the Federal Tort Claims Act ("FTCA"). The gravamen of the Complaint is that plaintiffs were falsely arrested, unlawfully searched and then wrongfully imprisoned for heroin possession due to faulty laboratory test results. Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 4(m), 12(b)(1), 12(b)(2), 12(b)(6) and 41(b). For the following reasons, defendants' motion is granted in part and denied in part.
403 U.S. 388 (1971).
II. BACKGROUND
On May 14, 2002, plaintiffs were traveling in a friend's vehicle which was stopped by New York City Police Officers who "arrested the plaintiffs without probable cause" and "unlawfully searched the plaintiffs and the car." The police officers found numerous plastic bags containing "a white powdery substance." The police officers then contacted Detective Salvatore Palumbo of the Drug Enforcement Agency ("DEA"). Detectives Palumbo and Kevin Brennan, S/I James Schoepfer, and Investigator Bruce Taylor (collectively, the "Task Force Officers"), who were members of the Drug Enforcement Task Group T-42 "took custody" of plaintiffs. The Northeast Regional Lab ("NERL") of the DEA found that the white substance tested positive for heroin and plaintiffs were charged with possession of heroin and held in prison. Plaintiffs maintained that the substance was "legal food products" and that the test result was wrong. The white substance was retested by the DEA on June 6, 2002. While plaintiffs do not explicitly allege that the results were different, they imply that the result of the retesting was negative. The case was dismissed on June 10, 2006 and plaintiffs were released from custody.
Complaint ("Compl.") ¶ 19.
Id.
Id.
Id. During the events alleged in the Complaint, the individual defendants were members of the New York City Police Department who had been deputized by the DEA and were therefore acting as federal agents in their work with the Task Group.
See id. ¶ 20.
Id.
See id.
On June 10, 2004, plaintiffs presented their grievances "to the appropriate Federal agency for administrative settlement" pursuant to the FTCA. By letters dated December 3, 2004, plaintiffs' claims were denied and this action was "filed within six months of receipt" of those letters, on June 3, 2005.
Id. ¶ 5.
Id.
Plaintiffs served a copy of the Summons and Complaint on the United States Attorney's Office on or about August 25, 2005. On October 3, 2006, plaintiffs mailed a copy of the Summons and Complaint to DEA headquarters in Manhattan, to the Attorney General of the United States and to the United States Department of Justice ("DOJ") both in Washington, D.C. On November 30 and December 2, 2005, defendants' counsel left voice messages for plaintiffs' counsel, Doric Sam, informing him that no defendant had been properly served. Sam failed to respond to these messages in any manner. On August 17, 2006, the Court held a pre-motion conference with respect to defendants' proposed motion to dismiss. Although defendants' counsel attempted to contact plaintiffs' counsel by telephone and letter, Sam failed to appear at the pre-motion conference.
See 10/3/05 Affidavits of Service, Ex. E to Declaration of Rebecca C. Martin, Assistant United States Attorney ("Martin Decl.").
See id.
See Martin Decl. ¶ 5.
See id. See also 12/2/05 Letter to the Court from AUSA Martin, Ex. F to Martin Decl. (describing attempts to reach plaintiffs' counsel).
See 8/7/06 Letter to the Court from AUSA Martin (describing attempts to reach plaintiffs' counsel).
III. LEGAL STANDARDS
A. Motion to Dismiss for Failure to State a Claim
Under Rule 12(b)(6), a motion to dismiss should be granted only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." The Second Circuit has held that all complaints "must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. "'While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice.'"
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N. Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation and citation omitted).
Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (emphasis omitted).
See Ontario Pub. Serv. Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 30 (2d Cir. 2004), cert. denied, 543 U.S. 1050 (2005) (quotation and citation omitted).
Law Offices of Curtis V. Trinko, L.L.P., v. Bell Atl. Corp., 309 F.3d 71, 74 (2d Cir. 2002) (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)).
