United States District Court for the District of Columbia
April 11, 2005.
MARY T. MAJANO, Plaintiff,
JEANNY KIM, Defendant.
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Mary T. Majano, a custodial employee at the Smithsonian
Institution ("Smithsonian"), alleges that Jeanny Kim, a
Smithsonian manager, assaulted and injured her after Ms. Majano
insisted that Ms. Kim show employee identification before
entering a Smithsonian building. According to the complaint, Ms.
Kim became angry, shoved Ms. Majano against a wall, shouted
obscenities, and repeatedly jerked a lanyard that Ms. Majano wore
around her neck.
The United States removed the action to federal court. At the
same time, it filed a certification, pursuant to
28 U.S.C. § 2679(d), that Ms. Kim was acting within the scope of her
employment at the time of the incident and that the United States
should be substituted as the defendant in the case. Because such
a substitution would lead to dismissal of the case under the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), Ms.
Majano challenges the certification that Ms. Kim was acting
within the scope of her employment.
The Court has considered the arguments of the parties and the
entire record including arguments at a motions hearing before
the Court and briefs addressing the Government's post-discovery motion for summary judgment and determined that
no further evidence or argument is necessary to find that Ms. Kim
was acting within the scope of her employment when the
altercation with Ms. Majano took place. The United States will be
substituted for Ms. Kim as defendant and the complaint dismissed.
In 2003, Mary Majano was employed as a custodial worker at the
Victor Building, the location of some of the Smithsonian's
administrative offices. Plaintiff's Statement of Material Facts
Not In Dispute ("Pltf.'s Facts") ¶ 1.*fn1 Jeanny Kim worked
as Senior Manager of Media and Corporate Development for the
Smithsonian. Deposition of Jeanny Kim ("Kim Dep.") at 9. Ms. Kim
worked out of two offices, one in the headquarters building and
the other in the Victor Building. Id. at 20.
In the wake of the September 11th terrorist attacks, measures
to ensure building security and employee safety were emphasized
and, in June 2003, the Victor building was on alert, operating
under the national emergency code of orange or yellow. Pltf.'s
Facts ¶¶ 4, 5. Employees were required to show identification to
the security guards before entering the building's parking
garage. Majano Dep. at 5.*fn2 From the garage, access to the
building itself was controlled by use of electronic access key
cards ("Kastle cards"), which had to be "swiped" to unlock the
doors. Custodial employees, including Ms. Majano, were instructed
not allow anyone to "piggyback," or enter the building behind a custodial employee, unless that
person presented Smithsonian identification. Pltf.'s Facts ¶¶ 4,
6; Majano Dep. at 16-19. Ms. Kim claims that she was not aware of
any policy restricting such access to the building without
identification. Kim Dep. at 34-35; Pltf.'s Facts ¶ 12.*fn3
As she arrived for work on the afternoon of June 17, 2003, Ms.
Majano entered the non-public, secured elevator lobby connected
to the Victor building's parking garage. Pltf.'s Facts ¶ 4. Ms.
Kim, who had been waiting to enter the elevator lobby, followed
Ms. Majano shouting, "Hey, Hey." Id. ¶ 7 (quoting Deposition of
Mary Majano ("Majano Dep.") at 7-8). Before the door shut, Ms.
Kim inserted her foot and propped the door open. Id. As the two
stood at the doorway, Ms. Majano asked to see Ms. Kim's
identification. Plaintiff's Response to Statement of Material
Facts Advanced by the United States ("Pltf.'s Fact Response") ¶
10 (quoting Kim Dep. at 106); see also Pltf.'s Facts ¶ 8
(citing to Majano Dep. at 7-10). Rather than show her
identification, Ms. Kim "placed her hand upon the Plaintiff's
chest, and pushed Plaintiff into the secured area." Compl. ¶ 7;
see Pltf.'s Facts ¶¶ 8, 9.
Feeling "really frightened," Ms. Majano moved away from Ms. Kim
and toward the building elevators. Id. ¶ 15 (quoting Majano
Dep. at 11). Ms. Kim was at her heels, calling Ms. Majano
"stupid" and using obscenities. Id. As they neared the
elevators, Ms. Kim seized a lanyard suspended from Ms. Majano's
neck and yanked it with such violence that Ms. Majano's Kastle
card, which was attached to the lanyard, snapped in two. Id.
