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Cho v. Oquendo

United States District Court, E.D. New York

August 2, 2017

WOO HEE CHO, Plaintiff,


          MARGO K. BRODIE, United States District Judge:

         Plaintiff Woo Hee Cho commenced the above-captioned action against Defendants Maxie Oquendo, LaGuardia Airport, the Port Authority of New York and New Jersey (the “Port Authority”), the Transportation Security Administration (the “TSA”), and the United States of America on August 26, 2016, based on a TSA agent's sexual assault of Plaintiff at LaGuardia Airport in August of 2015. (Compl., Docket Entry No. 1.) Plaintiff brings claims for sexual assault and battery, intentional infliction of emotional distress, false imprisonment and Bivens relief[1] under the Fourth Amendment against Oquendo[2]; for negligent hiring and supervision against the Port Authority and LaGuardia Airport; and for negligence against TSA and supervisory liability and negligent training and supervision against the United States, pursuant to the Federal Tort Claims Act (the “FTCA”). (Id. ¶¶ 49-92.)

         On February 3, 2017, the Port Authority moved to dismiss the action against it and LaGuardia Airport pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Port Authority Mot. to Dismiss (“Port Authority Mot.”), Docket Entry No. 18; Decl. of Allen Acosta in Supp. of Port Authority Mot. (“Acosta Decl.”), Docket Entry No. 19; Port Authority Mem. in Supp. of Port Authority Mot. (“Port Authority Mem.”), Docket Entry No. 20.) On July 14, 2017, the United States moved to dismiss the action against it and TSA pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (United States Mot. to Dismiss (“United States Mot.”), Docket Entry No. 37; United States Mem. in Supp. of United States Mot. (“United States Mem.”), Docket Entry No. 37-1; Decl. of Jared M. Addorisio in Supp. of United States Mot. (“Addorisio Decl.”), Docket Entry No. 36-2.)

         For the reasons set forth below, the Court grants the Port Authority's and the United States' motions to dismiss for lack of subject matter jurisdiction, dismisses the Complaint against all Defendants except Oquendo and grants Plaintiff leave to amend her claims against the United States.

         I. Background

         The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order. “On or about August 27, 2015, ” Plaintiff, a Korean college student who was then temporarily enrolled at an English language school in Utah, arrived at LaGuardia Airport on an inbound flight from Salt Lake City. (Compl. ¶¶ 15-16.) As Plaintiff was walking out of the airplane gate, Oquendo, a TSA officer, approached Plaintiff and told her that he needed to scan her body and luggage. (Id. ¶ 17.) Oquendo directed Plaintiff to follow him up an escalator and motioned for Plaintiff to enter a men's bathroom. (Id. ¶ 18.) Plaintiff was confused, but acquiesced after requesting that a female TSA employee screen her instead. (Id. ¶ 19.) Oquendo refused, and ordered Plaintiff to unzip and take off her shorts and her t-shirt. (Id. ¶¶ 19-20.) He then fondled Plaintiff's breasts “and other areas of her body, both over and under her clothing.” (Id. ¶ 20.) Plaintiff was “extremely nervous, terrified and uncomfortable but felt that she was not free to refuse Oquendo's demands” because he was in TSA uniform and she was not aware of TSA procedures. (Id. ¶ 22.) After the incident, Oquendo escorted Plaintiff toward an elevator and told her to enter it. (Id. ¶ 23.) He pressed the buttons to a lower floor and when the doors closed, with Plaintiff inside the elevator, Oquendo ran off in another direction. (Id.) Plaintiff found a TSA officer and reported what had happened, and that TSA officer told Plaintiff that she should report the incident to Port Authority Police Department because the incident violated TSA protocol. (Id. ¶¶ 24-25.) On the same day, Plaintiff reported the incident to Detective Sergeant Barbara Heim in the Criminal Investigations Bureau of the Port Authority Police Department. (Id. ¶ 26; Affidavit of Detective Sergeant Barbara Heim (“Heim Aff.”) ¶¶ 5-6, Docket Entry No. 19-2.) The next day, Plaintiff was transported back to Port Authority Headquarters and identified Oquendo from a line-up. (Compl. ¶ 27.)

         Within days of the incident, Oquendo was fired, arrested by the NYPD and arraigned on charges of sexual abuse, official misconduct, harassment and unlawful imprisonment. (Id. ¶ 29.) On December 7, 2016, Oquendo entered a conditional plea of guilty for attempted official misconduct, official misconduct and sexual abuse in the third degree. (See United States Mem. 2 (referring the Court to the criminal matter against Oquendo in New York Criminal Court, Queens County).)

         II. Discussion

         a. Standard of review

          A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court “lacks the statutory or constitutional power to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)); see also Chau v. S.E.C., 665 F. App'x 67, 70 (2d Cir. 2016). The plaintiff has the burden to prove that subject matter jurisdiction exists, and in evaluating whether the plaintiff has met that burden, “‘[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, ' but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff'd, 561 U.S. 247 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).

         b. The Court lacks subject matter jurisdiction over Plaintiff's claims against the Port Authority

          The Port Authority argues that it is immune from Plaintiff's suit because Plaintiff failed to commence her action within one year of the date on which the cause of action accrued.[3] (Port Authority Mem. 3-4.) Plaintiff argues that she timely filed suit and, even if she did not, she is entitled to equitable tolling because the Port Authority “tricked” her into believing the claim accrued on August 27, 2015 rather than August 25, 2015. (Pl. Mem. in Opp'n to Port Authority Mot. (“Pl. Opp'n to Port Authority Mot.”) 5, Docket Entry No. 27.)

         The Port Authority is a “bi-state agency created by a compact between New York and New Jersey, ” and it “enjoyed sovereign immunity until 1951, when New York and New Jersey consented to suits against it in limited circumstances.” Caceres v. Port Auth. of N.Y. & N.J., 631 F.3d 620, 624 (2d Cir. 2011) (citing Bunk v. Port Auth. of N.Y. & N.J., 144 N.Y. 176 (1996)). The Port Authority's statutory immunity was waived by identical New York and New Jersey statutes that “required a sixty-day notice of claim and commencement of suit within one year from the date of accrual of the cause of action.” See id.; N.Y. Unconsol. Law § 7107 (“section 7107”). “These requirements are jurisdictional, ” and thus, the failure to satisfy them “will result in withdrawal of [the] defendant's consent to suit and compels the dismissal of the action for lack of subject matter jurisdiction.” Caceres, 631 F.3d at 624-25 (citations omitted); Aegis Ins. Servs., Inc. v. Port Auth. of N.Y. & N.J., 435 F. App'x 18, 25 (2d Cir. 2011) (“Sections 7107 and 7108 [of the New York Unconsolidated Law] constitute jurisdictional prerequisites to a suit against the Port Authority, and failure to comply with them compels dismissal of the action for lack of subject matter jurisdiction.”).

         Rule 6(a) of the Federal Rules of Civil Procedure governs the computation of any period of time “specified in [the Federal Rules], in any local rule or court order, or in any statute that does not specify a method of computing time.” Fed.R.Civ.P. 6(a) (emphasis added). Rule 6(a)(1) provides that “[w]hen the period is stated in days or a longer unit of time, ” the court should “exclude the day of the event that triggers the period” and “include the last day of the period.” Id. at 6(a)(1). The Second Circuit has further held that “when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the start of the limitations period.” Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) (citing Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990), as amended on reh'g (Aug. 29, ...

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