Savarro Santibanez et al v. Alexander et al, No. 3:2018cv01177 - Document 14 (S.D. Cal. 2018)
Court Description: ORDER Denying 6 Petition for Substitution and Representation by the United States of America; Granting 7 the United States of America's Motion to for Summary Judgment. The Court denies Alexander's Petition for Substitution and Represe ntation by the United States, and grants the United States' motion for summary judgment. The Clerk of Court is instructed to terminate this action as to Defendants the United States, Department of Homeland Security, and U.S. Customs and Border Protection. Further, the Court, in its discretion, declines to retain jurisdiction and remands this action back to state court. Signed by Judge Michael M. Anello on 11/2/2018. (Certified order/docket sheet sent to San Diego Superior Court)(rmc)
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Savarro Santibanez et al v. Alexander et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 SOUTHERN DISTRICT OF CALIFORNIA Case No.: 18cv1177-MMA (AGS) JUAN ANTONIO NAVARRO SANTIBANEZ; and JESUS MACIAS KURI, ORDER DENYING PETITION FOR SUBSTITUTION AND REPRESENTATION BY THE UNITED STATES OF AMERICA; Plaintiffs, v. [Doc. No. 6] MICHAEL L. ALEXANDER; UNITED STATES OF AMERICA; DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION, 18 GRANTING THE UNITED STATES OF AMERICA’S MOTION FOR SUMMARY JUDGMENT [Doc. No. 7] Defendants. 19 20 21 Plaintiffs Juan Antonio Navarro Santibanez and Jesus Macias Kuri (“Plaintiffs”) 22 commenced this action against Defendants Michael L. Alexander (“Alexander”), and 23 Holdings, LLC in the Superior Court of California, County of San Diego. See Doc. No. 24 1-2 at 6.1 Plaintiffs later amended their complaint to add the United States of America, 25 Department of Homeland Security, and U.S. Customs and Border Protection as 26 defendants. See id. at 16. On June 6, 2018, Defendant the United States of America 27 28 1 Citations to this document refer to the pagination assigned by the CM/ECF system. -1- 18cv1177-MMA (AGS) Dockets.Justia.com 1 removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1).2 See Doc. No. 1. 2 On June 25, 2018, Plaintiffs filed a First Amended Complaint (“FAC”) against 3 Alexander, the United States of America, Department of Homeland Security, and U.S. 4 Customs and Border Protection (collectively, “Defendants”) alleging one cause of action 5 under the Federal Tort Claims Act (“FTCA”). See Doc. No. 5. 6 On September 7, 2018, Defendant Alexander filed a Petition for Substitution and 7 Representation by the United States of America, Department of Homeland Security, and 8 U.S. Customs and Border Protection (collectively, “United States”) in his place under the 9 FTCA. See Doc. No. 6. That same day, the United States filed a motion to dismiss for 10 lack of jurisdiction, or in the alternative, for summary judgment. See Doc. No. 7. 11 Alexander filed an opposition to the government’s motion. See Doc. No. 9. On October 12 5, 2018, Defendants filed a joint motion to consolidate the hearing date and briefing 13 schedule regarding the two pending motions, which the Court granted. See Doc. Nos. 10, 14 11. On October 15, 2018, the government filed a consolidated brief opposing 15 Alexander’s Petition for Substitution and Representation by the United States and 16 replying to its motion to dismiss for lack of jurisdiction, or, in the alternative, for 17 summary judgment. See Doc. No. 12. 18 The Court found the matters suitable for determination on the papers and without 19 oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 13. For the reasons set 20 forth below, the Court DENIES Alexander’s Petition for Substitution and Representation 21 by the United States, GRANTS the United States’ motion for summary judgment, and 22 REMANDS this action back to state court. 23 /// 24 /// 25 26 27 28 2 Section 1442(a)(1) permits the United States to remove an action commenced in state court to the district court of the United States for the district embracing the place where it is pending where the plaintiff brings suit against the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity”). -2- 18cv1177-MMA (AGS) 1 2 FACTUAL BACKGROUND Plaintiffs Juan Antonio Navarro Santibanez and Jesus Macias Kuri are individuals 3 residing in San Diego County, California. FAC ¶¶ 4-5. Alexander is an individual 4 residing in the state of New York. See id. ¶ 6; see also Doc. No. 6-3 (hereinafter 5 “Alexander Decl.”) ¶ 3. Alexander is employed by U.S. Customs and Border Protection 6 (“CBP”), and was employed by CBP at the time of the accident. Alexander Decl. ¶ 2. 