Sullivan v . TSA CV-10-16-PB 8/19/10
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Bonnie Sullivan and Christopher Sullivan
v. Case N o . 10-cv-16-PB Opinion N o . 2010 DNH 151
Transportation Security Administration
MEMORANDUM AND ORDER
Bonnie and Christopher Sullivan bring this action against
the Transportation Security Administration (“TSA”) under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), for
damages resulting from the alleged theft of Bonnie Sullivan’s
Rolex watch. The theft allegedly occurred as a result of TSA
luggage screening before a flight from Fort Lauderdale, Florida
to Manchester, New Hampshire on March 1 6 , 2009. TSA argues in a
motion to dismiss that this court lacks subject matter
jurisdiction over the claim asserted. I grant TSA’s motion for
the reasons set forth below. I . BACKGROUND
On March 1 6 , 2009, plaintiffs flew from Fort Lauderdale,
Florida to Manchester, New Hampshire. (Compl., Doc. N o . 1 , ¶ 4.)
The night before their flight, Bonnie Sullivan allegedly placed a
Rolex watch in her suitcase, stuffed into the toe of a shoe.
(Id.) When the suitcase arrived at the Manchester airport it had
a “TSA Cleared” sticker on it and, upon arriving home, plaintiffs
opened the suitcase to find that the watch was missing. (Id.)
Plaintiffs sued TSA under the FTCA, alleging that the watch was
stolen by a TSA employee when the suitcase was searched at the
Fort Lauderdale airport. (Id.)
TSA argues in a motion to dismiss that this court lacks
subject matter jurisdiction over the case because the United
States has waived its sovereign immunity under the FTCA only for
torts committed by its employees acting within the scope of their
employment, and that theft by a TSA employee is not within the
scope of employment. (See Def.’s Mem. of Law in Supp. of Mot. to
Dismiss, Doc. N o . 5 , at 4 ) .
II. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction
-2- pursuant to Fed. R. Civ. P. 12(b)(1) challenges the statutory or
constitutional power of the court to adjudicate a particular
case. 2 James Wm. Moore et a l . , Moore’s Federal Practice §
12.30[1] (3d ed. 1997). The party seeking to invoke the court’s
jurisdiction bears the burden of establishing that jurisdiction
exists. See Aversa v . United States, 99 F.3d 1200, 1209 (1st
Cir. 1996). In resolving the instant motion, I must construe the
complaint liberally, treat all well-pleaded facts as true, and
view them in the light most favorable to the plaintiff. See
McCloskey v . Mueller, 446 F.3d 2 6 2 , 266 (1st Cir. 2006). “[The]
plaintiff, however, may not rest merely on unsupported
conclusions or interpretations of law.” Murphy v . United States,
45 F.3d 5 2 0 , 522 (1st Cir. 1995) (internal quotation marks
omitted). Dismissal under Rule 12(b)(1) is appropriate only if
the facts alleged in the complaint do not support subject matter
jurisdiction even if taken as true. See Muniz-Rivera v . United
States, 326 F.3d 8 , 11 (1st Cir. 2003). I apply this standard in
resolving TSA’s motion to dismiss.
I I . ANALYSIS
“It is well settled that the United States, as sovereign,
-3- may not be sued without its consent.” See Murphy, 45 F.3d at 522
(citing United States v . Dalm, 494 U.S. 596, 608 (1990)).
Pursuant to the FTCA’s broad waiver of sovereign immunity, the
United States has consented to suit under certain limited
circumstances, including actions for damages
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).
Here, plaintiffs claim that the TSA is liable for a theft
allegedly committed by its employee because the employee was
acting within the scope of his employment when he committed the
theft. Because the alleged theft would have occurred in Florida,
Florida law will determine the scope of employment standard. See
McCloskey v . Mueller, 446 F.3d 2 6 2 , 266-67 (1st Cir. 2006). While
there is no Florida case dealing with the exact question
presented here, there is nevertheless sufficient guidance in
other Florida cases which resolve the scope-of-employment issue
in the context of other intentional torts.
Under Florida law, an employee's conduct is within the scope
of his employment where “(1) the conduct is of the kind he was
-4- employed to perform, (2) the conduct occurs substantially within
the time and space limits authorized or required by the work to
be performed, and (3) the conduct is activated at least in part
by a purpose to serve the master.” Iglesia Cristiana LaCasa
DelSenor, Inc. v . L.M., 783 So.2d 353, 357 (Fla. Dist. C t . App.
2001). “Whether an employee is acting within the scope of his
employment may become a question of law when there are no
conflicting facts and the jury could reach only one sustainable
conclusion.” Garcy v . Broward Process Servers, Inc., 583 So.2d
714, 716 (Fla. Dist. C t . App. 1991).
