Ruiz v. United States of America

Filing 32

ORDER granting in part and denying in part 23 Motion to Dismiss. For the reasons set forth in the enclosed Memorandum and Order, the court respectfully denies the Government's 23 motion to dismiss the complaint for lack of subject matter ju risdiction under Rule 12(b)(1), and grants the Government's motion to transfer venue to the Eastern District of Virginia under 28 U.S.C. § 1404(a). The Government's motion for judgment on the pleadings shall be transferred to the Eastern District of Virginia. The Clerk of Court is respectfully requested to transfer the case to the United States District Court for the Eastern District of Virginia. Ordered by Judge Kiyo A. Matsumoto on 9/18/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
LEONEL RUIZ, on behalf of his
daughter, E.R., a minor,
Plaintiff,

MEMORANDUM AND ORDER

- against -

13-CV-1241 (KAM)(SMG)

UNITED STATES OF AMERICA,
Defendant.
------------------------------------X
MATSUMOTO, United States District Judge:
On March 8, 2013, Leonel Ruiz (“plaintiff”), on behalf
of his minor daughter, E.R., filed this action against the
United States (“defendant” or “Government”), pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.,
claiming that on March 11, 2011, United States Customs and
Border Protection (“CBP”) Officers improperly detained E.R., a
United States citizen who at the time was four years old, at
Washington Dulles International Airport (“Dulles”) in Virginia
and “effectively deported” her to Guatemala following her
arrival at Dulles from Guatemala.
3/8/13 (“Compl.”).)

(ECF No. 1, Complaint filed

Plaintiff brings claims of false

imprisonment, intentional infliction of emotional distress, and
negligence.

(See Compl. at 13-16.)

On October 23, 2013, the

United States moved to dismiss the complaint for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), or, in the alternative, for judgment on the pleadings
1

under Federal Rule of Civil Procedure 12(c), or to transfer the
case to the United States District Court for the Eastern
District of Virginia pursuant to 28 U.S.C. § 1404(a).

(ECF No.

23, Motion to Dismiss filed 10/30/13 (“Gov’t Mot.”); ECF No. 231, Gov’t Memorandum in Support of Motion to Dismiss filed
10/30/13 (“Gov’t Br.”).)
motions in their entirety.

Plaintiff opposes the Government’s
(ECF No. 24, Plaintiff’s Opposition

filed 10/30/13 (“Pl.’s Opp.”).)
For the reasons stated herein, the court finds, based
on the current record before the court, that the actions by the
CBP Officers do not fall within the discretionary function
exception to the Federal Tort Claims Act.

Accordingly,

defendant’s motion to dismiss for lack of subject matter
jurisdiction is respectfully denied without prejudice to renew
based on a more fully developed record.

The court further finds

that defendant has shown by clear and convincing evidence that
the interests of justice would be best served by transferring
this case to the United States District Court for the Eastern
District of Virginia, and accordingly, defendant’s motion to
transfer venue is granted.

Defendant’s remaining motion for

judgment on the pleadings will be transferred to the Eastern
District of Virginia.

2

BACKGROUND
The facts, as stated in plaintiff’s complaint and in
other documents properly considered in the context of a Rule
12(b)(1) motion, 1 are as follows.
New York on June 7, 2006.

E.R. was born in Long Island,

(Compl. at 3; ECF No. 23-2, AUSA

Kolbe Declaration filed 10/30/13 (“Kolbe Decl.”), Ex. A, at 1415.)

On February 12, 2010, E.R.’s parents, Leonel Ruiz (“Mr.

Ruiz”) and Brenda Dubon (“Ms. Dubon”), signed a document stating
that E.R. was authorized to travel to and from Guatemala with
her maternal grandfather, Luis Dubon (“Mr. Dubon”).
Decl., Ex. E, “Autorizacion” dated 2/12/10.)

(Kolbe

The document was

written in Spanish and notarized in Suffolk County, New York.
(Id.)

The document listed E.R.’s parents’ names, passport

numbers (but no country of citizenship), as well as a telephone
number to call in case of an emergency.

(Id.)

On October 22, 2010, when E.R. was four years old, her
parents sent her to Guatemala for a winter vacation with her
relatives, so that E.R. could spend time with her extended
family, practice Spanish, and enjoy any health benefits from the
warmer climate.

(Compl. at 3.)

Approximately five months

later, on March 10, 2011, E.R. and Mr. Dubon boarded a TACA

1

“Where subject matter jurisdiction is challenged . . . a court may
consider materials outside the pleadings, such as affidavits, documents and
testimony.” U.S. ex rel. Phipps v. Comprehensive Cmty. Dev. Corp., 152 F.
Supp. 2d 443, 449 (S.D.N.Y. 2001) (citing Kamen v. Am. Tel. & Tel. Co., 791
F.2d 1006, 1011 (2d Cir. 1986)).

3

Airlines (“TACA”) flight from Guatemala City, Guatemala, bound
for John F. Kennedy International Airport (“JFK”) in New York.
(Id.)

Due to inclement weather, the flight was diverted to

Dulles, where E.R. and Mr. Dubon arrived between approximately
2:00 a.m. and 3:00 a.m. on March 11, 2011.

(Id.)

At Dulles, E.R. and Mr. Dubon submitted their personal
documents for inspection by CBP agents.

E.R., who was traveling

on her valid United States passport, was authorized to enter the
United States at approximately 3:45 a.m. when the examining CBP
Officer stamped her passport.

(Id.)

Mr. Dubon presented the

notarized document authorizing him to travel with E.R.

(Id.)

