Fountain v. Karim

• Decision Date: 23 September 2016
• Docket Number: 15-3529,Docket Nos. 15-3429,August Term, 2015
• Citation: 838 F.3d 129
• Parties: Cory R. Fountain, Plaintiff-Appellant, v. Anwar M. Karim, Defendant-Cross Claimant-Consolidated Plaintiff-Appellee, v. United States of America, Consolidated Cross Defendant-Appellee, United States Department of Agriculture, Cross Defendant-Appellee, Tom Vilsack, as Secretary of U.S. Department of Agriculture, Consolidated Defendant.
• Court: U.S. Court of Appeals — Second Circuit

838 F.3d 129

Cory R. Fountain, Plaintiff-Appellant,

v.Anwar M. Karim, Defendant-Cross Claimant-Consolidated Plaintiff-Appellee,

v.United States of America, Consolidated Cross Defendant-Appellee, United States Department of Agriculture, Cross Defendant-Appellee, Tom Vilsack, as Secretary of U.S. Department of Agriculture, Consolidated Defendant.^*

Docket Nos. 15-3429

15-3529

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: June 6, 2016

Decided: September 23, 2016

Robert Bruschini , Martin, Harding & Mazzotti, LLP, Albany, NY, for Plaintiff-Appellant.

James T. Towne, Jr. (Susan F. Bartkowski & Christopher W. Rust, on the briefs), Towne, Ryan & Partners, P.C., Albany, NY, for Defendant-Cross Claimant-Consolidated Plaintiff-Appellee.

Karen Folster Lesperance , Assistant United States Attorney, of Counsel, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Consolidated Cross Defendant-Appellee, Cross Defendant-Appellee, and Consolidated Defendant.

Before: Sack and Lynch, Circuit Judges, and Murtha, District Judge.^**

Sack, Circuit Judge:

At all relevant times, Anwar M. Karim was a conservationist with the United States Department of Agriculture (“USDA”). One night in August 2010, he decided to drive a government vehicle from the office to which he had been temporarily assigned back to the local hotel at which he was staying and where he planned to park the vehicle overnight ahead of a business trip the following morning. He submitted a request for permission to his superior to do so, but left in the vehicle before he obtained a response. He apparently expected to receive retroactive approval of his request the following day. While en route to his hotel, though, his vehicle collided with that of the plaintiff, Cory R. Fountain, causing Fountain serious bodily injuries. Karim has admitted that his negligence caused the accident.

Fountain brought suit against Karim and his employer, the government, and the U.S. Secretary of Agriculture, asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 -80 ; New York's permissive-use statute, N.Y. Veh. & Traf. Law § 388 (“VTL § 388 ”); and New York's common law of negligence. The district court dismissed all claims against the government for lack of subject matter jurisdiction, and declined to exercise supplemental jurisdiction over the remaining state-law claims against Karim, after finding that he was not acting within the scope of his employment at the time of the accident. We conclude that, although such a finding properly made would warrant dismissal in an FTCA action, dismissal in this case was premature in light of an unresolved factual dispute over whether Karim used the vehicle with his employer's implied permission. Accordingly, we vacate the district court's decision and remand for an evidentiary hearing and further proceedings.

BACKGROUND

Karim's permanent USDA duty station is in Rochester, New York, the city in which he lives with his family. In August 2010, Karim was assigned to a temporary detail at the USDA office in Walton, New York. Because Walton is about 175 miles and several hours away by car from Karim's home in Rochester,¹ the USDA provided Karim with housing at a Holiday Inn in nearby Oneonta, New York.² His practice was to reside at the hotel from Monday through Friday, returning to Rochester for the weekend.

Karim's life while assigned to the Walton detail thus required a substantial amount of driving—between Rochester and Walton, between the Oneonta Holiday Inn and the Walton USDA office, and between the Walton USDA office and other USDA offices or locations in the field. While commuting between the Rochester and Walton areas and between the Holiday Inn and the Walton office, Karim was generally expected to drive—and usually did drive—his privately owned automobile. During working hours, however, the USDA gave Karim access to a government-owned 2009 Ford Explorer. This pattern of vehicle use followed the general policy and practice at the USDA at the time.

