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MAJANO v. KIM

United States District Court for the District of Columbia


April 11, 2005.

MARY T. MAJANO, Plaintiff,
v.
JEANNY KIM, Defendant.

The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

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.

  BACKGROUND

  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 ascended.

  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.

  LEGAL STANDARDS

  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, 322 (1986).

  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).

  ISSUE PRESENTED

  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 liability.
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 FTCA.*fn9

  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 Space

  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 Smithsonian

  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 Smithsonian.

  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 651.

  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 complaint.

  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).

  CONCLUSION

  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 is DENIED.


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