The examining CBP Officer, finding “what he believed was an
irregularity in Mr. Dubon’s documentation,” directed Mr. Dubon
to a “secondary inspection area” pending further investigation
to determine if he was admissible to the United States.
E.R. accompanied Mr. Dubon to this area.

(Id.)

(Id.)

Plaintiff alleges that for nearly fourteen hours, CBP
Officers continued to detain E.R. without contacting E.R.’s
parents, despite Mr. Dubon’s repeated requests to do so. 2
(Compl. at 5.)

Mr. Dubon, who was determined by CBP officers to

be a non-citizen and denied admission to the United States, “was

2

According to the Record of Deportable/Inadmissible Alien completed by a
CBP Officer, “[a]ttempts to contact the parents of the minor were met with
negative results. At about 17:30 hours, 11 March 2011 this office was able
to contact the minor’s father . . . .” (Kolbe Decl., Ex. C, Record of
Deportable/Inadmissible Alien dated 3/11/11, at 2.)

4

not free to leave the secondary inspection area and enter the
United States.” 3

(Compl. at 5; Kolbe Decl., Ex. C, Record of

Deportable/Inadmissible Alien dated 3/11/11; Kolbe Decl., Ex. D,
Determination of Inadmissibility dated 3/11/11.)
minor, could not leave on her own.”

E.R., “as a

(Compl. at 5-6.)

Plaintiff

alleges that during their time in the holding area, E.R. and Mr.
Dubon were “under CBP guard.”

(Compl. at 6.)

Meanwhile, as he waited at JFK airport in New York on
March 11, 2011, for the arrival of E.R. and Mr. Dubon, Mr. Ruiz
eventually learned that the TACA flight originally bound for JFK
had been diverted to Dulles, and that the passengers on that
plane would be arriving at JFK at about 8:00 a.m. on March 11.
(Compl. at 6.)

After E.R. did not arrive with the other TACA

passengers, Mr. Ruiz eventually learned from a TACA employee
that E.R. was “being held” at Dulles by CBP.

(Id.)

Later that day, at approximately 5:30 p.m., a CBP
Officer contacted Mr. Ruiz on his cellular phone to notify him
that Mr. Dubon was not permitted to enter the United States and
would be sent back to Guatemala.

(Id.)

The CBP Officer also

told Mr. Ruiz that E.R. was “being held” by CBP.

(Id.)

The CBP

Officer asked for and was given Mr. Ruiz’s name and other

3

CBP Officials determined that Mr. Dubon was a Guatemalan citizen, that
he was not in possession of a valid visa or border crossing identification
card, and that he had attempted fraudulently to procure admission into the
United States by failing to disclose that he had previously been unlawfully
present in the United States. (See Determination of Inadmissibility.)

5

identifying information about Mr. Ruiz and his wife.
7.)

(Id. at

The CBP Officer informed Mr. Ruiz that E.R. would be sent

to JFK as soon as a suitable flight was found.

(Id.)

Plaintiff alleges that after the CBP Officer had
spoken to Mr. Ruiz by telephone, an unidentified woman
approached E.R. and “attempted to induce E.R. to leave her
grandfather.”

(Id.)

As a result, E.R. “fear[ed] that she was

being taken from her family” and was “brought to tears.”

(Id.)

E.R. continued to cry and refused to accompany the woman, who
soon left the area.

(Id. at 8.)

Soon thereafter, Mr. Dubon

began feeling unwell, and was taken to the emergency room at
Reston Hospital Center at approximately 6:30 p.m.

(Id.)

While

Mr. Dubon was at the hospital, E.R. was left with a different
unidentified woman, presumably a TACA employee.

(Id.)

At approximately 8:00 p.m., while Mr. Dubon was still
at the hospital, a CBP Officer again contacted Mr. Ruiz by
telephone.

(Id.)

Plaintiff alleges that the CBP Officer told

Mr. Ruiz he could not send E.R. on a flight to New York because
“he was not allowed to return E.R. to ‘illegals.’”
9.)

(Id. at 8-

Mr. Ruiz gave consent to return E.R. to Guatemala with her

grandfather.

(Id. at 9.)

Plaintiff alleges that CBP Officers

“forced” Mr. Ruiz into giving consent to send E.R. to Guatemala
by “threatening that otherwise CBP would send E.R. to an
“‘adoption center’” in Virginia.

(Id.)
6

After the telephone

call, at approximately 9:30 p.m., Mr. Dubon returned to Dulles
airport from the hospital.

(Id. at 8.)

E.R. and Mr. Dubon left for Guatemala on an early
morning flight on March 12, 2011.

(Id. at 11.)

Plaintiff

alleges that while E.R. was “detained” at Dulles, she was not
given adequate food or drink and was fed only a cookie and a
soda. (Id. at 10.)

In addition, plaintiff alleges that E.R. was

barely able to sleep in the cold room, and that CBP Officers
failed to provide her with a blanket or pillow.

(Id.)

On March 29, 2011, plaintiff flew back to the United
States accompanied by a “local attorney.”

(Id. at 11.)

On

April 8, 2011, E.R. met with a child psychologist in New York,
Dr. Roy Aranda, who concluded that the March 11, 2011 incident
had traumatized E.R., and diagnosed E.R. with Posttraumatic
Stress Disorder (“PTSD”).

