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Torres v. United States

United States District Court, D. New Jersey

November 1, 2019

JONATHAN TORRES, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION

          Kevin McNulty, United States District Judge.

         This 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.

         I. Procedural Background

         The 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 as follows.

         The 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.

         On 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.

         Some 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.

         The complaint asserts two claims against Otha: one for assault, and one for intentional infliction of emotional distress.[1]

         On 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 complaint.

         Simultaneously, 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).

         II. Motion to Remand

         Some 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 outset:

(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 ...

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