7 From January 12, 2016, through April 8, 2016, Alexander was on special 8 assignment from his permanent position in New York to the San Ysidro/Otay Mesa Port 9 of Entry in San Diego, California. See id. ¶ 3. While stationed in San Diego, CBP “paid 10 for and arranged use of a rental car” for Alexander. Id. ¶ 4. CBP rented this car “as a 11 pool car.” Doc. No. 9-1 (hereinafter “Supp. Alexander Decl.”) ¶ 4. Thus, if Alexander 12 was not using the rental car, “other agents staying at the same hotel would use the rental 13 car.” Id. CBP also paid for Alexander’s flight, accommodations, and incidentals while 14 he was in California. See id. 15 “On March 9, 2016, while driving to [his] shift in San Diego,” Alexander was 16 involved in a two-vehicle automobile accident in San Diego, California. Id. ¶ 5. At the 17 time of the accident, “Plaintiffs were riding a motorcycle and preparing to cross into 18 Mexico at the Otay Mesa international border crossing.” FAC ¶ 11. Alexander, driving a 19 rented vehicle, “crossed one or more lanes of traffic without first ensuring that he could 20 make a safe and legal lane change.” Id. ¶ 12. Plaintiffs allege that due to Alexander’s 21 negligent operation of the vehicle, Alexander “struck the side of Plaintiffs’ motorcycle, 22 knocking it over while in motion.” Id. ¶ 13. Plaintiffs sustained physical injuries, and 23 were transported by ambulance to Sharp Chula Vista Hospital where they received 24 emergency medical care. Id. ¶ 14. Plaintiffs’ motorcycle also sustained “significant 25 damage[.]” Id. 26 Plaintiffs allege, upon information and belief, that Alexander “was acting within 27 the course and scope of said employment when the incident occurred such that CBP is 28 liable for the injuries and damages sustained by Plaintiff[s] as herein alleged.” Id. ¶ 20. -3- 18cv1177-MMA (AGS) 1 2 PROCEDURAL HISTORY Pursuant to Department of Justice policy, Alexander “sought representation by the 3 Attorney General under the Westfall Act.” Doc. No. 6-2 at 2; see also 28 U.S.C. § 4 2679(b)(1). On June 12, 2018, the Department of Justice issued a letter “which 5 determined [Alexander] was not in the scope of his employment during the time of [the] 6 accident.” Doc. No. 6-1 (hereinafter “Holnagel Decl.”) ¶ 3; see also Doc. No. 7-1 at 3 7 n.2. After the Department of Justice issued its letter, Plaintiffs amended their complaint 8 to add the United States of America, Department of Homeland Security, U.S. Customs 9 and Border Protection as defendants. See Doc. No. 1 at 2. The United States then 10 11 12 removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1). See id. ALEXANDER’S PETITION FOR SUBSTITUTION Alexander seeks review of the Attorney General’s decision refusing to certify that 13 he was acting within the scope of his employment at the time of the accident. See Doc. 14 No. 6-2 at 1. Alexander requests the Court grant his petition and substitute the United 15 States in his place in the litigation. See id. at 2. The United States, in opposition, asserts 16 Alexander was not acting within course and scope of his employment while commuting 17 to work on March 9, 2016. See Doc. No. 12 at 1. Therefore, the United States contends 18 it is not liable for the accident, and the Court “should dismiss the United States from this 19 case, or, in the alternative, grant summary judgment.” Id. 20 21 A. Legal Standard “The Federal Employees Liability Reform and Tort Compensation Act of 1988, 22 commonly known as the Westfall Act, accords federal employees absolute immunity 23 from common-law tort claims arising out of acts they undertake in the course of their 24 official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). “The immunity extends to 25 both ‘negligent’ and ‘wrongful’ ‘act[s] or omission[s] of any employee . . . acting within 26 the scope of his office or employment.’” Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 27 28 -4- 18cv1177-MMA (AGS) 1 2017) (quoting 28 U.S.C. § 2679(b)(1)).3 2 “When a federal employee is sued for wrongful or negligent conduct, the Act 3 empowers the Attorney General to certify that the employee ‘was acting within the scope 4 of his office or employment at the time of the incident out of which the claim arose.’” 