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BRASKY v. JERMAIN

May 22, 1995

JAMES P. BRASKY, Plaintiff,
v.
DEBORAH S. JERMAIN, Defendant.



The opinion of the court was delivered by: HECKMAN

 The parties have consented, pursuant to 28 U.S.C. § 636(c), to have the undersigned conduct all further proceedings in this case, including the entry of judgment. Pending before the court is the government's motion to be substituted as party defendant pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671(b)(1) (Item 2). The government has also moved to dismiss the case for lack of subject matter jurisdiction (Item 2).

 For the following reasons, it is ordered that the United States be substituted as party defendant. It is further ordered that the government's motion to dismiss be granted.

 BACKGROUND

 This is an action for money damages for personal injuries sustained by plaintiff, James P. Brasky, as a result of an automobile accident that took place on May 31, 1990, in the town of Freedom, New York. Plaintiff initially filed this law suit against Deborah S. Jermain in New York State Supreme Court, Erie County, in February of 1993 -- two years and nine months after the incident (Item 3).

 On July 27, 1994, Patrick H. NeMoyer, United States Attorney for the Western District of New York, certified that Jermain was acting within the scope of her employment as a census taker for the United States Department of Commerce at the time of the accident. On July 29, 1994, the government filed a petition for removal to the United States District Court for the Western District of New York under the Federal Tort Claims Act ("F.T.C.A." or "the Act"), 28 U.S.C. § 2679(d)(2). The defendant now moves for substitution of the United States as the party defendant under 28 U.S.C. § 2679(d)(2) and, to dismiss the case against the United States for lack of subject matter jurisdiction.

 Plaintiff has not responded to the pending motions.

 For the following reasons, it is ordered that the United States be substituted as party defendant in this action. It is further ordered that the government's motion to dismiss be granted.

 DISCUSSION

 The F.T.C.A. accords absolute immunity to federal employees from common law tort claims when the alleged actions forming the basis of the complaint were committed within the scope of their employment. In such cases, the United States waives its sovereign immunity and the plaintiff is allowed to pursue a claim directly against the government, pursuant to the guidelines of the F.T.C.A. This is a plaintiff's exclusive remedy. The Act provides as follows:

 
The remedy against the United States . . . for injury or loss of personal property, or personal injury or death arising or resulting from the negligent . . . act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee . . . is precluded without regard to when the act or omission occurred.

 28 U.S.C. § 2679(b)(1). The statute further directs that:

 
Upon certification of 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 a claim in a state court shall be removed . . . and the United States shall be substituted as party defendant.

 28 U.S.C. § 2679(d)(2). The Attorney General has delegated her authority to certify that a federal employee was acting within the scope of his office or employment to the various ...


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