B. Failure to Prosecute
Rule 41(b) states that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." In determining whether dismissal is appropriate under Rule 41(b), courts look to the following factors:
(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998). Accord Shannon v. General Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999) (affirming district court's dismissal under Rule 41 for failure to prosecute).
And while it is well-settled that a district court has the inherent power to dismiss a case for lack of prosecution pursuant to Rule 41(b), dismissal is "a harsh remedy and is appropriate only in extreme situations."
Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
C. Failure to Effect Service
To prosecute their Bivens claims, plaintiffs must personally serve the Task Force Officers in accordance with Rule 4(e) unless defendants waive service pursuant to Rule 4(d). Rule 4(e) provides that service upon an individual may be effected:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
New York permits service by delivering the summons and complaint to a person of suitable age and discretion at an individual's dwelling, usual place of abode or actual place of employment and mailing a copy by first class mail in an envelope marked "personal and confidential." A plaintiff is required to serve the summons and complaint within 120 days of filing the complaint or face dismissal pursuant to Rule 4(m). If a plaintiff shows "good cause" for the failure to timely and properly effect service, a court may extend the time for service.
New York Civil Practice Law and Rules ("C.P.L.R.") § 308. If this method fails after diligent effort, then plaintiff may use "nail and mail" service by affixing a copy of the summons and complaint to the door of the actual place of business, dwelling place or usual abode and mailing a copy to the same address. See id. § 308(4).
IV. DISCUSSION
A. Failure to Prosecute
After filing this case and attempting to effect service on October 3, 2005, plaintiffs have failed to take any further action to pursue their claims. Defendants' counsel has made repeated attempts to contact plaintiffs beginning on November 30, 2005, all to no avail. By serving this motion, defendants notified plaintiffs that their failure to prosecute might result in dismissal. Plaintiffs' unexplained failure to take any action for over one year is manifestly unreasonable and presumptively prejudices the defendants. Even without this presumption, defendants have been prejudiced by plaintiffs' delay. Defendants' ability to defend a case based on events occurring more than four years ago decreases with the passage of time.
See Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993)
No remedy other than dismissal is appropriate here. The Court is unable to contact plaintiffs and their counsel has not responded to communications from opposing counsel. Accordingly, there is no reason for this action to languish on the docket and hang over defendants' heads.
B. Failure to Serve
Plaintiffs' affidavits of service indicate that they attempted to serve the Task Force Officers by mailing a copy of the summons and complaint to each individual defendant at DEA headquarters. This method of service does not satisfy Rule 4(e)(2) which requires either: (1) personal delivery to the defendant; or (2) delivery to a person of suitable age and discretion residing at the defendant's dwelling house or usual place of abode; or (3) delivery to an authorized agent of the defendant. None of these methods were used by plaintiffs. Nor is mailing a copy of the summons and complaint to defendants' place of employment permissible pursuant to Rule 4(e)(1) because it is not an acceptable method of service under New York law. New York permits delivery of the summons and complaint to an individual's actual place of employment only in conjunction with the mailing of a second copy. Therefore, plaintiffs have failed to effect service upon the Task Force Officers.
See 10/3/05 Affidavits of Service, Ex. E to Martin Decl.
See C.P.L.R. § 308.
Plaintiffs have also failed to effect service upon the United States pursuant to Rule 4(i)(1) which permits service by sending the summons and complaint by registered or certified mail to the Attorney General of the United States. The affidavit of service states that plaintiffs mailed the summons and complaint to the Attorney General but fails to indicate whether this service was effected by certified or registered mail.
Plaintiffs were put on notice of their failure to effect service by defendants' counsel on November 30, 2005 and December 2, 2005 and have not taken any remedial action. In the absence of any apparent good cause for plaintiffs' failure to effect proper and timely service, defendants must be dismissed from this action.