(Id. at 12.) 4

Plaintiff now resides

in Guatemala, with no current plans to return to the United
States. (ECF No. 31, Letter from Plaintiff’s Counsel dated
9/2/14.)
DISCUSSION

4

Plaintiff alleges that during E.R.’s “forced stay” in Guatemala, she
had bouts of hysterical crying and refused to speak to Mr. Ruiz over the
telephone because she believed he had not wanted to come to the airport to
pick her up. (Id. at 11.) After E.R. returned to the United States, she
“began to overeat, throw tantrums, and soil her pants,” hid when people
knocked on the front door, refused to let go of her father’s hand when
outside the house, and became frightened when the lights were off at night.
(Id. at 12.)

7

I.

Discretionary Function Exception and Subject Matter
Jurisdiction
Plaintiff brings this suit pursuant to the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., which waives
the sovereign immunity of the United States in limited
circumstances.

In relevant part, the FTCA authorizes suits

against the federal government to recover damages
for injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where
the United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred.
Title 28 U.S.C. § 1346(b)(1).
One of the exceptions to the FTCA’s waiver of
sovereign immunity is the “discretionary function
exception,” which provides that Congress’s authorization to
sue the United States for damages does not apply to any
claim “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or
duty on the part of a federal agency or employee of the
Government, whether or not the discretion involved be
abused.”

28 U.S.C. § 2680(a).

The discretionary function

exception “‘marks the boundary between Congress’
willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities
8

from exposure to suit by private individuals.’”

Berkovitz

v. United States, 486 U.S. 531, 536 (1988) (quoting United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984)).

Because the FTCA

operates as a grant of subject matter jurisdiction to the
federal courts, “a finding that the discretionary function
exception applies is tantamount to holding that the court
lacks jurisdiction.”

Caban v. United States, 671 F.2d

1230, 1235 n.5 (2d Cir. 1982).
Here, defendant moves, inter alia, pursuant to
Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”)
to dismiss plaintiff’s FTCA claims on the grounds that the
actions of the CBP Officers fall within the discretionary
function exception, and that accordingly, the court lacks
subject matter jurisdiction.

(See generally Gov’t Br.)

The plaintiff bears the burden of establishing, by a
preponderance of the evidence, that the court retains authority
to adjudicate a case.

Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000); Loew v. U.S. Postal Serv., No. 03-CV-5244,
2007 WL 2782768, at *4 (E.D.N.Y. Feb. 9, 2007).

Generally, a

motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1) is reviewed under the same standard as a motion to
dismiss for failure to state a claim under Rule 12(b)(6), which
requires a court to accept as true the facts alleged in the
9

complaint, and to draw all reasonable inferences in favor of the
plaintiff.

Loew, 2007 WL 2782768, at *4.

Where, however, “the

jurisdictional challenge is based on the FTCA, the government
receives the benefit of any ambiguities.”

Id.; Moreno v. United

States, 965 F. Supp. 521, 524 (S.D.N.Y. 1997) (“Because the FTCA
creates a waiver of sovereign immunity, it is strictly construed
and all ambiguities are resolved in favor of the United
States.”).

Subject matter jurisdiction “must be shown

affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it.”

APWU

v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation
marks and citation omitted).

A plaintiff bears “the initial

burden to state a claim that is not barred by the DFE.” 5
Molchatsky v. United States, 713 F.3d 159, 162 (2d Cir. 2013);
see Wang v. United States, 61 F. App’x 757, 759 (2d Cir. 2003)
(“Plaintiffs failed to meet their initial burden of pleading

5

Neither the Second Circuit nor the United States Supreme Court has
explicitly answered whether the United States or a plaintiff bears the
ultimate burden of proving the applicability of the discretionary function
exception. See 14 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure § 3658.1 (3d ed. 1998) (collecting cases).
Other courts have held that the government bears the burden of proving that
the exception applies. See, e.g., id.; Saint-Guillen v. United States, 657
F. Supp. 2d 376, 387 n.5 (E.D.N.Y. 2009) (noting that once a plaintiff
satisfies the pleading requirement to allege facts which would support a
finding that the challenged actions fall outside the exception, the burden
shifts to the government to prove that the exception applies); Moltchatsky v.
United States, 778 F. Supp. 2d 421, 431 (S.D.N.Y. 2011) (same); King v.
United States, 491 F. Supp. 2d 286, 296 (D. Conn. 2007); Carboniero v. United
States, 211 F.3d 749, 756 n.5 (3d Cir. 2000).

10

facts which would support a finding that the conduct of the
investigative agents fell outside the scope of the exception.”).
A.

Two-Pronged Discretionary Function Exception Test
Under the Supreme Court’s Gaubert test, the

discretionary function exception precludes suits against the
United States “only if two conditions are met: (1) the acts
alleged to be negligent must be discretionary, in that they
involve an ‘element of judgment or choice’ and are not compelled
by statute or regulation and (2) the judgment or choice in
questions must be grounded in ‘considerations of public policy’
or susceptible to policy analysis.”

Coulthurst v. United

States, 214 F.3d 106, 109 (2d Cir. 2000) (citing United States
v. Gaubert, 499 U.S. 315, 322-23 (1991) and Berkovitz, 486 U.S.
at 536-37)).
Under the first prong of the test, “it is the nature
of the conduct, rather than the status of the actor” that
determines whether a challenged act is discretionary.
499 U.S. at 322.

Gaubert,

If there exists a mandatory federal statute,

regulation, or policy that “specifically prescribes a course of
conduct for an employee to follow,” the first prong of the test
requiring an element of judgment or choice is not met because
“the employee has no rightful option but to adhere to the
directive.”

Berkovitz, 486 U.S. at 536.

If there is no

established explicit or implicit governmental policy, or if a
11

policy allows a government agent to exercise discretion, then
under the second prong of the Gaubert test, the court must
determine whether the conduct “can be said to be grounded in the
policy of the regulatory regime,” focusing “not on the agent’s
subjective intent . . . but on the nature of the actions taken
and on whether they are susceptible to policy analysis.”
Gaubert, 499 U.S. at 325.

