Rodriguez v. Velez-Pagan

341 F. Supp. 3d 203
CourtDistrict Court, E.D. New York
DecidedOctober 26, 2018
Docket17-CV-3911 (ERK) (SJB)
StatusPublished
Cited by4 cases

This text of 341 F. Supp. 3d 203 (Rodriguez v. Velez-Pagan) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez v. Velez-Pagan, 341 F. Supp. 3d 203 (E.D.N.Y. 2018).

Opinion

Edward R. Korman, United States District Judge

In November of 2013, Omar Velez-Pagan, a servicemember, was assigned to serve "as a representative of the U.S. Army Security Assistance Training Management Organization for the purpose of training officers of the National Police Force of the Republic of Panama." Am. Compl. ¶ 23, ECF No. 15. The following month, Velez-Pagan arrived in Panama and commenced "his role as a member of the Administrative and Technical Staff" at the U.S. Embassy in Panama. Id. ¶ 24. The Embassy provided Velez-Pagan with a pickup truck "to accomplish his duties." Id. ¶ 25. While stationed in Panama, Velez-Pagan initiated a romantic relationship with a young Panamanian woman, Vanesa Itzel Rodriguez Chavarria ("Rodriguez"). Id. ¶ 26.

On June 19, 2014, Velez-Pagan and a colleague were ordered to provide firearm instruction to Panamanian National Police Units in Guarare, Panama. Id. ¶ 27. On June 22, Velez-Pagan, his colleague, and some Panamanian police officers spent the afternoon at a nearby beach. Pls.' Supporting Evidence 80, ECF No. 14. Rodriguez met up with Velez-Pagan and the others. Id.

At his trial for Rodriguez's murder, Velez-Pagan testified that they left the beach together in his Embassy-provided car. Id. at 78. He stated that while they were driving, Rodriguez became aggressive, began arguing with him and, at one point, hit him in the face. Id. at 78-79. In response, he punched her in the face. Id. at 79. Although Velez-Pagan testified that he *207only punched her once or twice, id. , "blood stains were found all over the passenger side of the [pickup truck]," suggesting a more brutal beating. Am. Compl. ¶ 29. A DNA test showed that it was Rodriguez's blood, and the Amended Complaint alleges that the murder occurred inside the vehicle. Id. ¶¶ 11, 29-30. Velez-Pagan then "repeatedly r[a]n over the body of [Rodriguez] to cover up the murder to make it appear [as though] her death was caused by a traffic accident." Id. ¶ 28. The investigating agent testified that Velez-Pagan kept steroids and syringes in his apartment, Pls.' Supporting Evidence 85, and was allegedly using those drugs when he killed Rodriguez, Am. Compl. ¶ 45.

The next morning, during a firearms training exercise, "Velez-Pagan excused himself to go to the bathroom in the woods ... near the shooting range." Cortes Decl., Ex. 2, at 6, ECF No. 21-4. A few minutes later, a Panamanian policeman found Velez-Pagan digging a hole with Rodriguez's body nearby. Id. at 7. The officer held Velez-Pagan at gunpoint while calling for assistance from his fellow officers. Id. When the other officers arrived, Velez-Pagan admitted he had killed her. Id. Velez-Pagan was returned to the United States, tried by a military court, and convicted for, inter alia , unpremeditated murder, aggravated assault, and possession of steroids.

On March 24, 2016, Rodriguez's Estate and both of her parents filed wrongful death administrative claims with the Army and the State Department, as required by the Federal Tort Claims Act to exhaust remedies. Cortes Decl., Exs. 1-2, ECF Nos. 21-3, 21-4; Opp. Br. 27, Ex. D, ECF No. 18. Those claims were denied on January 10, 2017. Am. Compl. ¶ 8.

The instant action was filed in this court by Rodriguez's family and Estate (collectively, "plaintiffs") against the United States Army; Department of Defense; Department of State (collectively, the "Agency Defendants"); the United States (collectively with the Agency Defendants, the "United States"); and Omar Velez-Pagan, in both his official and individual capacities.1 Am. Compl. ¶¶ 16-20. The Amended Complaint alleges four causes of action: negligence, "negligent retention and negligently placing others in danger," wrongful death, and negligent infliction of emotional distress. Id. ¶¶ 33-63. Broadly, plaintiffs claim that the United States was negligent in hiring and supervising Velez-Pagan and in failing to verify his compliance with regulations governing drug use, ultimately leading to Rodriguez's death. See id. Defendants filed a motion to dismiss pursuant to Rule 12(b), principally for lack of subject matter jurisdiction.

DISCUSSION

"The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). While the court must take all facts alleged in the complaint as true, "[i]n resolving a motion to dismiss for lack of subject matter jurisdiction ... a district court ... may refer to evidence outside the pleadings." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). A "plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."

*208Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova , 201 F.3d at 113 ).

Plaintiffs appear to assert three different bases for jurisdiction-the Federal Tort Claims Act ("FTCA"), the Alien Tort Claims Act ("ATCA"), and the Torture Victim Protection Act ("TVPA"). As to claims asserted against Velez-Pagan in his individual capacity, the plaintiffs assert supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). I will address each basis in turn.

A. FTCA Claims

The FTCA provides a waiver of sovereign immunity for

civil actions on claims against the Government, for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States 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).

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Bluebook (online)
341 F. Supp. 3d 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-velez-pagan-nyed-2018.