Opinion
Civil Action No. 00-783, Section "K" (1).
December 16, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss Claims Against Taylor, Rachal and the United States of America (Doc. 106) filed by third-party defendants, former United States Trustee, Janice Chenier Taylor ("Taylor"), Assistant United States Trustee, Diana Rachal ("Rachal") and counterclaim defendant, the United States. In it, these defendants seek dismissal of claims filed by Carl A. Dengel ("Dengel"). Having reviewed the pleadings, memoranda, exhibits and the relevant law, the Court finds the motion to have merit.
This case has had a long and tortured history before the Court. As background, the Court will restate the factual findings of the United States Court of Appeals for the Fifth Circuit in In the Matter of Dengel, 340 F.3d 300 (5th Cir. 2003):
In 1987 Dengel was appointed to be a Chapter 12 standing trustee for the U.S. Bankruptcy Court for the Eastern District of Louisiana. Standing trustees are appointed by the UST with the approval of the Attorney General consistent with 28 U.S.C. § 568 to facilitate the resolution of farmers' bankruptcies in designated regions. Dengel served as a standing trustee until he resigned on September 30, 1995. For performing these services, the standing trustee collects fees. A standing trustee's fees are made up of a percentage amount charged on payments made in individual bankruptcy cases and constitutes gross revenue to the standing trustee. Generally, the statute caps the percentage amount at 10%. From the fees, the standing trustee receives his compensation which is tantamount to his net income. His actual compensation may not exceed 5% of the payments made in bankruptcy cases. Also from the fees, the standing trustee is reimbursed for expenses which are the overhead costs for running the standing trustee's office (i.e, rent, insurance, administrative staff, etc.). The standing trustee's fees are governed by 28 U.S.C. § 586(e)
In addition, in 1989, the Executive Office of the U.S. Trustee ("EOUST") created a policy Handbook promulgating a method for calculating the fees. The EOUST Handbook requires that standing trustees first pay all expenses with the remaining fees allocated to compensation. In effect, this policy promulgates the "expense first, funds available" method of calculating fees. The Handbook also allows for unpaid expenses to be carried over from one year to the next, but not unpaid compensation. Beginning in 1989 Dengel submitted annual reports to the UST indicating the fees collected, the allocation of the fees to compensation and expenses, and the remaining surplus or deficit. Despite the Handbook policy, Dengel continued to allocate 5% of fees to expenses and 5% to compensation, rather than employing the "expense first" method of disbursement. Dengel also calculated his loss carryforward of compensation and expenses from year to year resulting in paying his compensation before all of the year's expenses had been paid in violation of the Handbook policy.
In November 1994, Dengel initiated litigation against the UST contesting the Handbook's "expense first, funds available" method of calculation. In that case, Dengel interpled approximately $5,787 representing a 10% fee from certain pending Chapter 12 cases. These funds were deposited in the court's registry. The district court dismissed that case for lack of subject matter jurisdiction consistent with § 586(b). Dengel did not appeal this decision. Thereafter, Dengel deposited the disputed compensation and expense checks written after November 1994 into an interest bearing account at Bank One that he called "TF12." These checks were derived from Chapter 12 cases under Dengel's administration between November 1994 and October 1995. The total deposited in that account is approximately $26,000. Except for one $14,000 disbursement authorized by the UST, the funds remain in the TF12 account. Ultimately, $5,786.80 remains on deposit in the court's registry and $11,950.63 remains in the TF12 account.
During Dengel's tenure, the Office of Inspector General ("OIG") periodically audited Dengel's annual reports. Both the 1992 and 1994 reports found deficiencies in Dengel's record keeping. In the 1995 audit report, the OIG found that Dengel had not corrected the prior deficiencies and that he was incorrectly carrying over unpaid compensation as well as expenses. Following Dengel's resignation, the OIG ordered a routine close-out audit. His records, however, were not auditable and had to be reconstructed by his successor trustee. This 1997 Audit was focused solely on the incorrect payment of fees. Following the compensation policies in the Handbook, the OIG concluded that Dengel received a net overpayment, and therefore, the funds escrowed in the court's registry and the TF12 account should be turned over to the UST. Moreover, the OIG concluded that Dengel actually owed the UST an additional $2,843.
