Opinion
Case No. 16-cv-02205-BAS-BGS
04-07-2017
ROBERT RUBIDOUX, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER GRANTING DEFENDANT UNITED STATES' MOTION TO DISMISS
[ECF No. 8]
I. INTRODUCTION
In May 2015, Plaintiff commenced this action as a limited civil case in San Diego Superior Court seeking damages for injuries arising out of two automobile accidents. (Complaint, Notice of Removal Ex. A, ECF No. 1-2.) Plaintiff pleads a single negligence claim against Defendants Manuel Payan and Jocelyn Perelia (Id. ¶¶ 5-9.) On August 31, 2016, the United States removed this action to federal court on the basis that Defendant Payan is a federal employee who was acting within the course and scope of his employment when the accident involving Defendant Payan occurred. (ECF No. 1.) On September 7, 2016, the United States Attorney certified that Defendant Payan "was acting within the scope of his employment as an employee of the Department of Homeland Security with regard to the events described in Plaintiff's Complaint"—invoking the Federal Tort Claims Act ("FTCA"). (ECF No. 2.)
At the request of the United States and pursuant to 28 U.S.C. § 2679(d), the Court then ordered that the United States be substituted in place of Defendant Payan and dismissed Plaintiff's state law negligence claim against Mr. Payan. (ECF Nos. 4, 6.) The Court thus construed Plaintiff's claim against the United States as being under the FTCA. (ECF No. 6.)
The United States now moves to dismiss Plaintiff's claim for lack of jurisdiction, on the grounds that Plaintiff has failed to comply with the FTCA, and has not first filed an administrative claim with the applicable agency before seeking damages in a lawsuit against the United States. (ECF No. 8.) For the reasons discussed below, the Court GRANTS the Motion to Dismiss.
II. LEGAL STANDARD
"It is well-settled that the FTCA . . . provides the exclusive statutory remedy for torts committed by employees of the United States who act within the scope of their employment, that the United States is the only proper defendant in an action under the FTCA and that a plaintiff may not file a suit under the FTCA unless he first exhausts his administrative remedies under the FTCA." Salcedo-Albanez v. United States, 149 F. Supp. 2d 1240, 1243 (S.D. Cal. 2001) (citing 28 U.S.C. § 2675). The requirement that a plaintiff exhaust his administrative remedies is jurisdictional in nature, may not be waived, and "must be strictly adhered to." Jerves v. United States, 966 F.2d 517, 519, 521 (9th Cir. 1992). "[G]iven the clarity of the statutory text [of section 2675]," these requirements are "certainly not a trap for the unwary." McNeil v. United States, 508 U.S. 106, 113 (1993). "It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent." Id.
The timely filing of an administrative claim, as a jurisdictional prerequisite to bringing a lawsuit under the FTCA, should be affirmatively alleged in the complaint. Gillespie v. Civilette, 629 F.2d 637, 640 (9th Cir. 1980). A district court may dismiss the complaint for failing to allege this jurisdictional prerequisite, but should give the plaintiff the opportunity to file an amended complaint to attempt to cure such pleading defects. Id.
III. ANALYSIS
The United States moves to dismiss pointing out that Plaintiff has not alleged that he exhausted his administrative remedies under the FTCA. Plaintiff alleges he was injured when Manuel Payan rear-ended a vehicle in which Plaintiff was a passenger. The United States has certified that Mr. Payan is a federal employee who was acting within the course and scope of his employment at the time the accident occurred. If this is the case, the FTCA provides the exclusive statutory remedy for Plaintiff, the United States is the only proper defendant, and Plaintiff must allege that he exhausted his administrative remedies. See 28 U.S.C. § 2675; Salcedo-Albanez, 149 F. Supp. 2d at 1243.