5 Osborn, 549 U.S. at 229-30 (quoting 28 U.S.C. § 2679(d)(1), (2)). If the Attorney 6 General certifies that a federal employee was acting within the scope of employment at 7 the time the tort occurred, the Westfall Act provides that the United States “shall be 8 substituted as the defendant in a tort suit against the employee.” Kashin v. Kent, 457 F.3d 9 1033, 1036 (9th Cir. 2006) (citing 28 U.S.C. § 2679(d)). “Upon certification, the 10 government employee is dismissed from the suit, and is immune from other civil actions 11 arising from the alleged tort.” Id. at 1036-37 (citing 28 U.S.C. § 2679(b)(1)). “If the 12 Attorney General refuses to certify, the employee may petition the district court to certify 13 that he was acting within the scope of employment.” Id. at 1037 (citing 28 U.S.C. § 14 2679(d)(3)). 15 The Attorney General’s decision “is conclusive unless challenged.” Saleh, 848 16 F.3d at 889 (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993)). “[T]he party 17 seeking review bears the burden of presenting evidence and disproving the Attorney 18 General’s decision to grant or deny scope of employment certification by a 19 preponderance of the evidence.” Green, 8 F.3d at 698. 20 The Westfall Act does not set forth a test to determine whether someone was 21 “‘acting within the scope of his office or employment’; rather, Congress intended that 22 courts would apply ‘the principles of respondeat superior of the state in which the 23 alleged tort occurred’ in analyzing the scope-of-employment issue.” Saleh, 848 F.3d at 24 25 26 27 28 3 The Westfall Act amended the FTCA to provide complete statutory immunity to federal employees from liability for torts arising from acts within the scope of their employment. See 28 U.S.C. § 2679(b)(1). “The same analysis was employed before passage of the Westfall Act to determine whether the United States could be liable for an employee’s torts under the FTCA.” Saleh, 848 F.3d at 888. -5- 18cv1177-MMA (AGS) 1 888 (quoting Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 2 1992)). Under the Westfall Act, the exclusive remedy for anyone injured by the 3 negligent or wrongful act of a federal employee acting in the scope of employment is a 4 lawsuit against the United States under the Federal Tort Claims Act. See 28 U.S.C. § 5 2679(b)(1). 6 B. Analysis 7 Alexander argues that he was acting within the scope of his employment at the 8 time of the accident because he was on a special errand for his employer. See Doc. No. 9 6-2 at 6. The government, in opposition, asserts that the special errand exception is 10 inapplicable to this case because Alexander was not running an errand at his employer’s 11 request, but rather commuting to work for his regularly scheduled shift. See Doc. No. 12 12 at 2-3. 13 Under California4 law, “an employer may be held vicariously liable for torts 14 committed by an employee within the scope of employment.” Mary M. v. City of L.A., 15 814 P.2d 1341, 1343 (Cal. 1991). “[W]here the question is one of vicarious liability, the 16 inquiry should be whether the risk was one that may fairly be regarded as typical of or 17 broadly incidental to the enterprise undertaken by the employer.” Perez v. Van 18 Groningen & Sons, Inc., 719 P.2d 676, 678 (Cal. 1986) (internal quotation marks and 19 citation omitted). 20 The “going and coming rule” provides that an employee is not considered to be 21 acting within the scope of his employment while he is going to or coming from his place 22 of work. Ducey v. Argo Sales Co., 25 Cal. 3d 707, 722 (1979). The rationale underlying 23 this rule is that the employment relationship “is suspended from the time the employee 24 leaves work until he or she returns, since the employee is not ordinarily rendering 25 services to the employer while traveling.” Jeewarat v. Warner Bros. Entm’t Inc., 98 Cal. 26 Rptr. 3d 837, 844 (Ct. App. 2009) (internal quotation marks and citation omitted). 27 28 4 The parties agree California law applies, as the accident occurred in California. -6- 18cv1177-MMA (AGS) 1 Pursuant to the special errand exception, however, an employer can be held liable 2 “where a negligent act was committed while the employee was engaged in a special 3 errand for the employer.” Ducey, 25 Cal. 3d at 722. As one court has explained, 4 5 6 7 8 9 [i]f the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. 10 11 Felix v. Asai, 192 Cal. App. 3d 926, 931 (Ct. App. 1987). Examples of the special errand 12 exception include situations where: (1) an employee goes on a business errand for his 13 employer leaving from his workplace and returning to his workplace; (2) an employee is 14 called to perform a special task for the employer at an irregular time; and (3) the 15 employer asks an employee to perform a special errand after the employee leaves works 16 but before going home. See id. at 931-32. In such situations, the employee is generally 17 acting within the scope of his employment. See id. at 932. 