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John Carey, et al v. Findings and Recommendations United States of

August 19, 2011

JOHN CAREY, ET AL.,
PLAINTIFF,
v.
FINDINGS AND RECOMMENDATIONS UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

Plaintiffs, proceeding in pro per, bring this civil action against employees of the United States of America related to real property interests. Pending before the court is the defendant's unopposed motion to dismiss (Doc. 10) and plaintiffs' motion to vacate the order substituting the United States for the individual defendants (Doc. 11). The hearing on the motions was taken off calendar pursuant to Local Rule 230(g).

I. Background

Originally filed in the Superior Court of Shasta County, the defendant removed the action to this court on December 29, 2010, and filed a notice of substitution on January 5, 2011, substituting the United States as the defendant in place of the two individual employees. In the complaint, titled Verified Complaint for Forcible Detainer, plaintiffs allege:

On or about July 7, 2010, defendants Jason Garcia and Douglas McDonald forcibly turned plaintiffs out of the property by threats of violence, including a show of force with guns, and changed the locks. They had no writ of possession or other order from any California state court that authorized their actions of taking possession of the property. The defendants acts were committed willfully and with a conscious disregard of the rights or safety of others. (Complaint, filed with Notice of Removal, Doc. 1 at 8).*fn1

The notice of substitution of parties (Doc. 4), filed January 5, 2011, contained a certification of scope of employment for each of the two individuals named in the complaint. The certification was signed by an Assistant United States Attorney, acting as an authorized delegate of the Attorney General.

II. Motion to Vacate Substitution

Plaintiffs object to the court's order substituting the United States as the defendant in this action in place of the two individual defendants. As stated in the order so substituting, 28 U.S.C. § 2679 requires the court to substitute the United States as the defendant once the Attorney General has certified that the individual "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). Plaintiffs argue the United States failed to provide a sufficient basis for the substitution, because no facts or laws were cited.

Certification by the Attorney General that an individual defendant was acting within the course and scope of their employment is conclusive for the purposes of removal, but is subject to juridical review thereafter. See Billings v. United States, 57 F.3d 797 (9th Cir. 1995). "Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident and is conclusive unless challenged. The party seeking review bears the burden of presenting evidence and disproving the Attorney General's certification by a preponderance of the evidence." Id. at 800 (citing Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993)).

Thus, in order to rebut the presumption, the plaintiffs are required to present evidence that the individuals were not in fact acting within the scope of their employment. Here, plaintiffs have provided no such evidence, nor have they offered any facts to support their argument that the individuals were not so acting. Rather, they seem to believe that the burden lies with the defendant to prove the individual defendants were in fact acting within the scope of their employment. Such is not the case. As stated above, upon certification that the defendants were acting within the scope of their employment, the court is required to substitute the United States as the defendant. While that determination is subject to de novo review upon the submission of evidence rebutting that certification, no such evidence is before the court.*fn2

Accordingly, the undersigned finds the substitution of the United States as the defendant in this action was proper, and recommends the motion to vacate that order be denied.

III. Motion to Dismiss

Defendants bring this motion to dismiss for lack of subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). No opposition to the motion has been filed.

A. Legal Standards

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, ...


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