Glendora v. Pinkerton Sec. and Detective Services

• Decision Date: 20 November 1998
• Docket Number: No. 98 Civ. 5123(RWS).,98 Civ. 5123(RWS).
• Citation: 25 F.Supp.2d 447
• Parties: GLENDORA, Plaintiff, v. PINKERTON SECURITY AND DETECTIVE SERVICES, James P. McCloseky, Denis R. Brown, Pinkerton John, at 319 PM March 31, 1998, 300 Quarropos Street, Larry Nevins, Frank Webber and Frank Esposito, Defendants.
• Court: U.S. District Court — Southern District of New York

25 F.Supp.2d 447

GLENDORA, Plaintiff, v. PINKERTON SECURITY AND DETECTIVE SERVICES, James P. McCloseky, Denis R. Brown, Pinkerton John, at 319 PM March 31, 1998, 300 Quarropos Street, Larry Nevins, Frank Webber and Frank Esposito, Defendants.

No. 98 Civ. 5123(RWS).

United States District Court, S.D. New York.

November 20, 1998.

COPYRIGHT MATERIAL OMITTED

Glendora, White Plains, NY, pro se.

Honorable Mary Jo White, United States Attorney for the Southern District of New York, New York City (Rachel D. Godsil, Assistant U.S. Attorney, of counsel), for Defendants.

OPINION

SWEET, District Judge.

Plaintiff Glendora pro se ("Glendora") has moved to remand this action to the state court, for default judgment, and for recusal. Defendant Lawrence T. Nevins ("Nevins") has moved to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint, and Glendora has cross-moved for summary judgment. For the reasons set forth below, Glendora's motions to remand, for default judgment, recusal, and her cross-motion for summary judgment are denied, and Nevins' motion for summary judgment and dismissal of the complaint is granted.

Prior Proceedings

By complaint filed in the Supreme Court of the State of New York, County of Westchester, on April 29, 1998, Glendora named defendants Pinkerton Security and Detective Services, James P. McCloseky, Denis R. Brown, Pinkerton John, Larry Nevins, Frank Webber, and Frank Esposito and alleged that on March 31, 1998 at 3:19 p.m., "Pinkerton John tossed [her] $150 tape recorder onto the desk and caused it to fall five inches after it hit the desk." (Compl. ¶ C.) Glendora has alleged this act constituted police brutality and a violation of her First and Fifth Amendment Rights. The only reference to Nevins in the complaint is in the caption. Nevins received the complaint by mail on May 5, 1998.

Because Nevins is an Assistant-Chief Deputy United States Marshal, a notice of removal was filed on July 17, 1998.

Glendora filed a notice of motion to remand Nevins on August 3, 1998, and a notice of motion for a default judgment on August 24, and on the same day Nevins moved to dismiss under Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure. Glendora cross-moved for summary judgment and for recusal on September 3, 1998. The motions were marked fully submitted on September 9, 1998.

The Facts

Nevins is an Assistant-Chief Deputy United States Marshal with the United States Marshals Service, assigned to the United States District Court for the Southern District of New York, located in White Plains, New York, at 300 Quarropas Street (the "Courthouse"). He has held this position since 1992 and has been employed by the Marshals Service since 1978.

In his capacity as Assistant-Chief Deputy, Nevins is responsible for supervising the Deputy United States Marshals and Court Security Officers ("CSOs") assigned to the Courthouse. Unlike Deputy Marshals, who are federal employees of the Marshals Service, the CSOs are contract employees. Nevins supervises Courthouse security for all occupants, movement of prisoners, service of process, and asset forfeiture.

Nevins is familiar with Glendora.

On March 31, 1998, Nevins assisted in the movement of prisoners to Newburgh, New York in the morning and returned to the Courthouse in the afternoon and has no recollection of seeing Glendora at the Courthouse that day, nor does he recall witnessing any interaction between Glendora and any CSOs in the Courthouse.

