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ZEGLIS v. SUTTON

October 9, 1997

JAMES D. ZEGLIS, Plaintiff,
v.
RICHARD A. SUTTON, Defendant.



The opinion of the court was delivered by: BUCKLO

 Plaintiff, James D. Zeglis, filed a tort action against defendant, Richard A. Sutton, a federal employee, in the Circuit Court for the Sixteenth Judicial Circuit in Kane County, Illinois. The action was removed to this court. The United States now moves to substitute itself as the proper party defendant in lieu of Mr. Sutton pursuant to 28 U.S.C. § 2679(d)(1) and to dismiss the action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Under separate motion, the United States also moves to vacate a state court order of judgment against Mr. Sutton pursuant to Federal Rule of Civil Procedure 60(b). Since the two motions are interrelated, I decide them together. For the reasons set forth below, the motions are granted.

 Background

 On May 13, 1997, Mr. Zeglis filed a tort action against Mr. Sutton in state court alleging that Mr. Sutton was negligent when his automobile collided with Mr. Zeglis's automobile. As a result, Mr. Zeglis suffered property damages and personal injuries.

 Mr. Sutton is an employee of the United States Department of Veterans Affairs. The Attorney General's delegate certified that Mr. Sutton was a federal employee acting within the scope of his employment at the time of the alleged collision. This certification is supported by a memorandum written by Earl Parsons and by Earl Parson's affidavit, stating that Mr. Sutton was acting within the scope of his employment. Mr. Parsons is Mr. Sutton's supervisor at the Regional Office of the Department of Veterans Affairs.

 Mr. Zeglis contests this certification. He claims that Mr. Sutton was not acting within the scope of his employment. However, he has not presented any affidavits or other materials to support his claim.

 On May 20, 1997, based on the Attorney General's certification, the United States timely removed this action from the Circuit Court to this court. The United States filed a Notice of Removal with this court and mailed copies of the Notice to both Mr. Zeglis and the Circuit Court in Kane County, Illinois. The United States did not appear at the Circuit Court on May 27, as required, because it had complied with the requisite removal procedures.

 The Clerk of the Circuit Court received and filed a copy of the Notice of Removal on May 27, 1997. Also on May 27, Mr. Zeglis obtained a default judgment against Mr. Sutton in the Circuit Court. It is unclear whether the default judgment was obtained before or after the Notice of Removal was filed.

 On June 24, 1997, the United States first learned of the default judgment against Mr. Sutton. By July 3, 1997, the United States moved to vacate that judgment.

 Motion to Substitute United States as Defendant

 The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., provides the exclusive remedy for torts committed by any federal employee while acting within the scope of employment. 28 U.S.C. § 2679(b)(1). Section 2679(d)(1) of the FTCA provides that upon certification by the Attorney General or her delegate that an individual defendant was acting in the scope of his employment, the tort action "shall be deemed to be an action against the United States . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).

 However, certification by the Attorney General or her delegate does not conclusively establish that the defendant was acting within the scope of his employment at the time the alleged tort occurred. Certification as to scope of employment is subject to review. See Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 115 S. Ct. 2227, 2235-2236, 132 L. Ed. 2d 375 (1995); Hamrick v. Franklin, 931 F.2d 1209, 1210 (7th Cir.), cert. denied, 502 U.S. 869, 116 L. Ed. 2d 159, 112 S. Ct. 200 (1991). But review of proper certification is not a jury question as Mr. Zeglis contends. See Hamrick, 931 F.2d at 1210 ("scope determination is subject to judicial review") (emphasis added); see also Schrob v Catterson, 967 F.2d 929, 935 (3rd Cir. 1992) (finding that a jury trial on the issue of scope would frustrate Congress' intent to protect federal employees). The district court has the power to review the certification and "should give de novo review to determine whether the certification was proper." Hamrick, 931 F.2d at 1211; Employers Ins. of Wausau v. Bush, 791 F. Supp. 1314, 1324 (N.D. Ill. 1992). "In this review, the plaintiff[ has] the burden of showing that the [defendant's] conduct was not within the scope of employment." Hamrick, 931 F.2d at 1211. *fn1"

 In this case, the Attorney General's delegate certified that Mr. Sutton was a federal employee acting within the scope of his employment. This certification was supported by an affidavit and document from Mr. Sutton's supervisor at the Department of Veteran Affairs. Mr. Zeglis contests the certification but has not provided any affidavits or other evidentiary materials to support his contest. Mr. Zeglis merely states that the Attorney General's certification is not conclusive as to scope of employment. This is not sufficient to meet his burden of showing that Mr. Sutton's conduct was not within the scope of his employment. See, e.g., ...


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