De Masi v. Schumer

• Decision Date: 31 March 2009
• Docket Number: Case No. 08-CV-4818 (KMK).
• Citation: 608 F.Supp.2d 516
• Parties: Douglas D. DE MASI, Sr., Plaintiff, v. Senator Charles E. SCHUMER, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 516

608 F.Supp.2d 516

Douglas D. DE MASI, Sr., Plaintiff, v. Senator Charles E. SCHUMER, Defendant.

Case No. 08-CV-4818 (KMK).

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

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

Douglas D. De Masi, Sr., New York, NY, Pro Se Plaintiff.

Lawrence H. Fogelman, Esq., Assistant United States Attorney, Southern District of New York, New York, NY, for Defendant.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

On May 23, 2008, Defendant Charles E. Schumer, United States Senator ("Senator Schumer"), removed this case from New York State Supreme Court, Putnam County. Plaintiff Douglas D. De Masi, Sr. ("Plaintiff"), proceeding pro se, seeks remand pursuant to 28 U.S.C. § 1447(c). In addition to opposing remand, Senator Schumer moves to substitute the United States as Defendant pursuant to 28 U.S.C. § 2679, and to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and 12(b) (6) ("Rule 12(b)(6)"). For the reasons stated in this Opinion and States is substituted as Defendant in these proceedings, and Plaintiff's action is dismissed for lack of subject matter jurisdiction.

I. Background

On April 24, 2008, Plaintiff commenced this action against Senator Schumer in the Supreme Court of New York, Putnam County. Plaintiff's claim arises out of difficulties he allegedly has had with Countrywide Home Loans ("Countrywide"), a lender which held a mortgage on Plaintiff's home and which Plaintiff alleges deliberately and falsely caused Plaintiff financial difficulties, resulting in more than $700,000 in damages. (Compl. ¶ 6.) Specifically, Plaintiff alleges that Countrywide, as the holder of the mortgage on his house, along with its CEO and Assistant Vice President, wrongly charged Plaintiff late fees, extra interest, and other fees, and deliberately destroyed his credit rating by posting his mortgage payments late so as to lower Plaintiff's credit rating; as a result, Plaintiff incurred massive debt, was forced to refinance his mortgage at much higher interest rates, and was thereby unable to buy or build a new home. (Id. ¶¶ 6-7, 20, 22-24, 34.)

Plaintiff has not named Countrywide as a defendant in this Action.¹ Plaintiff instead has named only Senator Schumer as a defendant, alleging that he failed to take action against Countrywide, in spite of his numerous statements on television and in the news that he was outraged by the way Countrywide conducts business. (Id. ¶¶ 16-19, 31, 36, 38, 44.) In addition, Plaintiff claims that Senator Schumer failed to respond to the repeated requests of Plaintiff, one of his constituents, for assistance concerning his dispute with Countrywide. (Id. ¶¶ 16, 20, 25-26, 37.) According to Plaintiff, Senator Schumer responded to the one package Plaintiff mailed to him by advising Plaintiff to get in touch with the Acorn Agency. (Id. ¶ 26.)² However, Plaintiff was unable to contact Acorn. (Id. ¶¶ 27-30.)³

On May 21, 2008, the then-United States Attorney for the Southern District of New York, Michael J. Garcia, certified, pursuant to 28 U.S.C. § 2679(d) and 28 C.F.R. § 15.4 ("Section 15.4"), that Senator Schumer was acting within the scope of his employment as an officer or employee of the United States at the time of the events giving rise to Plaintiff's claims. (Def.'s Notice of Removal ("Removal Not."), Ex. B.) Senator Schumer thereupon filed a timely Notice of Removal to the United States District Court for the Southern District of New York on May 23, 2008, pursuant to 28 U.S.C. §§ 1331, 1441(a), 1442(a)(1), 1446(a) and 2679(d)(2).⁴ On June 6, 2008, Plaintiff filed a motion to remand this Action to state court. (Dkt. No. 2.) On December 19, 2008, Senator Schumer filed a Motion to Dismiss, pursuant to Rule 12(b)(1) and Rule 12(b)(6).⁵ Plaintiff responded to Senator Schumer's motion by letter on January 16, 2009.⁶ (Letter from Douglas D. De Masi, Sr. to the Court (Jan. 16, 2009).)

