Opinion
13 Civ. 2193 (LAK) (GWG)
01-02-2014
DEMARK DIXON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
DeMark Dixon filed suit against the United States of America (the "Government") complaining of actions taken by United States Probation Officer Tomas A. Ramirez while he was supervising Dixon. The Government now moves to dismiss Dixon's complaint pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure, or in the alternative, to transfer this case to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, the Government's motion to dismiss should be granted.
See Notice of Motion, filed Aug. 2, 2013 (Docket # 11); Memorandum of Law in Support of Defendant United States of America's Motion to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and Improper Venue or, in the Alternative, to Transfer, filed Aug. 2, 2013 (Docket # 12) ("Gov't Mem."); Declaration of Jessica Jean Hu, filed Aug. 2, 2013 (Docket # 13) ("Hu Decl."); Declaration of Adam Pakula, filed Aug. 2, 2013 (Docket # 14); Declaration of Tomas A. Ramirez, filed Aug. 2, 2013 (Docket # 15); Notice of Motions, filed Oct. 28, 2013 (Docket # 28); Memorandum of Law in Support of Plaintiff Motion to Deny Defendant Motion to Dismiss or Transfer and Grant Plaintiff Subject Matter Jurisdiction and Venue Motion, filed Oct. 28, 2013 (Docket # 29); Declaration of DeMark Dixon, filed Oct. 28, 2013 (Docket # 30); Reply Memorandum of Law in Support of Defendant United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Improper Venue or, in the Alternative, to Transfer, filed Nov. 12, 2013 (Docket # 32); Plaintiff Sur-Reply Opposition to Defendant Reply Memorandum of Law to Dismiss for Lack of Subject Matter Jurisdiction and Improper Venue or, in the Alternative to Transfer, filed Nov. 27, 2013 (Docket # 35).
I. BACKGROUND
A. Facts Alleged in Dixon's Complaint
For the purpose of this motion to dismiss, we assume that the facts alleged in Dixon's complaint are true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.") (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
On June 10, 2010, Dixon was released from federal custody into supervised release and assigned to United States Probation Officer Adam Pakula. See Plaintiff Federal Tort Complaint, filed Apr. 1, 2013 (Docket # 2) ("Complaint") ¶¶ 9, 11. Although Dixon had found housing and employment in New York, he received Officer Pakula's permission to travel to Virginia to search for job opportunities there. Id. ¶¶ 10-11. During a visit to Virginia on October 3, 2011, Dixon filled out an employment application with Halls Automotive ("Halls"). Id. ¶ 12. Dixon informed Halls of his prior felony convictions, both in his written application and during an interview with a Halls employee, Scott Hollinger. Id. ¶¶ 13-14. Following the interview, Hollinger asked Dixon for a copy of his social security card and driver's license to "start the paper process rolling." Id. ¶ 14.
After informing Officer Pakula of the job opportunity with Halls, Dixon received Pakula's permission to return to Virginia on October 11, 2011, to once again meet with Hollinger. Id. ¶¶ 15, 17. When asked by Hollinger when he could start working at Halls, Dixon responded that he would have to give his current employer in New York two weeks notice. Id. ¶ 18. On October 28, 2011, Hollinger sent Dixon a letter offering him employment at Halls. Id. ¶ 22. Dixon faxed Officer Pakula a copy of this letter, id. ¶ 23, and then on November 4, 2011, Pakula faxed a copy of the letter and transfer papers to Tomas Ramirez, a United States Probation Officer for the Eastern District of Virginia, id. ¶¶ 24-25.