If there exists a regulation allowing

an employee discretion, the “very existence of the regulation
creates a strong presumption that a discretionary act authorized
by the regulation involves consideration of the same policies
which led to the promulgation of the regulations.”

Gaubert, 499

U.S. at 324 (internal citation omitted).
If the challenged conduct involved an element of
judgment or choice, then under the second prong of the
discretionary function exception test, that judgment or choice
must be grounded in considerations of public policy or
susceptible to policy analysis to be protected by the
discretionary function exception.

See Coulthurst, 214 F.3d at

109; Gaubert, 499 U.S. at 325-25; Varig Airlines, 467 U.S. at
814 (noting that the discretionary function exception is
intended to shield from “judicial second-guessing” judgments
“grounded in social, economic, and political policy”).
Accordingly, the second prong of the test distinguishes between
discretionary decisions that are grounded in public policy
12

considerations, and decisions that are made out of carelessness
or laziness.

Gaubert, 499 U.S. at 324-25, 325 n.7 (remarking

that while a government agent who drives a car while on a
government mission exercises “discretion” in driving the car,
any decisions made to drive the car are not grounded in public
policy, and therefore the discretionary function exception would
not protect negligent driving).
B.

Application of Discretionary Function Test
Plaintiff’s complaint raises claims of (1) false

imprisonment based on, inter alia, the CBP Officers’ alleged
detention of E.R. for more than twenty hours, refusal to contact
E.R.’s parents and to allow her to continue to New York after
she was admitted to the United States, and the decision to send
E.R. back to Guatemala; (2) intentional infliction of emotional
distress based on the above actions, as well as the CBP
Officers’ alleged threat to send E.R. to an adoption center, the
deprivation of food and water, and keeping E.R. in unsuitable
conditions for a four-year-old child; and (3) negligence, based
on the conditions in which E.R. was kept and the CBP Officers’
alleged refusal to contact E.R’s parents.
Applying the discretionary function exception test as
set forth in Gaubert, the court first finds that the CBP
Officers’ initial decision to detain Mr. Dubon after he failed
to establish his entitlement to enter the United States was not
13

discretionary.

Under the relevant provision of the Immigration

and Nationality Act (“INA”), if an immigration officer
“determines that an alien . . . who is arriving . . . is
inadmissible . . . the officer shall order the alien removed . .
. without further hearing or review.”
1225(b)(1)(A)(i) (emphasis added).

8 U.S.C. §

Thus, because the statute

mandates “particular conduct, and the employee obey[ed] the
direction, the Government will be protected because the action
will be deemed in furtherance of the policies which led to the
promulgation of the regulation.”

Gaubert, 499 U.S. at 324.

Similarly, the CBP Officers’ decision to admit E.R. into the
country once they determined she was a citizen traveling on a
valid passport was required under the law and was not
discretionary, which neither party has disputed.

See Caban, 671

F.2d at 1234 (noting the “basically mechanical duty to ascertain
whether an applicant meets the minimal standards for entry into
this country” is not protected by the discretionary function
exception).
By contrast, under Gaubert and Caban, the decision to
keep E.R. with Mr. Dubon while performing a secondary inspection
of Mr. Dubon, the alleged failure to contact E.R.’s parents for
fourteen hours and to provide adequate food and care for E.R.
during the approximately twenty hours she spent in the secondary
area, the alleged refusal to send E.R. on the next flight to JFK
14

to reunite with her parents, and the CBP Officers’ alleged
decision to provide Mr. Ruiz one hour to decide whether to send
E.R. back to Guatemala or to an “adoption center,” do not fall
within the discretionary function exception.

Absent from this

record are any discernible social, economic, or political policy
considerations in the regulatory or statutory regime that would
explain the CBP Officers’ decisions after they moved E.R. and
Mr. Dubon to the secondary area.
Plaintiff argues that CBP’s treatment of E.R. violated
the Flores v. Reno Settlement Agreement (the “Flores Agreement”)
regarding the detention of minors, as well as its own internal
policies, including the Office of Border Protection’s “Hold Room
and Short Term Custody” policy and the Office of Field
Operations’ “Secure Detention, Transport and Escort Procedures
at Ports of Entry.”

(Id.; Pl.’s Opp. at 8-9.)

Under Gaubert,

violations of mandatory law or regulation by government
officials fall outside the discretionary function exception.
499 U.S. at 324.
The Flores Agreement is a class action settlement
agreement from Flores v. Meese, No. 85-cv-4544 (C.D. Cal. Sept.
16, 1996), and it is binding on the Department of Homeland
Security, which includes CBP.

See Bunikyte, ex rel. Bunikiene

v. Chertoff, No. A-07-CA-164-SS, 2007 WL 1074070, at *2 (W.D.
Tex. Apr. 9, 2007) (summarizing history and provisions of Flores
15

Agremeent); Flores v. Meese Stipulated Settlement Agreement
dated 1/17/97 (“Flores Agreement”), Case No. 85-CV-4544-RJK,
available at https://www.aclu.org/sites/ default/files/ assets/
flores_settlement_final_plus_extension_of_settlement011797.pdf.
Although the Flores Agreement “was intended as a stopgap measure
until the United States could promulgate reasonable, binding
standards for the detention of minor[s],” in remains the “only
binding legal standard directly applicable to the detention of
minor aliens by the United States government.”
WL 1074070, at *2.

