Rodriguez-Vallejo v. MVM, Inc.

Filing 22

OPINION AND ORDER - GRANTING 10 Motion to Dismiss filed by Defendant USA. Signed by Judge Jaime Pieras, Jr. on 2/12/2009. (mld)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

ILEANA RODRÍGUEZ-VALLEJO, et al., Plaintiffs v. MVM, INC., et al., Defendants CIVIL NO. 08-1699 (JP)

OPINION AND ORDER Before the Court is a motion to dismiss (No. 10) filed by Defendant United States of America ("USA"). This motion is unopposed by Plaintiffs. Plaintiff Ileana Rodríguez-Vallejo ("Rodríguez")

filed the instant action on behalf of herself and her minor daughter, J.N.R., pursuant to Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann., tit. 31, § 5141; Puerto Rico Act No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, § 146 et seq.; Puerto Rico Act 80 of May 30, 1976, P.R. Laws Ann. tit. 29, § 185, et. seq.; and

unspecified provisions of the Constitution of the Commonwealth of Puerto Rico for the alleged unjust dismissal of Plaintiff Rodríguez from her employment. In support of its motion to dismiss, Defendant

USA argues, inter alia, that the Court lacks in personam and subject matter jurisdiction over Plaintiffs' complaint. For the reasons

stated herein, Defendant USA's motion is hereby GRANTED.

CIVIL NO. 08-1699 (JP) I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND A. Plaintiffs' Allegations

Plaintiff Rodríguez, age forty-seven, worked as an unarmed guard for Defendant MVM, Inc. ("MVM"), from 1996 until her termination on April 3, 2007. MVM is a corporation that provides security services

by armed and unarmed guards to places of business and commercial institutions in Puerto Rico. On April 2, 2007, Plaintiff Rodríguez was working as a security guard for MVM and was assigned to the offices of the Federal Social Security Administration located in Forest Hills, Bayamón, Puerto Rico. While Plaintiff was at her post in the reception area of the

office, an unidentified woman was allegedly masturbating in the private cubicle office area belonging to Mimi King ("King"), an employee of the Federal Social Security Administration office. Plaintiff allegedly could not see or hear what was happening in King's cubicle from her post in the reception area. Although Plaintiffs' complaint is difficult to comprehend as drafted, the Court understands that the unidentified woman had been in King's office for approximately twenty to thirty minutes when King reported to Rodríguez that the woman was masturbating. King

allegedly told Rodríguez that the unidentified woman was "crazy and that she had touched herself." Compl. ¶ 15. Rodríguez allegedly

offered to attend to the situation and to remove the woman, but King responded that the woman should be left alone, and that King would

CIVIL NO. 08-1699 (JP)

-3King allegedly told

call a relative of the woman to pick her up.

Rodríguez that she would inform her once she was able to get in touch with a relative of the woman. Approximately twenty to thirty minutes later, King reported to Rodríguez that she had contacted a relative of the unidentified woman. Although King stated that she could not

restrain the unidentified woman, King nonetheless kept the woman in her office until 4:00 p.m. Upon the conclusion of King's work day, Elizabeth Cotto

("Cotto"), Director of the Social Security Administration office, allegedly took charge of the unidentified woman. At approximately

4:00 p.m., Cotto escorted the woman from King's cubicle to the public work area. Cotto ordered Plaintiff to escort the woman outside the

premises of the Social Security Administration office. At 4:40 p.m., Plaintiff complied with Cotto's order and escorted the woman from the premises without incident. The following day, April 3, 2007, Plaintiff was suspended from her employment. The suspension was made permanent through an

April 9, 2007 termination letter signed by Dina L. Evans, Human Resources Manager of MVM. Plaintiff alleges that her termination Plaintiff

stems from the incidents that occurred on April 2, 2007.

Rodríguez has allegedly suffered physical and emotion distress as a result of her termination.