18 “Generally, the issue of scope of employment is a question of fact. However, the 19 issue becomes a question of law when the facts are undisputed and no conflicting 20 inferences are possible.” Perez, 719 P.2d at 679 (internal citation omitted). 21 In support of his Petition for Substitution, Alexander largely relies on Jeewarat, 22 where an employee attended a three-day business conference. 98 Cal. Rptr. 3d at 840. 23 The employer paid for the employee’s airfare, hotel, and airport parking. See id. at 841. 24 When the employee returned from his trip and arrived at the airport, he retrieved his car 25 from the parking lot. See id. The employee did not intend to go to his office, but planned 26 to return to his home. See id. On the drive to his home, the employee was involved in a 27 car accident that injured several pedestrians. See id. The California Court of Appeal 28 reversed the trial court order granting summary judgment in favor of the employer -7- 18cv1177-MMA (AGS) 1 pursuant to the going and coming rule, holding that “a special errand may include 2 commercial travel such as the business trip in this case.” Id. at 845. 3 The government relies on Clamor v. United States, where the employee, a civilian 4 engineer working for the United States Navy in Washington, D.C., received a temporary 5 assignment for a few weeks to work on the USS Los Angeles, which was moored at the 6 Pearl Harbor Naval Base in Hawaii. 240 F.3d 1215, 1216 (9th Cir. 2001). The Navy 7 reimbursed the employee for his rental car and hotel while working in Hawaii. See id. 8 On his way to his hotel after work one day, the employee rear-ended a car, injuring the 9 other driver. See id. Applying Hawaii law, the Ninth Circuit reversed the district court’s 10 order finding that the employee was acting in the scope of his employment at the time of 11 the accident. See id. at 1217. The Ninth Circuit explained that the employee “was not 12 working the entire time he was in Hawaii, and was, in fact, off duty when the accident 13 occurred.” Id. The employee “was not engaged in any errand for his employer, but was 14 leaving work and free to do whatever he wished.” Id. Moreover, the Ninth Circuit 15 indicated that the fact that the Navy reimbursed the cost of the employee’s rental car “is 16 more indicative of the inconvenience of working on an island in the middle of the Pacific 17 Ocean . . . than an indication that the employer considered all actions taken while driving 18 that car to be within the scope of employment.” Id. 19 Two additional California Court of Appeal cases, cited by the United States, shed 20 light on the case at bar. For example, in Sunderland v. Lockheed Martin Aeronautical 21 Systems Support Company, 29 Cal. Rptr. 3d 665, 667 (Ct. App. 2005), an employee 22 injured the plaintiff in a rear-end collision at a fast food restaurant. The plaintiff argued 23 that because the employee who hit her car was in California pursuant to his employer’s 24 temporary work assignment for several months, and because the corporation paid for the 25 employee’s travel costs, the corporation should be held vicariously liable for its 26 employee’s alleged tort. See id. at 668. The court held that the employer was not 27 vicariously liable for the accident, and explained that “[t]he payment of a travel 28 allowance, however, ‘does not reflect a sufficient benefit to defendant [employer] so that -8- 18cv1177-MMA (AGS) 1 it should bear responsibility for [a] plaintiff’s injuries.’” Id. at 672-73 (quoting Caldwell 2 v. A.R.B., Inc., 222 Cal. Rptr. 494, 503-04 (Ct. App. 1986)). Moreover, the employee 3 “performed no services for [the corporation] after leaving the workplace about mid-day, 4 and drove to the fast-food restaurant for his own benefit.” Id. at 673.5 5 Additionally, in Pierson v. Helmerich & Payne International Drilling Company, 6 209 Cal. Rptr. 3d 222, 225-28 (Ct. App. 2016), the court considered whether the special 7 errand exception applied when an employee was involved in a traffic accident while 8 driving two co-workers to a hotel (paid for by the employer) after their shift ended. The 9 court rejected application of the special errand exception, noting that the employees were 10 acting on their “own behalf” at the time of the accident; thus, the employer could not be 11 held liable. Id. at 242. 