Rosario v. U.S.

• Decision Date: 19 March 2008
• Docket Number: Civil No. 06-1517 (RLA).
• Citation: 538 F.Supp.2d 480
• Parties: Hector ROSARIO, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

538 F.Supp.2d 480

Hector ROSARIO, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civil No. 06-1517 (RLA).

United States District Court, D. Puerto Rico.

March 19, 2008.

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Rafael E. Silva-Almeyda, Esq., René Arrillaga-Armendáriz, Esq., San Juan, PR, for Plaintiffs.

AUSA Ginette L. Milanes, United States Attorney's Office Torre Chardón, San Juan, PR, for Defendants.

ORDER IN THE MATTER OF DEFENDANTS' MOTION TO DISMISS

RAYMOND L. ACOSTA, District Judge.

Present before the court for disposition is defendants' Motion to Dismiss the Complaint. The court having reviewed the memoranda filed by the parties as well as the documents submitted therewith hereby rules as follows.

I. PROCEDURAL BACKGROUND

This action was instituted by 22¹ federal police officers who, at the time of the events alleged in the complaint, were carrying out police work for the Department of Veterans Affairs (DVA) at the San Juan Veterans Affairs Medical Center in Puerto Rico ("SJ-VAMC").

Plaintiffs claim that defendants' surreptitious video surveillance of their locker-break room ran afoul of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 as well as deprivation of their rights to "due process of law, equal protection of the laws and the pursuit of their life, liberty and profession."²

Named defendants are: the United States, the Secretary of the Department of Defense, the SJ-VAMC as well as seven federal officers and/or employees of the SJ-VAMC³ both in their official and individual capacities. Plaintiffs voluntarily dismissed their claims against the Secretary of the U.S. Department of Defense.⁴

II. MOTION TO DISMISS

In their Motion to Dismiss defendants argue that: (1) plaintiffs have no actionable claim under the Fourth Amendment to the United States Constitution; (2) there is no viable claim under the FTCA for violation of privacy rights under the Puerto Rico Constitution; (3) plaintiffs' claim for damages based on a hostile environment is not actionable under the FTCA and (4) the Secretary of Defense, the SJ-VAMC as well as the individual defendants are not proper party defendants under the FTCA.

Upon examining the four arguments raised by defendants in their motion to dismiss, we must reach the conclusion that the first one, pertaining to the Fourth Amendment, disputes the legal validity of the illegal surveillance claim. The last three, on the other hand, address defenses under the FTCA which, in effect, challenge our subject matter jurisdiction.

In order to dispose of these issues, we must initially determine the applicable legal standard to our review.

(A) Rule 12(b)(1) Standard — Jurisdiction

The court's authority to entertain a particular controversy is commonly referred to as subject matter jurisdiction. "In the absence of jurisdiction, a court is powerless to act." Am. Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir.2004).

Federal courts are courts of limited jurisdiction and hence, have the duty to examine their own authority to preside over the cases assigned. "It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction." McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004). See also, Am. Fiber, 362 F.3d at 138 ("In the absence of jurisdiction, a court is powerless to act."); Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1st Cir.2001) ("Federal courts are courts of limited jurisdiction, and therefore must be certain that they have explicit authority to decide a case").

If jurisdiction is questioned, the party asserting it has the burden of proving a right to litigate in this forum. McCulloch v. Velez, 364 F.3d at 6. "Once challenged, the party invoking diversity jurisdiction must prove [it] by a preponderance of the evidence." Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004). See also, Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir.2008) (party invoking federal jurisdiction has burden of establishing it).

Further, subject matter jurisdiction is not waivable or forfeited. Rather, it involves a court's power to hear a case, it may be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004); United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). "The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

The proper vehicle for challenging the court's subject matter jurisdiction is Rule 12(b)(1), whereas challenges to the sufficiency of the complaint are examined under the strictures of Rule 12(b)(6). In disposing of motions to dismiss for lack of subject matter jurisdiction the court is not constrained to the allegations in the pleadings as with Rule 12(b)(6) petitions. Rather, the court may review extra-pleading material without transforming the petition into a summary judgment vehicle. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002); Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996).

Even though the court is not circumscribed to the allegations in the complaint in deciding a jurisdictional issue brought pursuant to Rule 12(b)(1) Fed. R.Civ.P. and that it may also take into consideration "extra-pleading material", 5B Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure 1350 (2d ed.1990) p. 213, "[w]here movant has challenged the factual allegations of the party invoking the district court's jurisdiction, the invoking party `must submit affidavits and other relevant evidence to resolve the factual dispute regarding jurisdiction." Johnson v. United States, 47 F.Supp.2d 1075, 1077 (S.D.Ind.1999) (citing Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987)).

In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff. In addition, the court may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in the case.

Aversa v. United States, 99 F.3d at 1210-11 (citations omitted). See also, Shrieve v. United States, 16 F.Supp.2d 853, 855 (N.D.Ohio 1998) ("In ruling on such a motion, the district court may resolve factual issues when necessary to resolve its jurisdiction.")

(B) Rule 12(b)(6) — Failure to State a Claim and Rule 56 — Summary Judgment

In disposing of motions to dismiss pursuant to Rule 12(b)(6) Fed.R.Civ.P. the court will accept all factual allegations as true and will make all reasonable inferences in plaintiff's favor. Campagna v. Mass. Dep't of Env't Prot., 334 F.3d 150, 154 (1st Cir.2003); In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir.2003); Frazier v. Fairhaven School Com., 276 F.3d 52, 56 (1st Cir.2002); Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Berezin v. Regency Say. Bank, 234 F.3d 68, 70 (1st Cir.2000); Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 92 (1st Cir.2000).

Our scope of review under this provision is a narrow one. Dismissal will only be granted if after having taken all well-pleaded allegations in the complaint as true, the Court finds that plaintiff is not entitled to relief under any theory. Asoc. de Education Privada de P.R. v. Echevarria-Vargas, 385 F.3d 81, 85 (1st Cir.2004); Peña-Borrero v. Estremeda, 365 F.3d 7, 11 (1st Cir.2004); Campagna, 334 F.3d at 154; In re Colonial Mortgage, 324 F.3d at 15; Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir.1995) cert. denied, 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994). Further, our role is to examine the complaint to determine whether plaintiff has adduced sufficient facts to state a cognizable cause of action.

When disposing of a motion to dismiss under Rule (12)(b)(6) the court may look at matters outside the pleadings which have been "fairly incorporated within it and matters susceptible to judicial notice" without converting it into a summary judgment petition. In re Colonial Mortgage, 324 F.3d at 15. In other words, in cases where "`a complaint's factual allegations are expressly linked to — and admittedly dependent upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)." Perry v. New England Bus. Serv., Inc., 347 F.3d 343, 345 n. 2 (citing Beddall v. State St. Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998)).

However, pursuant to Rule 12(b), regardless of how the petition for dismissal is labeled, in the event that documents outside the pleadings are included with the request it may be deemed a summary judgment vehicle. Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4-5 (1st Cir.1998); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997); Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 177-78 (1st Cir.1997).

Rule 56(c) Fed. R. Civ. P., which sets forth the standard for ruling on summary judgment motions, in pertinent part provides that they shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999). The party...