CIVIL NO. 08-1699 (JP) B. Procedural Background

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Plaintiffs filed the instant lawsuit in the Court of First Instance of the Commonwealth of Puerto Rico, San Juan Part, Civil No. KPE2008-01186 (801). On June 27, 2008, Defendants Cotto and King filed a notice of removal (No. 1) based on their status as federal employees. On July 1, 2008, Defendants Cotto and King filed a motion to substitute Defendant USA (No. 7) on their behalf pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, 1346(b), as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, § 5 (the "Westfall Act"), Pub. L. No. 100-694, 102. Stat. 4563 (1988), since they were acting within the scope of their federal employment with the United States Government when the alleged tort occurred. The Court granted said motion (No. 12), thereby As such, and USA.

substituting Defendant USA for Defendants Cotto and King. the case currently proceeds against Defendants MVM

Defendant MVM did not join Defendant USA's motion to dismiss. II. LEGAL STANDARD FOR A MOTION TO DISMISS According to the Supreme Court, "once a claim has been stated adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint." v. Twombly, 127 S. Ct. 1955, 1969 (2007).

Bell Atl. Corp.

As such, in order to

survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face, not merely conceivable. Id. at 1974.

The First Circuit has interpreted Twombly as sounding the death knell

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for the oft-quoted language of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Rodríguez-Ortiz v. Margo Caribe, Inc.,

490 F.3d 92, 94-95 (1st Cir. 2007), quoting Twombly, 127 S. Ct. at 1969. Still, a court must "treat all allegations in the Complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff." Rumford Pharmacy, Inc. v. City of East Providence, Under Federal Rule of Civil

970 F.2d 996, 997 (1st Cir. 1992).

Procedure 8(f), "[a]ll pleadings shall be so construed as to do substantial justice." III. ANALYSIS Defendant USA moves to dismiss the complaint on the grounds that: (1) the Court lacks in personam and subject matter jurisdiction over Plaintiffs' claims, (2) Plaintiffs have failed to exhaust administrative remedies, and (3) Plaintiffs have failed to state a claim upon which relief can be granted. Defendant's arguments. A. In Personam Jurisdiction The Court will now consider

Defendant USA argues that the complaint against it should be dismissed because it has not been served process pursuant to

Rule 4(i) of the Federal Rules of Civil Procedure.

Defendant argues

that because Plaintiffs are suing the USA under the FTCA, Plaintiff

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must serve a summons on the United States Attorney for the District of Puerto Rico and mail the summons to the Attorney General of the United States in Washington, D.C. Fed. R. Civ. P. 4(i). Although

the plain language of Rule 4(i) states that if a plaintiff is suing a government employee in either his personal or official capacity, plaintiff must also serve the USA, this Court has held in certain circumstances that when a plaintiff sues a federal officer in his personal capacity, the plaintiff need only comply with the

requirements of Rule 4(e). 55 (D.P.R. 1997).

See Dodson v. Reno, 958 F. Supp. 49,

Here, Plaintiffs brought their original state court lawsuit against King and Cotto before Defendant USA removed the case to this Court and substituted itself for King and Cotto pursuant to the FTCA. Defendant USA does not question service in the state court action. Given Defendant's actions of removing the case to federal court and substituting itself for King and Cotto, it is apparent that Defendant USA is on at least constructive notice of the lawsuit. Federal Rule

of Civil Procedure 12(b)(5) provides courts with an alternative to dismissing a complaint when a claim of insufficient service of process is raised. That is, a court has broad discretion to convert

the motion to dismiss into a motion to quash service of process. Ramírez de Arellano v. Colloides Naturels Int'l, 236 F.R.D. 83, 85 (D.P.R. 2006). The Court concludes that Plaintiffs' failure to serve the United States Attorney and the Attorney General is not fatal to

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its case at this juncture, given that the Court could merely quash service and provide Plaintiffs with a second chance to properly effect service. Before reaching this conclusion, however, the Court

will first consider Defendant USA's other arguments for dismissal. B. Subject Matter Jurisdiction

Defendant USA argues that Plaintiffs have failed to assert a proper basis for subject matter jurisdiction because Defendant USA is immune from suit under the Eleventh Amendment. The United States, as a sovereign, is immune from suit unless it waives its immunity by consenting to be sued. States, 402 F.3d 50, 55 (1st Cir. 2005). Bolduc v. United

