Opinion
Case No. 2:98-CV-304 B
June 6, 2000
Plaintiff, Ronald Lynn Clark, filed a complaint in Utah state court against defendant, Jose R. Pangan, alleging that while both were working at the United States Postal Service, defendant committed an assault and battery against plaintiff After the complaint was filed, the United States certified that Pangan was acting within the scope of employment at the time of the incident. This allowed the United States to remove the action to federal court and substitute itself as party defendant under the Westfall Act, 28 U.S.C. § 2671-2680. Clark filed a Motion for Review of Scope of Employment Certification and a Motion for Remand to State Court to which the United States filed an opposition. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Samuel Alba.
On July 23, 1998, Judge Alba issued a Report and Recommendation in which he recommended that plaintiffs Motion for Review of Employment Certification and Motion for Remand to State Court be denied. Applying the three-part test for scope of employment from Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1040 (Utah 1991), which cited Birkner v. Salt Lake County, 771 P.2d 1053, 1056-57 (Utah 1989), Judge Alba held that defendant was acting within the scope of employment when he allegedly stuck plaintiff. Plaintiff filed an objection to Judge Alba's Report and Recommendation, and the United States responded to the objection. Thereafter, this Court requested, by way of certification, that the Utah Supreme Court answer two questions of Utah law: "whether the intentional tort of battery is outside the scope of employment as a matter of law, and if not always outside the scope of employment, what test should be employed to determine whether the intentional tort of battery is within the scope of employment."
In Clark v. Pangan, 2000 WL 354215 (Utah 2000), the Utah Supreme Court determined that the intentional tort of battery is not outside the scope of employment as a matter of law. In reaching this conclusion, the court explained that "intentional torts, including battery, must be subjected to a fact-finding analysis of the employee's conduct in relation to the employment." Id. at 4. The Court determined that there was no justification for separating the intentional tort of battery outside the scope of employment when the Court had previously applied the scope of employment analysis to such intentional torts as sexual battery, sexual abuse, alienation of affections, arid fraud. Furthermore, the Court held that the three-part test set out in Birkner should be applied in determining whether a battery is within the scope of employment. The Court stated that the Birkner test was "carefUlly considered" and provided the requisite flexibility to apply to various factual situations. Id.
Having reviewed all relevant materials, including the reasoning set forth in the Magistrate Judge's Report and Recommendation and the Utah Supreme Court's determination of Utah law, this court ADOPTS the Report and Recommendation and rules that plaintiffs Motion for Review of Employment Certification and Motion for Remand to State Court is DENIED.