San Nicolas Norita v. N. Mariana Islands Dep't of Pub. Safety

• Decision Date: 10 January 2019
• Docket Number: Case No.: 18-cv-00022
• Parties: VINCENT SAN NICOLAS NORITA, Plaintiff, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.
• Court: U.S. District Court — Northern Mariana Islands

VINCENT SAN NICOLAS NORITA, Plaintiff, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDSDEPARTMENT OF PUBLIC SAFETY, et al., Defendants.

Case No.: 18-cv-00022

UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS

January 10, 2019

DECISION AND ORDER SUBSTITUTING CNMI FOR DEFENDANTS EVANGELISTA AND PATRIS PURSUANT TO CNMI ATTORNEY GENERAL'S CERTIFICATION, AND GRANTING DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

Before this Court are Defendant Commonwealth of the Northern Mariana Islands ("CNMI") Department of Public Safety ("DPS") and all official capacity Defendants' Motion to Dismiss (ECF No. 9, "Motion"), and two Certifications of Scope of Employment and Notice of Substitution filed by the CNMI Attorney General on behalf of Defendants and DPS officers Carlo Evangelista and Stanley Patris (ECF Nos. 7 and 8). The Motion, filed after the Certifications, seeks to dismiss three state tort claims and one CNMI constitutional claim, and to dismiss Defendant DPS entirely from the case. Plaintiff filed an Opposition (ECF No. 12, "Opp'n"), and Defendants filed their Reply (ECF No. 13, "Reply"). This matter came on for hearing on November 15, 2018.

Having reviewed the briefs and considered the arguments of counsel, and for the reasons set forth below, the Court SUBSTITUTES the Commonwealth for Defendants Evangelista and Patris on causes of action C (assault and battery), D (intentional infliction of emotional distress), and G (negligence). The Court further GRANTS the Defendants' Motion to Dismiss causes of action C, D, F (CNMI constitutional claim), and G, and dismisses DPS from the case.

II. BACKGROUND

The facts as alleged in the complaint are as follows: On December 9, 2016, Plaintiff Vincent San Nicolas Norita was driving a white sedan on Beach Road in Saipan, CNMI. (Compl. ¶¶ 10-12, ECF No. 1.) A DPS officer attempted to pull Norita over. (Id. ¶ 11.) Norita led multiple DPS officers in pursuit until he crashed his car. (Id. ¶ 13-14.) At that point, both Norita and his passenger, Joe Egipto Ada, exited the car. (Id. ¶ 15.) Per the DPS officers' instructions, Norita got down on the ground. (Id. ¶ 17.) While he was on the ground, Defendants Patris and Evangelista brutally beat him with their police batons. (Id. ¶¶ 18-19.) Patris and Evangelista then kneeled on Norita's face and neck while handcuffing him. (Id. ¶ 23.) They also refused to let the paramedics who arrived on the scene treat him. (Id. ¶ 24.)

After arresting Norita, Officers Patris and Evangelista transported him to the DPS office to conduct a breathalyzer test, which they ultimately did not conduct. (Id. ¶¶ 26-27.) They then took Norita to jail for booking. (Id. ¶ 28.) At the jail, the corrections officer refused to book Norita because of his injuries, instead telling Defendants to return only after Norita was given a medical clearance. (Id.) At this point, Defendants took Norita to the emergency room for treatment. (Id. ¶ 29.) Norita alleges that the beating by Patris and Evangelista resulted in severe injuries, including a fractured hand,rib, and leg, as well as permanent disfigurement to his hand and diminished use of his leg. (Id. ¶¶ 31-33.)

On August 16, 2018, Norita filed suit against DPS, Robert Guerrero (in his official capacity as DPS Commissioner), Stanley Patris and Carlo Evangelista (in both their personal and official capacities), and Does I-X. He brings seven causes of action in his complaint: (A) § 1983 claim against DPS and Guerrero; (B) § 1983 claim against Evangelista and Patris; (C) assault and battery against Evangelista and Patris; (D) intentional infliction of emotional distress against all Defendants; (E) CNMI constitutional claim against Evangelista and Patris; (F) CNMI constitutional claim against DPS, Guerrero and Does I-X; and (G) negligence against all Defendants.

On September 7, 2018, CNMI Attorney General Edward Manibusan filed notices of substitution by the Commonwealth for both Evangelista and Patris as to the Commonwealth tort claims (causes of actions C, D, and G) pursuant to 7 CMC § 2210, certifying that both officers were acting within the scope of employment at the time of the incident alleged in the Complaint. (ECF Nos. 7-8.) That same day, the CNMI filed a motion to dismiss causes of action C, D, F and G (CNMI tort and constitutional claims) for lack of subject matter jurisdiction and to dismiss DPS entirely because it lacks the capacity to sue or be sued. (Memorandum at 2, ECF No. 9-1, "Memo.")