Ms. Majano hurried to enter the now-open elevator doors. Id. ¶ 16. Ms. Kim followed and pushed the
button for the upper floor where her Victor Building office was
located. Id.*fn4 Neither woman spoke as the elevator
The duration of this encounter is contested. Ms. Kim initially
testified that it lasted a "couple of minutes at the most,
maybe." Kim Dep. at 146. She then stated that the "whole thing
couldn't have taken more than a few minutes." Id. at 148. She
also surmised, "I think maybe the whole thing probably took two
minutes." Id. By contrast, Ms. Majano reported to the nurses
that the attack continued "for quite some time." Notes of
Margaret Isley, at 1; but see Majano Dep. at 13 ("It wasn't too
long."); id. ("She didn't take too long.").
Soon thereafter, Ms. Majano reported the incident to building
security who noticed bruises and welts on her neck.*fn5
Jones Dep. at 21-24. Accompanied by security personnel, Ms.
Majano waited at the garage exit to identify her attacker.
Pltf.'s Facts ¶ 18. Although Ms. Kim was identified and stopped
by security personnel, she hastened to exit the building stating,
"I don't have time for this mess. I'll talk to my boss tomorrow."
Id. (quoting June 17, 2003 Notes of OPS Officer Lee Graves;
June 17, 2003 Incident Report).*fn6
The next day, faint marks were still visible on Ms. Majano's
neck. Id. ¶ 20. The Smithsonian Health Service Unit issued prescriptions for
anti-anxiety, anti-inflammatory, and pain medication and advised
her to take sick leave for three days. Id. ¶¶ 20-21.
Ms. Kim vigorously denied the accusations in a June 18, 2003
written statement, asserting, "I did not accost, assault, or
otherwise touch this woman at any time during the course of our
interaction." Statement in Response to Inquiry; see Pltf.'s
Facts ¶ 22. She also stated, "I went so far as to offer my
employee badge which I held in one free hand. . . ." Id. Her
denials were shortlived. Ms. Kim later admitted that she "put her
hand on [Ms. Majano's] chest" and that her identification badge
"may not have been visible." Deposition of Hugh Carew ("Carew
Dep.") at 28-29); see Pltf's Facts ¶ 22.*fn7
After taking the recommended sick leave, Ms. Majano returned to
work. But the pain worsened as the condition of her neck
deteriorated. Pltf.'s Fact Response ¶ 19. She was forced to quit
her job five months later. Id. She underwent surgery in
December 2003 after magnetic resonance imaging of Ms. Majano's
neck showed a "large" cervical herniated disk. Pltf.'s Facts ¶
24; Pltf.'s Fact Response ¶ 19.
Ms. Majano's treating physician attributed the ruptured disk to
the trauma caused by Ms. Kim when she yanked the lanyard hanging
around Ms. Majano's neck. Although Ms. Majano's doctor opines
that "normal" and "moderate degenerative changes" in her neck
"may have mildly predisposed her to the disk rupture," he argues
that the size of the ruptured disk indicates that it is not attributable to a pre-existing, asymptomatic herniation.
Pltf.'s Facts ¶ 24.*fn8 According to her doctors, Ms. Majano
is permanently disabled and can no longer perform custodial
tasks. Pltf.'s Facts ¶ 26.
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate when the record shows "that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." FED. R. CIV. P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). To determine which facts are material, the Court must
examine the substantive law underlying the claim. See Anderson,
477 U.S. at 248. A "genuine issue" is one whose resolution could
establish an element of a claim or defense, thereby affecting the
outcome of the action. Celotex Corp. v. Catrett, 477 U.S. 317,
In determining whether there is a genuine issue of material
fact, the Court must view the underlying facts and draw all
reasonable inferences in favor of the non-moving party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574,
587 (1986); Washington Post Co. v. U.S. Dep't of Health and
Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). Once the
moving party shows that there is a lack of evidence supporting
the opponent's case, the burden shifts to the non-movant to
demonstrate, through affidavits or otherwise, the existence of a
material issue for trial. See Kingman Park Civic Ass'n v.
Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003); Laningham v.