Plaintiff does not allege he exhausted his administrative remedies. Instead, he appears to argue that Agent Payan was not acting within the scope of his employment at the time the accident occurred because neither Plaintiff nor the driver of the vehicle he was in was "illegally in the country or engaged in any illegal or suspicious conduct related to immigration matters," and therefore there is "an inadequate factual basis that Manuel Payan was detaining or attempting to detain plaintiff or his passenger [sic] with probable cause related to any immigration issue." (ECF No. 13.)
Once the United States properly certifies that an individual was acting within the scope of his employment as a federal employee at the time the tort was committed, the United States must be substituted in as a defendant and "must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment." Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (emphasis in original) (quoting Osborn v. Haley, 549 U.S. 225, 240-41 (2007)). Plaintiff, as the party seeking review of the United States' decision to grant scope of employment certification, "bears the burden of presenting evidence and disproving [that] decision . . . by a preponderance of the evidence." Id. (quoting Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir. 2006)). "Faced with a challenge to the scope of employment certification, a district court is authorized but not required to conduct an evidentiary hearing and resolve disputed factual questions." Ponds v. Veterans Med. Research Found., No. 12-cv-1745 BEN(BGS), 2013 WL 607847, at *2 (S.D. Cal. Feb. 15, 2013) (citing Pelletier v. Fed. Home Loan Bank, 968 F.2d 865, 874 (9th Cir. 1992)).
In the motion to dismiss, the United States alleges the car accident at issue occurred when Mr. Payan, an agent with Homeland Security driving his Border Patrol-issued vehicle, attempted to pull over the driver of the car in which Plaintiff was a passenger. During the stop, Agent Payan rear-ended the vehicle. (ECF No. 8.) Plaintiff does not dispute these allegations. Instead, he argues that Agent Payan was not acting within the scope of his employment because he stopped the vehicle without probable cause "which arguably . . . would be an unlawful act which would be outside the course and scope of his employment." (ECF No. 13.)
The phrase "acting within the scope of his office or employment" must be construed according to the law of the state where the alleged tort occurred, in this case California. Xue Lu v. Powell, 621 F.3d 944, 948 (9th Cir. 2010). "California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests." Id. (quoting Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 297 (1995)). Thus, an employee's willful, malicious, and even criminal torts may fall within the scope of his employment. Id. The question is whether a nexus exists between the employment and the tort. Id. This requirement is met where the tort is generally foreseeable or arising from the employment. Id.
The United States correctly recognizes that a car accident arising when Agent Payan was on duty and driving a Border Patrol vehicle both arises from his employment and is a generally foreseeable result of the conduct of the Border Patrol enterprise. Whether or not Agent Payan had probable cause to pull over the car in which Plaintiff was riding is irrelevant. The nexus still exists.
In this case, there are no disputed factual questions for the Court to resolve. Plaintiff fails to present any evidence that disproves the decision of the United States to certify that Agent Payan was acting within the scope of his employment at the time the car accident occurred. Thus, the certification stands, and dismissal is appropriate because Plaintiff has failed to allege he exhausted his administrative remedies.
IV. CONCLUSION
The Court GRANTS the United States motion to dismiss. (ECF No. 8.) Plaintiff's response makes it clear that he cannot allege that he exhausted his administrative remedies under the FTCA. Hence, although generally a court should give a plaintiff the opportunity to cure any pleading defect, in this case, the Court dismisses Plaintiff's claim against the United States with prejudice. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (providing leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency").
Further, having dismissed Plaintiff's claim against the United States, the basis for federal jurisdiction in this case has been eliminated. It is unclear if Plaintiff is still pursuing his negligence claim against the other Defendant—Jocelyn Perelia. If he is, the Court REMANDS this claim to state court. See, e.g., Porter v. Hirsch, 345 F. Supp. 2d 400, 404 (S.D.N.Y. 2004) (remanding claims against remaining defendants to state court after determining the plaintiffs failed to exhaust their administrative remedies against the United States under the FTCA).
IT IS SO ORDERED. DATED: April 7, 2017
/s/ _________
Hon. Cynthia Bashant
United States District Judge