Bunikyte, 2007

The Flores Agreement sets forth policy and

conditions of confinement relating to the detention, treatment,
and release of unaccompanied minors in CBP custody.
generally Flores Agreement.

See

Although the Agreement arose out of

a case challenging the detention standards of alien minors in
government custody, by its terms it applies to “any person under
the age of eighteen (18) years who is detained in the legal
custody of the INS” or successor organizations.

Id. ¶ 4.

Relevant here, the Flores Agreement requires minors to be held
in facilities that provide access to “drinking water and food as
appropriate,” as well as “adequate temperature control and
ventilation.”

Flores Agreement ¶ 12A.

The Agreement also

expresses an explicit policy favoring the release of minors to
their parent or legal guardian.

Flores Agreement ¶ 14.

16

To comply with the Flores Agreement, the CBP has
established internal policies.

The CBP’s “Hold Room and Short

Term Custody” policy (“Short Term Custody Policy”), issued in
2008, establishes the “national policy for the short-term
custody of persons arrested or detained by Border Patrol Agents
and detained in hold rooms . . . at facilities that are under
the control of U.S. Customs and Border Protection.”

See CBP

“Hold Rooms and Short Term Custody Policy” (2008) ¶ 1, available
at http://foiarr.cbp.gov/ streamingWord.asp?i=378 (last accessed
Sept. 15, 2014).

According to the policy, meals must be offered

to juvenile detainees every six hours, and two of three meals
must be hot.

Short Term Custody Policy ¶ 6.8.

Juvenile

detainees must also be offered regular access to snacks, milk,
and juice.

Id.

Similarly, the CBP’s “Secure Detention,

Transport, and Escort Procedures at Ports of Entry” policy
includes requirements for juveniles to have access to meals,
snacks, and drinks at any time.

See Department of Homeland

Security, Office of Inspector General, CBP’s Handling of
Unaccompanied Alien Children Report, Sept. 9, 2010, at 5,
available at http://www.oig.dhs.gov/assets/ Mgmt/OIG_10117_Sep10.pdf (last accessed Sept. 15, 2014).
Here, plaintiff alleges that CBP Officers refused to
contact E.R.’s parents for fourteen hours, that E.R. was fed
only a cookie and a soda during the twenty hour period, and that
17

she was not provided with a blanket or pillow in the cold
holding area.

(Compl. at 10.)

Thus, as alleged by plaintiff,

the CBP Officers at Dulles airport failed to follow the explicit
policies and procedures of the Flores Agreement and the CBP’s
internal policies.

It is immaterial whether the policies allow

room for discretion to act, because the result under Gaubert is
the same.

If the policies allow no room for discretion and are

mandatory, and the employee violates the mandatory regulation,
“there will be no shelter from liability because there is no
room for choice and the action will be contrary to policy.”
Gaubert, 499 U.S. at 324.
If there is no established governmental policy, or if
policies allow a government agent to exercise discretion, then
under the second prong of the Gaubert test, the court must
determine whether the conduct “can be said to be grounded in the
policy of the regulatory regime,” focusing “not on the agent’s
subjective intent . . . but on the nature of the actions taken
and on whether they are susceptible to policy analysis.”

Id. at

325.
Here, the Government has not disputed that the
standard of care expressed in the Flores Agreement and the CBP’s
internal policies apply to the CBP Officers’ treatment of E.R.
in providing proper food, drink, and care.

(See generally Gov’t

Br.; ECF No. 25, Gov’t Reply filed 10/30/13 (“Gov’t Reply”).)
18

Consequently, the court finds that the CBP Officers failed to
follow a clear directive to reunite E.R. with her parents
without unnecessary delay and failed to provide a meal to E.R.
every six hours, and that the discretionary function exception
cannot apply to plaintiff’s negligence claim based on this
record.
Moreover, even if the binding guidance set by the
Flores Agreement and the CBP’s internal policies did not apply
to the circumstances here, or permitted the CBP Officers to
exercise discretion, the court would still find that under the
second prong of the discretionary function test, the CBP
Officers’ treatment of E.R. during the approximate twenty-hour
period, cannot be said to be susceptible to policy analysis.
The court cannot discern how deciding to wait fourteen hours
before contacting E.R.’s parents and to only provide the child
with a cookie and a soda over twenty hours could constitute a
considered judgment grounded in social, economic, or political
policies.

See Gaubert, 499 U.S. at 323.

Indeed, the Government

has not offered any reason as to why the CBP Officers’ actions
in this regard were justified by or susceptible to policy
analysis.

Rather, based on plaintiff’s allegations, the CBP

Officers’ actions appear more plausibly to be the result of
negligence or laziness, and these acts do not warrant the
application of the discretionary function exception.
19

Coulthurst, 214 F.3d at 112 (holding that prison officials’
“absent-minded or lazy” decisions in failing to inspect prison
exercise equipment, as alleged by the complaint, “are examples
of negligence . . . that do not involve considerations of public
policy” (internal citation and quotation marks omitted));
Gaubert, 499 U.S. at 325 n.7 (explaining that a government
official’s negligent driving of a car while on official business
clearly falls outside the discretionary function exception as it
is not grounded in public policy considerations).
In addition, plaintiff also seeks to hold the
Government liable for the CBP Officers’ alleged “deportation” of
E.R.

As alleged by plaintiff, CBP Officers told E.R.’s father

that he had less than an hour to decide whether to allow them to
send E.R. to Guatemala with her grandfather, or they would send
E.R. to an “adoption center.”

(Compl. at 9.)

