Santibanez v. Alexander
| Decision Date | 02 November 2018 |
| Docket Number | Case No.: 18cv1177-MMA (AGS) |
| Citation | 345 F.Supp.3d 1259 |
| Parties | Juan Antonio NAVARRO SANTIBANEZ; and Jesus Macias Kuri, Plaintiffs, v. Michael L. ALEXANDER; United States of America; Department of Homeland Security; U.S. Customs and Border Protection, Defendants. |
| Court | U.S. District Court — Southern District of California |
David Leon Speckman, Speckman Law Firm, APC, San Diego, CA, for Plaintiffs.
Daniel Everett Butcher, U.S. Attorneys Office Southern District of California, San Diego, CA, David Bruce Holnagel, Law Offices of David B. Holnagel, Encinitas, CA, for Defendants.
ORDER DENYING PETITION FOR SUBSTITUTION AND REPRESENTATION BY THE UNITED STATES OF AMERICA;
GRANTING THE UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Juan Antonio Navarro Santibanez and Jesus Macias Kuri ("Plaintiffs") commenced this action against Defendants Michael L. Alexander ("Alexander"), and Holdings, LLC in the Superior Court of California, County of San Diego. See Doc. No. 1-2 at 6.1 Plaintiffs later amended their complaint to add the United States of America, Department of Homeland Security, and U.S. Customs and Border Protection as defendants. See id. at 16. On June 6, 2018, Defendant the United States of America removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1).2 See Doc. No. 1. On June 25, 2018, Plaintiffs filed a First Amended Complaint ("FAC") against Alexander, the United States of America, Department of Homeland Security, and U.S. Customs and Border Protection (collectively, "Defendants") alleging one cause of action under the Federal Tort Claims Act ("FTCA"). See Doc. No. 5.
On September 7, 2018, Defendant Alexander filed a Petition for Substitution and Representation by the United States of America, Department of Homeland Security, and U.S. Customs and Border Protection (collectively, "United States") in his place under the FTCA. See Doc. No. 6. That same day, the United States filed a motion to dismiss for lack of jurisdiction, or in the alternative, for summary judgment. See Doc. No. 7. Alexander filed an opposition to the government's motion. See Doc. No. 9. On October 5, 2018, Defendants filed a joint motion to consolidate the hearing date and briefing schedule regarding the two pending motions, which the Court granted. See Doc. Nos. 10, 11. On October 15, 2018, the government filed a consolidated brief opposing Alexander's Petition for Substitution and Representation by the United States and replying to its motion to dismiss for lack of jurisdiction, or, in the alternative, for summary judgment. See Doc. No. 12.
The Court found the matters suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 13. For the reasons set forth below, the Court DENIES Alexander's Petition for Substitution and Representation by the United States, GRANTS the United States' motion for summary judgment, and REMANDS this action back to state court.
Plaintiffs Juan Antonio Navarro Santibanez and Jesus Macias Kuri are individuals residing in San Diego County, California. FAC ¶¶ 4-5. Alexander is an individual residing in the state of New York. See id. ¶ 6; see also Doc. No. 6-3 (hereinafter "Alexander Decl.") ¶ 3. Alexander is employed by U.S. Customs and Border Protection ("CBP"), and was employed by CBP at the time of the accident. Alexander Decl. ¶ 2.
From January 12, 2016, through April 8, 2016, Alexander was on special assignment from his permanent position in New York to the San Ysidro/Otay Mesa Port of Entry in San Diego, California. See id. ¶ 3. While stationed in San Diego, CBP "paid for and arranged use of a rental car" for Alexander. Id. ¶ 4. CBP rented this car "as a pool car." Doc. No. 9-1 (hereinafter "Supp. Alexander Decl.") ¶ 4. Thus, if Alexander was not using the rental car, "other agents staying at the same hotel would use the rental car." Id. CBP also paid for Alexander's flight, accommodations, and incidentals while he was in California. See id.
"On March 9, 2016, while driving to [his] shift in San Diego," Alexander was involved in a two-vehicle automobile accident in San Diego, California. Id. ¶ 5. At the time of the accident, "Plaintiffs were riding a motorcycle and preparing to cross into Mexico at the Otay Mesa international border crossing." FAC ¶ 11. Alexander, driving a rented vehicle, "crossed one or more lanes of traffic without first ensuring that he could make a safe and legal lane change." Id. ¶ 12. Plaintiffs allege that due to Alexander's negligent operation of the vehicle, Alexander "struck the side of Plaintiffs' motorcycle, knocking it over while in motion." Id. ¶ 13. Plaintiffs sustained physical injuries, and were transported by ambulance to Sharp Chula Vista Hospital where they received emergency medical care. Id. ¶ 14. Plaintiffs' motorcycle also sustained "significant damage[.]" Id.
