Opinion
Civil No. 04-1229 ADM/AJB.
October 1, 2004
Ronald I. Meshbesher, Esq., Meshbesher Spence, Minneapolis, MN, appeared for and on behalf of Plaintiffs.
William P. Fuller, Esq., Woods Fuller Shultz Smith, Sioux Falls, SD, appeared for and on behalf of Defendant William J. Janklow.
Joan D. Humes, Esq., Assistant United States Attorney, Minneapolis, MN on behalf of Defendant United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Plaintiffs [Docket No. 31] to the July 13, 2004 Second Order on Motion for Substitution, Motion for Certification Review and Motion for Remand ("Order") of Magistrate Judge Arthur J. Boylan [Docket No. 30]. Judge Boylan granted William J. Janklow's ("Defendant or "Janklow") motion to substitute parties pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679(d)(2) [Docket No. 4], and denied Plaintiffs' motion to review United States Attorney certification and to remand the action to Hennepin County District Court [Docket No. 7]. On September 10, 2004, oral argument on this matter was heard before the undersigned Judge.
The Order grants Defendant's motion to substitute the United States for Mr. Janklow as defendant in this action based on the finding that Mr. Janklow was working in the scope of his employment as a United States Congressman at the time of the tragic accident which gives rise to this action. The factual and procedural background in this matter is comprehensively set forth in the Order. As neither party disputes the factual or procedural background, it is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the Order is affirmed.
II. DISCUSSION
In appeals of nondispositive pretrial matters, the district court must set aside any portion of the magistrate judge's ruling that is "clearly erroneous or contrary to law." See D. Minn. LR 72.1(b)(2). Thus, the Court must affirm Judge Boylan's Order unless its findings are clearly erroneous or contrary to law.
Plaintiffs object to the Order on two grounds. Plaintiffs first object to the finding that Mr. Janklow was working in the scope of his employment as a Member of Congress at the time of the automobile accident that took the life of Plaintiffs' decedent. Second, Plaintiffs argue that the United States should not be substituted for Mr. Janklow as the defendant in this action on the grounds that the FTCA does not apply to claims arising out of assault.
The FTCA provides for a limited waiver of the sovereign immunity of the United States, thereby permitting those injured by the negligent acts of federal employees to seek redress through lawsuits. See Molzoff v. United States, 502 U.S. 301, 304-05 (1992). The FTCA reflects the government's "strong public policy to protect citizenry from torts committed by public servants." 28 U.S.C. § 2674 n. 21. Congress crafted the FTCA to fairly compensate victims for their injuries without exposing the government to a "retributive theory of punishment." Kalavity v. United States, 584 F.2d 809, 811 (6th Cir. 1978). As a result, the FTCA authorized plaintiffs injured through the negligent acts of federal employees to receive compensatory damages but explicitly excluded punitive damages. 28 U.S.C. § 2674.
A. Scope of Employment
Plaintiffs object to the Order's finding that Mr. Janklow was acting within the scope of his employment as a Congressman at the time his car hit Randolph Scott's motorcycle. Under the FTCA, 28 U.S.C. § 2679(d)(2), the United States may be substituted for the named defendant provided that the Attorney General certifies that the individual defendant was acting in the scope of employment with regard to the conduct underlying the lawsuit. Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996) (citing Heuton v. Anderson, 75 F.3d 357, 359-60 (8th Cir. 1996)). Plaintiffs may challenge the Attorney General's action by presenting specific facts to rebut certification under § 2679(d)(2). Plaintiffs argue that the recklessness and criminality of Mr. Janklow's conduct, when coupled with his prior driving record, remove Defendant's actions from the scope of his employment.
The Order appropriately applies state law when determining whether Defendant acted within the scope of employment. Order at 7; Lawson, 103 F.3d at 60. Under South Dakota law, a defendant acts within the scope of employment if there is a sufficient nexus between the employment and the activity which caused the injury. St. John v. United States, 240 F.3d 671, 676 (8th Cir. 2001) (citing Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275, 280 (S.D. 1986)). In determining whether the unauthorized conduct was similar or incidental to authorized conduct, South Dakota law adopts the factors set forth in the Restatement (Second) of Agency § 229. Such factors include: whether the action is commonly done in the course of business; the time, place and purpose of the act; whether the act is within the enterprise of the employer; the similarity of the act done to the act authorized; whether the means of doing harm was furnished by the employer; and, the extent of the departure from the usual method of accomplishing an authorized result. Order at 8; see also St. John, 240 F.3d at 676-77. Finally, South Dakota law also instructs that courts applying the nexus test should determine the foreseeability of the conduct in deciding whether the agent was acting in the scope of employment. Red Elk v. United States, 62 F.3d 1102, 1105 (8th Cir. 1995).
