Opinion
No. CIV 03-454 JH/LFG.
September 9, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDED DISPOSITION AND DISMISSING ACTION WITH PREJUDICE
THIS MATTER comes before the Court on the Magistrate Judge's Findings and Recommended Disposition [Doc. 34] filed July 30, 2004. Plaintiff Benjamin J. Roscoe ("Roscoe") was granted an extension of time until August 30, 2004 to file objections, and he filed objections and a memorandum in support [Doc. 37-38] on that date. The Court conducted a de novo review of those portions of the Magistrate Judge's findings and recommended disposition to which Roscoe objects.
Plaintiff Geraldine M. Roscoe joined in the objections filed by Benjamin Roscoe; however, she waited until August 30 to request an extension of time to file objections, and that request was denied by order of the Court [Doc. 40] dated September 7, 2004. Geraldine M. Roscoe has therefore forgone her right to appellate review of the Findings and Recommended Disposition.Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
In his objections, Roscoe again argues that default should be entered against Defendant Cheryl Gibbs. Roscoe alleges that Defendant Gibbs did not file an answer to his complaint while it was pending in state court and has not filed an answer in federal court. This case was filed in state court on March 14, 2003 and was removed to this Court on April 15, 2003. Fed.R.Civ.P. 81(c) governs the time within which a defendant must "answer or present the other defenses or objections available under these rules" in removed cases. Under that Rule, a defendant has 20 days after service of the complaint or summons within which to answer. This time is extended to 60 days in cases where the defendant is the United States or is an officer or employee of the United States. Fed.R.Civ.P. 12(a)(3)(A). A defendant who has not filed an answer by the time the removal petition is filed has five days following removal within which to answer or otherwise plead, if that time is longer than the general 20- or 60-day rule. Fed.R.Civ.P. 81(c).
Assuming without deciding that Gibbs did not file her answer prior to removal, she would therefore have had five days after April 15, 2004 within which to do so. She along with the other defendants filed a motion, on the same day the removal petition was filed, seeking an extension of time to respond to the complaint. The motion for extension of time was granted, and the defendants thereafter filed their Motion to Dismiss or for Summary Judgment within the extended time. No answer is due from Defendant Gibbs until after this motion is resolved. Fed.R.Civ.P. 12(a)(4)(A); Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003). Gibbs is not in default, and there was no error in the Magistrate Judge's ruling on this point.
Roscoe also asserts that the Magistrate Judge did not have authority to convert Defendants' motion to dismiss into one for summary judgment. The defendants filed a motion for summary judgment, as an alternative to dismissal, and the Court finds that Plaintiffs had ample notice that summary judgment could be rendered on the basis of that motion. The Magistrate Judge did not "convert" the motion on his own authority; rather, it was originally submitted as one for summary judgment by the Defendants and treated as such by the Plaintiffs, who submitted their own affidavits in response. Even if the motion has been converted to a summary judgment motion pursuant to Fed.R.Civ.P. 12(b), such conversion was not effected by the Magistrate Judge's filing, which is a recommended disposition and not a dispositive ruling. The Court finds that this case is appropriately resolved on summary judgment, based on the pleadings submitted by the parties, and it accepts the Magistrate Judge's recommendation in this regard.
Finally, Roscoe re-argues the question of scope of employment. As the Magistrate Judge noted, if Plaintiffs wish to avoid application of the Federal Tort Claims Act, they have the burden of establishing that the United States employees against whom they have lodged their complaint were acting outside the scope of their employment. As noted in the Findings, each Defendant submitted a separate declaration in connection with their motion for summary judgment, describing their involvement with the Roscoes and asserting that all contact with the plaintiffs has come within the scope of their employment as IRS agents and employees.
Roscoe argues in response that the type of behavior alleged in the complaint demonstrates, by itself, that Defendants were acting outside the scope of employment. New Mexico law, which is applicable to this issue, does not so hold; rather, "intentional, wanton, and malicious" actions by an employee may still be within the course and scope of employment. McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968).
The Roscoes' response to Defendants' showing on the scope-of-employment issue is to repeat the generalized allegations of their complaint to the effect that the Defendants conspired together in some unstated way, to "direct substantial emotional distress upon Plaintiffs," to slander them by claiming they made false statements to the government, and to make "false" and "reckless" assessments, presumably tax assessments, against Plaintiffs. As the Magistrate Judge pointed out, the Roscoes have provided no specifics whatsoever to back up these assertions, and have failed to address the specific factors set forth in New Mexico law including, for example, whether the employees' actions were fairly and naturally incident to the employer's business, whether they varied from official government business, whether the actions took place off the employer's premises or outside of normal working hours, whether the employer had the right to control the details of the employee's performance, and whether the employee was using an instrumentality provided by the employer at the time of acts in question.
Plaintiffs having failed to meet their burden in this respect, summary judgment is appropriately granted on the question of scope of employment. Thus, the Federal Tort Claims Act applies in this case, and the Court accepts the Magistrate Judge's recommendation that the United States be substituted as the sole named Defendant herein. The Court further accepts the recommendation that the action be dismissed with prejudice, as the Plaintiffs have failed to pursue the requisite administrative remedies under that Act and, in addition, have stated claims that come within a statutory exception to the waiver of sovereign immunity. 28 U.S.C. § 2680(c). In addition, although Roscoe argues that his case comes under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), he also asserts that he is not attempting to allege any claims under the constitution of the United States, and that Defendants were not acting under color of federal authority in taking the actions alleged in the complaint.Bivens, therefore, does not supply a cause of action for these Plaintiffs.
Order
IT IS THEREFORE ORDERED that the proposed findings and recommended disposition of the United States Magistrate Judge are adopted by the Court;IT IS FURTHER ORDERED that Plaintiffs' Motion for Default Judgment Against Cheryl Gibbs [Doc. 23] is denied on the merits;
IT IS FURTHER ORDERED that the Defendants' motion for summary judgment [Doc. 8] is granted, the United States is substituted as the sole Defendant in this case, and this action is hereby dismissed with prejudice.