Diaz-Calderon v. United States

Filing 17

OPINION AND ORDER: Denying without prejudice 10 "Motion to Dismiss for Lack of Subject Matter Jurisdiction." In the interest of justice, the court will permit discovery limited to the scope-of-employment issue, which s hall conclude by August 23, 2016. Plaintiff will then have until September 23, 2016, to file if she deems it appropriate, a motion with specific evidence and authorities rebutting the scope-of-employment certification in this case. The government sh all respond by October 26, 2016. Replies and sur-replies will be allowed. They should be submitted without further court authorization not later than five (5) days after filing of the motion they are responding to (i.e. opposition or reply).Signed by Judge Pedro A. Delgado-Hernandez on 06/22/2016.(LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RUTH DIAZ-CALDERÓN,
Plaintiff,
v.
CIVIL NO. 15-2170 (PAD)
PABLO PANTOJA KUNASEK, et al.,
Defendants.

OPINION AND ORDER
Delgado-Hernández, District Judge.
Before the court is the United States of America’s “Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Memorandum in Support” (Docket No. 10). Plaintiff opposed (Docket No.
16). For the reasons explained below, the motion to dismiss is DENIED WITHOUT PREJUDICE.
I.

BACKGROUND

Plaintiff, Ruth Díaz-Calderón, is a Lieutenant Coronel of the Puerto Rico National Guard.
She initiated this action in the San Juan Part of the Puerto Rico Court of First Instance against
Pablo Pantoja-Kunasek, Waldemar Rivera-Quiñones, and Rubén Fernández-Vera; all members of
the PRNG(Docket No. 8, Exh. 1).1 Plaintiff alleges that defendants devised and orchestrated a
defamation, fraud and extortion scheme with the purpose of forcing her resignation as Press Officer
for the PRNG and causing her serious “moral damages, anguish and mental suffering.” Id.2

1

Although the certified copy of the complaint was filed at Docket No. 8, the date in which the complaint was filed is unclear.
Plaintiff, however, claims that it was filed on May 11, 2015 (Docket No. 16 at ¶ 1.1).
Defendants’ wives and their respective conjugal legal partnerships were also listed in the complaint. See, Docket No. 8, Exh. 1 at
¶¶ 2.3, 2.4, 2.6, 2.7, 2.9 and 2.10. Moreover, as per the parties’ submissions, defendants were employees of the Army and Air
National Guard.
2

Ruth Díaz-Calderón v. Pablo Pantoja-Kunasek, et al.
Civil No. 15-2170 (PAD)
Memorandum and Order
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The United States of America removed the case to this court, essentially claiming that this
is an action against the United States because plaintiff is seeking recovery of damages based on
the tortuous conduct of a federal agency or employee acting within the scope of his employment
(Docket No. 1 at ¶ 3). Following removal, it moved to dismiss the complaint for lack of subjectmatter jurisdiction, claiming that the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., provides
immunity from law suits to the defendants; establishes that the only available remedy and proper
party defendant is the United States; and that plaintiff has not exhausted mandatory administrative
remedies under the FTCA (Docket No. 10). In support, it submitted a certification from the
Attorney General’s designee, the United States Attorney Rosa E. Rodríguez-Vélez, that defendants
were acting within the scope of their employments as federal officials (Docket No. 10, Exh. 1). 3
Plaintiff opposed, arguing that defendants’ actions fall outside the scope of their employment
(Docket No. 16).4
II.

STANDARD OF REVIEW

A. Fed.R.Civ.P. 12(b)(1)
Pursuant to Fed.R.Civ.P. 12(b)(1), a party may seek dismissal of an action for lack of
subject matter jurisdiction. When a district court considers a Rule 12(b)(1) motion, it must credit
the plaintiff’s well-pled factual allegations and draw all reasonable inferences in the plaintiff’s
favor. See, Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (citing Valentin v. Hosp.
Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). If it appears to the court at any time that subject

Interestingly, the scope certification also included Diana Peña, who is listed in the complaint as Fernández-Vera’s wife and not
as a member of the PRNG or as participant in the negligent acts (Docket No. 8 at ¶ 2.9).
3

4

Plaintiff additionally filed a Motion to Remand the case at Docket No. 12, but later moved to withdraw her request and conceded
the case was removed pursuant to the Westfall Act and cannot be remanded to state court (Docket No. 16 at ¶ 2.1). Her request to
withdraw is granted.

