Wheeler v. Terga

Filing 8

ORDER GRANTING 5 Motion to Substitute Party. United States is substituted in place of Jose Terga. 5 Motion to set time for the United States to answer or otherwise respond is GRANTED. The United States is to answer or otherwise respond to Plaintiff's Complaint by August 20, 2013. Signed by Honorable P. K. Holmes, III on July 17, 2013. (jas)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
HALEY WHEELER
v.

PLAINTIFF
Case No. 2:13-CV-02156

JOSE TERGA

DEFENDANT
ORDER

Currently before the Court is Defendant’s motion to substitute party and to set time for the
United States to answer or otherwise response (Doc. 5) and supporting brief (Doc. 6). Plaintiff has
filed a response (Doc. 7) stating she has no objection to Defendant’s requests.
“Upon certification by the Attorney General that the defendant employee was acting within
the scope of his office or employment at the time of the incident out of which the claim arose . . .
[s]uch action or proceeding shall be deemed to be an action or proceeding brought against the United
States . . . and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2).
The United States Attorney for the Western District of Arkansas, by virtue of the authority vested
in him by the Attorney General of the United States under 28 C.F.R. § 15.4(a),1 has certified that the
individual Defendant in this case was acting within the scope of his federal employment as an
employee of the United States Postal Service with respect to the incident alleged by Plaintiff in the
Complaint. (Doc. 5-1). That certification has not been challenged by Plaintiff. The Court finds,

1

The Government cites to 28 C.F.R. § 15.3(a), but it appears that the relevant regulation is
§ 15.4(a), which provides that “[t]he United States Attorney for the district where the civil action or
proceeding is brought . . . is authorized to make the statutory certification that the Federal employee
was acting within the scope of his office or employment with the Federal Government at the time
of the incident out of which the suit arose.”
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therefore, that the United States should be substituted as the defendant in this case, in place of Jose
Terga.
IT IS THEREFORE ORDERED that Defendant’s motion to substitute party (Doc. 5) is
GRANTED, and the United States is substituted as Defendant in this case in place of Jose Terga.
IT IS FURTHER ORDERED that Defendant’s motion to set time for the United States to
answer or otherwise respond (Doc. 5) is GRANTED. The deadline for the United States to answer
or otherwise respond to Plaintiff’s complaint is set at August 20, 2013.
IT IS SO ORDERED this 17th day of July, 2013.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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