U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). Conclusory
allegations by the non-movant are insufficient to withstand
summary judgment. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Banks v. Chesapeake and Potomac Tel. Co., 802 F.2d 1416,
1430 n. 24 (D.C. Cir. 1986).
The Federal Employees Liability Reform and Tort Compensation
Act of 1988 ("FELRTCA"), Pub.L. No. 100-694, 102 Stat. 4563
(codified in part at 28 U.S.C. §§ 2671, 2674, 2679), confers
immunity on federal officials "by making an FTCA action against
the Government the exclusive remedy for torts committed by [such]
employees in the scope of their employment." United States v.
Smith, 499 U.S. 160, 163 (1991); see 28 U.S.C. § 2679(b)(1)
("The remedy against the United States provided by sections
1346(b) and 2672 of this title . . . arising or resulting from
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment is exclusive of any other civil action or proceeding
for money damages. . . ."). When a federal employee is sued for a
wrongful or negligent act, FELRTCA empowers the Attorney General
to certify that the employee "was acting within the scope of his
office or employment at the time of the incident out of which the
claim arose. . . ." 28 U.S.C. § 2679(d)(1). Upon certification,
the employee is dismissed from the action and the United States
is substituted as defendant. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 419 (1995).
Where the Government is substituted but retains immunity from
suit, a plaintiff may be barred from recovering damages in tort.
As summarized by the Supreme Court in Lamagno,
In the typical case, by certifying that an employee
was acting within the scope of his employment, the
Attorney General enables the tort plaintiff to
maintain a claim for relief under the FTCA, a claim
against the financially reliable United States. In
such a case, the United States, by certifying, is
acting against its financial interest, exposing
itself to liability as would any other employer at
common law who admits that an employee acted within
the scope of his employment. See RESTATEMENT
(SECOND) OF AGENCY § 219 (1958). The situation alters radically, however, in the
unusual case like the one before us that involves
an exception to the FTCA. When the United States
retains immunity from suit, certification disarms
plaintiffs. They may not proceed against the United
States, nor may they pursue the employee shielded by
the certification. Smith, 499 U.S. at 166-167. In
such a case, the certification surely does not
qualify as a declaration against the Government's
interest: it does not expose the United States to
liability, and it shields a federal employee from
Id. at 427. Such an exception applies to the FTCA here. Section
2680(h) of Title 28 excepts from FTCA coverage, "[a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights. . . ." 28 U.S.C. § 2680(h).
Accordingly, the issue presented is whether Ms. Kim was acting
"within the scope of her employment" when she encountered Ms.
Majano in the early afternoon of June 17, 2003. If acting within
the scope of her employment, the United States must be
substituted as defendant under FELRTCA and, because it retains
immunity against suits arising out of assault and battery, the
case would be dismissed against the United States under the
SCOPE OF EMPLOYMENT
The scope-of-employment certification is not conclusive and a
federal court is empowered to examine the issue independently.
Lamagno, 515 U.S. at 434. Because the United States Attorney
(as designee of the Attorney General) has already certified that
Ms. Kim was acting within the scope of her employment, Ms. Majano
bears the burden of proving otherwise. Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1984); Koch v. United
States, 209 F. Supp. 2d 89, 92 (D.D.C. 2002), sum. aff'd, No.
02-52222, 2002 WL 31926832 (D.C. Cir. Dec. 31, 2002).*fn10
The scope of employment of a federal employee is governed by
the law of the local jurisdiction. Haddon v. United States,
68 F.3d 1420, 1423 (D.C. Cir. 1995) (citing Kimbro,
30 F.3d at 1506). On this issue, the District of Columbia looks to the
Restatement (Second) of Agency, which provides:
Conduct of a servant is within the scope of
employment if, but only if: (a) it is of the kind he
is employed to perform; (b) it occurs substantially
within the authorized time and space limits; (c) it
is actuated, at least in part, by a purpose to serve
the master, and (d) if force is intentionally used by
the servant against another, the use of force is not
unexpectable by the master.
RESTATEMENT (SECOND) OF AGENCY § 228(1).
Ms. Kim was a senior manager with the Smithsonian on the date
of the incident, with offices in both the Victor Building and
Smithsonian headquarters. On the afternoon of June 17, 2003, Ms.