Plaintiffs contend Mr. Janklow's reckless driving was a significant departure from usual methods of achieving an authorized result and that Defendant's employer could not have foreseen Mr. Janklow would engage in a continuous pattern of reckless driving conduct. As Judge Boylan observed, however, the criminality of an employee's conduct is not sufficient to preclude a finding that the action was within the scope of employment, provided the conduct was reasonably foreseeable. Order at 9-10; see also Red Elk, 62 F.3d at 1107 (finding that sexual misconduct by a police officer is reasonably foreseeable for vicarious liability purposes). It is readily foreseeable that a Congressman serving a district as vast and rural as South Dakota would drive an automobile when commuting between his office and meetings with his constituents. Driving a car is not a significant departure from the usual methods of achieving the authorized result of fulfilling a Member of Congress's official responsibilities. Furthermore, it is foreseeable that, in the course of these commutes, improper or even reckless driving conduct might occur. The core of the scope of employment analysis centers on the conduct itself, not the Plaintiffs' claims or the consequences of that conduct. See Red Elk, 62 F.3d at 1107-08. The conduct at issue here is driving while conducting Congressional business. Such an act, even if carried out in a reckless or criminal manner, does not remove the employee's conduct from the scope of employment. Finally, Plaintiffs' argument that Mr. Janklow engaged in a protracted pattern of reckless and dangerous driving only serves to make Defendant's conduct more, rather than less, foreseeable to his employer.
For the aforementioned reasons, this Court concludes that Judge Boylan's finding that Mr. Janklow was acting within the scope of his employment as a Congressman at the time of the incident giving rise to this claim is not clearly erroneous or contrary to law.
B. FTCA's Application to Claims Arising Out of Assault
For the first time, Plaintiffs also argue that certification should be overruled based on the "intentional torts" exception to the FTCA. 28 U.S.C. § 2680(h). Plaintiffs contend that, under South Dakota law, Mr. Janklow's conduct constitutes assault and argues that the plain meaning of § 2680(h) bars certification of any claim arising out of assault.
In relevant part 28 U.S.C. § 2680 provides:
The provisions of this chapter [ 28 U.S.C. §§ 2680 et seq.] and section 1346(b) of this title shall not apply to —
(h)Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. . . ."
Plaintiffs' argument mischaracterizes well-settled law regarding the FTCA. The FTCA provides the exclusive remedy for persons injured by the tortious activity of a United States employee when that employee acts within the scope of employment. 28 U.S.C. § 2679(b)(1); see also United States v. Smith, 499 U.S. 160, 165-67 (1991). As noted, the United States may be substituted for the individual defendant provided that the Attorney General certifies that the named defendant was acting within the scope of employment when the injury occurred.
28 U.S.C. § 2679(d)(1). The FTCA constitutes a limited waiver of the United States' sovereign immunity to certain tort claims but excludes those claims listed in § 2680. See, e.g. Aversa v. United States, 99 F.3d 1200, 1207 (1st Cir. 1996). Upon certification, any action against the United States as substituted defendant is "subject to the limitations and exceptions" included in § 2680, even if such exceptions preclude government liability. 28 U.S.C. § 2679(d)(4); see also Smith, 499 U.S. at 165-67. Plaintiffs' argument wrongly characterizes the intentional torts exception as a limitation on the types of claims to which the FTCA applies. Rather, § 2680(h) applies after the United States is substituted for the named defendant to foreclose government liability for intentional torts. See, e.g. Aversa, 99 F.3d at 1213 (holding that United States was properly substituted for federal employee under the FTCA but that § 2680(h) barred recovery for claims arising from libel and slander); Lee v. United States, 171 F. Supp.2d 566, 577-79 (M.D.N.C. 2001) (finding that United States was properly substituted for federal employee but that § 2680(h) precluded recovery for claims arising from assault). Given that the intentional torts exception does not preclude certification, it is unnecessary for this Court to determine whether Mr. Janklow's conduct constituted an assault under South Dakota law.
In summary, Plaintiffs have not demonstrated that the United States Attorney's certification was incorrect either because Defendant's conduct was outside the scope of his employment or because § 2680(h) prevents substitution of the United States as the party defendant in claims arising out of assault. As a result, pursuant to 28 U.S.C § 2679(d)(2), substitution of the United States for Mr. Janklow is appropriate and Plaintiffs' motion for review of the U.S. Attorney's certification and for remand to state court is denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Judge Boylan's Order [Docket No. 30] is ADOPTED in its entirety;
2. Defendant's Motion for Substitution, therein requesting an order substituting the United States as defendant in this matter [Docket No. 4] is GRANTED;
3. Plaintiffs' Objections [Docket No. 31] are DENIED; and
4. Plaintiffs' Motion for Review of the U.S. Attorney's Certification and Motion for Remand of the action to Hennepin County District Court, Fourth Judicial District, State of Minnesota [Docket No. 7] is DENIED.