Philip SIMONE, Gertrude Simone, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 15-935-CV.
United States Court of Appeals, Second Circuit.
March 16, 2016.
73-76
Williams-Steele also challenges the district court‘s order setting aside an entry of default against Trans Union due to its apparent failure initially to timely answer or otherwise respond to her complaint. A district court‘s decision on a motion to vacate an entry of default is reviewed for abuse of discretion. See Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir. 1995) (addressing denial of a motion to vacate).
The district court did not abuse its discretion in setting aside the entry of default against Trans Union. Williams-Steele had a copy of the summons and complaint served on the law firm that had represented Trans Union in Williams-Steele‘s prior action. Trans Union represented that it had not authorized the law firm to accept service on its behalf. Williams-Steele has shown no basis for doubting this representation. Instead, she argues that, because the law firm represented Trans Union, it was authorized to accept service of process on its behalf as a matter of law. We have held, however, that “service of process on an attorney not authorized to accept service for his client is ineffective.” Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990). Consequently, the attempted service on Trans Union was ineffective, and the entry of default was correctly vacated because Trans Union was not properly served.
We have considered all of Williams-Steele‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
F. Franklin Amanat, Assistant United States Attorney (Varuni Nelson, Vincent Lipari, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges, and JANET C. HALL,1 Chief District Judge.
SUMMARY ORDER
Plaintiffs-appellants Philip Simone and Gertrude Simone appeal from the January 30, 2015 judgment of the district court for the Eastern District of New York (Chen, J.) in favor of defendant-appellee United States of America following a bench trial. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Following a bench trial, “we review the district court‘s findings of facts for clear error, and its conclusions of law de novo.” In re Sept. 11 Litig., 802 F.3d 314, 328 (2d Cir. 2015).
Plaintiffs first challenge the district court‘s ruling on the malicious prosecution claim against the United States Marshals. Under New Jersey law, which applies here, a plaintiff “must establish that the defendant (1) instituted proceedings (2) without probable cause and (3) with legal malice; and (4) the proceedings terminated in favor of the plaintiff.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248 (3d Cir. 2001). “Failure to prove any one of these four elements denies the plaintiff a cause of action.” Id.
The district court first held that an extradition proceeding was not a criminal proceeding for the purpose of a malicious prosecution claim. Although that may be true, this is not a settled issue of New Jersey law, and we see no need to resolve it here.
Next, under New Jersey law, “[a] person is considered to have participated in a criminal action against another for purposes of a malicious prosecution charge if he has taken some ‘affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted.‘” Robinson v. Winslow Township, 973 F. Supp. 461, 473-74 (D.N.J. 1997) (quoting Seidel v. Greenberg, 108 N.J. Super. 248, 260 A.2d 863, 863, 868 (1969)). Based on the facts as found by the district court, which were not clearly erroneous, we hold for substantially the reasons as those stated by the district court that the Marshals did not institute the criminal proceedings against Philip Simone.
The district court alternatively held that plaintiffs had not proven malice on the part of the Marshals by a preponderance of the evidence. Under New Jersey law, “[m]alice in the law is the intentional doing of a wrongful act without just cause or excuse.” Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 972 A.2d 1112, 1120 (2009) (alteration in original) (internal quotation marks omitted). It is “well-settled,” in New Jersey, “that malice may be in
Next, plaintiffs challenge the district court‘s ruling that the negligence claim against the attorneys from the Department of Justice‘s Office of International Affairs (“OIA“) was barred by the Federal Tort Claims Act (“FTCA“). The FTCA waives the sovereign immunity of the United States for certain torts committed by federal employees within the scope of their employment. See
Our case law makes clear that a “plaintiff may not by artful pleading avoid the statutory exceptions to the FTCA.” Dorking Genetics v. United States, 76 F.3d 1261, 1265 (2d Cir. 1996). Therefore, “[i]n determining the applicability of the § 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.” Id. We agree with the district court that plaintiffs’ claim, although framed as a negligence claim, arises out of the intentional torts of false arrest and malicious prosecution. As we recognized in Guccione v. United States, 847 F.2d 1031, 1037 (2d Cir. 1988), there is no “‘independent affirmative duty’ owed to each citizen in every case in which the Government carries out its basic functions,” or else this would “create an exception that would swallow the rule of section 2680(h).” Id. at 1037. We see no independent affirmative duty owed to plaintiffs by OIA, and we therefore hold OIA is immune from suit on this claim
Finally, plaintiffs argue that the negligence claim they seek to assert against the FBI is not barred by Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 972 A.2d 1112 (2009). In Brunson, the New Jersey Supreme Court rejected the New Jersey Appellate Division‘s creation of a negligent investigation tort against a bank, whose allegedly negligent investigation of fraud led to an innocent person being indicted for the crime. Following Brunson, a district court in the District of New Jersey held that Brunson “categorically denied the existence of” a negligent investigation claim “as an independent cause of action in a malicious prosecution action.” Drisco v. City of Elizabeth, No. 03-CV-397, 2010 WL 1253890, at *14 (D.N.J. Mar. 23, 2010). It does not appear that a New Jersey court has addressed a negligent investigation claim in the posture here, that is, where the allegedly negligent investigation was attenuated in time from the arrest and prosecution. In the absence of any guidance from New Jersey state courts suggesting that such a claim would be cognizable, we decline to create such a cause of action here.2
We have considered the remainder of plaintiffs’ arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.