Allstate Ins. Co. v. Quick

• Decision Date: 15 March 1999
• Docket Number: No. C-3-98-338.,C-3-98-338.
• Citation: 107 F.Supp.2d 900
• Parties: ALLSTATE INSURANCE CO., Plaintiff, v. Denise QUICK, and Robert McKee, Defendants. Robert McKee, Plaintiff, v. United States of America, for Denise Quick, Defendant.
• Court: U.S. District Court — Southern District of Ohio

107 F.Supp.2d 900

ALLSTATE INSURANCE CO., Plaintiff, v. Denise QUICK, and Robert McKee, Defendants.

Robert McKee, Plaintiff, v. United States of America, for Denise Quick, Defendant.

No. C-3-98-338.

United States District Court, S.D. Ohio, Western Division.

March 15, 1999.

COPYRIGHT MATERIAL OMITTED

Paul Roderer, Paul Roderer, Jr., Dayton, OH, for Plaintiffs.

Andrew Storar, Pickrel Schaeffer & Ebeling Co. LPA, Dayton, OH, Patrick Quinn, James Greene, III, Frank Payson, Dayton, OH, for Defendants.

DECISION AND ENTRY OVERRULING MOTION TO DISMISS (DOC. # 2) FILED BY DEFENDANT UNITED STATES OF AMERICA; PLAINTIFF ROBERT McKEE'S MOTION TO REMAND (DOC. # 8) OVERRULED; PLAINTIFF ROBERT McKEE'S MOTION TO STAY (DOC. # 19) OVERRULED, AS MOOT; RULING RESERVED ON PLAINTIFF'S MOTION FOR SANCTIONS (DOC. # 7); FURTHER PROCEDURES ORDERED OF PLAINTIFF ROBERT McKEE; CONFERENCE CALL SET.

RICE, Chief Judge.

This consolidated action stems from Plaintiff Robert McKee's defamation and intentional infliction of emotional distress allegations against Denise Quick, a civilian employee at Wright Patterson Air Force Base in Dayton, Ohio. McKee, who formerly worked as Quick's supervisor at Wright Patterson, initiated the present lawsuit by filing a two-count Complaint against her in the Court of Common Pleas for Greene County, Ohio. (See Complaint, attached to Doc. # 1). In response, Quick contacted the Allstate Insurance Company and asked the company to provide her with legal representation pursuant to her Allstate homeowner's policy. She also sought indemnification for any damages ultimately recovered by McKee. Allstate then filed an action in the Greene County Common Pleas Court, seeking a declaratory judgment concerning its obligations to Quick. Thereafter, the Greene County Common Pleas Court consolidated Allstate's declaratory judgment action with McKee's lawsuit against Quick. The United States subsequently filed a Notice of Substitution and Removal (Doc. # 1), substituting itself as the proper Defendant in McKee's action against Quick, and removing the consolidated action to this Court.

Following removal from the state common pleas court, the United States filed a Motion to Dismiss for Lack of Jurisdiction (Doc. # 2). The government's jurisdictional arguments are: (1) that McKee's claims against Quick are barred on grounds of sovereign immunity under the Federal Tort Claims Act; and (2) that the Act requires administrative exhaustion as a jurisdictional prerequisite to filing suit. See 28 U.S.C. § 2680(h), § 2675(a). McKee then filed a Motion for Sanctions (Doc. # 7) against the United States, arguing that the United States improperly substituted itself as the Defendant in his lawsuit against Quick and improvidently removed the action from state court. McKee also filed a Motion to Remand (Doc. # 8) this action to the Greene County Common Pleas Court, because of the government's improper substitution as the Defendant. In a December 2, 1998, Decision and Entry (Doc. # 17), this Court stayed Allstate's declaratory judgment portion of the captioned cause, pending resolution of the merits of McKee's tort claims, or alternatively, the Court's surrender of subject matter jurisdiction, via a remand to the Greene County Common Pleas Court. Thereafter, McKee filed a Motion to Stay (Doc. # 19) the Court's ruling on the United States' Motion to Dismiss (Doc. # 2), until after it had resolved his Motion to Remand (Doc. # 8). The foregoing Motions have been fully briefed and are ripe for resolution.