Plaintiffs allege, upon information and belief, that Alexander "was acting within the course and scope of said employment when the incident occurred such that CBP is liable for the injuries and damages sustained by Plaintiff[s] as herein alleged." Id. ¶ 20.
Pursuant to Department of Justice policy, Alexander "sought representation by the Attorney General under the Westfall Act." Doc. No. 6-2 at 2; see also 28 U.S.C. § 2679(b)(1). On June 12, 2018, the Department of Justice issued a letter "which determined [Alexander] was not in the scope of his employment during the time of [the] accident." Doc. No. 6-1 (hereinafter "Holnagel Decl.") ¶ 3; see also Doc. No. 7-1 at 3 n.2. After the Department of Justice issued its letter, Plaintiffs amended their complaint to add the United States of America, Department of Homeland Security, U.S. Customs and Border Protection as defendants. See Doc. No. 1 at 2. The United States then removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1). See id.
Alexander seeks review of the Attorney General's decision refusing to certify that he was acting within the scope of his employment at the time of the accident. See Doc. No. 6-2 at 1. Alexander requests the Court grant his petition and substitute the United States in his place in the litigation. See id. at 2. The United States, in opposition, asserts Alexander was not acting within course and scope of his employment while commuting to work on March 9, 2016. See Doc. No. 12 at 1. Therefore, the United States contends it is not liable for the accident, and the Court "should dismiss the United States from this case, or, in the alternative, grant summary judgment." Id.
"The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley , 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). "The immunity extends to both ‘negligent’ and ‘wrongful’ ‘act[s] or omission[s] of any employee...acting within the scope of his office or employment.’ " Saleh v. Bush , 848 F.3d 880, 888 (9th Cir. 2017) (quoting 28 U.S.C. § 2679(b)(1) ).3
"When a federal employee is sued for wrongful or negligent conduct, the Act empowers the Attorney General to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out of which the claim arose.’ " Osborn , 549 U.S. at 229-30, 127 S.Ct. 881 (quoting 28 U.S.C. § 2679(d)(1), (2) ). If the Attorney General certifies that a federal employee was acting within the scope of employment at the time the tort occurred, the Westfall Act provides that the United States "shall be substituted as the defendant in a tort suit against the employee." Kashin v. Kent , 457 F.3d 1033, 1036 (9th Cir. 2006) (citing 28 U.S.C. § 2679(d) ). "Upon certification, the government employee is dismissed from the suit, and is immune from other civil actions arising from the alleged tort." Id. at 1036-37 (citing 28 U.S.C. § 2679(b)(1) ). "If the Attorney General refuses to certify, the employee may petition the district court to certify that he was acting within the scope of employment." Id. at 1037 (citing 28 U.S.C. § 2679(d)(3) ).
The Attorney General's decision "is conclusive unless challenged." Saleh , 848 F.3d at 889 (quoting Green v. Hall , 8 F.3d 695, 698 (9th Cir. 1993) ). "[T]he party seeking review bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Green , 8 F.3d at 698.
The Westfall Act does not set forth a test to determine whether someone was " ‘acting within the scope of his office or employment’; rather, Congress intended that courts would apply ‘the principles of respondeat superior of the state in which the alleged tort occurred’ in analyzing the scope-of-employment issue." Saleh , 848 F.3d at 888 (quoting Pelletier v. Fed. Home Loan Bank of S.F. , 968 F.2d 865, 876 (9th Cir. 1992) ). Under the Westfall Act, the exclusive remedy for anyone injured by the negligent or wrongful act of a federal employee acting in the scope of employment is a lawsuit against the United States under the Federal Tort Claims Act. See 28 U.S.C. § 2679(b)(1).
Alexander argues that he was acting within the scope of his employment at the time of the accident because he was on a special errand for his employer. See Doc. No. 6-2 at 6. The government, in opposition, asserts that the special errand exception is inapplicable to this case because Alexander was not running an errand at his employer's request, but rather commuting to work for his regularly scheduled shift. See Doc. No. 12 at 2-3.
Under California4 law, "an employer may be held vicariously liable for torts committed by an employee within the scope of...
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