When Officer Ramirez received Dixon's transfer papers, he began a preliminary investigation of Dixon's case. Id. ¶ 25. Ramirez later explained that a "transfer investigation requires verifying that the subject on probation seeking a transfer has secured a residence and employment in the new jurisdiction." Affidavit of Probation Officer Tom Ramirez, dated May 25, 2012 (annexed as Ex. C to Complaint), at 1. On November 7, 2011, Ramirez called Dixon to inquire about his criminal history, and Dixon told Ramirez that he had notified Halls about his prior felony convictions. See Complaint ¶¶ 26-28. Despite Dixon's representations, on November 14, 2011, Ramirez left a voicemail for Hollinger informing him of Dixon's criminal history. Id. ¶ 38. Soon thereafter, Ramirez followed up on the voicemail and paid a visit to Halls to confirm that Halls had offered employment to Dixon. Id. ¶ 39. At this time, Ramirez tried to convince an employee at Halls to rescind the employment offer. Id. ¶ 40.
As part of the transfer investigation, Ramirez also met with Mable Robinson, a resident of Virginia who had told Dixon that he could live with her for a few months until he got back on his feet. Id. ¶ 34. Ramirez tried to convince Robinson not to provide housing to Dixon and even went to the rental office of her apartment building to inform the apartment staff about Dixon's criminal history. Id. ¶¶ 35-37.
On November 15, 2011, Hollinger called Dixon to inform him that Halls was rescinding the employment offer. Id. ¶ 42. When Dixon asked why, Hollinger responded that Ramirez had spoken about Dixon with a Halls human resources employee named Ellyn Kettner. Id. ¶¶ 43-44. Dixon then received a call from Ramirez during which Ramirez said that he was denying Dixon's probation transfer to Virginia because Halls had rescinded its employment offer. Id. ¶ 45. Dixon told Ramirez that he would be homeless and unemployed, but Ramirez simply stated "that's not my problem" and told Dixon to speak with Officer Pakula. Id. ¶ 47. When Dixon then brought these issues to Pakula, he responded that he would "look into the matter." Id. ¶ 48. After failing to find alternate employment, on November 20, 2011, Dixon entered a homeless shelter in New York City. See id. ¶¶ 50-51.
Officer Ramirez later admitted that he had told Hollinger that Dixon had an extensive criminal history and had been convicted of stealing cars. See id. ¶ 55 (citing Letter to Judge Loretta Preska, dated Dec. 21, 2011 (annexed as Ex. B to Complaint) ("Letter"), at 4). Ramirez explained that he had told Hollinger about Dixon's past convictions because he believed that, as a probation officer, he had the authority to tell a probationer's potential employers about anything in the probationer's history. See id. ¶ 52 (citing Letter at 5). When asked how a probationer with a theft background is supposed to find employment when employers are informed of that person's criminal history, Ramirez replied that "he would be less diligent in his conversation with an employer for a [probationer] who planned to work somewhere shoveling sand or being a general laborer." Id. ¶ 53 (emphasis omitted) (quoting Letter at 5).
This letter was written by an attorney for Dixon who requested Judge Preska's intervention to prevent Officer Ramirez from further interfering with Dixon's attempts to obtain a job in Virginia.
B. Procedural History
On January 13, 2012, Dixon filed a complaint against Officer Ramirez and Halls Automotive in the United States District Court for the Southern District of New York alleging "Employment & Housing invidious discrimination." See First Dixon Complaint, filed Jan. 13, 2012 (Docket # 2 in 12 Civ. 415), at 2 (annexed as Ex. 3 to Hu Decl.). On March 8, 2012, the district court ordered that Dixon's case be transferred pursuant to 28 U.S.C. § 1406(a) to the United States District Court for the Eastern District of Virginia. See Transfer Order, filed Mar. 8, 2012 (Docket # 5 in 12 Civ. 415). On July 18, 2012, the Eastern District of Virginia granted Ramirez and Halls' motion to dismiss Dixon's complaint, finding that Dixon had failed to state a claim against either defendant. See Dismissal Order, filed July 18, 2012 (annexed as Ex. 5 to Hu Decl.). The decision was affirmed on appeal. Dixon v. Ramirez, 509 F. App'x 258 (4th Cir. 2013).