Kim entered the parking lot of the Victor Building on her way to
a meeting. See Pltf.'s Opp. at 21 (acknowledging that Defendant
was "transiting between two work sites"). Carrying a bag and
miscellaneous items, she attempted to follow Ms. Majano through a
secured door "piggybacking" without using her own proximity
card.*fn11 After demanding that Ms. Kim show a form of identification, Ms. Majano contends that Ms. Kim attacked
her physically and verbally. Applying these facts to the
Restatement factors, and upon consideration of the prevailing law
of the District of Columbia, the Court finds that Ms. Kim was
acting within the scope of her employment at the time she
attacked Ms. Majano.
1. Ms. Kim's Conduct Was Incidental to Authorized Conduct
To be conduct "of the kind [s]he is employed to perform,"
RESTATEMENT (SECOND) OF AGENCY § 228(1)(a), Ms. Kim's actions
must have either been "of the same general nature as that
authorized" or "incidental to the conduct authorized." Id. §
229(1). It would be a strained interpretation indeed to contend
that Ms. Kim's actions were of the "same general nature as that
authorized" for a Senior Manager of Media and Corporate
Development. Id. Defendant does not seriously argue this point.
Instead, Defendant argues that Ms. Kim's actions were incidental
to authorized conduct: "it is clear that the workplace setting
directly contributed to the potential for job-related conflict,"
Def.'s Memo. at 16, and that this conflict occurred when "Ms. Kim
was properly traveling from one of her offices to another . . .
to attend a meeting with potential clients of the Smithsonian."
Id. at 17.
According to the D.C Court of Appeals, for conduct to be
"incidental" it must be "foreseeable," meaning that it is a
"direct outgrowth of the employee's instructions or job
assignment." See Haddon, 68 F.3d at 1424 (internal citations
omitted). Workplace confrontations arising from events that are
incidental to an employee's primary duties, but a necessary
outgrowth of those duties, have been found to be within the scope
of employment under the law of the District of Columbia. In Caesar v. United States, 258 F. Supp. 2d 1 (D.D.C. 2003),
the plaintiff sued a coworker after a verbal argument regarding a
work project escalated into a physical confrontation.
"[F]ollowing their verbal exchange, Ms. Robinson slammed her
office door into Ms. Caesar using her full body weight, hitting
Ms. Caesar in the back of her right shoulder. . . ." Id. at 2.
After Ms. Caesar brought suit, the United States Attorney
certified that Ms. Robinson was acting within the scope of her
employment at the time of the acts. Id. The court in Caesar
found that, given that the alleged tortious conduct "occurred
during or immediately following a dispute regarding how a
particular project Ms. Robinson was working on was being handled,
it is clear that it was `triggered by a dispute over the conduct
of the employer's business' and `arose naturally and immediately
between [Ms. Robinson] and plaintiff . . . in connection with
[her] job.'" Id. at 4 (citations omitted).
In Koch v. United States, the plaintiff sued his supervisor
at the Securities and Exchange Commission after the supervisor
allegedly threatened to sue the plaintiff.
209 F. Supp. 2d at 90-91. The United States Attorney filed a certification that the
supervisor was acting within the scope of his employment. Id.
The court found that the plaintiff had not demonstrated that the
defendant was acting outside of the scope of his employment
because the argument "stemmed directly from a dispute over
their respective performances at work." Id. at 93.
Plaintiff relies upon Haddon to support her argument that Ms.
Kim was not acting within the scope of her employment. As an
initial matter, she misstates the proposition set forth in
Haddon, confusing its major and minor premises. See Pltf.'s
Opp. at 17 ("The Haddon Court reasoned that where the
underlying conduct giving rise to a tort is not `of the kind' the
employee was hired to perform, the tortuous conduct arising
therefrom is not `a direct outgrowth' of instructions or job
assignment, and accordingly falls outside the scope of
employment.") (citations omitted). Regardless, Haddon is readily distinguishable from the facts
sub judice, which are more closely aligned with the facts in
Koch and Caesar.
In Haddon, an electrician at the White House approached a
White House chef and threatened to follow him home and beat him
unless the chef withdrew an equal employment opportunity claim
the chef had lodged against a third person. Haddon,
68 F.3d at 1422. The D.C. Circuit found that the alleged tort was unrelated
to the electrician's official duties and was outside the scope of
his employment. Id. at 1426. It noted that the alleged tort
"did not arise directly out of his instructions or job assignment
as a White House electrician." Id. at 1425.
