United States District Court, E.D. New York
MEMORANDUM & ORDER
PAMELA K. CHEN, District Judge.
Third-party Plaintiffs, Erwin Navas and Mayra Navas (the "Navases"), move to remand this case to State court on the ground that Cross-claim Defendant Stephanie Kitson ("Kitson"), a United States Postal Service ("USPS") letter carrier who served the Navases' apartment building (the "Co-op"), was acting outside the scope of her employment when she allegedly engaged in a conspiracy with the Co-op board to harass the Navases and interfere with the delivery of their mail. (Dkt. 6.) The Navases also move for reconsideration of this Court's denial, by Order dated March 3, 2014, of their motion for an extension of time to file a reply in support of their motion to remand. (Dkt. 34.)
Because the United States properly notified the Navases of the removal of this action, and because Kitson was acting within the scope of her employment under 28 U.S.C. § 2679 and § 28 U.S.C. 1442, the Navases' motion to remand is DENIED. Moreover, because their request for an extension of time is futile, the Navases' motion for reconsideration is also DENIED.
The Court recites only the background relevant to the resolution of this motion.
Housing Co-operative corporation Thornton Burns Owners Corp. ("Thornton Burns") commenced this action on August 2, 2011, in the Supreme Court of the State of New York, County of Queens ("Queens County Supreme Court"), against the Navases, who are shareholders and residents of the Co-op. (Dkt. 7 at pp. 25-35 ("TB Compl").) The complaint alleged, inter alia, that the Navases harassed and threatened other shareholders, the Co-op board, building staff and the management agent. (TB Compl. ¶ 5.) On September 9, 2011, the Navases filed an Answer with Counterclaims against Thornton Burns and all of the individuals who signed affidavits in support of Thornton Burns' Complaint. (Dkt. 7 at pp. 73-105 ("Navas Compl.").) The Navases also asserted claims against Kitson because she allegedly conspired with the Co-op, and "intentionally destroyed and/or failed to deliver mail that was intended for [the Navases]" and filed "false police reports" against Ms. Navas in furtherance of the conspiracy. (Dkt. 7 at pg. 84 ¶ 43(f)(g)). The Navases accused Kitson of committing a variety of torts and playing a key role in an alleged RICO conspiracy, in violation of 18 U.S.C. § 1961, et seq. ( Id. at ¶¶ 43(f)(g), 46-55.)
On July 26, 2013, the United States, on behalf of Kitson, removed the case to this Court because Kitson "was acting within the scope of her employment with the United States of America... at all times pertinent to the incidents alleged in Plaintiffs' Counterclaim." (Dkt. 1 ¶ 4.) Kitson has denied any involvement in the alleged conspiracy with the Co-op board to harass the Navases or interfere with their mail in any way. (Dkt. 28-1 ("Kitson Decl.") ¶ 19.)
On August 26, 2013, the Navases moved to remand this action to Queens County Supreme Court. (Dkt. 6.) That motion is before the Court.
I. Removal Pursuant to 28 U.S.C. § 2679
Kitson asserts that this case was properly removed to federal court under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), pursuant to 28 U.S.C. § 2679(d)(2). In addition, Kitson claims that, pursuant to 28 U.S.C. § 2679(d), this action should be deemed to have been brought against the United States, and the United States should be substituted for Kitson.
"The FTCA waives the sovereign immunity of the United States for certain torts committed by federal employees, including Postal Service employees, within the scope of their employment." Mathirampuzha v. Potter, 548 F.3d 70, 80 (2d Cir. 2008) (citing Dolan v. U.S. Postal Serv., 546 U.S. 481, 484-85); see also Rodriguez v. United States, 01-CV-4975, 2001 WL 1590516, at *2 (E.D.N.Y. Nov. 3, 2001) (noting that the FTCA "provides the exclusive remedy for torts committed by federal employees in the course of their duties" (emphasis in original)). "Thus, by way of the FTCA, the United States has provided a limited waiver of its sovereign immunity for specified tort cases, with exclusive jurisdiction over these cases in the federal courts." De Masi v. Schumer, 608 F.Supp.2d 516, 520 (S.D.N.Y. 2009) (alteration omitted) (quoting Delgado v. Our Lady of Mercy Med. Ctr., 06-CV-5261, 2007 WL 2994446, at *4 (S.D.N.Y. Oct. 12, 2007)).
The Federal Employees Liability Reform and Tort Compensation Act of 1988, or the "Westfall Act, " provides federal employees absolute immunity from tort claims arising out of acts undertaken in the course of their official duties. See Osborn v. Haley, 549 U.S. 225, 229 (2007); 28 U.S.C. § 2679(b)(1). This principle also applies to "an employee on duty at the time and place" an incident allegedly occurred, but who denies that the incident took place. Osborn, 549 U.S. at 247.
In such situations, the Westfall Act authorizes the Attorney General, or the United States Attorney in the district in which the suit is brought, to certify that the defendant was acting within the scope of her employment with respect to the conduct alleged by the plaintiff. 28 U.S.C. § 2679(b)(1); 28 C.F.R. § 15.4; see also, e.g., De Masi, 608 F.Supp.2d at 520-21. Thereafter, the action "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." 28 U.S.C. § 2679(d)(2). "[O]nce certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court, and that court may not remand the suit to the state court." Id. at 231. However, courts may still review a scope-of-employment certification for the purposes of substitution. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424-25 (1995). But courts review such certifications only if a plaintiff "allege[s] with particularity facts relevant to the scope-of-employment issue." McHugh v. ...