On April 1, 2013, Dixon filed the pro se complaint in this case, making essentially the same factual allegations as the earlier suit but this time naming the United States of America as defendant. See Complaint. On August 2, 2013, the Government filed the instant motion to dismiss Dixon's complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(3) for improper venue, or in the alternative, to transfer the case to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a).
II. STANDARD OF REVIEW
A party may move to dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. "A 'case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'" Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)), aff'd, 133 S. Ct. 721 (2013). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court "must accept as true all material factual allegations in the complaint," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citations and internal quotation marks omitted), but is not "to draw inferences from the complaint favorable to plaintiff[]," J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)). Nonetheless, a court "may refer to evidence outside the pleadings," Makarova, 201 F.3d at 113; accord Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("[W]hen, as here, subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise."), although it "may not rely on conclusory or hearsay statements contained in the affidavits," J.S. ex rel. N.S., 386 F.3d at 110 (citing cases). A court must decide a Rule 12(b)(1) motion before any other motion to dismiss because a court may not act if it lacks jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998); Figueroa v. Comm'r of Soc. Sec., 2013 WL 3481317, at *2 (S.D.N.Y. July 11, 2013). The plaintiff bears the burden of proving by a preponderance of the evidence that subject matter jurisdiction is proper. Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010); see also Whitmore v. Arkansas, 495 U.S. 149, 154 (1990) ("It is well established, however, that before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.").
III. DISCUSSION
"Under the doctrine of sovereign immunity, an action for damages will not lie against the United States absent consent." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); see also United States v. Mitchell, 445 U.S. 535, 538 (1980) ('"[T]he United States, as sovereign, is immune from suit . . . .'") (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Any waiver of sovereign immunity "'cannot be implied but must be unequivocally expressed'" through an act of Congress. Mitchell, 445 U.S. at 538 (quoting United States v. King, 395 U.S. 1, 4 (1969)); accord Adelke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Thus, the United States "may be sued only to the extent that it has waived sovereign immunity by enacting a statute consenting to suit." Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (citations omitted); accord Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007).
Dixon's complaint asserts that the Court has subject matter jurisdiction to hear his claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680. It is settled that "[t]he FTCA constitutes a limited waiver by the United States of its sovereign immunity." Millares, 137 F.3d at 719 (citations omitted). The FTCA permits a private citizen to sue the United States for injuries 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." 28 U.S.C. § 1346(b)(1).
The Government argues that the Court does not have subject matter jurisdiction to hear this case because Dixon's complaint raises claims of tortious interference with contract and "[b]y the FTCA's explicit terms . . . claims for interference with contract are excluded from the statute." See Gov't Mem. at 7-8. Specifically, the Government points to 28 U.S.C. § 2680(h), which exempts from the FTCA "[a]ny claim arising out of . . . interference with contract rights."
In his complaint, Dixon does not name the tort or torts that he asserts have been committed. However, because Dixon is a pro se plaintiff, we must "liberally construe [his] pleadings and briefs . . . to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). We agree with the Government that the only tort his allegations would appear to support is one of tortious interference with contract. The complaint alleges that Ramirez caused "Ms. Mable Robinson, not to allow plaintiff to live with her as a felon to prevent plaintiff from obtaining employment & housing in the State of Virginia." Complaint ¶ 58; accord id. ¶ 59. Dixon also contends that Ramirez "wrongfully convince[d] Halls Automotive not to hire plaintiff as a car detailer . . . where he disclose[d] plaintiff['s] prior entire history dissuading Halls, not to hire plaintiff even though Mr. Hollinger, still wanted to hire plaintiff." Id. ¶ 60. Thus, Dixon essentially alleges that Ramirez intentionally interfered with Dixon's housing and employment agreements and caused such agreements to be breached by Ms. Robinson and Halls Automotive. Liberally construed, these allegations amount to claims for tortious interference with contract arising under state law - whether it be the law of New York or Virginia. See, e.g., Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1990) ("The tort of inducement of breach of contract, now more broadly known as interference with contractual relations, consists of four elements: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff .") (citing Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120 (1956)); Lewis-Gale Med. Ctr., LLC v. Alldredge, 282 Va. 141, 149 (2011) ("'The elements required for a prima facie showing of the tort [of intentional interference with performance of a contract by a third party] are: (i) the existence of a valid contractual relationship or business expectancy; (ii) knowledge of the relationship or expectancy on the part of the interferer; (iii) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (iv) resultant damage to the party whose relationship or expectancy has been disrupted.'") (quoting DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 145 (2009)); see also Restatement (Second) of Torts § 766 (1979) ("One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.").