In 1998, the UST initiated a declaratory judgment action against Dengel in the bankruptcy court. The suit was then lodged in the district court after Dengel responded with compulsory counterclaims and third party claims against Bank One, the former UST, Region 5 and the Assistant UST, Region 5. In April 2000, the district court referred the action to the bankruptcy court. In July 2000, Bank One filed a Rule 12(b)(6) motion to dismiss. Bank One also moved to interplead seeking to deposit the funds in the trustee account in the registry of the court. In September 2001, the bankruptcy court issued its report and recommendations in which it gave the EOUST Handbook deference in interpreting § 568(e) and concluded that the UST's calculation of Dengel's compensation was correct. In March 2002, the district court reviewed the bankruptcy court's recommendations de novo and rendered judgment in favor of the UST's interpretation giving some deference to the policy in the Handbook and finding that the agency's interpretation has "the power to persuade." In July 2002, the district court granted Bank One's motion to dismiss for the reasons set forth in the bankruptcy court's recommendations and reasons.Id. at 304-306. The Fifth Circuit affirmed the judgment of this Court. It is within this context that the Court must now address the subject Motion to Dismiss to dismiss the third-party claims brought by Dengel against Taylor, in her individual capacity and in her official capacity, and Rachal in her individual capacity and in her official capacity and counterclaim the United States.
The Claims
An initial "Third Party Counter Claim" was filed by Dengel pro se. In this pleading, he assert claims against Rachal and Taylor, both individually and in their official capacities based on:
(1) using allegedly incorrect methods by Taylor and Rachal in prosecuting the declaratory judgment including:
(a) the giving of "false" information to the auditors and
(b) giving incorrect instructions to the auditors;
(2) failing to respond to Dengel's correspondence;
(3) having Taylor's employees demand all books, papers, checks and records for all Chapter 12 cases worked on October 5, 1995, after Dengel informed Taylor of his intention "that he would be resigning his position as a Chapter 12 Trustee as of October 1995";
(4) presenting a resignation letter to Dengel for signature that included a statement that he was resigning from "all pending cases for which he had been appointed trustee for the Eastern District of Louisiana, including but not limited to all the cases set forth below" which was allegedly not his intention, which he signed without reading;
(5) sending a letter to the First NBC freezing Dengel's personal accounts causing him to be denied a loan without gaining a court order as required "by law" and by the Office of the United States Trustee's written policy for such action" nor was there any demand communicated to Dengel;
The "evidence" of the alleged tortious action taken by Taylor is a letter to the First National Bank of Commerce dated October 13, 1995 noting that Carl A. Dengel resigned as Standing Chapter 12 Trustee for the Eastern District of Louisiana, effective September 30, 1995, and authorizing the freezing of the TH12 account. Considering the findings of the Fifth Circuit that this account was the repository for the disputed funds, there appears to be no legal basis for defendant's claims that such an action was outside of her power.
(6) harassing Dengel by not releasing the funds;
(7) demanding further payment by Dengel of moneys allegedly owed.
He claimed that the forgoing enumerated allegations were caused by or at the instigation of Rachal and approved by Taylor.
Based on these actions, Dengel contended that Rachal and Taylor:
(1) "unethically demanded and prayed" for payments that they knew to be false and misleading since Dengel could not allegedly owe any money;
(2) acted with malice;
(3) conspired to harass Dengel:
(4) deprive him of the use and enjoyment of his property;
(5) falsely accuse him;
(6) damage his professional reputation;
(7) cause him loss of income and emotional distress entitling him to damages under the Federal Tort Claim Act.
He also asserted state law claims against Taylor and Rachal pursuant to La. Civ. Code art. 2315 for:
(1) malicious prosecution;
(2) abuse of process;
(3) libel;
(4) slander;
(5) misrepresentation;
(6) deceit; and
(7) interference with his contractual rights.
He sought general and punitive damages for these actions.
Dengel's counsel then filed a First Amended Third Party Counterclaim (Doc. 79) which in essence restates the factual allegations outlined above. It must be noted that in this pleading, plaintiff asserts:
the freezing of Dengel's personal FNBC account without notice to him, and the furnishing by Taylor to the Bank of the erroneous resignation form which included the repudiated language resigning from all of Dengel's trustee cases, destroyed the creditworthiness of Dengel in the mind of the FNBC, and caused the loan commitment to be voided (see, Exhibit 11). Dengel advised the FNBC to no avail that Taylor had no authority to freeze the account without a court order and demanded the account be unfrozen (see, Exhibit 12).