According to the

allegations in the complaint, the CBP Officer told Mr. Ruiz that
he could not send E.R. on a flight to New York because “he was
not allowed to return E.R. to ‘illegals.’”

(Compl. at 8-9

(emphasis added).)
The Government fails to identify any policy, guideline
or regulation relating to the situation of an admitted minor
U.S. citizen being separated from her parents that would justify
the application of the discretionary function exception, and
offers no authority as to why CBP Officers could properly
20

exercise discretion by simply refusing to reunite a verified
U.S. minor citizen with her biological and legal parents.
Indeed, despite the Government’s arguments to the contrary, it
appears that the CBP Officers did not question the identity of
Mr. Ruiz as E.R.’s father, as they first promised to reunite
E.R. by sending her on a flight from Dulles to JFK, then reneged
and obtained his permission to send E.R. back to Guatemala.
(Compl. at 9.)
Thus, based on the record before the court and the
allegations in the complaint being accepted as true for the
purposes of this motion, and absent any explanation as to how
discretion was being exercised by the government or pursuant to
what governmental regulatory policy, the court holds that the
discretionary function exception does not apply to plaintiff’s
claims regarding the treatment of E.R. during the time she spent
in the secondary area at Dulles.

Accordingly, the court finds

there is subject matter jurisdiction to proceed, and denies the
Government’s motion to dismiss under Rule 12(b)(1).
II.

Motion to Transfer Venue
The Government requests, in the alternative, to

transfer venue to the United States District Court for the
Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). 6

6

The Government also argues that venue is not proper in the Eastern District
of New York. (Gov’t Br. at 18-19.) The court, however, disagrees, as E.R. is

21

(Gov’t Br. at 20-24.)
venue.

Plaintiff opposes the motion to transfer

(Pl.’s Opp. at 23-30.)
Under 28 U.S.C. § 1404(a), “[f]or the convenience of

parties and witnesses, and in the interest of justice, a
district court may transfer any civil action to any other
district or division where it might have been brought.”
U.S.C. § 1404(a).

28

Section 1404(a) “is intended to prevent waste

of time, energy and money and to protect litigants, witnesses
and the public against unnecessary inconvenience and expense.”
Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246,
250 (E.D.N.Y. 2010) (internal quotation marks, brackets, and
citation omitted).

A district court has “broad discretion in

making determinations of convenience under Section 1404(a) and
notions of convenience and fairness are considered on a case-bycase basis.”

Romano v. Banc of Am. Ins. Servs., 528 F. Supp. 2d

127, 129 (E.D.N.Y. 2007) (quoting D.H. Blair & Co, Inc. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006)) (internal quotation
marks omitted).

The party seeking transfer “carries the burden

of making out a strong case for transfer” by clear and
convincing evidence.

N.Y. Marine & Gen. Ins. Co. v. Lafarge N.

Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010) (quoting Filmline

the real party in interest whose residency, at the time the action is
commenced, is relevant for purposes of venue. 28 U.S.C. § 1402(b) (“Any
civil action on a tort claim against the United States . . . may be
prosecuted only in the judicial district where the plaintiff resides or
wherein the act or omission complained of occurred.”).

22

(Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d
513, 521 (2d Cir. 1989)) (internal quotation marks omitted).
In determining whether to transfer venue, a district
court may only transfer if “(1) the plaintiff could have brought
the case initially in the proposed transferee forum; and (2) the
transfer would promote the convenience of the parties and
witnesses and would be in the interests of justice.”

Coker v.

Bank of Am., 984 F. Supp. 757, 764 (S.D.N.Y. 1997) (internal
quotation marks and citation omitted).

The factors to be

considered in determining whether to grant a motion to transfer
venue include: “(1) the plaintiff's choice of forum, (2) the
convenience of witnesses, (3) the location of relevant documents
and relative ease of access to sources of proof, (4) the
convenience of parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of
unwilling witnesses, and (7) the relative means of the parties.”
Lafarge N. Am., 599 F.3d at 112; Rindfleisch, 752 F. Supp. 2d at
250-51.

Other factors that may be considered include the

desirability of having the case tried by a forum familiar with
the substantive law to be applied, and the interests of justice.
Modern Computer Corp. v. Ma, 862 F. Supp. 938, 948 (E.D.N.Y.
1994).

No single factor is dispositive and there is no set

formula for how to apply them; instead, they should be applied

23

and weighed in the context of each particular case.
Rindfleisch, 752 F. Supp. 2d at 250-51.
First, regarding whether plaintiff could have
initially brought this FTCA action in the Eastern District of
Virginia, the court answers in the affirmative.

Under the

relevant provisions of the FTCA governing venue, the Government
can be sued “in the judicial district where the plaintiff
resides or wherein the act or omission complained of occurred.”
28 U.S.C. § 1402(b).

Although E.R.’s residence was in the

Eastern District of New York at the time the complaint was
filed, the alleged acts occurred at Dulles airport in the
Eastern District of New York.
As to whether transferring this action to the Eastern
District of Virginia would promote the convenience of parties
and witnesses and serve the interests of justice, the court
turns to the discretionary factors.
A. Plaintiff’s Choice of Forum
Plaintiff chose to bring this action in the Eastern
District of New York rather than in the Eastern District of
Virginia.

Although a plaintiff’s choice of forum is generally

accorded some weight, it “is not entitled to the weight
generally accorded such a decision where there is lacking any
material connection or significant contact between the forum and

24

the events allegedly underlying the cause of action.”

Cain v.

N.Y.S. Bd. of Elections, 630 F. Supp. 221, 227 (E.D.N.Y. 1986);
accord. Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 990
(E.D.N.Y. 1991).