Florida cases establish that the relevant conduct to be
analyzed in a scope of employment inquiry is the alleged tortious
act, not the broader activity the employee may have been engaged
in at the time. In Perez v . Zazo, the stabbing of a tenant by an
apartment manager in response to a complaint about the
apartment’s hot water was held to be outside of the scope of the
apartment manager’s employment because the court was “simply
unable to discern any indication whatever that any purpose of the
apartment owner was being served... by the senseless,
inexplicable act which injured Zazo.” 498 So.2d 463, 465 (Fla.
Dist. C t . App. 1986). Instead, the tortious act was motivated
-5- entirely by the personal interests of the apartment manager. Id.
The court was not persuaded by the fact that the apartment
manager was responding at the time to a general request to fix
the apartment, specifically noting that “it makes no difference
that [the act] stemmed from or arose during the employment.”
Id.; see also Agriturf Management Inc. v . Roe, 656 So.2d 9 5 4 , 955
(Fla. Dist. C t . App. 1995) (holding that an employee’s
molestation of his granddaughter, even though on company property
and during work hours, was not within the scope of employment
because “[defendant’s] misconduct did not have as its source or
its purpose any intent to serve Agriturf”).
In this case, plaintiffs have similarly failed to identify
any evidence to support the view that the theft of a watch by a
TSA agent, as opposed to the broader conduct of screening
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Sullivan v . TSA CV-10-16-PB 8/19/10
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Bonnie Sullivan and Christopher Sullivan
v. Case N o . 10-cv-16-PB Opinion N o . 2010 DNH 151
Transportation Security Administration
MEMORANDUM AND ORDER
Bonnie and Christopher Sullivan bring this action against
the Transportation Security Administration (“TSA”) under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), for
damages resulting from the alleged theft of Bonnie Sullivan’s
Rolex watch. The theft allegedly occurred as a result of TSA
luggage screening before a flight from Fort Lauderdale, Florida
to Manchester, New Hampshire on March 1 6 , 2009. TSA argues in a
motion to dismiss that this court lacks subject matter
jurisdiction over the claim asserted. I grant TSA’s motion for
the reasons set forth below. I . BACKGROUND
On March 1 6 , 2009, plaintiffs flew from Fort Lauderdale,
Florida to Manchester, New Hampshire. (Compl., Doc. N o . 1 , ¶ 4.)
The night before their flight, Bonnie Sullivan allegedly placed a
Rolex watch in her suitcase, stuffed into the toe of a shoe.
(Id.) When the suitcase arrived at the Manchester airport it had
a “TSA Cleared” sticker on it and, upon arriving home, plaintiffs
opened the suitcase to find that the watch was missing. (Id.)
Plaintiffs sued TSA under the FTCA, alleging that the watch was
stolen by a TSA employee when the suitcase was searched at the
Fort Lauderdale airport. (Id.)
TSA argues in a motion to dismiss that this court lacks
subject matter jurisdiction over the case because the United
States has waived its sovereign immunity under the FTCA only for
torts committed by its employees acting within the scope of their
employment, and that theft by a TSA employee is not within the
scope of employment. (See Def.’s Mem. of Law in Supp. of Mot. to
Dismiss, Doc. N o . 5 , at 4 ) .
II. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction
-2- pursuant to Fed. R. Civ. P. 12(b)(1) challenges the statutory or
constitutional power of the court to adjudicate a particular
case. 2 James Wm. Moore et a l . , Moore’s Federal Practice §
12.30[1] (3d ed. 1997). The party seeking to invoke the court’s
jurisdiction bears the burden of establishing that jurisdiction
exists. See Aversa v . United States, 99 F.3d 1200, 1209 (1st
Cir. 1996). In resolving the instant motion, I must construe the
complaint liberally, treat all well-pleaded facts as true, and
view them in the light most favorable to the plaintiff. See
McCloskey v . Mueller, 446 F.3d 2 6 2 , 266 (1st Cir. 2006). “[The]
plaintiff, however, may not rest merely on unsupported
conclusions or interpretations of law.” Murphy v . United States,
45 F.3d 5 2 0 , 522 (1st Cir. 1995) (internal quotation marks
omitted). Dismissal under Rule 12(b)(1) is appropriate only if
the facts alleged in the complaint do not support subject matter
jurisdiction even if taken as true. See Muniz-Rivera v . United
States, 326 F.3d 8 , 11 (1st Cir. 2003). I apply this standard in
resolving TSA’s motion to dismiss.
I I . ANALYSIS
“It is well settled that the United States, as sovereign,
-3- may not be sued without its consent.” See Murphy, 45 F.3d at 522
(citing United States v . Dalm, 494 U.S. 596, 608 (1990)).
Pursuant to the FTCA’s broad waiver of sovereign immunity, the
United States has consented to suit under certain limited
circumstances, including actions for damages
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).