Dixon appears to assert a third tortious interference with contract claim for the first time in his memorandum of law. See Dixon Mem. at 3 (alleging that the United States "interfer[ed] with a contract that was handed down against plaintiff by the defendant United States of America, in the Southern District of New York, under paragrapg-5 [sic] under Standard' [sic] Condition Of Release' for plaintiff to 'work regularly at a lawful occupation'").
Because Dixon's complaint asserts only tortious interference with contract claims, it falls within the exception contained in 28 U.S.C. § 2680(h). See Chen v. United States, 854 F.2d 622, 628 n. 2 (2d Cir. 1988) (dismissing interference with business relations claim because it was barred by the FTCA exception for interference with contract claims); Areskog v. United States, 396 F. Supp. 834, 837-38 (D. Conn. 1975) ("Since this is . . . a claim [for interference with contract rights], and since the United States has not otherwise consented to this suit, there could be no jurisdiction in this Court, even as an original matter, over the United States as a defendant."). Indeed, in cases where plaintiffs have alleged that federal employees have tortiously interfered with their contracts by revealing harmful information about them to third parties, courts have found such claims to fall under the FTCA exception. See, e.g., Dynamic Image Techs., Inc. v. United States, 18 F. Supp. 2d 146, 149-50 (D.P.R. 1998) (barring claim where "the United States, through employees of the Postal Service, tortiously interfered with Plaintiffs' existing and prospective contractual relationships with customers by . . . informing those customers that Plaintiffs lacked the proper certification to validate and correct postal addresses"); French v. U.S. ex rel. Dept. of Human Health and Human Serv., 55 F. Supp. 2d 379, 381 (W.D.N.C. 1999) (in case where plaintiff alleged that a federal agency was liable for "the unauthorized and intentional disclosure of her medical records which prevent her reinstatement or consideration for another position," court held that "to the extent her claim is based on interference with contractual rights, the United States has not waived its immunity and the cause of action is barred").
Because the United States has not waived its sovereign immunity for interference with contract claims under the FTCA or under any other statute, this case must be dismissed for lack of subject matter jurisdiction. See Hamm, 483 F.3d at 137 (where "a waiver of sovereign immunity does not apply" a claim must be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction).
Dixon argues that even if the United States government has not waived its immunity for interference with contract suits pursuant to the FTCA that "[it] is still liable pursuant to 28 USC 2674 under 'New York Tortious Common Law' for tortious interference with three separate contracts" because "[i]f a private individual is liable for the same wrongful acts/means interference with a contract, then the defendant is liable as well." Dixon Mem. at 4. But 28 U.S.C. § 2674 does not create a basis for liability separate from the FTCA. Instead, this provision is part of the FTCA and states only that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." (Emphasis added). Thus, while 28 U.S.C. § 2674 provides a description of the substantive liability of the United States under the FTCA, that liability is subject to the exceptions listed in 28 U.S.C. § 2680(h).
IV. CONCLUSION
For the foregoing reasons, the Government's motion to dismiss (Docket # 11) should be granted pursuant to Fed. R. Civ. P. 12(b)(1).
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis Kaplan, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: January 2, 2014
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge Copy sent to: DeMark Dixon
1315 Amsterdam Ave, Apt. 1H.
New York, NY 10027 Counsel by ECF