The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER (1) DENYING PLAINTIFF'S REQUEST TO WITHDRAW HIS FIRST AMENDED COMPLAINT, (2) DENYING PLAINTIFF'S REQUEST FOR EVIDENTIARY HEARING, (3) GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS, (4) GRANTING MISSOURI STATE DEFENDANTS' MOTION TO DISMISS; (5) DENYING PLAINTIFF'S VARIOUS REQUESTS AND APPLICATIONS; AND (6) DISMISSING WITHOUT PREJUDICE CLAIMS AGAINST THE CALIFORNIA STATE DEFENDANTS
This matter comes before the Court on (1) a request to withdraw the First Amended Complaint ("FAC") and a request for an evidentiary hearing filed by the plaintiff Michael R. Fletcher ("Plaintiff"), appearing pro se, and (2) motions to dismiss filed by the Federal Defendants and by the Missouri State Defendants.*fn1
After reviewing the parties' submissions, the Court DENIES Plaintiff's request to withdraw the FAC, DENIES Plaintiff's request for an evidentiary hearing, GRANTS both motions to dismiss, DENIES Plaintiff's various other applications and requests, and DISMISSES WITHOUT PREJUDICE the claims against certain California defendants.
Plaintiff is an attorney from Missouri. Following an investigation of attorney misconduct in 2004, the United States District Court for the Western District of Missouri ("WDMO") suspended Plaintiff from practicing law in that court. The United States Court of Appeals for the Eighth Circuit affirmed the WDMO's decision in 2005. In re Fletcher, 424 F.3d 783 (8th Cir. 2005). In 2006, The Missouri Supreme Court found Fletcher violated the Rules of Professional Conduct and suspended him from the practice of law. The court also held that it would not entertain any application for reinstatement until the WDMO reinstated Fletcher's license.
Fletcher moved to California in 2006. The WDMO denied Fletcher's petitions for reinstatement in January 2008 and March 2009. The Missouri Supreme Court also denied Fletcher's petition for reinstatement in May 2008 and his petition for reconsideration of the denial in February 2010.
On February 26, 2010, Plaintiff commenced this action against the Federal Defendants and the Missouri State Defendants, as well as certain California defendants, in Los Angeles Superior Court, alleging nineteen causes of action relating to the denials of reinstatement.
On March 29, 2010, the Federal Defendants filed a notice of removal pursuant to 28 U.S.C. § 1442(a), as well as a notice of the Attorney General's certification that "defendants United States District Judges Gary Fenner and Ortrie Smith and United States Magistrate Judge Robert Larsen were acting within the course and scope of their official United States Government employment at all times material." (Notice of Substitution 4:10-17.) Pursuant to 28 U.S.C. § 2679(d)(2), the Federal Defendants requested that the United States be substituted as Defendant in their place as to the common law claims.
On April 12, 2010, Plaintiff filed the FAC. On April 19, 2010, Plaintiff filed a request for an evidentiary hearing regarding the Attorney General's certification and a request to withdraw the FAC. The Federal Defendants filed a motion to dismiss the FAC on April 22, 2010, and the Missouri State Defendants filed a motion to dismiss the FAC on April 26, 2010.
A. Request to Withdraw FAC
On April 9, 2010, the Federal Defendants filed an Ex Parte Application for an extension of time to file an answer to the Complaint. Before the Court could rule on the Application, Plaintiff filed the FAC on April 12, 2010. On April 15, 2010, the Court vacated the Application as moot in light of the FAC. On April 19, 2010, Plaintiff filed a request to withdraw the FAC, which appears to be based on Plaintiff's belief that the Federal Defendants waived their Rule 12 defenses by failing to file a timely responsive pleading to the Complaint. (Request to Withdraw FAC, Dkt. No. 14, ¶ 7 ("Plaintiff asserts that a party may not re- plead a claim that has already been lost by failing to file an answer.").)
As to his argument that the Federal Defendants have waived their Rule 12 defenses, Plaintiff is incorrect. The Ninth Circuit "allows a motion under Rule 12(b) any time before the responsive pleading is filed." Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 1474 (9th Cir. 1988). Furthermore, the FAC appears to be substantively indistinguishable from the Complaint. Therefore, Plaintiff's request to withdraw the FAC is DENIED.
B. Westfall Certification and Request for Evidentiary Hearing
Plaintiff requests an evidentiary hearing to contest the Attorney General's Westfall Act Certification that the Federal Defendants were acting within the scope of their employment. (Request for Evidentiary Hearing Regarding Defendants' Argument that Defendants Were Acting in the Course and Scope of Their Employment, Dkt. No. 13.)
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, "permits suits against the United States for injuries caused within a government employee's scope of employment." Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir. 2006). "The Westfall Act amended the FTCA to provide that if the Attorney General certifies that a federal government employee was acting within the scope of employment when the tort occurred, then the United States shall be substituted as the defendant in a tort suit against the employee." Id. (citing 28 U.S.C. § 2679(d)). Upon such certification, "the government employee is dismissed from the suit, and is immune from other civil actions arising from the alleged tort." Id. (citing 28 U.S.C. § 2679(b)(1)).
The plaintiff may challenge the Attorney General's scope of employment certification. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991). The party seeking review of the Westfall certification "bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993). The district court is "authorized to hold an evidentiary hearing and resolve disputed questions of fact." Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 874 (9th Cir. 1992). However, "no hearing is needed where even if the plaintiff's assertions were true, the complaint allegations establish that the employee was acting within the scope of his/her employment." Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008) (quotation marks and citation omitted).
In this case, the Attorney General filed a notice of substitution as to Plaintiff's common law tort claims against the Missouri federal judges. Fletcher opposes the certification and requests an evidentiary hearing to determine whether the federal judges were acting within the scope of their employment.
In determining whether the federal judges were acting within the scope of their employment, "we apply the respondeat superior principles of the state in which the alleged tort occurred." Green v. Hall, 8 F.3d 695,699 (9th Cir. 1993). Because the nexus of the Missouri federal judges' actions in denying reinstatement of the Plaintiff's law license was in Missouri, Missouri law applies. Under Missouri law, "respondeat superior applies to torts committed while the employee is engaged in an activity that is within the scope of employment." Daugherty v. Allee's Sports Bar & Grill, 260 S.W.3d 869, 873 (Mo. Ct. App. 2008)(internal quotations omitted). "The conduct causing the tort must naturally arise from the employee's work." Id. For example, in Daugherty, a bar patron was injured when a bartender placed a toothpick in the patron's beer bottle as a joke. Id. The court found the tort was within the scope of the employee's conduct because placing the toothpick in the bottle occurred while the bartender was engaged in the customary act of a bartender, i.e., serving a beer. Id.
Here, Plaintiff argues that the federal judges committed torts in denying his petitions for reinstatement and that the Court should hold an evidentiary hearing to inquire into the judges' motives in rendering those decisions. Judicial decision-making is the essence of employment as a judge. Like a tort committed during the customary act of a bartender serving a beer in Green, the judges actions in rendering decisions ...