Fountain v. Karim
838 F.3d 129
| 2d Cir. | 2016Background
- Karim, a USDA conservationist on temporary detail in Walton, NY, drove a government-owned Ford Explorer to his hotel in Oneonta on Aug. 31, 2010 after submitting but before receiving approval of Form AD-728; he conceded negligence causing a collision that injured Fountain.
- USDA policy required prior written supervisor approval (Form AD-728) to take a gov't vehicle home overnight, but Karim had a history at his Rochester duty station of taking vehicles overnight with retroactive approval from his supervisor.
- After the accident, supervisors submitted conflicting reports: Boozer’s SF-91 said Karim lacked authorization; Karim’s Optional Form 26 (signed by Boozer) indicated written permission had been given; Boozer later said he overlooked that box.
- Fountain sued Karim and the United States under the FTCA and New York law (VTL § 388 and negligence). The government denied indemnification and moved to dismiss, arguing Karim was outside the scope of employment.
- The district court dismissed federal FTCA claims (and related indemnification/declaratory claims) for lack of subject-matter jurisdiction, finding Karim lacked employer control (no explicit permission) and declined supplemental jurisdiction over state claims.
- The Second Circuit vacated and remanded, holding the absence of explicit permission does not resolve whether Karim had implied permission and therefore whether he was within the scope of employment; an evidentiary hearing is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government waived sovereign immunity under FTCA (scope of employment) | Karim/Fountain: Karim had implied permission to take the vehicle (past practice, retroactive approvals); thus within scope | Government: No explicit permission; policy requires prior written approval; no control exercised | Vacated dismissal; remanded for evidentiary hearing to resolve implied-permission fact issue |
| Whether the employer exercised control over Karim's use of the vehicle | Karim: Driving a gov't vehicle subjects him to employer control and restrictions; prior practice shows supervisory acquiescence | Government: Commuting is personal; no prior authorization means no control; policies limited vehicle use | Court: Control is a factual question tied to implied permission; district court must resolve it before ruling on jurisdiction |
| Whether taking the vehicle was "in furtherance of" employment duties | Karim: He was to travel to Highland next day; taking vehicle to hotel facilitated work and could benefit USDA | Government: Trip was for personal convenience (longer storage/extra miles); not advantageous to gov't | Court: Whether act furthered duties is fact-intensive (time, place, history, foreseeability); cannot be decided on current record |
| Whether district court properly dismissed state-law claims | Fountain/Karim: Dismissal premature because federal claims should stand pending hearing | Government: If federal claims fail, district court may decline supplemental jurisdiction | Court: Reinstated federal claims; reinstated state claims and remanded; district court may later reconsider supplemental jurisdiction |
Key Cases Cited
- Hamm v. United States, 483 F.3d 135 (2d Cir.) (commuting in private vehicle outside scope absent employer control)
- Lundberg v. State, 25 N.Y.2d 467 (N.Y. 1969) (commuting generally outside scope; recognizes exception when employee uses car in furtherance of work)
- Riviello v. Waldron, 47 N.Y.2d 297 (N.Y. 1979) (factors for determining whether act is in furtherance of employer's interests)
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (standard of review for Rule 12(b)(1) factual findings)
- Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247 (2d Cir. 2000) (permitting resolution of disputed jurisdictional facts via extrinsic evidence and evidentiary hearing)
- Cooke v. Drigant, 289 N.Y. 313 (N.Y. 1942) (travelling employee returning from business within scope)
- Shauntz v. Schwegler Bros., 259 A.D. 446 (App. Div.) (returning from business while on call may be within scope)
- Rogoz v. City of Hartford, 796 F.3d 236 (2d Cir. 2015) (principles on supplemental jurisdiction)
- Velez v. Levy, 401 F.3d 75 (2d Cir. 2005) (supplemental jurisdiction standards)