Rasmussen v. United States

• Decision Date: 30 December 2015
• Docket Number: Civil No: 14-6726 (KSH)(CLW)
• Parties: RENE RASMUSSEN, an individual, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of New Jersey

RENE RASMUSSEN, an individual, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil No: 14-6726 (KSH)(CLW)

United States District Court for the District of New Jersey

December 30, 2015

Not for Publication

OPINION

Katharine S. Hayden, U.S.D.J.

I. INTRODUCTION

Plaintiff Rene Rasmussen ("Rasmussen") seeks special, general, and punitive damages from the United State of America, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), on claims of false arrest, malicious prosecution, false imprisonment, wrongful search and seizure of property and communications, and intentional infliction of emotional distress.

II. FACTUAL AND PROCEDURAL HISTORY

On June 21, 2012, Rasmussen was arrested on a warrant issued by United States Magistrate Judge Mark Falk, the basis of which was a duly sworn complaint, consisting of seven pages of detailed allegations against Rasmussen, made by FBI agent Gerald Cotellesse. (D.E. 9-2, Ex. A, "Cotellesse Complaint.") The complaint alleged that Rasmussen was involved in telecommunications fraud violating the federal wire fraud statute, 18 U.S.C. § 1343. According to the complaint, Rasmussen and three co-conspirators used stolen or fraudulent telephone numbers to generate unauthorized calls to Premium Numbers, which are telephone numbers that charge, usually by the minute, for call services such as adult entertainment, chat lines, and psychic lines. A telephone company, for example AT&T, pays the owner of the Premium Number a percentage of the premium rate charged and then collects the premium rate from the individual caller. Out of the customer's premium rate payment the company reimburses itself for the percentage it paid to the owner of the Premium Number and takes a share for itself.

Rasmussen claims in his federal complaint (D.E. 1, "Compl." ¶ 16) that Cotellesse accused him and others of renting Premium Numbers from international companies and collecting their percentage of per-minute premium rates from the telephone companies fully aware that "the telephone companies would not recover the premium rates from the caller." (Compl. ¶ 16(a).) This is because they used stolen telephone systems to generate unauthorized, "fake," untraceable calls to the Premium Numbers they leased. Rasmussen and the others were able to produce these fake calls by hacking into private bank eXchange (PBX) systems (internal telephone systems commonly used by large businesses), identifying open telephone extensions, and generating calls from those extensions to their Premium Numbers. In an attempt to avoid detection, they limited the number and length of calls per day that they made to the fraudulent Premium Numbers. Additionally, Rasmussen and the others used Calling Line Identification (CLI), a means of identifying the person calling into the Premium Number, to determine which calls were attributable to whom so that payment for each call went to the person who originated it. The Premium Numbers contained no actual content. Instead, a call to one of these Premium Numbers generated fake rings, password prompts, voicemail messages, music, or dead air.

Between 2008 and April 2012, the FBI estimated that there were over 13 million minutes of these fake calls made from over 4,800 victim PBX systems, resulting in losses to the telephone companies of $30,000,000. (Cotellesse Complaint ¶¶ 16, 17.) "According to AT&T officials, Stolen Calls originating from Defendant RASMUSSEN's Metro PCS Phonesaccounted for approximately 187,000 minutes of Stolen Calls that caused approximately $40,000 in fraud losses for the period between in or about April 2010 through in or about August 2011." (Cotellesse Complaint ¶ 28.)

According to the sworn complaint, Rasmussen sent one co-conspirator an email on May 7, 2010, stating that he would "start the traffic in 15 minute[s]," and to "please let me know how long the call must be and if you like the CLI we can hire." (Cotellesse Complaint ¶ 22.) On July 27, 2010, Rasmussen sent the same co-conspirator an email about "controlling the Chile traffic to Premium Numbers," stating, "CHILE Traffic should be spread out equally across the day[.] Calls must be between 5-11 minutes, Monday to Friday 09hrs-21:59 hrs local time[.]" (Cotellesse Complaint ¶ 23.) Cotellesse explained, based on his training and experience, that there would be no legitimate reason for Rasmussen to "dictate the times during which telephone calls would be made to Premium Numbers or the duration of the calls."¹ (Id.)

