BORDETSKY et al v. AKIMA LOGISTICS SERVICES, LLC

Filing 13

OPINION FILED. Signed by Judge Noel L. Hillman on 12/16/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JACOB AND SHARON BORDETSKY
Civil Action No.
Plaintiffs,
14-1786

(NLH/JS)

v.
AKIMA LOGISTICS SERVICES,
LLC, et al.

OPINION

Defendants.

APPEARANCES:
Sal B. Daidone, P.A., Esquire
102 South Burnt Mill Road
Voorhees Township, NJ 08043
Attorney for Plaintiffs
John M. Nolan, Esquire
Katharine Thomas Batista, Esquire
Jackson Lewis P.C.
1601 Cherry Street, Suite 1350
Philadelphia, PA 19102
Attorneys for Defendant Akima Logistics Services, LLC

HILLMAN, District Judge
Before the Court is defendant’s motion to dismiss
plaintiffs’ complaint.

This case was removed from state court,

and the parties appear to have assumed federal jurisdiction
based on the federal enclave doctrine.

However, it is not clear

based on the facts alleged and the claims asserted here, that

the federal enclave doctrine applies.

Therefore, defendant’s

motion to dismiss will be denied without prejudice and the
parties will be directed to provide briefing to the Court in
support of their application of the federal enclave doctrine and
the assertion of this Court’s jurisdiction.
I.

BACKGROUND

Plaintiffs filed a complaint in the Superior Court of New
Jersey, Law Division, Camden County.

Defendant Akima Logistics

Services, LLC (“Akima”) filed a notice of removal.

Akima

removed the matter to this Court on grounds of federal enclave
jurisdiction pursuant to Article I, Section 8, Clause 17 of the
United State Constitution.
Akima is a federal contractor that provides "role players"
for the U.S. Army's live action operational training to prepare
soldiers for deployment in hostile environments.

In November

2010, Akima employed co-defendant Abdulrahim Sulaiman.

Sulaiman

was a U.S. Army contractor who served as a foreign language
speaker trainer at Fort Dix, New Jersey, and who resided at Fort
Dix.

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Sulaiman, while off-duty, physically attacked plaintiff
Jacob Bordetsky 1 outside the confines of Fort Dix at a Valero gas
station in Mansfield, New Jersey. 2

Plaintiffs allege that Akima

was negligent in its hiring and supervision of Sulaiman. 3

1

Plaintiff singular or “Bordetsky” refers to Jacob
Bordetsky.
2

The same plaintiffs, Jacob and Sharon Bordetsky, filed a
complaint against the same defendants, Abdulrahmin Sulaiman and
Akima Logistics Services LLC, as well as against defendant
United States, in an earlier action before this Court (Civil
Action No. 13-1102), alleging the same set of facts. In that
case, the United States filed a motion to dismiss which the
Court granted on grounds that it lacked subject matter
jurisdiction over the United States because the United States
did not waive its sovereign immunity for Mr. Bordetsky’s claims,
or for Mrs. Bordetsky’s derivative loss of consortium claim.
Plaintiffs did not oppose the United States’ motion to dismiss,
and they failed to meet their burden of proof that jurisdiction
existed. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977).
Following the grant of the United States’ motion to
dismiss, the Court ordered plaintiffs to show cause as to why
their state law claims against the remaining non-federal
government defendants should not be dismissed for lack of
subject matter jurisdiction. Plaintiffs failed to respond to
the Court’s Order resulting in dismissal of that case.
Apparently, plaintiffs then filed their claims against Sulaiman
and Akima in state court. Akima then removed plaintiffs’ state
action to federal court. Thus, we are faced with the same
jurisdictional issue as before. The only difference is that
Akima now has the burden of demonstrating jurisdiction since it
removed the case from state court.
3

Although the specific facts are not alleged in the complaint,
in the previous action, the United States attached newspaper
articles to their motion which stated that Mr. Bordetsky was
filling the gas tanks of a Valero gas station in Mansfield, New
Jersey when Sulaiman exited the restroom and stabbed Bordetsky
with a knife in the neck, shoulder and back; that on May 11,
2012, Sulaiman, an Iraqi citizen, was sentenced to seven years
3

After removing the case to federal court, Akima filed a
motion to dismiss.

Akima argues that plaintiff’s state law

negligent hiring/supervision/retention claims are barred by the
federal enclave doctrine, which jurisdictionally bars state law
claims arising on a federal enclave.

Defendants further argue

that Bordetsky's wife's state law loss of consortium claim must
be dismissed because it is a derivative claim of plaintiff’s
state law negligence claims.
The Court will not reach the merits of defendant’s motion
to dismiss at this time.

Before the Court can rule on the

motion to dismiss, it must be clear that it can exercise
jurisdiction over the parties.
II.

FEDERAL ENCLAVE DOCTRINE

This matter was removed on the basis of federal question
jurisdiction.

See 28 U.S.C.A. § 1441 (“...any civil action

brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the
defendant”).

Defendants assert that removal is warranted

because plaintiffs’ claims against defendants concern Sulaiman’s
employment at Fort Dix, a federal enclave.

Under the federal

in prison after pleading guilty to aggravated assault; and that
Sulaiman stated that he had used a lot of PCP before the attack
and could not explain why he stabbed Mr. Bordetsky.
4

enclave doctrine, “[p]ersonal injury actions which arise from
incidents occurring in federal enclaves may be removed to
federal district court as a part of federal question
jurisdiction.”

