United States District Court, D. New Jersey
McNulty, United States District Judge.
matter comes before the court on the motion of the plaintiff,
Jonathan Torres, to remand this removed action to state
court. (DE 6) For the reasons stated herein, the motion is
denied. Also pending, though not yet fully briefed, is a
motion to dismiss the complaint for lack of jurisdiction and
failure to state a claim. (DE 3) Because the remand issue is
logically prior, I have decided it separately here.
complaint (DE 1-1) was filed on January 28, 2019, in Superior
Court, Hudson County. Named as defendant was Mark Otha, an
officer employed by an agency of the United States, U.S.
Customs and Border Protection (CBP), at Newark Liberty
International Airport. The allegations of the complaint are
plaintiff, Jonathan Torres, is not a federal employee, but a
security officer employed by Universal Security Services. One
of his duties is to inspect Port Authority identification
cards of all employees entering the inbound side of the
airport in their vehicles.
April 15, 2017, Otha drove up to the security checkpoint at
the airport, where Torres was working. He presented his ID as
required. Torres requested that Otha lower his car window,
then a requirement of his job, so that he could check the
occupants of the car. Otha refused, and responded to
Torres's request by laughing at Torres and belittling
him. A Port Authority police officer arrived, and he and Otha
shouted at each other. Eventually Otha lowered his window
slightly and proceeded past the check point, continuing to
argue with the police officer as he did so.
five months later, on September 9, 2017, Torres was again on
duty at a security checkpoint at the airport. Otha pulled up
in his car and accelerated as he approached Torres. Torres,
afraid of being hit, had to run out of the way. When Torres
confronted Otha about his driving, Otha laughed, said he did
not care, and said that Torres had been in his way.
complaint asserts two claims against Otha: one for assault,
and one for intentional infliction of emotional
August 6, 2019, the United States filed a Certification of
Scope of Employment. (DE 1-2) It states that Otha was acting
within the scope of his employment as an employee of the
United States at the time of the conduct alleged in the
the United States filed a notice of removal, citing 28 U.S.C.
§§ 2679(d) and 1442(a)(1). ("NOR", DE 1)
The NOR states as follows: The action must be deemed one
against the United States, which is the only proper defendant
in a tort action brought against a federal employee acting
within the scope of employment. The exclusive remedy for such
a tort claim is the Federal Tort Claims Act
("FTCA"). (NOR, citing 28 U.S.C. § 2679(b))
The exclusive forum for such an action under the FTCA is the
United States District Court, and the action is properly
removed. (NOR ¶¶6-7) Because the state case had not
yet reached the stage of trial, removal was timely under 28
U.S.C. § 2679(d).
Motion to Remand
misunderstanding has arisen because this action was not
removed under the general removal statute. It falls under the
specialized regime applicable to FTCA actions against the
United States. It is worthwhile, then, to quote the
applicable statute ("Section 2679(d)(2)") at the
(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
die United States shall ...