When Rasmussen was arrested on the complaint he was at John F. Kennedy International Airport in New York, returning from a family vacation. Rasmussen is a citizen of Denmark, but at that time he lived in Orlando, Florida. He was legally in the United States on an E2 Investor Visa, pursuant to which he managed three telecommunications businesses, Delta1Call, LLC, MultiTelco LLC, and Q1Call LLC. (Compl. ¶ 10.) After his arrest, Rasmussen was taken by Department of Homeland Security (DHS) agents to an interrogation room in the airport. He was then transferred to the FBI's office in Newark, New Jersey, where he was questioned about his involvement in the conspiracy to commit fraud. (Compl. ¶ 15.) Rasmussen states in his federal complaint that he did not recognize the initials of any of the alleged co-conspirators in Cotellesse's complaint, and that it falsely accused him of:

1. Purchasing 30 cell phones, and hiring people to obtain and activate these phones, which were issued from Metro PCS, to generate false calls to Premium Numbers. (Compl. ¶ 19.)

2. "Using autodialing software to generate fraudulent telephone calls to Premium Numbers." (Compl. ¶ 20.)

3. Using or conspiring "to use hacked PBX systems, the Metro PCS Phones, or other phones to originate unauthorized telephone call (sic) to Fraudulent Premium Numbers." (Compl. ¶ 21.)

4. Sharing "Calling Line Identification" with several co-conspirators so they "could determine the number of the stolen calls to Fraudulent Premium Numbers attributable to Mr. Rasmussen and the amount that he should be paid for originating those calls." (Compl. ¶ 22.)

5. Receiving "access to any websites that allowed Mr. Rasmussen to track the numbers of the stolen calls" from the co-defendants. (Compl. ¶ 23.)

6. Conspiring to place "187,000 minutes (sic) worth of false telephone calls to AT&T that caused approximately $40,000 in loses (sic) to that company." (Compl. ¶ 24.)

He asserts that Cotellesse "knowingly and/or recklessly" made "false and/or misleading statements" in his complaint. (Compl. ¶¶ 38, 40.) Rasmussen does not allege that Judge Falk failed in making a probable cause determination based on that complaint or that there was police misconduct during or following his arrest.

Rasmussen was detained for seven weeks before posting bail on August 10, 2012. (Compl. ¶ 28.) He was then taken into custody by Immigration and Customs Enforcement on a detainer it had lodged based on the pending criminal charges. (Id.) Two days later he was released and placed on house arrest. On March 7, 2013 the United States Attorney for the District of New Jersey dismissed without prejudice all charges against Rasmussen. On May 20, 2013, Rasmussen was contacted by DHS and informed that his E-2 Investor Visa had been cancelled, and that he and his family had ten days to leave the country. (Compl. ¶¶ 33, 35.) He claims that because of his detention, house arrest, and the limited time he was permitted toremain in the United States, he lost his business investments and $10-$15 million in expected profits. (Compl. ¶ 35.)

In 2014, Rasmussen timely filed notice of his claims against the United States with the Department of Justice and FBI, pursuant to the notice requirements of the Federal Tort Claims Act (FTCA). (Compl.¶ 6.) The Department of Justice administratively denied his claim on July 11, 2014. (Id.) Rasmussen, his wife, and their 12 year old son, filed a joint complaint under the FTCA (D.E. 1) on October 28, 2014. On December 3, 2014, the parties stipulated that the United States was the only properly named defendant. (D.E. 7.) Thereafter, on March 3, 2015, the plaintiffs stipulated to dismiss with prejudice the claims filed by Sylvestre and Rasmussen's son. (D.E. 13.) There remain Rasmussen's six claims brought alleging (1) false arrest, (2) malicious prosecution, (3) false imprisonment, (4) wrongful searches and seizures of property and communications, (5) abuse of process and (6) intentional infliction of emotional distress, pursuant to the FTCA, 28 U.S.C. § 1346(b) and § 2680(h). (Compl. ¶ 37.)

The United States moves to dismiss, arguing that under Federal Rule of Civil Procedure 12(b)(1) the FTCA lacks subject matter jurisdiction over the claim for wrongful search and seizure. The United States argues that the remaining claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because Rasmussen fails to state claims upon which relief can be granted.

III. APPLICABLE LEGAL STANDARD AND GOVERNING LAW

A. Jurisdiction

The FTCA, 28 U.S.C. § 1346(b), provides for a limited waiver of sovereign immunity on claims against the United States for "money damages...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of theGovernment while acting within the scope of his office or employment." The United States is liable in a like manner to private individuals being sued under the same circumstances. 28 U.S.C. § 2674 (stating that "the United States should be liable...relating to tort claims, in the same manner and same extent as a private individual"). A plaintiff must file an FTCA claim "where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402.

The broad waiver of sovereign immunity provided by 28 U.S.C. § 1346(b) was narrowed by 28 U.S.C. § 2680(h) which exempted intentional torts. Then, in 1974, Congress amended that exemption, and the FTCA now waives immunity "with regard to...