Dengel also reiterates that there were continued legal disputes over the funds contained at the FNBC which became Bank One during this time period.
Based on the foregoing, Dengel alleges in this pleading:
(1) an unreasonable seizure effected without due process of law in violation of Dengel's rights under the Fourth and Fifth Amendments of the United States Constitution and
(2) Taylor and Rachal, motivated by personal animosity toward Dengel, have acted to maintain the seizure without legal authority through the abuse of their positions as employees of the United States;
(3) Taylor and Rachal knowingly have falsely accused Dengel of unethical conduct claiming a failure by him to escrow certain funds and failure by him to utilize dual entry accounting; and
(4) Taylor and Rachal have intentionally and/or negligently inflicted emotional distress upon Dengel through this conduct.
As such Dengel seeks:
(1) compensatory and punitive damages against Taylor, Rachal and the United States for the violation of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)
(2) compensatory damages from the United States and Taylor and Rachal individually to the extent their activities are "within and outside the course and scope of their employment by the United States" for violations of the Federal Tort Claims Act;
(3) attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
On July 18, 2002, the Court held a status conference wherein it was agreed that Dengel conceded that the FTCA claim could only be brought against the United States and not the individuals and that an amended pleading would be filed in accordance with that concession. In addition, it was agreed that if the Fifth Circuit affirmed the ruling of this Court on the main demand, Dengel would dismiss his Bivens claims.
A Second Amended Third Party Claim was then filed in which counsel amended paragraph 2 so that the claims against Taylor and Rachal, individually, were only brought insofar as their actions were outside the course and scope of their employment, and against the United States under the FTCA, Bivens, and EAJA claims as the conduct of Rachal and Taylor was within the course and scope of their employment.
In addition, a stipulation was filed on July 25, 2002, which provides as follows:
1. In the event that this Court's declaration of March 5, 2002 that the particular funds in the "TF12" (or "TR12") account at FNBC/Bank One are the property of the U.S. Trustee is finally affirmed on appeal, as opposed to being reversed or clarified (i.e., a recognition that the account was Dengel's, or that Dengel had property rights in those funds when the account was frozen, even if it is affirmed that Dengel owes money back to the UST);
2. Then, the "Bivens" claim asserted in this action by Carl A. Dengel must necessarily fall, and may be dismissed with prejudice, with each party to bear their own costs.
Doc. 85.
Motion to Dismiss
Defendants move to dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir. 2001). As the Fifth Circuit has stated:
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). this requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. I. The court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id.
When a defendant attacks the complaint because it fails to state a legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge. The test for determining the sufficiency of a complaint under Rule 12(b)(6) is that "`a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Fifth Circuit explained:
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Securities, Inc. 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt, 561 F.2d at 608. In other words, a motion to dismiss an action for failure to state a claim" admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).Id. at 161-62.
The individual defendants maintain that the claims against them should be dismissed because:
(a) Rachal and Taylor were within the scope of their employment;
(b) the claims against Taylor and Rachal individually are not properly brought under Fed.R.Civ.P. 14(a) as they are not dependent or derivative of the main demand, because the claims do not arise out of the claim that Dengel took excessive fees and because a third party defendant must be secondarily liable to original defendant in the event that the original defendant is liable to the plaintiff;
(b) the Bivens claims should be dismissed because of (1) the stipulation filed; (2) prescription; (c) Noer-Pennington doctrine; (4) quasi-judicial immunity; and (5) qualified immunity.
The United States seeks dismissal of the counterclaims against in it. As to the FTCA claims, it claims the Court lacks subject matter jurisdiction because:
(a) Dengel failed to file an administrative claim within two years after the claim accrues;
(b) Dengel's counterclaim does not meet the requirements to be excepted from § 2675 because this counterclaim is not compulsory;
(c) Dengel's counterclaim is barred by the exception to the FTCA contained in § 2680.