Ruth Díaz-Calderón v. Pablo Pantoja-Kunasek, et al.
Civil No. 15-2170 (PAD)
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matter jurisdiction is lacking, it must dismiss the action. Fed.R.Civ.P. 12(h)(3); McCulloch v.
Vélez, 364 F.3d 1, 5 (1st Cir. 2004).
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate it. Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1187 (2d Cir. 1996); Prestige Capital Corp. v. Pipeliners of Puerto Rico, Inc., 849
F.Supp.2d 240, 247 (D.P.R. 2012). The court may consider extrinsic materials in the process of
evaluating a motion to dismiss under Rule 12(b)(1). Dynamic Image Technologies, Inc. v. U.S.,
221 F.3d 34, 37 (1st Cir. 2000).
III.

DISCUSSION

A. Review of the Scope Certification under the Westfall Act
The Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C.
§ 2679, commonly referred to as the Westfall Act, “accords federal employees absolute immunity
from common-law tort claims arising out of acts they undertake in the course of their official
duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); Davric Maine Corp. v. U.S. Postal Service,
238 F.3d 58, 65 (1st Cir. 2001). In such cases, the suit can proceed against the federal government
unless some FTCA exception applies. Davric Maine Corp., 238 F.3d at 65.
Pursuant to the Westfall Act, a certification by the Attorney General that a federal
employee was acting within the scope of his employment when committing the alleged tort from
which the claim arose, “shall conclusively establish scope of office or employment for purposes
of removal.” See, 28 U.S.C. § 2679(d)(2); see also, Davric Maine Corp., 238 F.3d at 65. The
certification does not, however, conclusively establish that the United States should be substituted,

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but is subject to judicial review. Gutiérrez de Martínez v. Lamagno, 515 U.S. 417, 434 (1995);
Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 75 (1st Cir. 2005).
Where a plaintiff asserts that a defendant acted outside the scope of his employment despite
the Attorney General’s certification to the contrary, the burden of proof is on the plaintiff. Rogers
v. Management Technology, Inc., 123 F.3d 34, 37 (1st Cir. 1997); Davric Maine Corp., 238 F.3d
at 66. To overturn the Attorney General’s scope certification, plaintiff must show that, under state
(Puerto Rico) law, defendants were acting outside the scope of their employment at the time of the
incident out of which the claims arose. Aversa v. United States, 99 F.3d 1200, 1208-1209 (1st
Cir.1996); Davric Maine Corp., 238 F.3d at 65.
B. Scope of Employment Under Puerto Rico Law
Article 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5142, provides for the
imposition of vicarious liability on an employer for damages an employee negligently causes while
acting within the scope of employment and for the employer’s benefit. Cf. Sánchez-Soto v. ELA,
128 D.P.R. 497 (1991) (employer vicariously liable when off-duty officer negligently shot another
person after mishandling his gun, because the officer was required to carry the gun at all times as
part of his job with the police; in doing so, he was advancing his employer’s interest); with
Hernández-Vélez v. Televicentro, 168 D.P.R. 803 (2006) (employer not vicariously liable for
employee’s sexual harassment of a contractor’s employee).
Crediting plaintiff’s well-pled factual allegations, there are no assertions that would allow
the court to determine whether defendants’ actions were, in fact, outside the scope of their
employment. For example, the record lacks information regarding (1) defendants’ duties and
responsibilities; (2) the source of those duties and responsibilities (e.g. contracts, handbooks,

Ruth Díaz-Calderón v. Pablo Pantoja-Kunasek, et al.
Civil No. 15-2170 (PAD)
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written instructions or orders); (3) supervisory oversight to which defendants were in fact subjected
in the day-to-day performance of their work; (4) defendants’ work schedule; (5) time and place of
the acts in question; and (6) whether the employer’s property was used to commit the acts.
Properly developed, these elements should configure a matrix defining the extent to which the acts
in question were linked to defendants’ work, in a way falling ˗ or not ˗ within the scope of their
employment. But at this point, the court cannot make any such determination.
IV.

CONCLUSION

In view of the foregoing, and in the interest of justice, the court will permit discovery
limited to the scope-of-employment issue, which shall conclude by August 23, 2016. Plaintiff
will then have until September 23, 2016, to file if she deems it appropriate, a motion with specific
evidence and authorities rebutting the scope-of-employment certification in this case.
The government shall respond by October 26, 2016. Replies and sur-replies will be
allowed. They should be submitted without further court authorization not later than five (5) days
after filing of the motion they are responding to (i.e. opposition or reply). On this basis, the
government’s motion to dismiss at Docket No. 10 is denied without prejudice.
SO ORDERED.
In San Juan, Puerto Rico, this 23d day of June, 2016.
S/Pedro A. Delgado-Hernández
PEDRO A. DELGADO HERNANDEZ
U.S. DISTRICT JUDGE