Opinion
01 Civ. 5634 (LAK)
June 26, 2001
ORDER
Neither the notice of removal nor the complaint alleges the citizenship (as opposed to residence) of any of the individual parties. The removing defendants therefore have failed to alleged the complete diversity of citizenship essential to the invocation of diversity jurisdiction. See 28 U.S.C. § 1332.
Absent the filing, on or before July 8, 2001, of an amended notice of removal, the action will be remanded to the Court from which it was removed.
SO ORDERED.
WILLIAM BROADY v. CITY OF NEW YORK, (S.D.N.Y. 2001) CI WILLIAM BROADY, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. 01 Civ. 0724 (LAK) United States District Court, Southern District of New York. June 26, 2001
ORDER
LEWIS A. KAPLAN, District Judge.
This is an action against the City of New York, a named New York City police officer, the United States Customs Service ("USCS") and Adrian Smith, a United States Customs Officer. The matter is before the Court on the motion of the USCS and Smith to dismiss the complaint.
The complaint alleges that on November 30, 1997, plaintiff reported his car stolen to the New York City Police Department ("NYPD"), that he made an insurance claim with respect to the theft, and that upon appearing at the insurance claims office to turn in his keys, he was arrested by two NYPD officers and charged with insurance fraud and other offenses based upon a complaint by Customs Officer Smith. According to the complaint in this action, Officer Smith's complaint to the NYPD asserted that plaintiff had committee fraud in that, contrary to his contention that the car had been stolen on November 30, 1997, plaintiff in fact had brought his vehicle to Port Elizabeth, New Jersey, on October 27, 1997 and that the car was shipped to the Dominican Republic a few days later. In due course, the state charges against plaintiff were dismissed in advance of trial, although the ground of dismissal does not appear in the complaint. Plaintiff contends that there was no probable cause for Officer Smith's statements and that the car never was brought to Port Elizabeth or shipped out of the country. The complaint rests on the Fifth, Eighth and Fourteen Amendments to the Constitution and 42 U.S.C. § 1983.
To begin with, the claims against the moving defendants under 42 U.S.C. § 1983 are insufficient as a matter of law. There is no suggestion that the USCS or Smith acted under color of state law. See, e.g., District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2d Cir. 1991). Accordingly, the complaint should be construed as asserting a Bivens claim against Officer Smith, although it cannot similarly be construed as against the USCS because Bivens cannot support a claim for damages for constitutional violations directly against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
To the extent that plaintiff seeks money damages against the USCS and Officer Smith in his official capacity, the action is one against the United States. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). As the United States has not waived its sovereign immunity from claims for money damages from constitutional torts, these claims must be dismissed. See id. at 476-79; Keene v. United States, 700 F.2d 836, 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864 (1983). Nor is there any subject matter jurisdiction over plaintiff's state law-based claim for intentional infliction of emotional distress because (a) a suit against the United States is the only remedy for torts committed by federal employees within the scope of their employment, 28 U.S.C. § 2679(b)(1), and (b) the Federal Tort Claims Act requires the filing of an administrative claim with the relevant agency prior to the commencement of an action, 28 U.S.C. § 2675(a), a jurisdictional prerequisite with which plaintiff does not claim to have satisfied. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987) (burden on plaintiff to plead and prove exhaustion). In any case, the FTCA does not waive sovereign immunity for intentional torts. See 28 U.S.C. § 2680(h).
Finally, the complaint fails to state a claim upon which relief may be granted against Agent Smith in his individual capacity. The complaint is based on events occurring on or before January 13, 1998. The complaint was not filed in this Court until January 30, 2001. The statute of limitations is three years. See Malesko v. Correctional Services Corp., 229 F.3d 374, 383 (2d Cir. 2000). Hence, as plaintiff's counsel previously admitted, the statute of limitations expired prior to the commencement of the action. (Lenczewski Aff., Feb. 27, 2001, ¶ 3) In any case, the conclusory allegations of a conspiracy between Agent Smith and others are insufficient. E.g., Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993).
In view of the foregoing, there is no need to address defendants' contention that Agent Smith is protected by qualified immunity.
Accordingly, the motion of the United States Customs Service and Adrian Smith to dismiss the complaint as to them is granted in all respects.
SO ORDERED.