Terry et al v. Newell et al

Filing 70

ORDER granting 61 Motion for Substitution. (See document for further details). Signed by Judge David G Campbell on 11/15/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kent Terry, et al., No. CV-12-02659-PHX-DGC Plaintiffs, 10 11 v. 12 ORDER William Newell, et al., 13 Defendants. 14 15 The United States has moved to substitute itself as a defendant with respect to the 16 cross-claim of Defendants Lone Wolf Trading Company, LLC and Andrew L. Howard 17 (“Cross-Claimants”) against Defendants Emory Hurley, William Newell, David Voth, 18 Hope McAllister, Tonya English, William McMahon, and George Gillett (“Cross- 19 Defendants”). Doc. 61. For the reasons set forth below, the Court will grant the United 20 States’ motion. 21 Cross-Claimants allege that their cross-claim arises out of the “same transaction or 22 set of occurrences” as described in Plaintiffs’ complaint (doc. 48, ¶ 54), and that “[b]ut 23 for [Cross-Defendants’] actions in soliciting and encouraging the assistance of [Cross- 24 Claimants] in making the sales of weapons, Cross-Claimants would not have made” the 25 sales that are the subject of the Plaintiffs’ complaint (id., ¶ 67). 26 The Federal Employees Liability Reform and Tort Compensation Act (“Westfall 27 Act”) provides that a claim against the United States under the Federal Tort Claims Act is 28 the exclusive remedy for persons seeking to recover damages for any “negligent or 1 wrongful act or omission of any employee of the Government while acting within the 2 scope of his office or employment.” 28 U.S.C. § 2679(b)(1). All other “civil action[s] or 3 proceeding[s] . . . against the employee or the employee’s estate [are] precluded without 4 regard to when the act or omission occurred.” Id. Under the Westfall Act, “federal 5 employees receive absolute immunity from suit for their negligent or wrongful act[s] or 6 omission[s] while acting within the scope of [their] office or employment.” Jackson v. 7 Tate, 648 F.3d 729, 735 (9th Cir. 2011) (internal quotations omitted). The Westfall Act 8 grants the Attorney General authority to certify that a federal employee was acting within 9 the scope of his or her employment at the time in question. If the Attorney General 10 makes such a certification, the United States must be substituted as the defendant. Id. at 11 735. The Attorney General has delegated authority to certify scope of employment to 12 any Director of the Torts Branch, Civil Division. See 28 C.F.R. § 15.4(a). 13 A Director of the Torts Branch, Civil Division, has certified that the actions taken 14 by Cross-Defendants were within the scope of their employment. The Court concludes, 15 therefore, that the United States must be substituted in place of Cross-Defendants with 16 respect to the cross-claim filed by Cross-Claimants. 17 18 19 IT IS ORDERED that the United States’ motion for substitution (Doc. 61) is granted. Dated this 15th day of November, 2013. 20 21 22 23 24 25 26 27 28 -2-

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