12 Here, Alexander asserts that he was on a special errand for his employer “from the 13 time he started to travel to San Diego in January 2016 until he returned to New York in 14 April 2016, or until he deviated therefrom for personal reasons.” Doc. No. 6-2 at 6. As 15 the government points out, Alexander does not cite to, nor is the Court aware of, any case 16 law supporting application of the special errand exception in the context of a temporary 17 assignment spanning a period of several months. Unlike the employee in Jeewarat, who 18 attended a business conference for three days, Alexander was temporarily stationed in 19 San Diego on a special assignment for three months. As such, Jeewarat is inapposite to 20 the case at bar. 21 Additionally, the fact that the United States paid for and arranged Alexander’s 22 rental car does not except this case from the traditional going and coming rule. See 23 Caldwell, 222 Cal. Rptr. at 502 (“While in certain circumstances payment of travel 24 expenses may be an exception under workers’ compensation laws . . . , the same 25 26 27 28 5 The court did not discuss the special errand exception to the going and coming rule in reaching its conclusion. However, the court did note that the employee was engaged in a purely personal activity at the time of the accident; thus, it is clear that the employer could not be held liable under the special errand exception. See id. -9- 18cv1177-MMA (AGS) 1 conclusion has not been reached under the respondeat superior doctrine.”) (internal 2 citation omitted). The Court finds the Ninth Circuit’s reasoning in Clamor on this issue 3 persuasive.6 The government’s payment and arrangement of a rental car for Alexander’s 4 use during his time in San Diego is more indicative of the inconvenience of working 5 across the county for a period of three months “than an indication that the employer 6 considered all actions taken while driving that car to be within the scope of employment.” 7 Clamor, 240 F.3d at 1217; see also Sunderland, 29 Cal. Rptr. 3d at 672-73. 8 Moreover, the Ninth Circuit in Clamor expressly considered whether the employee 9 was on an errand for the Navy at the time of the accident, and concluded that he was not. 10 See Clamor, 240 F.3d at 1217 (“[The employee] was not engaged in any errand for his 11 employer, but was leaving work and free to do whatever he wished.”). Similarly here, 12 aside from summarily claiming he was on a special errand for the entirety of his three- 13 month assignment in San Diego, Alexander does not claim that on the day of the 14 accident, he was on a specific errand for his employer. In fact, it is undisputed that the 15 accident occurred while Alexander was “driving to” his scheduled shift. Alexander Decl. 16 ¶ 5. 17 Alexander was not engaged in any CPB business at the time of the accident, but 18 was commuting to work. See id.; see also Doc. No. 7-2 (hereinafter “Aki Decl.”) ¶ 10. 19 Alexander argues that he was not commuting to “his normal place of work (exempt under 20 the coming and going rule), [but] was traveling to his temporary workplace across the 21 country at the special request of his employer.” Doc. No. 6-2 at 6 (emphasis in original). 22 However, the Otay Mesa Port of Entry was Alexander’s normal place of work at the time 23 of the accident. See Aki Decl. ¶¶ 4, 10. Further, Alexander does not cite to any authority 24 in support of his argument that a temporary workplace for an extended period of time is 25 26 27 28 6 The Court is mindful that the Ninth Circuit in Clamor applied Hawaii law in concluding that the employee was not acting within the scope of his employment at the time of the accident. However, the facts of Clamor are sufficiently analogous to the case at bar to guide the Court’s analysis. -10- 18cv1177-MMA (AGS) 1 2 analyzed differently than a normal workplace for purposes of the going and coming rule. Accordingly, the Court finds that Alexander has not met his burden of 3 “disproving” the Attorney General’s decision to deny scope of employment certification 4 “by a preponderance of the evidence.” Green, 8 F.3d at 698. Therefore, the Court 5 DENIES Alexander’s Petition for Substitution and Representation by the United States. 6 7 C. Evidentiary Hearing Alexander claims that “triable issues of material fact [exist] as to whether [his] 8 business trip was a special assignment as in Jeerwarat.” Doc. No. 9 at 7. Specifically, 9 Alexander disputes: (1) that the rental car was for personal use; (2) that Alexander and all 10 CBP Officers were not required to wear uniforms while commuting to and from the 11 worksite; and (3) that Alexander was not required to intervene to prevent crime outside of 12 his duty station and work shift. See id. at 8. 