Opinion
02-CV-00528E(Sc)
February 18, 2003.
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action June 27, 2002 against Special Agent Richard Ferri of the Federal Bureau of Investigation ("FBI") in the New York State Supreme Court, County of Chautauqua, asserting a state-law claim of defamation. Defendant removed this case to this Court on July 23, 2002, pursuant to 28 U.S.C. § 1441. Defendant now moves to substitute the United States as the named defendant and to dismiss plaintiff's Complaint. In opposition, plaintiff has filed a motion for an Order against Removal to this Court. For the reasons stated hereinbelow, defendant's motion will be granted and plaintiff's motion will be denied.
Defendant moves to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 12(h)(3) of the Federal Rules of Civil Procedure.
The Court will construe such as plaintiff's request for an order to remand this case to the State Court.
This is plaintiff's second appearance before this Court regarding this matter. Plaintiff had previously filed a May 23, 2000 Complaint with the Court wherein he had named Ferri and the United States as co-defendants and asserted a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Such Complaint — which contains virtually the same allegations, and is based on the same April 17, 2000 incident, as those in his present Complaint — was dismissed for, inter alia, lack of subject matter jurisdiction. See Tota v. Ferri, 2001 WL 241782 (W.D.N.Y. 2001).
Plaintiff's sole allegation is that, during an April 17, 2000 conversation with Ferri at the Jamestown, N.Y. office of the FBI, Ferri told plaintiff to "Get the fuck out of here, you are wasting my time. Are you seeing a doctor?" Compl. ¶ 3. Plaintiff avers that Ferri had maliciously spoken such words in the presence of others and that such words were false and defamatory. Id. at ¶¶ 3-6.
The plaintiff had apparently gone to the Jamestown FBI office to inquire about conduct that he described as "a possible illegal investigation by the FBI upon myself." Tota, supra n. 4, at *1.
The Court will first address plaintiff's request to have this case remanded to state court and then defendant's motion to remove Ferri and to substitute the United States as the proper defendant. In objecting to defendant's removal of this case to federal court, plaintiff argues that this Court has no jurisdiction over his state-law tort claim. Pl.'s Mem. Law, pp. 2-3. Plaintiff's argument is unavailing.
This Court has jurisdiction over this case because plaintiff is seeking monetary damages against Ferri — a federal employee who had been acting within the scope of his employment at the time he allegedly committed the claimed tort. Statutory law governing jurisdiction over this type of civil action is found in 28 U.S.C. § 1346(b)(1) which reads, in pertinent part, that:
"Subject to [the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.] the district courts, *** shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, *** for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).
Accordingly, section 2679 of the FTCA provides that:
"The remedy against the United States provided by [section 1346(b)] *** is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. 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 without regard to when the act or omission occurred." 28 U.S.C. § 2679(b)(1).
Thus, regardless of whether or not plaintiff's tort claim is based on state law, this Court has exclusive jurisdiction over such claim if Ferri's allegedly tortious conduct had occurred while he was acting within the scope of his employment. The FTCA provides a procedural framework for determining whether a federal employee's activity constitutes conduct that falls within the scope of his employment. Section 2679(d) provides that:
"(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
"(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." 28 U.S.C. § 2679(d) (emphasis added).
United States Attorney Michael A. Battle has certified that, pursuant to the section 2679, Ferri was acting within the scope of his employment during his April 17, 2000 encounter with plaintiff. Therefore, pursuant to its express terms, the FTCA not only confers jurisdiction on this Court over this matter but also mandates that Ferri be dismissed from this case and that the United States be substituted in his place.
"The U.S. Attorneys are authorized to make the certifications provided for in *** 28 U.S.C. § 2679(d), *** with respect to civil actions or proceedings brought against Federal employees in their respective districts." Judicial Administration, 28 C.F.R. § 15.3 (2002).
The Court now turns to the merits of defendant's motion to dismiss by determining whether plaintiff has a viable claim against the United States. Defendant argues that this Court lacks subject matter jurisdiction over this case because plaintiff has failed to file an administrative claim as required by the FTCA. The Court agrees.
The FTCA provides the exclusive mechanism for bringing a common law tort claim against the United States. See United States v. Smith, 499 U.S. 160, 166-167 (1991) (discussing the applicability of the FTCA on tort claims initiated against government employees). The FTCA "requires that a claimant against the federal government file an administrative claim with the appropriate agency prior to institution of suit." Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir.), cert. denied, 464 U.S. 864 (1983); 28 U.S.C. § 2675(a). The filing of such a claim is a jurisdictional requirement that cannot be waived. Id. at 841. If a plaintiff had failed to file an administrative claim, the complaint must be dismissed for lack of subject matter jurisdiction. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). Plaintiff did not file an administrative claim and, consequently, this Court lacks subject matter jurisdiction to hear his claim.
The Court therefore declines to address defendant's other argument that plaintiff's claim is barred by New York's statute of limitations regarding defamation.
Accordingly, it is hereby ORDERED that plaintiff's motion to remand this case to state court is denied, that defendant's motion to dismiss plaintiff's complaint is granted and that the clerk of this Court shall close this case.