Discussion

I. The Motion to Remand Is Denied

Motions to remand venue from a federal district court to a state court are governed by Section 1447(c) of Title 28 of the United States Code. The statute provides, inter alia, that "[if] at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

Removal is proper only if the court has original jurisdiction of the matter. See In re NASDAQ Market Makers Antitrust Litig., 929 F.Supp. 174, 177 (S.D.N.Y.1996); Glen 6 Assocs. v. Dedaj, 770 F.Supp. 225, 227 (S.D.N.Y.1991). Glendora having challenged the removal by motion to remand, Nevins bears the burden of establishing that the action is properly in federal court. See R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979); see also Isaacs v. Group Health, Inc., 668 F.Supp. 306, 311 (S.D.N.Y.1987) (on motion to remand, removing party bears burden of establishing that case is within federal court's removal jurisdiction). That determination "must be resolved by reference to the complaint at the time the petition for removal was filed." Rosenberg v. GWV Travel, 480 F.Supp. 95, 96 (S.D.N.Y.1979); see American Fire and Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 95 L.Ed. 702 (1951); see generally 14A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3739 (2d ed.1985).

A federal court has jurisdiction to hear "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); see Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir.1986); In re NASDAQ, 929 F.Supp. at 178.

The complaint in this action alleged that Glendora's tape recorder was dropped and broken. (See Compl. ¶ C.) On the basis of this incident, Glendora claims that she was subject to "police brutality" and that she suffered violations of her constitutional rights under the First and Fifth Amendments. (See Compl. ¶¶ A & C.) The complaint seeks unspecified declaratory relief and damages in the amount of $23 million. In her complaint, Glendora thus pleads claims founded in common law tort and the Constitution.

The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (the "FTCA"), which provides that the United States shall be liable for common law torts, is applicable in this case. See id. § 2674. While it contains a general exception for assault and battery, the FTCA states that "with regard to acts or omissions of investigative or law enforcement officers in the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising ... out of assault [or] battery." 28 U.S.C. § 2680(h). Deputy United States Marshals fall within this provision of the FTCA. See, e.g., Lucas v. United States, 443 F.Supp. 539, 543-44 (D.D.C.1977), aff'd mem., 590 F.2d 356 (D.C.Cir.1979).

The FTCA also provides that "[t]he Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any damage or injury." 28 U.S.C. § 2679(c). The FTCA then states that:

[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, 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.

28 U.S.C. § 2679(d)(2) (emphasis added). United States Attorneys are authorized to make this certification on scope of employment for actions brought in their districts. See 28 C.F.R. § 15.3(a).

On June 26, 1998, Mary Jo White, United States Attorney for the Southern District of New York, certified in an exhibit to the Notice of Removal that, at the time of the alleged incident, Nevins was acting within the scope of his employment. The complaint pleaded claims in common law tort against a federal employee who was acting within the scope of his employment. (See Compl. ¶ C.) Such a claim is against the United States under the FTCA, and thus, this action was properly removed to this Court on July 17, 1998.

Glendora seeks a remand to the New York State Supreme Court "in the interest of justice" on the ground that defendant "has been friends with the judges for years." She argues that "it is de facto the action must not be adjudicated in the courthouse where it happened nor in the federal jurisdiction where it happened." She also claims that the complaint does not sound in tort and is solely a state civil rights claim. As a result, she contends, defendant was time-barred under 28 U.S.C. § 1446 from removing this action to federal court.

There is no basis for Glendora's suggestion that she will be unable to obtain a fair hearing in the Southern District of New York. Nor is there any foundation to Glendora's contention that Nevins has undue influence over the Court. Glendora cannot prevent the removal of this action by denying after the fact that she pleaded a common law tort against a federal employee. Cf. Arthur v. E.I. Dupont de Nemours & Co., 58 F.3d 121, 125 (4th Cir.1995) (explaining that "`[a] state could not prevent removal of ordinary tort cases by calling its common law of torts a `worker's compensation law'" (quoting Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 724 (7th Cir.1994))). Consequently, Nevins was entitled to remove to federal court at any time before trial. See 28 U.S.C. § 2679(d)(2).

In a second submission that was served but appears never to have been filed, Glendora states that she is amending her complaint to include a cause of action under 42 U.S.C. § 13981 of the Violence Against Women Act of 1994 and that her action is nonremovable under 28 U.S.C. § 1445. This submission is not a valid amendment to the complaint. Further, such an amendment would constitute fraudulent pleading intended to prevent removal. See McAdow v. Promus Cos., Inc., 926 F.Supp. 93, 94 (W.D.La. 1996) (stating that defendant may "`pierce the pleadings to...