As to the Bivens claims, the United States maintains that the stipulation warrants the dismissal thereof. In the event the Court does not so find, the Government maintains that a Bivens claim is available only against government officers in their individual capacities, which means it is against the Government itself and Bivens does not waive the Government's immunity.
Dismissal of Dengel's Claims
From the foregoing, the following claims are the only ones brought by Dengel against
Taylor, Rachal, and the United States:
1. Bivens claims against Taylor and Rachal;
2. Federal Tort Claims Act claims against the United States;
3. State law claims against Taylor and Rachal for actions taken outside the course and scope of their work; and
To the degree any independent state claims were alleged in the Original Third Party Counterclaim by Carl A. Dengel, those claims have been superseded by the First Amended Third Party Counterclaim of Carl A. Dengel which did not refer to or adopt or incorporate by reference the initial complaint and is void of any state law claim. Biddle v. Foti, 1999 WL 35302 (E.D.La. Jan. 21, 1999) citing King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). As such, the Court will focus on the First Amended and Second Amended Third Party Counterclaims to determine what claims are alleged.
The fact that no Bivens claim lies against the United States is conceded in Dengel's opposition to the motion at p. 13.
4. Claims under the Equal Access to Justice Act.
The Court will now address each of these claims in the context of the Motion to Dismiss.
1. Bivens Claims
The Court finds that the stipulation of dismissal of the Bivens claims as entered controls in this instance. The Fifth Circuit affirmed this Court's ruling; it did not reverse or clarify the Court's findings. Indeed, in its recitation of facts, the Fifth Circuit specifically stated that:
In November 1994, Dengel initiated litigation against the UST contesting the Handbook's "expense first, funds available" method of calculation. In that case, Dengel interpled approximately $5,787 representing a 10% fee from certain pending Chapter 12 cases. These funds were deposited in the court's registry. The district court dismissed that case for lack of subject matter jurisdiction consistent with § 586(b). Dengel did not appeal this decision. Thereafter, Dengel deposited the disputed compensation and expense checks written after November 1994 into an interest bearing account at Bank One that he called "TF12." These checks were derived from Chapter 12 cases under Dengel's administration between November 1994 and October 1995. The total deposited in that account is approximately $26,000. Except for one $14,000 disbursement authorized by the UST, the funds remain in the TF12 account. Ultimately, $5,786.80 remains on deposit in the court's registry and $11,950.63 remains in the TF12 account.
Thus, the Fifth Circuit recognized that both the Government and Dengel contended each had a property interest in the disputed compensation and expense checks deposited in TR12. After adjudication, it was found that the funds belonged to the United States. The Court will not disturb or question that finding by the Fifth Circuit. Accordingly, the Bivens claims must be dismissed.
2. Federal Tort Claims Act
It is well settled that the United States as sovereign is immune from suit except in the manner and degree sovereign immunity is waived. McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993). The Court lacks subject matter jurisdiction over a claim against the United State if it has not consented to be sued on that claim. Delta Commercial Fisheries Ass'n v. Gulf of Mexico Fishery Mgmt Council, 364 F.3d 269, 273 (5th Cir. 2004) The passage of the Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. § 2671, et seq. constituted a partial waiver of sovereign immunity as to tort suits. The FTCA provides for relief from the United States government for plaintiffs who have suffered an injury caused by the negligence of a federal employee acting within the scope of his or her employment. See 28 U.S.C. § 2671. Bishop v. Dept. of Army, 1996 WL 191716 (E.D.La. April 18, 1996).
This liability however is subject to the various exceptions contained in 28 U.S.C. § 2680, including the "discretionary function" exception. United States v. Gaubert, 111 S. Ct. 1267, 1273 (1990). The statute provides that the Government is not liable for:
any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or and employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680(a). In determining the parameters of this exception, the Gaubert court stated:
Under the applicable precedents, therefor, if a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation See Dahelite, supra, at 36, 73 S. Ct., at 968. If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy. On the other had, if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves the consideration of the same policies which led to the promulgation of the regulations. . . .
When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.Gaubert at 1274-75 (emphasis added).
