United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
matter comes before the court on the motion of the defendant,
the United States of America, to dismiss this removed action
pursuant to Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6). (DE 3). For the reasons stated herein, the motion
complaint (DE 1-1) was filed on January 28, 2019, in Superior
Court, Hudson County. The allegations of the complaint are as
plaintiff, Jonathan Torres, is not a federal employee, but a
security officer employed by Allied Universal Security
Services at Newark Liberty International Airport. (DE 1-1
¶ 1). One of his duties is to inspect Port Authority
identification cards of all employees entering the inbound
side of the airport in their vehicles. (Id., ¶
was working on April 15, 2017, when defendant Mark Otha, an
officer employed by an agency of the United States, U.S.
Customs and Border Protection (CBP), drove up to the security
checkpoint at the airport. (Id. ¶ 5-6). Otha
presented his ID as required but refused to comply with
Torres's request that Otha lower his car window so that
he could check the occupants of the car. (Id. ¶
7). Instead, Otha responded to Torres's request by
laughing at Torres and belittling him. (Id.). A Port
Authority police officer arrived, and he and Otha shouted at
each other. (Id. ¶ 8). Eventually Otha lowered
his window slightly and proceeded past the check point,
continuing to argue with the police officer as he did so.
(Id. ¶¶ 9-10). As a result of the
incident, Torres filed a "Security Incident Report"
with his employer. (Id. ¶ 12).
five months later, on September 9, 2017, Torres was again on
duty at a security checkpoint at the airport. (Id.
¶ 15). Otha pulled up in his car and accelerated as he
approached Torres. (Id. ¶ 16). Torres, afraid
of being hit, had to run out of the way. (Id. ¶
17). When Torres confronted Otha about his driving, Otha
laughed, said he did not care, and said that Torres had been
in his way. (Id. ¶ 18). After this incident,
Torres again filed an incident report with his employer.
(Id. ¶ 19).
complaint asserts two claims against Otha: one for assault,
and one for intentional infliction of emotional distress.
August 6, 2019, the United States filed a Certification of
Scope of Employment stating 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. (DE 1-2)
Simultaneously, the United States filed a notice of removal,
citing 28 U.S.C. §§ 2679(d) and 1442(a)(1).
("NOR", DE 1).
August 16, 2019, the United States moved to dismiss the
complaint for lack of jurisdiction and for failure to state a
claim. (DE 3).
September 5, 2019, plaintiff filed a motion to remand the
case to state court. (DE 6).
November 1, 2019, I denied plaintiffs motion to remand,
finding that the action was properly removed because the
federal district court is the exclusive forum. Tort actions
against federal employees acting within the scope of
employment are deemed to be actions against the United
States. The exclusive vehicle for such a tort claim against
the United States is the Federal Tort Claims Act
("FTCA"). I also held that because the state case
had not yet reached the stage of trial, removal was timely
under 28 U.S.C. § 2679(d).
to dismiss for lack of subject matter jurisdiction pursuant
to Fed.R.Civ.P. 12(b)(1) may be raised at any time.
Iwanowa v. Ford Motor Co.,67 F.Supp.2d 424, 437-38
(D.N.J. 1999). "[B]ecause subject matter jurisdiction is
non-waivable, courts have an independent obligation to
satisfy themselves of jurisdiction if it is in doubt. See
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 278 (1977). A necessary corollary is that the court
can raise ...