Opinion
8:99CV11
March 1999.
ORDER
This matter is before me pursuant to 28 U.S.C. § 636 and the general order of referral on plaintiff's motion to remand this action to state court (#7), and defendants' motion for substitution of the United States of America in place of defendants Russell Bradley, Vincent Merrick, Cora Jones, Richard Zeipher, Barbara Croom, Shawn Parker, and Greg Spears (#2). Having considered plaintiff's evidentiary materials (#6 and #8), and the parties' briefs, I conclude that plaintiff's motion must be denied and that the motion for substitution should be granted.
PROCEDURAL BACKGROUND
Plaintiff filed a petition in the District Court for Thurston County, Nebraska on January 16, 1998, alleging that the defendants failed to provide medical services while she was being held in the Omaha Tribal Jail in Macy, Nebraska, causing her to have a miscarriage. The petition stated causes of action based on (1) intentional infliction of emotional distress and (2) failure to comply with federal regulations governing the Omaha Tribal Jail.
Defendants Greg Spears (Tribal Chief of Police), Barb Croom (Jailer), and Shawn Parker (Tribal Police Officer) were personally served with a copy of the petition on January 26, 1998. They were also served with discovery requests. On February 10, 1998, attorney Maurice Johnson entered an appearance on behalf of defendants Forrest "J.C." Aldrich, Croom, Franklin Dick, Gary A. Lasley, Lota Mathrani, Doran L. Morris, Sr., Irene L. Parker, James Parker, Shawn Parker, Greg Phillips, Spears, and Clifford R. Wolfe, Jr.
Apparently, these defendants immediately notified the U.S. Department of the Interior (DOI) or Bureau of Indian Affairs (BIA) that this action had been filed and asked for assistance in defending the case. Correspondence found in plaintiff's evidence index indicates that on February 24, 1998 the DOI sent an "initial transmittal letter" to the U.S. Attorney for the District of Nebraska.
Meanwhile, the defendants refused to respond to plaintiff's discovery requests, filed a motion to make more definite and certain, and filed a special demurrer alleging lack of subject matter jurisdiction, improper joinder, and failure to state a claim. See Neb. Rev. Stat. §§ 25-806 and 25-807. Plaintiff filed an amended petition, to which the defendants filed another special demurrer. On September 10, 1998, the state district court overruled the special demurrer.
The record strongly suggests that the defendants continued to negotiate with the federal government for legal representation. In September 1998, the DOI asked the Department of Justice to review the case file. The DOI recommended that defendants Bradley, Jones, Merrick and Zeipher be certified as acting within the scope of their employment as federal employees. The DOI further recommended that the United States be substituted in place of defendants Aldrich, Croom, Dick, Lasley, Mathrani, Morris, I. Parker, J. Parker, S. Parker, Phillips, Spears, and Wolfe.
The defendants also declined to respond to plaintiff's discovery requests, prompting plaintiff to file a motion to compel. On October 5, 1998, moved for an extension of time to respond to the motion to compel on grounds that the Justice Department informed defense counsel on October 1, 1998 that it intended to remove the case to federal court. After a hearing, the district judge continued the matter to November 9, 1998, at which time he granted plaintiff's motion to compel and gave the defendants 10 days to file an answer out of time.
Defendants filed their answer and affirmative defenses on November 18, 1998. Defendants failed to serve their discovery responses. Defense counsel moved to withdraw from the case for the reason that his firm was retained to represent the Omaha Tribe and that the Tribal Council had directed him to withdraw as counsel for the individual defendants.
On January 6, 1999, the state district judge granted counsel's motion for leave to withdraw, overruled a motion to make more definite and certain, and gave defendants 21 days to further plead. In its order, the district judge noted that defendants Russell Bradley, Cora Jones, Vince Merrick, and Richard Zeipher had not ever appeared in the action.
Not until January 15, 1999, did an attorney from the Department of Justice file a notice of removal and certification that defendants Bradley, Croom, Jones, Merrick, S. Parker, Spears and Zeipher, were acting within the scope of their employment as employees of the United States. The notice alleges that removal is appropriate under 28 U.S.C. § 2679 and 1446. Pursuant to 28 U.S.C. § 2679(d)(1), the government also moved to substitute the United States of America in place of defendants Bradley, Croom, Jones, Merrick, S. Parker, Spears, and Zeipher.
LEGAL ANALYSIS
In the motion to remand, plaintiff contends that the defendants have waived their right to remove the case to federal court because (1) the notice of removal was untimely under 28 U.S.C. § 1446; (2) they requested affirmative action in the state court; and (3) defendants failed to comply with § 1446(a) by failing to attach copies of all process, pleadings, and orders. Plaintiff objects to the substitution of the United States in place of the named defendants because the notice of removal was untimely and for lack of authenticated documentation as required by NELR 7.1(a)(2).
A. Timeliness of Removal
In general, under 28 U.S.C. § 1446, defendants must file a notice of removal "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." The 30-day requirement is not jurisdictional. Nolan v. Prime Tanning Co., 871 F.2d 76, 78 (8th Cir. 1989). While plaintiff correctly states the general rule that the 30-day time limit is mandatory, that removal statutes are to be strictly construed, and that removal statutes must be construed in favor of state court jurisdiction, see, e.g., McHugh v. Physicians Health Plan of Greater St. Louis, Inc., 953 F. Supp. 296, 299 (E.D.Mo. 1997), this case is complicated by the application of the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act") to civil actions against federal employees.
The Westfall Act provides that an action under the Federal Tort Claims Act against the United States is the exclusive remedy available to individuals claiming to have been injured by the wrongful or negligent actions of a federal employee "acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). As explained by the court in Wilson v. Jones, 902 F. Supp. 673, 676-77 (E.D.Va. 1995), the Westfall Act established procedures designed to protect federal employees from tort litigation and liability. Specifically, 28 U.S.C. § 2679(d) provides:
(d)(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.