This is not to say, however, that Karim was forbidden from ever using the government-owned vehicle outside of normal working hours. Pursuant to an official USDA policy, he was permitted to take the vehicle home overnight so long as he first obtained his supervisor's signature on Form AD-728, which is titled “Request and Authorization For Home to Work Transportation.” And in a departure from that policy, Karim's supervisor in Rochester, Bruce Hopkins, had previously permitted him on several occasions to use a government-owned vehicle overnight without first obtaining a signature on Form AD-728. Karim claims that this happened at least five times over the course of two or three years; that he received retroactive written approval from Hopkins in each instance; and that he sometimes, but not always, obtained prior oral approval from Hopkins to borrow a vehicle. Hopkins, for his part, asserts that he would approve Karim's overnight use of the vehicle without a final signed Form AD-728 only if Karim obtained his prior oral approval. Three other USDA employees in positions similar to Karim's who were also supervised by Hopkins stated during internal USDA interviews that they knew they were supposed to obtain written authorization before using a government-owned vehicle, and that in no case could they or did they actually use a government-owned vehicle without first obtaining at least oral authorization. There is no evidence in the record, however, that Karim or any other USDA employee was ever denied a request to take a government-owned vehicle overnight.

Karim was scheduled to make a trip to the USDA field office in Highland, New York, which is about 100 miles to the southeast of Walton, on Wednesday, September 1, 2010. At the end of the workday on Tuesday, August 31, 2010, the day before his scheduled trip, Karim decided to take the government-owned vehicle back to the Holiday Inn. At 5:57 p.m., he sent a Form AD-728, requesting permission to take the vehicle. His supervisor in the Walton office, Ashton Boozer, had not responded to the request by the time Karim left in the government-owned vehicle about three minutes later. Karim then collided (negligently, he conceded) with Fountain's vehicle while en route to the Holiday Inn. According to Karim, shortly after the accident, he called Boozer, who told Karim that he had received the Form AD-728 before he left the office but had not yet printed or signed it. Boozer denies that the phone call occurred.

And then came the paperwork. Following the accident, Boozer completed a Form SF-91 “Motor Vehicle Accident Report” on which he stated that Karim was not authorized to take the government-owned vehicle overnight, was not acting within the scope of his duties as an employee when the accident occurred, and would not have been given permission to take the government-owned vehicle because his request was “not advantageous” to the government. See Joint Appendix (“J.A.”) 508-11. Karim, on the other hand, submitted Optional Form 26, “Data Bearing Upon Scope of Employment of Motor Vehicle Operator,” on which he checked a box indicating that he had been given written permission to take the government-owned vehicle, and wrote, “submitted request AD-728 prior to leaving office via email.” J.A. 37, 512. Boozer signed this form and verified that the information contained in it was true and correct to the best of his knowledge and belief. Id. In later deposition testimony and in a written declaration, however, he stated that he had overlooked that the “written” box was checked in the authorization section, and that he had not intended to certify that Karim had authorization to take the government-owned vehicle overnight.

Fountain brought suit against Karim and the government in the United States District Court for the Northern District of New York, asserting claims under the FTCA and New York law, specifically VTL § 388 and the common law of negligence. Karim, in turn, asked the government to defend and indemnify him. Following an internal accident investigation, the government denied his request. Karim then cross-claimed in the lead case and filed a separate indemnification action against the government and Thomas Vilsack as Secretary of the USDA.³ The district court consolidated the two actions for purposes of dispositive motion practice.

After completion of discovery, the government moved for summary judgment or dismissal of Fountain's complaint⁴ on the ground that Karim was acting outside the scope of his employment at the time of the accident. Karim moved for a declaratory judgment ordering the United States to defend and indemnify him, and Fountain cross-moved for summary judgment in both actions.

The district court (Norman A. Mordue, Judge ) concluded that Karim was not acting within the scope of his employment at the time of the accident on the ground that the USDA could not have exercised control over Karim because it had not granted him explicit permission to use the government-owned vehicle overnight. The court therefore dismissed all claims against the government and Secretary Vilsack in Fountain's tort action for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).⁵ The court then dismissed Karim's indemnification action for lack of subject-matter jurisdiction,⁶ denied Karim's motion for a declaratory judgment in both actions, denied Fountain's motion for partial summary judgment in both actions,⁷ and declined to exercise supplemental jurisdiction over Fountain's state-law claims against Karim, dismissing them without prejudice.

Fountain and Karim now challenge the district court's dismissal on two grounds. First, they contend that the court's finding regarding the scope of employment was premature because it overlooked a genuine dispute of material fact as to whether Karim used the vehicle with his employer's permission. Second,...