13 The Ninth Circuit has explained that “when a district court is reviewing a 14 certification question under the Westfall Act, it must identify and resolve disputed issues 15 of fact necessary to its decision before entering its order.” Arthur v. United States, 45 16 F.3d 292, 296 (9th Cir. 1995). In doing so, a district court “should hold such hearings as 17 appropriate (including an evidentiary hearing if necessary), and make the findings 18 necessary to bind the parties by its decision and enable them to appeal the certification 19 decision if they deem an appeal necessary.” Id. 20 Here, Alexander fails to explain how any of these disputed facts are “necessary” to 21 the Court’s scope of employment determination. Id. Alexander does not cite to any 22 authority supporting application of the special errand exception where an employer pays 23 for an employee’s rental car in the context of a temporary assignment. Nor does 24 Alexander cite to any case law, or provide any argument, in support of the proposition 25 that an officer commuting to work in uniform is somehow on a special errand for his 26 employer. Finally, Alexander fails to cite authority supporting the proposition that even 27 if an off-duty officer is required to intervene to prevent crime outside of his duty station, 28 he is somehow on a special errand for his employer when commuting to work in uniform. -11- 18cv1177-MMA (AGS) 1 Accordingly, the Court finds that there are no triable issues of fact necessary to the 2 Court’s scope of employment determination. Moreover, to the extent the parties request 3 an evidentiary hearing, the Court, in its discretion, DENIES such a request as an 4 evidentiary hearing is not appropriate or necessary to the Court’s de novo determination 5 of scope of employment under the applicable legal standard. See Saleh, 848 F.3d at 892 6 (noting that the district court did not abuse its discretion in denying an evidentiary 7 hearing to challenge the scope certification because the allegations, taken as true, “do not 8 establish that Defendants acted outside the scope of their employment”); Mansfield v. 9 Pfaff, 719 F. App’x 583, 585 (9th Cir. 2017) (“The district court correctly understood 10 than an evidentiary hearing to review the Attorney General’s Westfall Act certification is 11 discretionary.”). UNITED STATES’ MOTION FOR SUMMARY JUDGMENT7 12 13 The United States contends that under the applicable state law, an employer is not 14 liable for torts committed by its employees while commuting to and from work. See Doc. 15 No. 7-1 at 1-2. Thus, the United States requests the Court “dismiss the United States 16 from this case for lack of subject matter jurisdiction, or, in the alternative, grant summary 17 judgment.” Id. at 2. In opposition, Alexander asserts that he was acting within the scope 18 of his employment at the time of the accident, reiterating the same arguments made in his 19 Petition for Substitution. See Doc. No. 9 at 2. Alexander argues that genuine issues of 20 material fact exist and thus “requir[e] this Court [to] deny the United States’ Motion to 21 Dismiss, or, in the alternative, for Summary Judgment.” Id. 22 23 24 25 26 27 28 A. Legal Standard “A party may move for summary judgment, identifying each claim or defense—or 7 Because the Court considers evidentiary materials that go “beyond the face of the pleadings” in ruling on Alexander’s Petition for Substitution, and such materials are relevant to the Court’s ruling on the government’s motion, “the Court finds the government’s motion appropriate for decision on summary judgment.” Vallier v. Jet Propulsion Lab., 120 F. Supp. 2d 887, 891 (C.D. Cal. 2000). -12- 18cv1177-MMA (AGS) 1 the part of each claim or defense—on which summary judgment is sought. The court 2 shall grant summary judgment if the movant shows that there is no genuine dispute as to 3 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 4 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 5 the basis of its motion and of identifying the portions of the declarations, pleadings, and 6 discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. 7 Catrett, 477 U.S. 317, 323 (1986). The moving party has “the burden of showing the 8 absence of a genuine issue as to any material fact, and for these purposes the material it 9 lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S. 10 H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if it could affect the 11 outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient 13 evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248. 