The United States Court of

Appeals for the First Circuit has held that the FTCA waives the sovereign immunity of the United States with respect to tort claims. Santoni v. Potter, 369 F.3d 594, 602 (1st Cir. 2004) ("[FTCA] provides a limited congressional waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment [similar to private parties in similar circumstances]"); Román v. Townsend, 224 F.3d 24, 27

(1st Cir. 2000). Pursuant to the FTCA, Defendant USA is liable for the negligence of its employees. Government employees are defined as "officers or 28 U.S.C. § 2671. King and Cotto

employees of any federal agency."

fall within this category, as they are employees of the federal

CIVIL NO. 08-1699 (JP)

-8Defendant USA's arguments for

Social Security Administration.

dismissal on Eleventh Amendment grounds therefore fail. C. Administrative Remedies USA argues that Plaintiffs' complaint must be

Defendant

dismissed because Plaintiffs failed to exhaust their administrative remedies before filing suit in federal court. An action against a federal employee is "deemed" to be a FTCA action against the United States once it substitutes itself for the employee. 28 U.S.C. § 2679(d). In order to bring a tort claim

against the United States under the FTCA, a plaintiff must first file an administrative claim with the appropriate federal agency within two years of the accrual of the claim and then file a tort claim against the United States within six months after a denial of (or failure to act upon) that claim by the administrative agency. Román, 224 F.3d at 27 (citing 28 U.S.C. §§ 2401(b), 2675). Additionally,

the FTCA requires that the named defendant in an FTCA action be the United States and only the United States. 2674, 2679(a). The tort alleged by Plaintiffs occurred on April 3, 2007. Accordingly, Plaintiff has until April 3, 2009, to file a claim with the appropriate federal agency. 28 U.S.C. §§ 2401(b), 2675. There 28 U.S.C. §§ 1346(b),

is no evidence on the record before the Court that Plaintiffs have filed an administrative complaint with the appropriate federal agency, nor that any claim as been denied or not acted upon.

CIVIL NO. 08-1699 (JP) Moreover, Plaintiffs have

-9filed the instant complaint against

Defendant USA and Defendant MVM.

In order to bring a lawsuit

pursuant to the FTCA, Plaintiffs would have to limit their complaint to include only Defendant USA. 28 U.S.C. §§ 1346(b), 2674, 2679(a).

The Court finds that Plaintiffs' complaint is premature since Plaintiffs have not yet complied with the administrative exhaustion procedure required by the FTCA. matter jurisdiction over Therefore, the Court lacks subject complaint at this time.

Plaintiffs'

Accordingly, the Court GRANTS Defendant USA's motion to dismiss, and will enter judgment dismissing the claims against Defendant USA without prejudice. As such, the Court need not consider Defendant's

argument that Plaintiffs have failed to state a claim upon which relief can be granted. D. Plaintiffs' Claims Against Defendant MVM

Having dismissed Plaintiffs' claims against Defendant USA, the Court must consider Plaintiffs' state law claims against Defendant MVM. Plaintiffs have not raised a federal question in their

complaint, nor have they plead the existence of the bases for diversity jurisdiction. Therefore, having dismissed the federal

Defendant in this case, the Court declines to exercise jurisdiction over Plaintiffs' Puerto Rico law claims against Defendant MVM, and will enter judgment dismissing those claims without prejudice. See

Newman v. Burgin, 930 F.2d 955, 963 (1st Cir. 1991) ("[t]he power of a federal court to hear and determine state law claims in

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non-diversity cases depends upon the presence of at least one substantial federal claim in the lawsuit"). IV. CONCLUSION In conclusion, the Court GRANTS Defendant USA's motion to dismiss. The Court will enter judgment dismissing the complaint

without prejudice. IT IS SO ORDERED. In San Juan, Puerto Rico, this 12th day of February, 2009.

s/Jaime Pieras, Jr. JAIME PIERAS, JR. U.S. SENIOR DISTRICT JUDGE