Moreover, the weight given to the plaintiff’s

choice is less “in the transfer context than in a forum non
conveniens motion, since a transfer motion does not seek
dismissal of the complaint.”

Jones v. United States, No. 02 CV

1017, 2002 WL 2003191, at *2 (E.D.N.Y. Aug. 26, 2002) (granting
motion to transfer venue to Southern District of Georgia in an
FTCA case where plaintiff, a New York resident, alleged that he
had received inadequate medical care during his incarceration in
a Georgia facility).
Therefore, although the court gives some weight to
plaintiff’s choice of forum, and finds that it weighs against
transfer, the court does not give plaintiff’s choice great
deference.
B.

Convenience of Parties and Witnesses and Availability
of Process to Compel Attendance of Unwilling Witnesses
The convenience of party and non-party witnesses “is

probably considered the single most important factor in the
analysis of whether a transfer should be granted.”

Coker, 984

F. Supp. at 765; Neil Bros. Ltd. v. World Wide Lines, Inc., 425
F. Supp. 2d 325, 329 (E.D.N.Y. 2006).

“The logical relevant

starting point in determining the convenience of the parties is

25

their residence.”

Neil Bros. Ltd., 425 F. Supp. 2d at 328.

Because the “core” inquiry under § 1404(a) is where the “center
of gravity of the litigation” is located, courts “routinely
transfer cases when the principal events occurred, and the
principal witnesses are located, in another district.”

Viacom

Int’l, Inc. v. Melvin Simon Prods., Inc., 774 F. Supp. 858,
868 (S.D.N.Y. 1991).

Generally, to support a motion to transfer

based on the convenience of the parties and witnesses, the
movant submits affidavits of “the potential principal witnesses
expected to be called and a general statement of the substance
of their testimony.”

Laumann Mfg. Corp. v. Castings USA, Inc.,

913 F. Supp. 712, 720 (E.D.N.Y. 1996) (internal quotation marks
and citation omitted); Factors Etc., Inc. v. Pro Arts, Inc., 579
F.2d 215, 218 (2d Cir. 1978), abrogated on other grounds by
Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990).
Here, defendant has identified eight witnesses, CBP
Officers, who have first-hand knowledge about the events that
occurred at Dulles airport and which gave rise to plaintiff’s
FTCA claims. 7
Witnesses.)

(See Kolbe Decl., Ex. F, Affidavits of Potential
None of the Government’s eight witnesses resides in

7

Plaintiff argues that defendant’s submitted affidavits do not
adequately apprise the court of the witnesses’ likely testimony or its
probative value. (Pl.’s Opp. at 25-26.) The court, however, disagrees, as
only a “general statement of the substance of their testimony” is required.
See Laumann Mfg. Corp., 913 F. Supp. at 720 (emphasis added). The court
finds that the affidavits adequately explain each witness’s role in the
alleged events and the general subjects about which each witness would
testify.

26

the Eastern District of New York; indeed, all but one are
“stationed” in the Eastern District of Virginia and do not
routinely travel to the Eastern District of New York for work.
(Id.)

At the time the complaint was filed, only E.R., her

parents, and Dr. Aranda resided in the Eastern District of New
York, and only E.R. and Mr. Ruiz witnessed or were a part of any
of the events at Dulles airport.

(See generally Compl.)

Moreover, E.R. has since moved to Guatemala and presently has no
plans to return to the Eastern District of New York.
31, Letter from Plaintiff’s Counsel dated 9/2/14.)

(ECF No.
Accordingly,

because only two potential witnesses, Mr. Ruiz and Dr. Aranda,
currently reside in the Eastern District of New York, eight
potential witnesses reside in or near the Eastern District of
Virginia, and E.R. does not reside in the United States, the
convenience of the parties and witnesses weighs heavily in favor
of transfer.
As to the availability of process to compel the
attendance of unwilling witnesses, under Federal Rule of Civil
Procedure 45(c)(3)(B)(ii), a district court can only subpoena
non-party witnesses that are within its district or within 100
miles of the district.

A district court must quash or modify a

subpoena that would require a person to travel beyond the
geographical limits of Rule 45(c).
45(d)(3)(A)(ii).

Fed. R. Civ. P.

This factor is “generally relevant only with
27

respect to third-party witnesses, because employee witnesses are
subject to compulsory process in either forum by virtue of their
employment relationship with a party.”

Pecorino v. Vutec Corp.,

934 F. Supp. 2d 422, 443 (internal quotation marks and citation
omitted); Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F.
Supp. 2d 370, 375 (S.D.N.Y. 2006).
Here, the only identified non-party witness is Dr.
Aranda, whom plaintiff appears to rely upon for his expertise in
assessing plaintiff’s mental and emotional condition.

Neither

party has provided any affidavits stating that any prospective
non-party witnesses would not appear if this case remained in
the Eastern District of New York or were transferred to the
Eastern District of Virginia.

Accordingly, this factor is

neutral.
D.

Locus of Operative Facts and Relative Ease of Access
to Sources of Proof
The locus of operative facts is a “primary factor” in

a motion to transfer venue.

Fuji Photo Film, 415 F. Supp. 2d at

375 (citing ZPC 2000, Inc. v. SCA Grp., Inc., 86 F. Supp. 2d
274, 279 (S.D.N.Y. 2000)).

When determining the locus of

operative facts, a district court “must look to the site of
events from which the claim arises.”

Pecorino, 934 F. Supp. 2d

at 440 (internal quotation marks and citation omitted).

This

factor “includes consideration of the relative ease of access to

28

the sources of proof.”

Pall Corp. v. PTI Techs., Inc., 992 F.

