Rodriguez v. Velez-Pagan

341 F.Supp.3d 203

Rogelio RODRIGUEZ, et al., Plaintiffs,

v.Omar VELEZ-PAGAN, et al., Defendants.

17-CV-3911 (ERK) (SJB)

United States District Court, E.D. New York.

Signed October 26, 2018

Charlie Ezra Carillo, Carillo and Carillo, LLC, Frederick, MD, Jeremy M. Iandolo, J. Iandolo Law, PC, Brooklyn, NY, for Plaintiffs

Edwin R. Cortes, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for defendants

MEMORANDUM & ORDER

Edward R. Korman, United States District Judge

In November of 2013, Omar Velez-Pagan, a servicemember, was assigned to serve "as a representative of the U.S. Army Security Assistance Training Management Organization for the purpose of training officers of the National Police Force of the Republic of Panama." Am. Compl. ¶ 23, ECF No. 15. The following month, Velez-Pagan arrived in Panama and commenced "his role as a member of the Administrative and Technical Staff" at the U.S. Embassy in Panama. Id. ¶ 24. The Embassy provided Velez-Pagan with a pickup truck "to accomplish his duties." Id. ¶ 25. While stationed in Panama, Velez-Pagan initiated a romantic relationship with a young Panamanian woman, Vanesa Itzel Rodriguez Chavarria ("Rodriguez"). Id. ¶ 26.

On June 19, 2014, Velez-Pagan and a colleague were ordered to provide firearm instruction to Panamanian National Police Units in Guarare, Panama. Id. ¶ 27. On June 22, Velez-Pagan, his colleague, and some Panamanian police officers spent the afternoon at a nearby beach. Pls.' Supporting Evidence 80, ECF No. 14. Rodriguez met up with Velez-Pagan and the others. Id.

At his trial for Rodriguez's murder, Velez-Pagan testified that they left the beach together in his Embassy-provided car. Id. at 78. He stated that while they were driving, Rodriguez became aggressive, began arguing with him and, at one point, hit him in the face. Id. at 78-79. In response, he punched her in the face. Id. at 79. Although Velez-Pagan testified that he only punched her once or twice, id. , "blood stains were found all over the passenger side of the [pickup truck]," suggesting a more brutal beating. Am. Compl. ¶ 29. A DNA test showed that it was Rodriguez's blood, and the Amended Complaint alleges that the murder occurred inside the vehicle. Id. ¶¶ 11, 29-30. Velez-Pagan then "repeatedly r[a]n over the body of [Rodriguez] to cover up the murder to make it appear [as though] her death was caused by a traffic accident." Id. ¶ 28. The investigating agent testified that Velez-Pagan kept steroids and syringes in his apartment, Pls.' Supporting Evidence 85, and was allegedly using those drugs when he killed Rodriguez, Am. Compl. ¶ 45.

The next morning, during a firearms training exercise, "Velez-Pagan excused himself to go to the bathroom in the woods ... near the shooting range." Cortes Decl., Ex. 2, at 6, ECF No. 21-4. A few minutes later, a Panamanian policeman found Velez-Pagan digging a hole with Rodriguez's body nearby. Id. at 7. The officer held Velez-Pagan at gunpoint while calling for assistance from his fellow officers. Id. When the other officers arrived, Velez-Pagan admitted he had killed her. Id. Velez-Pagan was returned to the United States, tried by a military court, and convicted for, inter alia , unpremeditated murder, aggravated assault, and possession of steroids.

On March 24, 2016, Rodriguez's Estate and both of her parents filed wrongful death administrative claims with the Army and the State Department, as required by the Federal Tort Claims Act to exhaust remedies. Cortes Decl., Exs. 1-2, ECF Nos. 21-3, 21-4; Opp. Br. 27, Ex. D, ECF No. 18. Those claims were denied on January 10, 2017. Am. Compl. ¶ 8.

The instant action was filed in this court by Rodriguez's family and Estate (collectively, "plaintiffs") against the United States Army; Department of Defense; Department of State (collectively, the "Agency Defendants"); the United States (collectively with the Agency Defendants, the "United States"); and Omar Velez-Pagan, in both his official and individual capacities.¹ Am. Compl. ¶¶ 16-20. The Amended Complaint alleges four causes of action: negligence, "negligent retention and negligently placing others in danger," wrongful death, and negligent infliction of emotional distress. Id. ¶¶ 33-63. Broadly, plaintiffs claim that the United States was negligent in hiring and supervising Velez-Pagan and in failing to verify his compliance with regulations governing drug use, ultimately leading to Rodriguez's death. See id. Defendants filed a motion to dismiss pursuant to Rule 12(b), principally for lack of subject matter jurisdiction.