Akin v. Ashland Chemical Co., 156 F.3d 1030,

1034 (10th Cir. 1998); see Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1250 (9th Cir. 2006) (“Federal courts have federal
question jurisdiction over tort claims that arise on ‘federal
enclaves.’”).
There is no dispute that Fort Dix is a federal enclave.
See Manning v. Gold Belt Falcon, LLC, 681 F.Supp.2d 574, 576
(D.N.J. 2010) (The State of New Jersey ceded exclusive
jurisdiction over Fort Dix to the federal government in 1938).
There is also no dispute over the facts that Sulaiman, an
employee of Akima, physically attacked Bordetsky at a Valero gas
station in Mansfield, New Jersey.

The dispute is over a

question of law: whether the federal enclave doctrine applies to
a negligent hiring/supervision/retention claim against an offduty employee of a federal contractor and his employer, where
the underlying tort occurred off federal land.
When dealing with a federal enclave, the focus is on where
the tort occurred.

See In re High–Tech Employee Antitrust

Litigation, 856 F.Supp.2d 1103, 1125 (N.D.Cal. 2012) (“federal
enclave doctrine only applies when the locus in which the claim
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arose is the federal enclave itself.”); Totah v. Bies, 2011 WL
1324471, *2 (N.D.Cal. 2011) (focusing on where “substance and
consummation of the tort” occurred in determining whether a tort
claim arose on a federal enclave).

There is general agreement

in the case law that employees of contractors operating on
federal enclaves who bring employment claims against their
employers are subject to the federal enclave doctrine.

See

Manning, 681 F.Supp.2d at 575 (plaintiffs alleged they were not
adequately paid for work performed on the federal enclave);
Stiefel v. Bechtel Corp., 497 F.Supp.2d 1138, 1148 (S.D.Cal.
2007) (plaintiff alleged he was injured while working for
contractor on federal enclave).

The common thread is that if

the employee’s claim arose out of his employment at a federal
enclave, then the doctrine applies.

See Morris v. Eberle & BCI,

LLC, No. 13-6113, 2014 WL 4352872, at *3 (D.N.J. Sept. 3, 2014)
(finding that federal enclave doctrine barred NJLAD claim by
employee of contractor working at Fort Dix because NJLAD was
enacted seven years after Fort Dix land was ceded to federal
government).
Here, plaintiff is not the employee, and the events of
the assault clearly did not occur on the federal enclave.
Defendants argue in support of their motion to dismiss that
plaintiff’s claim for negligent hiring/supervision/retention is

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related to Sulaiman’s employment at Fort Dix and therefore
implicitly argue as a jurisdictional matter that this would
provide the necessary link.

They cite to cases in which even

though the plaintiff was terminated while on leave, federal
enclave jurisdiction applied nonetheless.

See Taylor v.

Lockheed Martin Corp., 78 Cal.App.4th 472, 481 (Cal.App. 2 Dist.
2000) (rejecting argument that plaintiff's wrongful termination
claim should not be barred by the federal enclave doctrine
because plaintiff was terminated while he was on paid suspension
and therefore not working on the enclave).
In the cases relied upon by defendants, however, it is the
employee, a federal contractor working on a federal enclave, who
seeks to sue his employer, for workplace issues.
not a federal contractor suing his employer.

Here, it is

It is a third-

party suing a federal contractor and his employer.

It does not

involve an employee’s work place claims, or the employee’s
termination.

Rather, it involves a federal employee’s assault

on an unrelated third which occurred at a New Jersey gas station
away from the federal enclave.
Since defendants removed this matter from state court, it
is incumbent upon them to establish subject matter jurisdiction.
And, because federal courts are courts of limited jurisdiction,
both the Supreme Court of the United States and the Third
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Circuit Court of Appeals have recognized that removal statutes
are to be strictly construed against removal and all doubts must
be resolved in favor of remand.

See, e.g., Shamrock Oil & Gas

Corp. v. Sheets, 313 U.S. 100, 108–109, 61 S.Ct. 868, 85 L.Ed.
1214 (1941); Samuel–Bassett v. KIA Motors America, Inc., 357
F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990)); see also Steel Valley
Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d
Cir. 1987).

The Third Circuit has also repeatedly held that

“the party asserting federal jurisdiction in a removal case
bears the burden of showing, at all stages of the litigation,
that the case is properly before the federal court.”

Frederico

v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also S.
Freedman and Co., Inc. v. Raab, 180 Fed. Appx. 316, 320 (3d Cir.
2006) (citation omitted) (stating that the Court has an
independent obligation to determine subject matter jurisdiction,
and it is well-established that “the basis upon which
jurisdiction depends must be alleged affirmatively and
distinctly and cannot be established argumentatively or by mere
inference”). 4

4

The plaintiff has stated in his response to the motion to
dismiss that the federal enclave doctrine does not apply, but
does not take the next step and argue that this matter was
improperly removed. Stated differently, if plaintiff is correct
and the federal enclave doctrine does not apply, he should have
8

Defendants have not clearly established that the federal
enclave doctrine applies under the specific facts in this case.
Although the parties have provided some briefing on the
doctrine, the Court will permit them to submit limited,
supplemental briefing on the specific issue of whether this
Court can exercise subject matter jurisdiction in this case
based on the federal enclave doctrine. 5
Accordingly, the Court will enter an Order directing the
parties to file supplemental briefing on this issue.

The motion

to dismiss will be denied without prejudice.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date:

December 16, 2014

At Camden, New Jersey

moved to remand. Plaintiff cannot consent to the jurisdiction
of this Court. See S. Freedman, 180 Fed. Appx. at 320; Martin
v. Wal–Mart Stores, Inc., 709 F.Supp.2d 345, 350 n. 5 (D.N.J.
2010) (parties cannot by stipulation confer subject matter
jurisdiction on the federal courts, nor can a party consent to
jurisdiction).
5

The additional briefing should focus on whether this matter was
improvidently removed. The parties need not repeat their
arguments regarding the application of the federal enclave
doctrine, if they choose not to, but should focus their
arguments on the issue of subject matter jurisdiction.
9