In this case, the tort occurred as Ms. Kim was attempting to
gain access to her offices at the Smithsonian. Such access was
necessary and incidental to the effective performance of her
official duties. The same cannot be said for an employee who
threatens to beat a fellow employee at his residence for reasons
that are not motivated by his duties as an electrician. District
of Columbia law "liberally construes the doctrine of respondeat
superior, at least with respect to the first prong of the
Restatement (Second) of Agency § 228(1)." Stokes,
327 F.3d at 1216. The Court finds that Ms. Kim's entry into the Victor
building was required to complete her assigned duties and a
finding that it was "of the kind [s]he [was] employed to perform"
is squarely within the law of this jurisdiction. RESTATEMENT
(SECOND) OF AGENCY § 228(1)(a).
2. Ms. Kim's Conduct Occurred Within the Authorized Time and
This factor is not contested by the parties. The encounter took
place during the work day in the secure elevator lobby of the
Victor Building where Ms. Kim worked. Accordingly, her conduct
was "within the authorized time and space limits." Id. §
228(1)(b). 3. Ms. Kim's Conduct Was Motivated by a Purpose to Serve
For an employer to be held vicariously liable for an act
committed by an employee, the act must have been motivated, at
least in part, by a purpose to serve the master. District of
Columbia v. Coron, 515 A.2d 435, 437 (D.C. 1986). "If the
employee's actions are only done to further his own interests,
the employer will not be held responsible . . . [but] if the
employee acts in part to serve his employer's interest, the
employer will be held liable for the intentional torts of his
employee even if prompted partially by personal motives, such as
revenge." Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000)
(citing Weinberg v. Johnson, 518 A.2d 985, 988 (D.C. 1986);
Jordan v. Medley, 711 F.2d 211, 213 (D.C. Cir. 1983); Penn
Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979)).
That Ms. Kim was entering the building to perform work on
behalf of the Smithsonian is not disputed. Ms. Kim's belief that
Ms. Majano was preventing her from doing so led directly to the
confrontation. On these facts, it seems self-evident that Ms. Kim
was acting, at least in part, with a purpose to serve
In an effort to salvage her argument, Plaintiff attempts to
divide the incident into discrete parts, arguing that the
altercation involved two distinct attacks and that the second was
motivated solely by personal interest. See Pltf.'s Opp. at 25
("[O]nce having successfully forced entry into the building, [Ms.
Kim] launched a second vicious, unprovoked, angry, and vengeful
physical and verbal attack upon Plaintiff in the elevator lobby,
and that Defendant's second battery was not actuated by a purpose
to serve the Smithsonian Institution. . . ."). Plaintiff's
attempt to split in twain an otherwise singular altercation is not
persuasive.*fn12 Ms. Majano claims that Ms. Kim pushed,
verbally assaulted, and violently pulled at a lanyard that hung
around her neck. These actions occurred within the span of
minutes and in the same general area of the Victor Building.
Without some intervening event, or noteworthy passage of time,
the Court must consider this event seamless and motivated by Ms.
Kim's intention to gain access to her offices.
4. Ms. Kim's Use of Force Was Expectable
Where the alleged tort is intentional and "is the outgrowth of
a job-related controversy, `then the employer remains liable,
since the master and servant relationship is not broken.'"
Johnson v. Weinberg, 434 A.2d 404, 408 (D.C. 1981) (citation
omitted). The inquiry is necessarily whether the intentional tort
was foreseeable, or whether it was "unexpectable in view of the
duties of the servant." RESTATEMENT (SECOND) OF AGENCY § 245.
Plaintiff argues that "conduct involving force can be so
outrageous that it falls outside the scope of employment."
Pltf.'s Opp. at 26.*fn13 But a broad range of intentional
tortious conduct has been found to be within the scope of
employment despite the violence by which injury was inflicted.
In Johnson v. Weinberg, a customer sued the owner of a
laundromat after an employee shot him in the face. The customer
had placed his shirts in one of the washing machines and left for home. He returned less than an hour later to find the shirts
missing. The employee informed the customer that he did not know
where the shirts were. The customer left and returned twice in an
attempt to find his shirts. During the last encounter, the
customer said "forget it," and turned to leave. Johnson,
434 A.2d at 406 (quoting Mr. Johnson). At that point, the employee
called out to the customer and shot him in the face. The D.C.