(3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, 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. . . . If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.
(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.
(Emphasis added).
This court's independent research reveals that other courts have interpreted § 2679(d) to indeed allow a federal employee to remove a case from state to federal court "at any time before trial." One would hope, as a matter of professional courtesy, that the majority of such cases do not remain active in state court for an entire year before the federal government chooses to provide a defense and remove the case to federal court.
For example, in Wilson v. Jones, the plaintiff filed a negligence action in state court against a federal employee on December 1, 1993. In June, 1994, she moved for a default judgment because the defendant failed to submit any responsive pleading. On August 9, 1995, the United States removed the case to the Eastern District of Virginia and moved to substitute the United States for the named defendant pursuant to 28 U.S.C. § 2679(d)(2). The United States Attorney certified that defendant Jones was acting within the scope of her employment at the time of the incident. Plaintiff objected to the removal on grounds of timeliness. The federal district court found that the United States Attorney's certification was conclusive on the issue of removal. Wilson v. Jones, 902 F. Supp. at 677-78 (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, ___, 115 S.Ct. 2227, 2236 (1995)). The court denied the plaintiff's motion to remand the case to state court, finding that the case was timely removed:
[T]he Government correctly observed that a state action against a federal employee may be removed under 28 U.S.C. § 2679(d)(2) "at any time before trial" in state court. In this case, the state proceeding has not gone to trial. Thus, the Government's Notice of Removal and Motion to Substitute were timely filed with this Court. Therefore, this case was properly and timely removed under 28 U.S.C. § 2679(d)(2).Wilson v. Jones, 902 F. Supp. at 677-78.
In Perry v. United States, 936 F. Supp. 867 (S.D.Ala. 1996), the plaintiff filed a medical malpractice action in state court against an Air Force physician. The complaint was filed in state court on December 23, 1993. The defendant, Dr. Moore, was served on or about December 18, 1995, and, on January 2, 1996, filed an answer denying the allegations of the complaint. On February 13, 1996, the United States removed the case to the United States District Court for the Southern District of Alabama pursuant to 28 U.S.C. § 2679(d)(2), along with a "Notice of Substitution" pursuant to § 2679(d). Denying the plaintiff's motion for remand, the court found that the case was timely removed to federal court:
[P]laintiff argues that Defendant's removal of this action from state court was untimely under 28 U.S.C. § 1442(a) and 1446(b), and therefore, this action is due to be remanded to state court. Plaintiff is correct in her assertion that § 1442(a) provides for the removal of an action against a federal officer and that § 1446(b) requires that the removal be accomplished within thirty days of the federal officer's receipt of the complaint. However, this case was removed pursuant to 28 U.S.C. § 2679(d)(2), set forth hereinabove, which provides that removal may take place "at any time before trial." In the case sub judice, the Notice of Removal was filed on February 13, 1996, long before there was a trial date set in state court. Clearly, the removal was timely and proper under the FTCA. Accordingly, the undersigned finds Plaintiff's timeliness argument to be without merit.Perry v. United States, 936 F. Supp. at 878-79.
In the present case, counsel for the Justice Department has certified that "Russell Bradley, Cora Jones, Vince Merrick, Richard Zeipher, Barb Croom, Shawn Parker, and Greg Spears were acting within the scope of their employment as employees of the United States at the time of the incidents out of which Plaintiffs' claims allegedly arose." In this regard, the court finds that the Justice Department has substantially complied with the requirements of NELR 7.1(a)(2). This certification is conclusive on the issue of removal. 28 U.S.C. § 2679(d)(2). Based on the plain language of § 2679(d)(2), and the cases interpreting that legislation, I must also find that the case was timely removed because it was removed to this court "at any time before trial."
B. Substitution
The Attorney General's scope certificate is conclusive for purposes of removal but not for purposes of substitution. See,e.g., Wilson v. Jones, 902 F. Supp. at 677-78; Perry v. United States, 936 F. Supp. at 873. Plaintiff objects to substitution (1) for lack of an authenticated certification; (2) on grounds of timeliness; (3) because the defendants could have filed a timely petition for certification pursuant to 28 U.S.C. § 2679(3); and (4) because the case should be considered as one already "brought to trial" for purposes of removal based on the state court's failure to rule on defendants' first Special Demurrer.
These arguments are quite similar to those raised in conjunction with plaintiff's motion for remand. Grounds (1), (2) and (4) were resolved against the plaintiff in her motion for remand. The court finds no authority affirmatively requiring defendants to proceed under § 2679(3) in the event the federal government does not timely respond to their requests for legal assistance.
Considering the merits on the issue of substitution, the burden is on plaintiff to establish that the defendants were not acting within the scope of their federal employment at the time of the alleged incident. Perry v. United States, 936 F. Supp. at 875. Once the United States Attorney issues a scope certificate, the burden shifts to the plaintiff to contest the scope of employment issue and prove by a preponderance of the evidence that the defendants were acting outside the scope of their employment.Wilson v. Jones, 902 F. Supp. at 678-79.
ORDER
For the reasons explained above,
IT IS ORDERED:
1. Plaintiff's motion to remand this action to state court (#7) is denied.
2. The motion for substitution of the United States of America in place of defendants Russell Bradley, Vincent Merrick, Cora Jones, Richard Zeipher, Barbara Croom, Shawn Parker, and Greg Spears (#2) is granted. The Clerk shall amend the caption of the case to reflect the substitution of parties.
Pursuant to NELR 72.3 any appeal of this order shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this order. Failure to timely appeal may constitute a waiver of any such objection. The brief in support of any appeal shall be delivered to the Hon. William G. Cambridge at the time of filing such appeal.