II. Discussion

A. Removal Jurisdiction and Substitution of the United States as Defendant

Plaintiff seeks to remand this action pursuant to 28 U.S.C. § 1447(c) on the basis that this Court lacks subject matter jurisdiction because Plaintiff's claims do not arise under federal law. (Pl.'s Mot. for Remand ¶¶ 1, 4-5.)

A motion to remand a case that has been removed to federal court may be based on either a defect in the removal procedure, such as failure to remove within the statutory thirty-day time period, or a defect in federal jurisdiction. See 28 U.S.C. § 1447(c).⁷ A district court is required to remand a case "`[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.'" Cuomo v. Dreamland Amusements, Inc., Nos. 08-CV-6321, 08-CV-7100, 2008 WL 4369270, at *2 (S.D.N.Y. Sept. 22, 2008) (quoting 28 U.S.C. § 1447(c)); see also Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 295 (2d Cir.2000) (considering whether case was properly removed sua sponte and noting that a challenge to subject matter jurisdiction cannot be waived and that where jurisdiction is lacking, dismissal is mandatory). The burden of proof to establish that removal to federal court was proper falls upon the removing party. See Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.2004). Further, "[a]s the Second Circuit has repeatedly cautioned, `[s]ince most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel.'" De Masi v. Countrywide Home Loans, Inc., No. 08-CV-546, 2009 WL 111598, at *1 (S.D.N.Y. Jan. 12, 2009) (second and third alteration in De Masi) (quoting Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002)).

1. Removal Pursuant to 28 U.S.C. § 2679(d)(2)

Senator Schumer asserts that the 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, Senator Schumer claims that, pursuant to 28 U.S.C. § 2679(d) and Section 15.4, this action should be deemed to have been brought against the United States, and the United States should be substituted as Defendant.

"The FTCA waives the sovereign immunity of the United States for certain torts committed by federal employees ... within the scope of their employment." Mathirampuzha v. Potter, 548 F.3d 70, 80 (2d Cir.2008); see also Rodriguez v. United States, No. 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)).⁸ Thus, "[b]y 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." Delgado v. Our Lady of Mercy Med. Ctr., No. 06-CV5261, 2007 WL 2994446, at *4 (S.D.N.Y. Oct. 12, 2007).

Pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, otherwise known as the "Westfall Act," federal employees enjoy 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, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007); 28 U.S.C. § 2679(b)(1). In particular, the Westfall Act authorizes the Attorney General, or the United States Attorney, pursuant to Section 15.4,⁹ to certify that the conduct alleged by the plaintiff satisfies the requirements of an FTCA claim, and that the defendant was acting within the scope of his employment with respect thereto. Specifically, the Westfall Act provides:

Upon certification ... 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 ... at any time before trial ... to the district court of the United States .... 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. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

28 U.S.C. § 2679(d)(2).

"[O]nce the United States Attorney has made the necessary certifications regarding scope of employment in a tort action ..., such a certification is `dispositive' for purposes of selecting the appropriate forum for adjudication." Delgado, 2007 WL 2994446, at *5 (quoting Osborn, 549 U.S. at 242, 127 S.Ct. 881). In other words, the certification "renders the federal court exclusively competent and categorically precludes a remand to the state court." Osborn, 549 U.S. at 243, 127 S.Ct. 881. Furthermore, the FTCA requires that the United States be substituted as defendant where the United States Attorney has made the requisite certification. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir.2005) ("Upon certification, the action may then be removed to federal court. Once such a case is removed, the United States can replace the named defendant as the allegedly liable party—and the case proceeds as a FTCA suit." (internal citation omitted)); Delgado, 2007 WL 2994446, at *2 ("Because the remedy provided by the FTCA against the United States is exclusive, the United States must be substituted ... if the conditions of certification ... are met.").

Here, Senator Schumer argues that the FTCA is applicable because (1) Plaintiff's pleadings sound in tort (Removal Not. ¶ 3), and (2) the United States Attorney has properly certified that Senator Schumer was acting in the scope of his employment as a United States Senator at all times...