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Freitas v. Cooper

United States District Court, S.D. New York

February 5, 2014

JADIR E. FREITAS, Plaintiff,


RONNIE ABRAMS, District Judge.

Plaintiff Jadir Freitas brings this action against defendant Valgina Cooper to recover for damage to his sunglasses allegedly incurred at a Transportation Security Administration ("TSA") checkpoint at LaGuardia Airport. Before the Court is Cooper's motion to substitute the United States as the defendant and to dismiss the case for lack of subject matter jurisdiction. The motion is granted in its entirety.


Cooper is employed by the TSA, which is a component of the United States Department of Homeland Security. (Simmons Decl. ¶¶ 2-3.) Since 2009, Cooper been assigned to the Customer Support and Property Recovery Office. (Id. ¶ 3.) In that capacity, she is responsible for "speaking with passengers about lost or damaged items, handling and logging all recovered items, and coordinating the return of lost items to passengers, " as well as "instruct[ing] passengers on how to file a claim with TSA's Claims Management Branch." (Id.)

On February 2, 2013 and February 14, 2013, Freitas contacted Cooper to complain that his sunglasses had been damaged as he was going through a TSA checkpoint. (Id. ¶ 4.) Although Cooper attempted to give Freitas "information on the claim process so that he could file a claim related to his sunglasses, " he refused her assistance. (Id.) Specifically, it appears that Cooper emailed Freitas a link to a website that would allow him to process a claim. (Freitas Aff. 6.) The TSA maintains a log of administrative tort claims filed with the TSA. (Grimes Decl. ¶¶ 1-2.) The log does not reflect that Freitas filed a claim. (Id. ¶ 3.)

Freitas instead brought an action against Cooper in New York City small claims court on April 23, 2013, seeking to recover $300.00 for the alleged damage to his sunglasses. (Dkt. No. 1, Notice of Removal, Ex. A.) The United States Attorney for the Southern District of New York certified that Cooper was acting within the scope of her employment with the TSA at the time of the incident (Tulis Decl., Ex. A), and the case was removed to federal court on July 1, 2013, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679(d)(2). The instant motion was filed shortly thereafter.


I. Motion to Substitute the United States as Defendant

The United States, not Cooper, is the proper defendant in this action. The FTCA permits "civil actions on claims against the United States, for money damages... for injury or loss of property... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). With certain exceptions not applicable here, this remedy "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." Id . § 2679(b)(1).

The FTCA provides that any state court action against a federal employee shall be removed to federal court "[u]pon 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." Id . § 2679(d)(2).[1] The statute further provides that "[s]uch action or proceeding shall be deemed to be an action or proceeding brought against the United States[, ]... and the United States shall be substituted as the party defendant." Id.

The Supreme Court, however, has held that "the Attorney General's certification that a federal employee was acting within the scope of his employment... does not conclusively establish as correct the substitution of the United States as defendant in place of the employee." Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 434 (1995). "A district court conducts a de novo review of a 28 U.S.C. § 2679(d) certification by the Attorney General (or his designee) if a plaintiff allege[s] with particularity facts relevant to the scope-of-employment issue.'" United States v. Tomscha, 150 F.Appx. 18, 19 (2d Cir. 2005) (quoting McHugh v. Univ. of Vermont , 966 F.2d 67, 74 (2d Cir. 1992), abrogated on other grounds by Osborn v. Haley , 549 U.S. 225 (2007)). "The court must view the tortious conduct in the light most favorable to plaintiff, but it makes its own findings of fact with respect to the scope of the tortfeasor's employment and, in so doing, the court may rely on evidence outside the pleadings." Bello v. United States, 93 F.Appx. 288, 289-90 (2d Cir. 2004) (citing McHugh , 966 F.2d at 74-75).

"In conducting such review, a district court applies state-law principles pertaining to when tortious conduct falls within the scope of a party's employment." Tomscha, 150 F.Appx. at 19 (citing McHugh , 966 F.2d at 75). Under New York law, the fundamental question is "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Riviello v. Waldron , 47 N.Y.2d 297, 302, 391 N.E.2d 1278, 1281 (1979) (internal quotation marks omitted). Factors relevant to this determination include:

[1] the connection between the time, place and occasion for the act; [2] the history of the relationship between employer and employee as spelled out in actual practice; [3] whether the act is one commonly done by such an employee; [4] the extent of departure from normal methods of performance; and [5] ...

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