Court of Appeals held that the owner of the laundromat could be
liable for Mr. Boyd's conduct. It reversed the trial court's
directed verdict that Mr. Boyd's conduct was outside the scope of
his employment, stating that the "assault arose out of the
transaction which initially brought Boyd to the premises (to
launder shirts) and was triggered by a dispute over the conduct
of the employer's business (missing shirt)." Id. at 409. It
also explained that an employer is liable for its employee's
conduct, even if not explicitly authorized, "where a tort is the
outgrowth of a job-related controversy[.]" Id. at 408.
The D.C. Circuit in Lyon v. Carey, 533 F.2d 649 (D.C. Cir.
1976), found that an assault and rape of a customer by an
employee delivering a mattress was foreseeable. "The dispute
arose out of the very transaction which had brought [the
deliveryman] to the premises." Id. at 652. The Court noted that
"[a]lthough the assault was perhaps at the outer bounds of
respondeat superior . . . [a] foreseeable altercation? may
precipitate violence . . . even though the particular type of
violence was not in itself anticipated or foreseeable." Id. at
After the September 11th terrorist attacks on the United
States, various federal facilities, including the Smithsonian,
were put on alert. The Victor Building was operating under alert
code orange or yellow on the date of the incident. Custodial
employees were warned not to permit access to persons without proffer of appropriate employee
identification.*fn14 Ms. Kim, at least, was unaware of a
policy governing access to the building and, based on her
conduct, it seems evident that Ms. Kim did not feel that
custodial employees could properly deny her access.
Traveling to and between her offices at the Smithsonian to
attend meetings and other job functions was a direct outgrowth of
Ms. Kim's duties and, in fact, was necessary to the effective
completion of her daily tasks. As Senior Manager of Media and
Corporate Development, it was foreseeable that she would have to
be present at events in the various Smithsonian buildings during
her work day. A physical or verbal altercation between fellow
employees over the manner of entrance to a Smithsonian building
in this heightened security environment is unfortunate and may
be administratively-sanctionable but nonetheless expectable.
ASSAULT EXCLUSION OF THE FTCA
Plaintiff concedes that the "assault exclusion of the [FTCA]
comes into play to bar Plaintiff's cause of action ? if the
United States, upon Plaintiff's challenge to the certification of
the Assistant United States Attorney, prevails on the scope of
employment issue." Pltf.'s Opp. at 30. Under District of Columbia
law, Ms. Kim's actions were a direct outgrowth of her assigned
and authorized conduct and were within the scope of her
employment. The Court finds that the certification is proper and
that the United States must be substituted as the defendant.
Although the FTCA waives sovereign immunity for many tort
claims, the United States retains immunity from specified
actions. As relevant here, no claim may be brought against the United States that arises out of an assault and battery
unless the tort was committed by a federal investigative or law
enforcement officer. 28 U.S.C. § 2680(h). Because Ms. Kim is not
an investigative or law enforcement officer, the FTCA excludes
Count One ("Assault") and Count Two ("Battery") of Ms. Majano's
Count Three ("Intentional Infliction of Emotional Distress") is
not explicitly named and excluded from the FTCA. However, Section
2680 of the FTCA excludes "any claim arising out of" any of the
enumerated torts. 28 U.S.C. § 2680(h). Count Three alleges that
"Plaintiff was tremendously frightened and made hysterical by the
Defendant's actions, and . . . the Defendant intentionally caused
Plaintiff severe emotional distress." Compl. ¶¶ 20-21. As the
"actions" referenced are the basis for Ms. Majano's assault and
battery claims, Count Three must be excluded as "arising out of"
a tort specifically excluded under 28 U.S.C. § 2680(h). See
Koch, 209 F. Supp. 2d at 94-95 (finding that a claim for
intentional infliction of emotional distress was excluded).
As no justiciable claims remain, Defendant's motion for summary
judgment is GRANTED and the case DISMISSED. Because the case is
dismissed, the motion for exercise of discretionary pendent
jurisdiction is DENIED as moot. Plaintiff's motion for leave to
file surreply is GRANTED. Defendant's motion to strike surreply