BORDETSKY et al v. AKIMA LOGISTICS SERVICES, LLC
OPINION FILED. Signed by Judge Noel L. Hillman on 2/16/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JACOB AND SHARON BORDETSKY,
Civil Action No.
AKIMA LOGISTICS SERVICES,
LLC, et al.,
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
The following Opinion addresses the parties’ response to
the Court’s Order to Show Cause [Doc. No. 14] concerning whether
or not the Court has federal enclave jurisdiction.
reasons that follow, the Court finds that it does not have
federal enclave jurisdiction over Plaintiffs’ claims and
therefore the case must be remanded.
As set forth in the Court’s December 16, 2014 Opinion,
Plaintiffs filed a complaint in the Superior Court of New
Jersey, Law Division, Camden County on January 13, 2014.
Defendant Akima Logistics Services, LLC (“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
Akima is a private company and federal contractor that
provided "role players" for the U.S. Army's live action
operational training to prepare soldiers for deployment in
In November 2010, Akima employed co-
defendant Abdulrahim Sulaiman (“Sulaiman”).
As an Akima
employee, Sulaiman resided at Fort Dix where he served as a
foreign language speaker and trainer.
On August 5, 2011, Sulaiman, while off-duty, physically
attacked Plaintiff Jacob Bordetsky (“Plaintiff”) outside the
confines of Fort Dix at a Valero gas station in Mansfield, New
Plaintiff alleges that Akima was negligent in its
hiring and supervision of Sulaiman.
After removing the case to federal court, Akima filed a
motion to dismiss.
Akima argued 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.
Akima further argued that
the state law loss of consortium claim must be dismissed because
it is a derivative claim of Plaintiff’s state law negligence
The Court declined to address the merits of Akima’s motion
to dismiss because it was unclear whether the Court had
jurisdiction to hear the case.
See Dec. 16, 2014 Op. [Doc. No.
FEDERAL ENCLAVE DOCTRINE
This matter was removed on the basis of federal question
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
Akima asserts that removal is warranted because
Plaintiff’s claims against Defendants concern Sulaiman’s
employment at Fort Dix, a federal enclave.
Under the federal
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
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
There is no dispute that Fort Dix is a federal enclave.
See Manning v. Gold Belt Falcon, LLC, 681 F. Supp. 2d 574, 576
n.3 (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 that Sulaiman, an employee of Akima,
physically attacked Plaintiff 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 off-duty 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 arose is the federal enclave itself.”); Totah v. Bies,
2011 WL 1324471, at *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).
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
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).
thread is that if the employee’s claim arose out of his
employment at a federal enclave, then the doctrine applies.
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).
Akima argues that despite this fact, Plaintiff’s claim for
negligent hiring/supervision/retention are related to Sulaiman’s
employment at Fort Dix and therefore implicitly argue as a
jurisdictional matter that this would provide the necessary
Akima cites to cases in which even though the plaintiff
was terminated while on leave, federal enclave jurisdiction
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).
Here, however, Plaintiff is not an employee seeking to sue
Akima for workplace related issues as in the cases discussed
Rather, Plaintiff is an unrelated third party seeking to
sue a private entity, which contracted with the federal
government, for its hiring practices.
Plaintiff’s claims are
not related to his workplace or termination.
Thus, the Court
finds the cases cited by Akima distinguishable.
Indeed, none of the facts giving rise to Plaintiff’s
negligent supervision claim arose on a federal enclave.
is a private company and federal contractor who hired Sulaiman.
Akima provided no basis from which to conclude that the tort of
negligent hiring occurred on a federal enclave.
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 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).
Further, it is undisputed that the underlying tort, the assault,
occurred on private property and was inflicted on a private
Akima, as the party asserting jurisdiction has failed to
meet its burden of showing that federal enclave jurisdiction
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.
While this case certainly concerns unusual
circumstances, because federal courts are courts of limited
jurisdiction, both the Supreme Court of the United States and
the Third 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, 108–09, 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).
For these reasons, the Court will enter an
Order of Remand.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: February 16, 2016
At Camden, New Jersey
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