In a suit where former debtors brought an action against the United States Trustee alleging that the UST had acted negligently and fraudulently in connection with the appointment and supervision of the examiner in their Chapter 11 case, the court held that the actions of a United States Trustee in selecting, monitoring and investigating the examiner appointed in the case were as a matter of law "quintessentially acts of discretion within the meaning of the FTCA discretionary function exception." Balser v. Dept. of Justice, Office of the United States Trustee, 327 F.3d 903, 908 (9th Cir. 2003). Another court, relying on Gaubert, noted that even allegations of "willful misconduct" fail where the actions undertaken are discretionary in nature. In Rogers v. United States, 187 F. Supp. 2d 626 (N.D. Miss. 2001) aff'd, Roger v. United States Operating through the United State Department of Housing and Urban Development, 58 Fed.Appx. 595, 2003 WL 261771 (5th Cir. 2003), the district court stated:
Judicial inquiry into the motivation of government actions would entail a detailed examination of the mental processes of the decision-making which formed the basis for such decisions. Thus the Court is not to inquire whether the decision or action actually was a result of a policy-driven determination. Such an inquiry constitutes precisely the "second guessing" of executive branch decisions which Congress sought to preclude. Gaubert, 499 U.S. at 325, 111 S. Ct. 1267; see also H.R. Rep. No. 77-2245, at 10 (1942) (discussing exception). Rather, the Court looks to whether such action was objectively "susceptible to a policy analysis" within the meaning of Gaubert. For, "the exception's purpose compels dismissal of any claim whose ultimate resolution would require judicial scrutiny of an official's good faith or subjective decision-making."Rogers, 187 F. Supp. 2d at 631.
In the case at bar, the Fifth Circuit has found that the actions of the Executive Office of the United States Trustee in implementing its "expense first, funds available method for calculating trustee compensation did not conflict with the statute governing standing trustees' fees and that the UST's calculations, which effectively disallowed any compensation for the services rendered by Dengel due to his violation of the handbook's "expense first' and "no carryover compensation" polices, was not an abuse of discretion. In the Matter of Bolen, 340 F.3d 300 (5th Cir. 2003). Considering that all of Dengel's allegations of wrong-doing arise out of the UST's interpretation, application and pursuit of claims in the proper exercise of her discretion as found by the Fifth Circuit, these claims, including the intentional or negligent infliction of emotional distress upon Dengel, must fail as they excepted from the waiver of sovereign immunity under 28 U.S.C. § 2680(a).
In addition, § 2680(h) provides that any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights are also expressly exempted from the ambit of the Federal Torts Claim Act. 28 U.S.C. § 2680. To the extent that any other of Dengel's allegations were not excepted by subsection (a), subsection (h) renders this Court likewise without subject matter jurisdiction over such claims.
3. State law claims against Taylor and Rachal for Actions Taken Outside the Course and Scope of Their Work
Dengel contends that Rachal and Taylor harmed Dengel by their actions that were outside the scope of their duties in prosecuting the claim against Dengel for the funds which were the subject of In the Matter of Bolen, 340 F.3d 300 (5th Cir. 2003). For instance, Dengel claims that they have persisted in false accusations of unethical conduct of the part of Dengel in that he failed to escrow certain funds and that they have intentionally and/or negligently inflicted emotional distress upon Dengel through all of the conduct alleged in the First Amended Third Party Counterclaim of Carl A. Dengel.
As this Court has stated in Causey v. Parish of Tangipahoa, 167 F. Supp. 2d 898 (E.D.La 2001):
"A motion to dismiss for failure to state a claim upon which relief can be granted is a disfavored means of disposing of a case." Kennedy v. Tangipahoa Parish Library Board of Control, 224 F.3d 359, 365 (5th Cir. 2000) (citations omitted). "A motion to dismiss an action for failure to state a claim `admits the facts alleged in the complaint, but challenges plaintiff's right to relief based upon those facts.'" Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995) ( quoting Ward v. Hednell, 366 F.2d 247, 249 (5th Cir. 1966)). "The district court may not dismiss a complaint under rule 12(b)(6) `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Collins v. Morgan Stanley Dean Witter, 2000 WL 1159321 at *2 (5th Cir. 2000) ( quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Spiller v. City of Texas City Police Dept., 130 F.3d 162, 164 (5th Cir. 1997). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations." Id.; see also Kaiser Aluminum Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir. 1982). That being said, it is well established that courts do not have to accept every allegation in the complaint as true in considering its sufficiency. Wright Miller, Federal Practice Procedure § 1357, at 311; see also Associated Builders, Inc. v. Alabama Power Company, 505 F.2d 97, 100 (5th Cir. 1974) (conclusory allegations and unwarranted deductions of fact are not admitted as true). Courts do not have to accept "legal conclusions, "unsupported conclusions," "unwarranted references," or "sweeping legal conclusions cast in the form of factual allegations." Wright Miller at 315-18.Id. at 903.
