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Torres v. United States

United States District Court, D. New Jersey

December 30, 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 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 is granted.

         I. Procedural Background

         The complaint (DE 1-1) was filed on January 28, 2019, in Superior Court, Hudson County.[1] The allegations of the complaint are as follows.

         The 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., ¶ 2).

         Torres 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).

         Some 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).

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

         On 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).

         On August 16, 2019, the United States moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. (DE 3).

         On September 5, 2019, plaintiff filed a motion to remand the case to state court. (DE 6).

         On 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).

         a. Legal standard

         Motions 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 ...


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