Ferrari v. United States

Opinion

WESTERN DISTRICT OF WASHINGTON

10 JOSEPH FERRARI, CASE NO. 19-5996 RJB-TLF 11 Plaintiff, ORDER ON UNITED STATES’ v. MOTION TO DISMISS AND UNITED STATES OF AMERICA, PLAINTIFF’S MOTION FOR 13 DISCOVERY AND HEARING Defendant. 14

15 This matter comes before the Court on the United States’ Motion to Dismiss (Dkt. 8) and 16 Motion to Stay Deadlines (Dkt. 15), and the Plaintiff’s Objection to Substitution of United 17 States, Response to Motion to Dismiss, and Request for Discovery and Evidentiary Hearing 18 (Dkt. 12) which the Court should construe as a motion for limited discovery and for an 19 evidentiary hearing. The Court has considered the pleadings filed in support of and in opposition 20 to the motions and the file herein. 22 This case arises from reports that Plaintiff Joseph Ferrari sexually assaulted Erin Ford 23 while they were both officers in the United States Navy. Dkt. 1. The case was originally filed in 24 1 Kitsap County, Washington and named Ford as the Defendant. Dkt. 10. The Amended 2 Complaint maintains that Ford lied. Dkt. 1-1. The Plaintiff asserts claims for slander, liable, 3 defamation, and a “tortuous act.” Id. The United States removed the case to this Court. Dkt. 1. 4 Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1), the United States certified that Ford was 5 employee of the United States and was acting within the course and scope of her official duties at

6 the time. Dkt. 2-1. The United States substituted itself as the Defendant. Dkt. 2. 7 On October 25, 2019, the United States filed the instant motion to dismiss arguing that 8 the case should be dismissed because: (1) the Court lacks subject matter jurisdiction over tort 9 claims (like liable, slander and defamation) that are barred by the Federal Tort Claims Act 10 (“FTCA”), 28 U.S.C. § 1346, et. seq.; (2) the Court lacks subject matter jurisdiction because the 11 Plaintiff failed to exhaust his administrative remedies; and (3) leave to file a second amended 12 complaint should be denied as futile. Dkt. 8. 13 The Plaintiff responded and: (1) objected to the substitution of the United States as 14 defendant, arguing that if Ford lied about the sexual assault and other matters, she was not acting

15 in the course or scope of her employment; (2) moves for leave to do discovery and for an 16 evidentiary hearing (at least 90 days from now) to determine whether Ford was acting within the 17 course or scope of her employment at the relevant time; and (3) argues if Ford was not, the 18 motion to dismiss should be denied because the FTCA does not apply. Dkt. 12. 19 The United States filed a reply and states that it does not oppose Plaintiff’s request for 20 limited discovery and an evidentiary hearing to determine whether Ford was acting within the 21 scope of her employment when she reported Plaintiff’s alleged sexual assault. Dkt. 15. It 22 concedes that there are material issues of fact pertaining to the United States’ certification that 23 24 1 Ford was acting within the course and scope of her employment. Id. The United States moves 2 for a stay of all other deadlines until the Court has ruled on the certification challenge. Id. 3 This opinion should first address the Plaintiff’s motion for limited discovery and an 4 evidentiary hearing to determine whether the United States properly certified that Ford was 5 acting within the course and scope of her employment at the relevant time, then, the United

6 States’ motion to stay, and lastly, the United States’ motion to dismiss. 8 A. PLAINTIFF’S MOTION FOR DISCOVERY AND A HEARING ON HIS CHALLENGE OF U.S. CERTIFICATION 9 Under the “Westfall Act, a federal employee is immune from suit upon certification of 10 the Attorney General that the employee was acting within the scope of his employment.” Pauly 11 v. U.S. Dep't of Agri., 348 F.3d 1143, 1150 (9th Cir. 2003). The U.S. Attorney certified that 12 Ford was acting within the course and scope of her employment here. “This certification is 13 prima facie evidence that a federal employee was acting in the scope of her employment at the 14 time of the incident. The plaintiff bears the burden of disproving the certification by a 15 preponderance of the evidence.” Id., at 1151 (internal quotation marks and citations omitted). 16 Under the Westfall Act, state law governs the scope-of-employment inquiry. Id. 17 Pursuant to Washington law, employees act within the scope of their employment, even if their 18 “acts are contrary to instructions or constitute intentional torts, when [they are] engaged in the 19 performance of the duties required” of them by their “contract of employment or when [they are] 20 engaged at the time in the furtherance of the employer’s interest.” Id. 21 The United States does not oppose Plaintiff’s motion for limited discovery, and if 22 necessary, an evidentiary hearing, to determine whether Ford was acting within the course and 23 scope of her employment when she reported Plaintiff’s alleged sexual assault. Accordingly, the 24 1 Plaintiff’s motion (Dkt. 12) should be granted. On or before December 6, 2019, the parties 2 should file a proposed discovery schedule and available hearing dates with the Court. 4 The United States’ motion for a stay of all other deadlines until the Court has ruled on the 5 certification challenge (Dkt. 15) should be granted. There is a sufficient showing that a stay is

6 appropriate here. 8 The United States’ Motion to Dismiss (Dkt. 8) should be stricken to be renoted, if 9 appropriate, after a decision on the Plaintiff’s certification challenge. 11 Therefore, it is hereby ORDERED that: 12  The Plaintiff’s motion for limited discovery, and if necessary, an evidentiary 13 hearing, to determine whether Ford was acting within the course and scope of her 14 employment when she reported Plaintiff’s alleged sexual assault (Dkt. 12) IS

15 GRANTED; 16  On or before December 6, 2019, the parties SHALL FILE a proposed 17 discovery schedule and available hearing dates with the Court; 18  The United States’ motion for a stay of all other deadlines until the Court has 19 ruled on the certification challenge (Dkt. 15) IS GRANTED; and 20  The United States’ Motion to Dismiss (Dkt. 8) IS STRICKEN, to be renoted, if 21 appropriate after a decision on the certification challenge. 22 / / / 23 / / / 24 1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 2 to any party appearing pro se at said party’s last known address. 3 Dated this 26th day of November, 2019. A 4

5 ROBERT J. BRYAN United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24