While the Court is aware of the certifications filed that all actions alleged were done in the course and scope of Taylor and Rachal's employment, clearly these certifications are subject to judicial review and would arguably expand this inquiry into one for summary judgment. So the Court will not consider these certifications. Instead, the Court will squarely address whether a claim is stated by Dengel under Rule 12(b)(6).
Whether a particular federal employee was or was not acting within the scope of his employment is controlled by the law of the state in which the negligent or wrongful conduct occurred. Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995). Nonetheless, the burden of proof is on Dengel to demonstrate that Taylor and Rachal acted outside the scope of their employment. Nevarez v. United States, 957 F. Supp. 884 (W.D.Tex. 1997).
In Pendergast v. United States, 1999 WL 983827 (E.D.La. Oct. 26, 1999) (Porteous, J.), the court discussed the proper test to determine whether an employee's actions were within the course and scope of his employment such that the government would be liable under the FTCA. The court opined:
In 1996, the Louisiana Supreme Court decided Baumeister v. Plunkett, 673 So. 2d 994 (1996) (hereinafter " Baumeister"), which sets forth the standards applicable in determining vicarious liability under Louisiana law. In Baumeister, the court held that a hospital was not vicariously liable for the sexual battery committed by one of its supervisors upon a co-employee during working hours on the hospital's premises. The Louisiana Supreme Court held that:
The course and scope of employment test refers to time and place. Benoit v. Capitol Manufacturing Co., 617 So. 2d 477, 479 (La. 1993). The scope of employment test examines the employment-related risk of injury. Id. . . . In fact, this court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the "tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest." Barto v. Fanchise Enterprises, Inc., 588 So.2d 1353, 1356 (La.App. 2d Cir. 1991), writ denied, 591 So. 2d 708 (1992) (quoting LeBrane v. Lewis, 292 So.2d 216, 217, 219 (La. 1974) [(hereinafter " LeBrane")]).
Baumeister, at 996. "An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours." Id. (quoting Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir. 1982) (other citation omitted). "Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objective." Id.
Furthermore, the court in Baumeister cites to its decision in LeBrane v. Lewis as correctly setting forth the following factors for determining the vicarious liability of an employer in such a context:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and
(4) whether it occurred during the hours of employment. Baumeister, at 996-997 (citing LeBrane, at 218). All four factors do not necessarily have to be met before liability may be found. Id. (citing Miller v. Keating, 349 So.2d 265, 268 (La. 1977)). Moreover, the court in Baumeister notes that an employer is not vicariously liable merely because his employee commits an intentional tort on the employer's premises during working hours, but the particular facts of each case should be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment. Id. (citing Scott v. Commercial Union Ins. Co., 415 So.2d at 329.)Pendergast, 4-5.
While the case at bar is not an assault and battery case, the analysis is applicable here. Dengel has alleged no action by Taylor and Rachal that was (1) not rooted in Taylor and Rachal's employment, (2) not reasonably incidental to the performance of the employee's duties, (3) did not occur on the employer's premises or in locations incidental thereto, and that (4) did not occur during the hours of employment. As such, clearly, the actions alleged all happened in the course and scope of the employment of Rachal and Taylor and this claim, likewise must be dismissed.
4. Claims under the Equal Access to Justice Act.
Considering that the Court finds no merit in the claims brought against the United States, the claim for attorneys' fees and cost pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 fall as well. Accordingly,
IT IS ORDERED that the Motion to Dismiss Claims Against Taylor, Rachal and the United States of America (Doc. 106) filed by third-party defendants, former United States Trustee, Janice Chenier Taylor ("Taylor"), Assistant United States Trustee, Diana Rachal ("Rachal") and counterclaim defendant, the United States is GRANTED.