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a claim for lack of subject matter jurisdiction. Rule 12(b)(1) motions are either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack does not challenge the veracity of the plaintiff's allegations, but instead asserts that they "are insufficient on their face to invokefederal jurisdiction." Id. "The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). Conversely, a defendant bringing a factual attack disputes the truthfulness of allegations that would otherwise invoke federal jurisdiction. Safe Air for Everyone, 373 F.3d at 1039. In factual attacks, the district court may review evidence beyond the complaint, and need not presume the truthfulness of the plaintiff's allegations. Id. (citations omitted). Here, Defendants raise a facial attack. (Memo. at 2.)

The capacity of a governmental entity to be sued in federal court is determined by the law of the state where the district court is located. Fed. R. Civ. P. 17(b); see also Shaw v. State of California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 604 (9th Cir. 1986) ("Under Rule 17(b) of the Federal Rules of Civil Procedure, the [San Jose] Police Department's capacity to be sued in federal court is to be determined by the law of California."). To raise a party's capacity to sue or be sued, "a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge." Fed. R. Civ. P. 9(a).

IV. ANALYSIS

a. Lack of Subject Matter Jurisdiction

Defendants argue that this Court lacks subject matter jurisdiction over Plaintiff's tort claims (causes of action C, D, and G) and the CNMI constitutional claim brought against DPS and Guerrero (cause of action F) because those claims are all brought against the Commonwealth proper. (Memo.at 3; Reply at 5-6.) This argument is grounded in the substitution of the CNMI for the personal capacity defendants, Patris and Evangelista, and the treatment of claims against official capacity defendants as claims against the CNMI.

i. Substitution under 7 CMC § 2210

The Commonwealth Employees Liability Reform and Tort Compensation Act ("CELRTCA"), 7 CMC §§ 2201-2210, was enacted to protect Commonwealth employees from the expense of defending lawsuits arising out of acts performed within the scope of their employment. Kabir v. CNMI Pub. Sch. Sys., 2009 MP 19 ¶ 25. The Commonwealth closely modeled CELRTCA on the Federal Employees Liability Reform and Tort Compensation Act, commonly known as the Westfall Act. Id. Both laws protect government employees by authorizing the Attorney General to certify that an employee was acting within the scope of employment. Id. at ¶ 26 (citing 7 CMC § 2210 and 28 U.S.C. § 2679). Upon certification, the government is substituted for the employee in the lawsuit and the proceeding continues in the same manner as any action against the government. Id. (citing 7 CMC § 2210(a) and 28 U.S.C. § 2679(d)). Once the government has been substituted, the litigation is thereafter governed by the Government Liability Act. Id. (citing 7 CMC § 2210(c)).

While the Court may have no choice but to substitute the CNMI in certain cases, CELRTCA does not apply to all claims against government employees. First, there are statutory exceptions: the protections of CELRTCA do not extend to constitutional violations and statutory private rights of action. 7 CMC § 2208(b)(2); see also Christian v. CNMI, 2016 WL 4004574 at *5 (D. N. Mar. I. July 7, 2016) (denying a motion to substitute brought by the Commonwealth because plaintiff had private rights of action). For this reason, the CNMI has rightfully not sought substitution in Plaintiff's causeof action E (CNMI constitutional claim). Second, the Attorney General's certification is judicially reviewable and may be disproved by a preponderance of the evidence. Kabir, 2009 MP at ¶ 29. Judicial review is particularly vital because certification by the Attorney General creates a conflict of interest in cases where the government has sovereign immunity. Id. at ¶¶ 30-31. In those cases, the Attorney General would sit as an unreviewable judge without judicial oversight. He or she would be able to terminate the case completely simply by signing the certification, because the case could no longer proceed against the individual employee or the government, once it is substituted and asserts its immunity. Id. at ¶ 30 (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 428-29 (1995) (holding that scope of employment certifications filed pursuant to the Westfall Act are judicially reviewable)).

1. Judicial Review of Attorney General's Certification

Defendants acknowledge that the Attorney General's certification is subject to judicial review but argue that this Court lacks jurisdiction to review the certification because the Commonwealth cannot be sued under its own laws in federal court. (Reply at 6-7) (citing Ramsey v. Muna, 849 F.3d 858, 861 (9th Cir. 2017)). This argument turns on the theory that the certification is...