Here, plaintiffs claim that the TSA is liable for a theft
allegedly committed by its employee because the employee was
acting within the scope of his employment when he committed the
theft. Because the alleged theft would have occurred in Florida,
Florida law will determine the scope of employment standard. See
McCloskey v . Mueller, 446 F.3d 2 6 2 , 266-67 (1st Cir. 2006). While
there is no Florida case dealing with the exact question
presented here, there is nevertheless sufficient guidance in
other Florida cases which resolve the scope-of-employment issue
in the context of other intentional torts.
Under Florida law, an employee's conduct is within the scope
of his employment where “(1) the conduct is of the kind he was
-4- employed to perform, (2) the conduct occurs substantially within
the time and space limits authorized or required by the work to
be performed, and (3) the conduct is activated at least in part
by a purpose to serve the master.” Iglesia Cristiana LaCasa
DelSenor, Inc. v . L.M., 783 So.2d 353, 357 (Fla. Dist. C t . App.
2001). “Whether an employee is acting within the scope of his
employment may become a question of law when there are no
conflicting facts and the jury could reach only one sustainable
conclusion.” Garcy v . Broward Process Servers, Inc., 583 So.2d
714, 716 (Fla. Dist. C t . App. 1991).
Florida cases establish that the relevant conduct to be
analyzed in a scope of employment inquiry is the alleged tortious
act, not the broader activity the employee may have been engaged
in at the time. In Perez v . Zazo, the stabbing of a tenant by an
apartment manager in response to a complaint about the
apartment’s hot water was held to be outside of the scope of the
apartment manager’s employment because the court was “simply
unable to discern any indication whatever that any purpose of the
apartment owner was being served... by the senseless,
inexplicable act which injured Zazo.” 498 So.2d 463, 465 (Fla.
Dist. C t . App. 1986). Instead, the tortious act was motivated
-5- entirely by the personal interests of the apartment manager. Id.
The court was not persuaded by the fact that the apartment
manager was responding at the time to a general request to fix
the apartment, specifically noting that “it makes no difference
that [the act] stemmed from or arose during the employment.”
Id.; see also Agriturf Management Inc. v . Roe, 656 So.2d 9 5 4 , 955
(Fla. Dist. C t . App. 1995) (holding that an employee’s
molestation of his granddaughter, even though on company property
and during work hours, was not within the scope of employment
because “[defendant’s] misconduct did not have as its source or
its purpose any intent to serve Agriturf”).
In this case, plaintiffs have similarly failed to identify
any evidence to support the view that the theft of a watch by a
TSA agent, as opposed to the broader conduct of screening
baggage, was motivated by a desire to serve the interests of TSA
rather than merely the personal interests of the agent who
allegedly stole the watch. The mere fact that the theft was made
possible by or arose during a TSA-authorized search i s , by
itself, insufficient.
This approach to the problem is consistent with the
Restatement (Third) of Agency, which looks to whether the
-6- specific tortious conduct of the employee was intended at least
in part to further the purpose of the employer. Restatement
(Third) of Agency §7.07 cmt. b (“When an employee commits a tort
with the sole intention of furthering the employee’s own
purposes, and not any purposes of the employer . . . .[t]he
employee’s intention severs the basis for treating the employee’s
act as that of the employer in the employee’s interaction with
the third party”). Moreover, other district courts addressing
this exact issue under similar state laws have reached the same
result. See Bradley v . Transportation Sec. Admin., 552 F. Supp.
2d 9 5 7 , 961 (E.D. M o . 2008) (holding that alleged theft by TSA
agent was outside the scope of employment because “such an
employee would be motivated solely for personal gain”); Carpenter
v . Transportation Sec. Admin., Civ. N o . AW-08-2578, slip o p . at 5
(D. Md. Apr. 9, 2010) (holding that alleged theft of a watch by
TSA agent was outside the scope of employment because “the
employee was not acting in service o f , or furthering a purpose
o f , the TSA”).
While Bradley and Carpenter do rely on slight state law
variations of what constitutes conduct within the scope of
employment, the foundation for both decisions, as with this case,
-7- is that the alleged theft could not have been perceived by the
agent to benefit TSA in any way. Because plaintiffs offer no
evidence that the TSA agent’s theft was motivated by a desire to
benefit TSA, Florida law requires dismissal of this case.
IV. CONCLUSION
For the reasons stated above, I conclude that this court
lacks jurisdiction to hear plaintiff’s claim, and I grant
defendant’s motion to dismiss (Doc. N o . 5 ) . The clerk is directed
to enter judgment and close the case.
SO ORDERED.
Paul Barbadoro United States District Judge
August , 2010
cc: Christopher Sullivan, pro se Bonnie Sullivan, pro se T . David Plourde, AUSA
-8-