I. Motion to Dismiss (Doc. # 2) and Motion to Remand (Doc. # 8)

In his memoranda to the Court, McKee candidly admits that his defamation and emotional distress claims against Quick are barred by the Federal Tort Claims Act, and subject to dismissal, if the United States properly substituted itself as the Defendant in his lawsuit.¹ See Doc. # 19 at 3. On the other hand, if the United States improperly substituted itself as the Defendant in McKee's lawsuit, and improvidently removed this consolidated action on that basis, then the Federal Tort Claims Act does not apply to McKee's state-law claims against Quick. Given that the Court's resolution of the Motion to Dismiss (Doc. # 2) and Motion to Remand (Doc. # 8) turns upon the propriety of the United States substituting itself as the Defendant in this action, the Court's analysis will address the two Motions together and focus upon the substitution issue.

The central issue before the Court is whether Quick acted within the scope of her federal employment when she engaged in the acts forming the factual basis for McKee's Complaint. If so, the United States properly substituted itself as the Defendant. 28 U.S.C. § 2679(d)(2). Furthermore, as noted above, McKee concedes that dismissal of his lawsuit is appropriate if the government's substitution was proper. In his Motion to Remand (Doc. # 8), however, McKee contends that his lawsuit against Quick does not stem from any acts performed within the scope of her employment at Wright Patterson Air Force Base. As a result, McKee insists that the United States improperly substituted itself as the Defendant and improvidently removed his Complaint to federal court. Conversely, the United States asserts that Quick was acting in the scope of her employment at all relevant times. (Doc. # 2 at 3-7). As a result, the United States argues that it properly substituted itself as the Defendant, that McKee's claims are barred by the Federal Tort Claims Act, and that the Court lacks subject matter jurisdiction over this litigation. (Id.). See Rutkofske v. Norman, 114 F.3d 1188, 1997 WL 299382 (6th Cir. June 4, 1997).

The Court begins its analysis of the parties' Motions with a review of 28 U.S.C. § 2679(d)(2), the relevant portion of the Federal Employees Liability Reform and Tort Compensation Act. The Act "shields federal employees from liability for common law torts committed within the scope of employment." Henson v. National Aeronautics and Space Administration, 14 F.3d 1143, 1147 (6th Cir.1994). Section 2679(d)(2) provides:

Upon 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, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant....

28 U.S.C. § 2679(d)(2).

The Attorney General has delegated certification authority under the Act to the United States Attorneys. See Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990), citing 28 C.F.R. § 15.3(a). Although a United States Attorney's certification constitutes prima facie evidence that a federal employee was acting within the scope of her employment, the certification decision does not conclusively establish as correct the United States' substitution as the defendant in place of the employee. Mackey v. Milam, 154 F.3d 648, 650 (6th Cir.1998); Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). Rather, a plaintiff may raise a judicial challenge to the certification decision. Arbour, 903 F.2d at 421. The "scope of employment" certification is "reviewable first by the district court ... and then on the appellate level as a question of law under a de novo standard." Coleman v. United States, 91 F.3d 820, 823 (6th Cir.1996).

When challenging a certification decision, a plaintiff must present evidence from which a District Court reasonably could find that the original defendant-employee acted outside the scope of her employment. As noted above, certification serves as prima facie evidence that an employee acted within the scope of her employment. Therefore, if the United States substitutes itself as the defendant and moves to dismiss, a plaintiff cannot defeat the motion merely by relying upon the factual allegations in his complaint. Rutkofske v. Norman, 114 F.3d 1188, 1997 WL 299382 (6th Cir. June 4, 1997). A plaintiff may defeat a motion to dismiss, however, by providing the District Court with evidence that raises a genuine issue of material fact on the scope-of-employment issue. Id. at *4. When a plaintiff produces admissible evidence controverting the government's certification decision, a District Court must conduct an evidentiary hearing in order to determine whether the United States properly substituted itself as the defendant and removed the plaintiff's lawsuit from state court. Id. (reasoning that an evidentiary hearing on the scope-of-employment issue is necessary only when the record contains conflicting evidence with respect to a material fact); see also Heuton v. Anderson, 75 F.3d 357, 361 (8th Cir.1996) (holding that when the scope-of-employment issue is disputed, District Courts must conduct an evidentiary hearing).² For purposes of certification and substitution, the issue of whether a federal employee acted within the scope of her employment is governed by state law. Woods v. McGuire, 954 F.2d 388, 390 (6th Cir.1992). In the present case, the conduct at issue occurred at Wright Patterson Air Force Base in Dayton, Ohio. Consequently, the Court looks to Ohio law to determine whether Quick acted within the scope of her employment when she performed the acts giving rise to McKee's Complaint.³

Under Ohio law, an employee acts within the scope of her employment if her conduct: (1) is of the kind which she is employed to perform; (2) occurs substantially within the authorized limits of time and space; and (3) is actuated, at least in part, by a purpose to serve the...