14 The party opposing summary judgment cannot “‘rest upon the mere allegations or 15 denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts 16 showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 17 Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)). 18 19 B. Analysis The Westfall Act provides that if a federal employee is sued for a covered tort for 20 actions taken within the scope of his or her employment, the United States will be 21 substituted as the defendant, the case will proceed under the FTCA, and the individual 22 will be dismissed from the action. See 28 U.S.C. § 2679. For the reasons set forth above, 23 the Court finds that Alexander was not acting within the scope of his employment at the 24 time of the accident. Moreover, the Court finds that there is no genuine issue of material 25 fact with respect to the Court’s scope of employment determination. See Fed. R. Civ. P. 26 56(a). Thus, the United States cannot be sued for the alleged tortious acts of an employee 27 who was not acting within the scope of his employment under the FTCA. 28 Accordingly, Plaintiff’s FTCA claim against the United States fails, and the Court -13- 18cv1177-MMA (AGS) 1 GRANTS the United States’ motion for summary judgment. See Vallier, 120 F. Supp. 2 2d at 910 (noting that because the court finds that the employee was not acting within the 3 scope of his employment, “[t]he United States is thus entitled to summary judgment of 4 those claims.”). 5 SUBJECT MATTER JURISDICTION 6 Alexander is the sole remaining defendant in this action. Thus, it is within the 7 Court’s discretion to remand the action. See Watkins v. Grover, 508 F.2d 920, 921 (9th 8 Cir. 1974) (noting that where an action is removed pursuant to 28 U.S.C. § 1442, and the 9 federal defendants are later dismissed, “the district court should decide whether to hear 10 the suit on its merits or, in its discretion, to remand the suit to the state court from which 11 it was removed.”). 12 Given the early stage of the litigation, and because Plaintiffs’ tort claim against 13 Alexander arises under California law, the Court, in its discretion, declines to hear the 14 suit on the merits and REMANDS this action to state court.8 See Murphy v. Kodz, 351 15 F.2d 163, 167-68 (9th Cir. 1965) (“Where the federal head of jurisdiction has vanished 16 from the case, and there has been no substantial commitment of judicial resources to the 17 nonfederal claims it is, . . . akin to ‘making the tail wag the dog’ for the District Court to 18 retain jurisdiction.”) (quoting Moynahan v. Pari-Mutuel Emps. Guild of Cal. Local 280, 19 317 F.2d 209, 212 (9th Cir. 1963)); Vallier, 120 F. Supp. 2d at 916 (remanding the 20 plaintiffs’ state law claims after denying the petition for substitution and granting the 21 United States’ motion for summary judgment in FTCA case); Mellis v. Asbestos Corp. 22 Ltd., No. 13-CV-3449 SBA, 2013 WL 4805746, at *2 (N.D. Cal. Sept. 9, 2013) 23 24 25 26 27 28 8 The mandatory remand provision set forth in 28 U.S.C. § 2679(d)(3) is inapplicable because Alexander originally filed the instant Petition for Substitution in this Court—and not state court. See 28 U.S.C. § 2679(d)(3) (providing that where the Attorney General concludes that the standards for substitution have not been met, and “the petition [for substitution] is filed in a civil action or proceeding pending in a State court,” the action may be removed to the district court. If, in considering the petition, the district court determines that the employee was not acting within the scope of employment, “the action or proceeding shall be remanded to the State court.”) (emphasis added). -14- 18cv1177-MMA (AGS) 1 (remanding action where case was removed pursuant to § 1442(a)(1), but the plaintiff 2 later dismissed the removing defendant from the action). 3 4 CONCLUSION Based on the foregoing, the Court DENIES Alexander’s Petition for Substitution 5 and Representation by the United States, and GRANTS the United States’ motion for 6 summary judgment. The Clerk of Court is instructed to terminate this action as to 7 Defendants the United States, Department of Homeland Security, and U.S. Customs and 8 Border Protection. Further, the Court, in its discretion, declines to retain jurisdiction and 9 REMANDS this action back to state court. See Watkins, 508 F.2d at 921. 10 11 IT IS SO ORDERED. 12 13 14 15 16 Dated: November 2, 2018 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -15- 18cv1177-MMA (AGS)
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