DISCUSSION

"The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). While the court must take all facts alleged in the complaint as true, "[i]n resolving a motion to dismiss for lack of subject matter jurisdiction ... a district court ... may refer to evidence outside the pleadings." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). A "plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."

Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova , 201 F.3d at 113 ).

Plaintiffs appear to assert three different bases for jurisdiction—the Federal Tort Claims Act ("FTCA"), the Alien Tort Claims Act ("ATCA"), and the Torture Victim Protection Act ("TVPA"). As to claims asserted against Velez-Pagan in his individual capacity, the plaintiffs assert supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). I will address each basis in turn.

A. FTCA Claims

The FTCA provides a waiver of sovereign immunity for

civil actions on claims against the Government, for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). This waiver, however, is limited and subject to various exceptions. The defendants contend that several of these limitations and exceptions insulate them from liability.

a. Foreign Country Exception

"[T]he FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred." Sosa v. Alvarez-Machain , 542 U.S. 692, 712, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) ; see also 28 U.S.C. § 2680(k) ("[The FTCA] shall not apply to [a]ny claim arising in a foreign country."). Specifically, claims based on acts or omissions occurring within the United States but which have their operative effect or cause injury in another country are not authorized under the FTCA. See Sosa , 542 U.S. at 701-11, 124 S.Ct. 2739. The injury here—the brutal murder of Rodriguez and the subsequent pain and suffering endured by her family—occurred in Panama. Thus, the foreign country exception bars any claims arising out of Velez-Pagan's crimes.

The plaintiffs, however, argue that because "the murder ... occurred inside [a] vehicle owned by the United States," Am. Compl. ¶ 30, and, because "the diplomatic vehicle where Velez-Pagan injured and later murdered [her] is considered ... territory of the United States," the murder did not actually occur in a foreign country, Opp. Br. 10-11. Plaintiffs base their conclusion on the Vienna Convention on Diplomatic Relations, which provides that "the means of transport of [the Embassy] shall be immune from search, requisition, attachment or execution." Vienna Convention on Diplomatic Relations, art. 22, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. Plaintiffs argue that the vehicle given to Velez-Pagan while assigned to the Embassy "was not under the sovereignty of Panama but under the control of the United States." Id.

Control of property is not the appropriate benchmark for determining whether an event arose in a foreign country. United States v. Spelar , 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), is on point. The Supreme Court there held that, even though an accident occurred on an airbase leased by the United Kingdom to the United States, torts arising from that accident were not permitted under the FTCA because the lease did not transfer sovereignty of the area to the United States. Spelar , 338 U.S. at 219, 70 S.Ct. 10. Similarly, here, events that occurred inside the vehicle did not occur in the United States simply because the United States owned the vehicle. Even American embassies are treated as being in foreign countries for purposes of the FTCA. See Asmah v. U.S. Consulate Accra Ghana , No. 15-CV-3742 (JPO), 2016 WL 2993203, at *4 (S.D.N.Y. May 23, 2016) (collecting cases holding that a tort committed at an American embassy or consulate arose in a foreign country under the FTCA); see also McKeel v. Islamic Republic of Iran , 722 F.2d 582, 588 (9th Cir. 1983) (holding in an analogous context that "[a] United States embassy ... does not constitute territory of the United States"), cited with approval in Harrison v. Republic of Sudan , 838 F.3d 86, 95 (2d Cir. 2016) ; Restatement (Third) of Foreign Relations § 466 cmt. a (1987) ("That [consular] premises are inviolable does not mean that they are extraterritorial. Acts committed on those premises are within the territorial jurisdiction of the [host] state."). Thus, events that transpire inside a vehicle owned by the U.S. Embassy while it is being driven on a Panamanian road occur in a "foreign country" for FTCA purposes.

b. No Waiver for Intentional Torts

Section 2680(h) of the FTCA forecloses any claims arising out of intentional torts, including "[a]ny claim arising out of assault...