Supp. 196, 200 (E.D.N.Y. 1998) (citations omitted).

If the

“‘principal events occurred and the principal witnesses are
located in another district,’ the locus of facts provides a
strong reason to transfer.”

Jones, 2002 WL 2003191, at *3

(quoting Berman v. Informix, 30 F. Supp. 2d 653, 658 (S.D.N.Y.
1998)).
Here, all the events giving rise to plaintiff’s FTCA
claim occurred at Dulles airport in the Eastern District of
Virginia, and as discussed supra, eight potential witnesses are
located in or near the Eastern District of Virginia.

Thus,

“virtually all of the witnesses, documents, and events critical
to the litigation” are in the Eastern District of Virginia.
Larca v. United States, No. 11 Civ. 3952, 2012 WL 6720910, at *3
(S.D.N.Y. Dec. 16, 2012) (transferring plaintiff’s FTCA suit
from the Southern District of New York to the Northern District
of Ohio, where alleged events occurred).

Plaintiff argues that

E.R.’s contact with Virginia was “serendipitous” and that she
had “no reasonable expectation that she would be forced to
litigate in Virginia to vindicate her rights.”
27-28.)

(Pl.’s Opp. at

This argument, however, is unavailing, as many courts

have transferred cases to different venues despite only a
“serendipitous” encounter between the plaintiff and the
transferee forum.

See, e.g., Larca, 2012 WL 6720910, at *3
29

(transferring venue from New York to Ohio where plaintiff, a New
York resident, received medical treatment while incarcerated in
Ohio, and “little or nothing connects this case to New York
other than Plaintiff’s domicile”); Jones, 2002 WL 2003191, at *1
(transferring FTCA case from New York to Georgia where the basis
of plaintiff’s claims alleging medical mistreatment occurred
after he was transferred to Georgia prison).

Moreover,

plaintiff has not cited any binding legal authority to support
this contention.

Thus, even recognizing that the physical

evidence in this case would likely consist of documents that are
easily transferred via electronic means, this primary factor
still weighs heavily in favor of transfer.
E. Relative Means of Parties
A party opposing transfer because of inadequate means
“‘must offer documentation to show that transfer . . . would be
unduly burdensome to his finances.’”

Jones, 2002 WL 2003191, at

*3 (quoting Advance Relocation & Storage, Inc. v. Wheaton Van
Lines, Inc., No. 99-2491, 2000 WL 33155640, at *8 (E.D.N.Y.
Sept. 15, 2000)).

Here, plaintiff has filed a declaration

stating that “[t]his action was commenced in the Eastern
District of New York because it is the district in which E.R.
lives, and where it will be least costly and least difficult for
Mr. Ruiz and E.R. to maintain this action.”

(ECF No. 28,

Shapiro Declaration dated 10/16/13 (“Shapiro Decl.”), at 2.)
30

The declaration also states that “[t]he costs of travel to the
Eastern District of Virginia to participate in this lawsuit
would be financially burdensome for E.R.’s family.”

(Id.)

As

stated before, E.R. no longer lives in the United States and has
no plans to return.

However, the court also presumes that Mr.

Ruiz’s means are modest compared to the United States.
Jones, 2002 WL 2003191, at *3.

See

Accordingly, this factor weighs

against transfer.
F.

Desirability of Having Case Tried by Forum Familiar
with Substantive Law to be Applied
While this factor is not a significant one,

particularly where an action “does not involve complex
questions,” Schwartz v. Marriott Hotel Servs., Inc., 186 F.
Supp. 2d 245, 251 (E.D.N.Y. 2002), it is nevertheless
“judicially desirable to have cases decided by a court familiar
with the substantive law to be applied.”

Hernandez, 761 F.

Supp. at 991; see also Kreisner v. Hilton Hotel Corp., 468 F.
Supp. 176, 179 (E.D.N.Y. 1979) (“While there may not be novel or
complex issues of State law to be resolved, construction of
State law is best left to courts most familiar with it.”).
Under the FTCA, a district court applies “the law of the place
where the act or omission occurred,” 28 U.S.C. § 1346(b), which
the parties agree is Virginia state law.
Pl.’s Opp. at 29.)

31

(See Gov’t Br. at 24;

Because a federal district court sitting in the
Eastern District of Virginia would “certainly be more familiar
with [Virginia] law than a district court sitting in New York,”
Jones, 2002 WL 2003191, at *4, this factor weighs in favor of
transfer.
G. Interests of Justice
Balancing all of the factors set forth above, the
court concludes that the Government has clearly shown that the
interests of justice would be best served by transferring this
case to the Eastern District of Virginia, where all the actions
giving rise to plaintiff’s FTCA claims occurred, the vast
majority of witnesses are located, and which is more familiar
with the substantive state law to be applied.

Little connects

this case to the Eastern District of New York other than that it
is E.R.’s father’s and Dr. Aranda’s domicile.
Consequently, the Government’s motion to transfer
venue to the Eastern District of Virginia is granted.

CONCLUSION
For the foregoing reasons, the court respectfully
denies the Government’s motion to dismiss the complaint for lack
of subject matter jurisdiction under Rule 12(b)(1), and grants
the Government’s motion to transfer venue to the Eastern
District of Virginia under 28 U.S.C. § 1404(a).

32

The

Government’s motion for judgment on the pleadings shall be
transferred to the Eastern District of Virginia.

The Clerk of

Court is respectfully requested to transfer the case to the
United States District Court for the Eastern District of
Virginia.

SO ORDERED.
Dated:

September 18, 2014
Brooklyn, New York
__________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

33