See Osrecovery Inc. v. One Group Int'l, Inc., 234 F.R.D. 59, 62 (S.D.N.Y. 2005) ("[I]f the Rules are to mean anything, parties must diligently try to follow them and courts must enforce them, even if that means that cases must sometimes be finally determined on procedural grounds rather than on their substantive merits.") (quotation and citation omitted). See also Mused v. United States Dep't of Agric. Food and Nutrition Serv., 169 F.R.D. 28, 34 (W.D.N.Y. 1996) ("though leniency may sometimes be appropriate for those who have in good faith attempted timely service, to afford it to litigants who have failed to make even the most basic efforts would turn Rule 4(m) into a toothless tiger").
C. Failure to State a Claim Against the Task Force Officers and the United States
As to their FTCA claim, plaintiffs allege that their rights were violated when they were "arrested and imprisoned . . . due to the negligence" of the Task Force Officers. The United States is liable for tort claims under the FTCA "in the same manner and to the same extent as a private individual under like circumstances." Under the FTCA, tort liability arising from the alleged negligence of an employee of the United States is governed by the law of the state where the tort occurred. New York law applies because all the events in this action occurred in New York. "Under New York law, a plaintiff may not recover under general negligence principles for a claim that law enforcement officers failed to exercise the appropriate degree of care in effecting an arrest or initiating a prosecution." Because plaintiffs are alleging that their arrest and imprisonment was "due to the negligence" of the Task Force Officers, they cannot recover under New York law. Therefore, plaintiffs' FTCA claim against the United States must be dismissed.
Compl. ¶ 23.
28 U.S.C. § 2674.
See id. § 1346(b)(1).
Bernard v. United States., 25 F.3d 98, 102 (2d Cir. 1994).
Compl. ¶ 23.
In order to state a valid Bivens claim, plaintiffs must specifically allege that each defendant was personally involved in the allegedly improper conduct. Plaintiffs allege that New York City police officers "arrested the plaintiffs" and "unlawfully searched the plaintiffs and the vehicle" in which they had been traveling. Eight hours after plaintiffs' arrest, the Task Force Officers questioned plaintiffs. Thus, plaintiffs fail to allege that the Task Force Officers had personal involvement in their initial arrest and imprisonment. Plaintiffs also fail to allege that the Task Force Officers were responsible for prolonging their imprisonment. After their arrest, plaintiffs allege that they were "kept imprisoned and prosecuted for the possession of heroin due to the negligence of the technicians working at the NERL." Therefore, plaintiffs have failed to state a Bivens claim against the Task Force Officers.
See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) ("having failed to allege, as they must, that these defendants were directly and personally responsible for the purported unlawful conduct, their complaint is fatally defective on its face") (internal quotation and citation omitted).
Compl. ¶ 19.
See id.
Id. ¶ 23.
D. The DOJ, DEA and NERL Are Not Proper Parties
Plaintiffs assert a FTCA claim against the United States and three federal agencies, DEA, DOJ and NERL. However, the federal agencies named here are not proper parties. By enacting the FTCA, the United States waived sovereign immunity with respect to certain common law tort claims that are brought directly against the United States. The FCTA only authorizes suits against the United States but "not against federal agencies and federal officials acting in their official capacities." As a result, the Court lacks subject matter jurisdiction over plaintiffs' claims against DEA, DOJ and NERL.
See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) ("Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived.").
Barnes v. United States, No. 00 Civ. 3544, 2004 WL 957985, at *2 (E.D.N.Y. Apr. 12, 2004) (dismissing Department of Veteran Affairs from FTCA suit) (citing Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991) ("Section 2679 does not, however, deprive plaintiffs of a remedy; it merely makes suit against the United States the exclusive remedy.")). See also 28 U.S.C. § 2679(a) (suits authorized by 28 U.S.C. § 1346(b) against the United States are exclusive remedies); and 28 U.S.C. § 2679(b)(1) ("Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded. . . .").
V. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted and the case is dismissed with prejudice. The Clerk of the Court is directed to close this motion [docket no. 19] and this case.
SO ORDERED: