Ruiz v. United States

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: MATSUMOTO, United States District Judge
• Decision Date: 18 September 2014
• Docket Number: 13-CV-1241 (KAM)(SMG)
• Citation: Ruiz v. United States, 13-CV-1241 (KAM)(SMG) (E.D. N.Y. Sep 18, 2014)
• Parties: LEONEL RUIZ, on behalf of his daughter, E.R., a minor, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

LEONEL RUIZ, on behalf of his daughter, E.R., a minor, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

13-CV-1241 (KAM)(SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 18, 2014

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

On March 8, 2013, Leonel Ruiz ("plaintiff"), on behalf of his minor daughter, E.R., filed this action against the United States ("defendant" or "Government"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., claiming that on March 11, 2011, United States Customs and Border Protection ("CBP") Officers improperly detained E.R., a United States citizen who at the time was four years old, at Washington Dulles International Airport ("Dulles") in Virginia and "effectively deported" her to Guatemala following her arrival at Dulles from Guatemala. (ECF No. 1, Complaint filed 3/8/13 ("Compl.").) Plaintiff brings claims of false imprisonment, intentional infliction of emotional distress, and negligence. (See Compl. at 13-16.) On October 23, 2013, the United States moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for judgment on the pleadingsunder Federal Rule of Civil Procedure 12(c), or to transfer the case to the United States District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). (ECF No. 23, Motion to Dismiss filed 10/30/13 ("Gov't Mot."); ECF No. 23-1, Gov't Memorandum in Support of Motion to Dismiss filed 10/30/13 ("Gov't Br.").) Plaintiff opposes the Government's motions in their entirety. (ECF No. 24, Plaintiff's Opposition filed 10/30/13 ("Pl.'s Opp.").)

For the reasons stated herein, the court finds, based on the current record before the court, that the actions by the CBP Officers do not fall within the discretionary function exception to the Federal Tort Claims Act. Accordingly, defendant's motion to dismiss for lack of subject matter jurisdiction is respectfully denied without prejudice to renew based on a more fully developed record. The court further finds that defendant has shown by clear and convincing evidence that the interests of justice would be best served by transferring this case to the United States District Court for the Eastern District of Virginia, and accordingly, defendant's motion to transfer venue is granted. Defendant's remaining motion for judgment on the pleadings will be transferred to the Eastern District of Virginia.

BACKGROUND

The facts, as stated in plaintiff's complaint and in other documents properly considered in the context of a Rule 12(b)(1) motion,¹ are as follows. E.R. was born in Long Island, New York on June 7, 2006. (Compl. at 3; ECF No. 23-2, AUSA Kolbe Declaration filed 10/30/13 ("Kolbe Decl."), Ex. A, at 14-15.) On February 12, 2010, E.R.'s parents, Leonel Ruiz ("Mr. Ruiz") and Brenda Dubon ("Ms. Dubon"), signed a document stating that E.R. was authorized to travel to and from Guatemala with her maternal grandfather, Luis Dubon ("Mr. Dubon"). (Kolbe Decl., Ex. E, "Autorizacion" dated 2/12/10.) The document was written in Spanish and notarized in Suffolk County, New York. (Id.) The document listed E.R.'s parents' names, passport numbers (but no country of citizenship), as well as a telephone number to call in case of an emergency. (Id.)

On October 22, 2010, when E.R. was four years old, her parents sent her to Guatemala for a winter vacation with her relatives, so that E.R. could spend time with her extended family, practice Spanish, and enjoy any health benefits from the warmer climate. (Compl. at 3.) Approximately five months later, on March 10, 2011, E.R. and Mr. Dubon boarded a TACAAirlines ("TACA") flight from Guatemala City, Guatemala, bound for John F. Kennedy International Airport ("JFK") in New York. (Id.) Due to inclement weather, the flight was diverted to Dulles, where E.R. and Mr. Dubon arrived between approximately 2:00 a.m. and 3:00 a.m. on March 11, 2011. (Id.)

At Dulles, E.R. and Mr. Dubon submitted their personal documents for inspection by CBP agents. E.R., who was traveling on her valid United States passport, was authorized to enter the United States at approximately 3:45 a.m. when the examining CBP Officer stamped her passport. (Id.) Mr. Dubon presented the notarized document authorizing him to travel with E.R. (Id.) The examining CBP Officer, finding "what he believed was an irregularity in Mr. Dubon's documentation," directed Mr. Dubon to a "secondary inspection area" pending further investigation to determine if he was admissible to the United States. (Id.) E.R. accompanied Mr. Dubon to this area. (Id.)

Plaintiff alleges that for nearly fourteen hours, CBP Officers continued to detain E.R. without contacting E.R.'s parents, despite Mr. Dubon's repeated requests to do so.² (Compl. at 5.) Mr. Dubon, who was determined by CBP officers to be a non-citizen and denied admission to the United States, "wasnot free to leave the secondary inspection area and enter the United States."³ (Compl. at 5; Kolbe Decl., Ex. C, Record of Deportable/Inadmissible Alien dated 3/11/11; Kolbe Decl., Ex. D, Determination of Inadmissibility dated 3/11/11.) E.R., "as a minor, could not leave on her own." (Compl. at 5-6.) Plaintiff alleges that during their time in the holding area, E.R. and Mr. Dubon were "under CBP guard." (Compl. at 6.)

Meanwhile, as he waited at JFK airport in New York on March 11, 2011, for the arrival of E.R. and Mr. Dubon, Mr. Ruiz eventually learned that the TACA flight originally bound for JFK had been diverted to Dulles, and that the passengers on that plane would be arriving at JFK at about 8:00 a.m. on March 11. (Compl. at 6.) After E.R. did not arrive with the other TACA passengers, Mr. Ruiz eventually learned from a TACA employee that E.R. was "being held" at Dulles by CBP. (Id.)

Later that day, at approximately 5:30 p.m., a CBP Officer contacted Mr. Ruiz on his cellular phone to notify him that Mr. Dubon was not permitted to enter the United States and would be sent back to Guatemala. (Id.) The CBP Officer also told Mr. Ruiz that E.R. was "being held" by CBP. (Id.) The CBP Officer asked for and was given Mr. Ruiz's name and otheridentifying information about Mr. Ruiz and his wife. (Id. at 7.) The CBP Officer informed Mr. Ruiz that E.R. would be sent to JFK as soon as a suitable flight was found. (Id.)

Plaintiff alleges that after the CBP Officer had spoken to Mr. Ruiz by telephone, an unidentified woman approached E.R. and "attempted to induce E.R. to leave her grandfather." (Id.) As a result, E.R. "fear[ed] that she was being taken from her family" and was "brought to tears." (Id.) E.R. continued to cry and refused to accompany the woman, who soon left the area. (Id. at 8.) Soon thereafter, Mr. Dubon began feeling unwell, and was taken to the emergency room at Reston Hospital Center at approximately 6:30 p.m. (Id.) While Mr. Dubon was at the hospital, E.R. was left with a different unidentified woman, presumably a TACA employee. (Id.)

At approximately 8:00 p.m., while Mr. Dubon was still at the hospital, a CBP Officer again contacted Mr. Ruiz by telephone. (Id.) Plaintiff alleges that the CBP Officer told Mr. Ruiz he could not send E.R. on a flight to New York because "he was not allowed to return E.R. to 'illegals.'" (Id. at 8-9.) Mr. Ruiz gave consent to return E.R. to Guatemala with her grandfather. (Id. at 9.) Plaintiff alleges that CBP Officers "forced" Mr. Ruiz into giving consent to send E.R. to Guatemala by "threatening that otherwise CBP would send E.R. to an "'adoption center'" in Virginia. (Id.) After the telephonecall, at approximately 9:30 p.m., Mr. Dubon returned to Dulles airport from the hospital. (Id. at 8.)

E.R. and Mr. Dubon left for Guatemala on an early morning flight on March 12, 2011. (Id. at 11.) Plaintiff alleges that while E.R. was "detained" at Dulles, she was not given adequate food or drink and was fed only a cookie and a soda. (Id. at 10.) In addition, plaintiff alleges that E.R. was barely able to sleep in the cold room, and that CBP Officers failed to provide her with a blanket or pillow. (Id.)

On March 29, 2011, plaintiff flew back to the United States accompanied by a "local attorney." (Id. at 11.) On April 8, 2011, E.R. met with a child psychologist in New York, Dr. Roy Aranda, who concluded that the March 11, 2011 incident had traumatized E.R., and diagnosed E.R. with Posttraumatic Stress Disorder ("PTSD"). (Id. at 12.)⁴ Plaintiff now resides in Guatemala, with no current plans to return to the United States. (ECF No. 31, Letter from Plaintiff's Counsel dated 9/2/14.)

DISCUSSION

I. Discretionary Function Exception and Subject Matter Jurisdiction

Plaintiff brings this suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., which waives the sovereign immunity of the United States in limited circumstances. In relevant part, the FTCA authorizes suits against the federal government to recover 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 the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Title 28 U.S.C. § 1346(b)(1).

One of the exceptions to the FTCA's waiver of sovereign immunity is the "discretionary function exception," which provides that Congress's authorization to sue the United States for damages does not apply to any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The discretionary function exception "'marks the boundary between Congress' willingness to impose tort liability upon...