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Gindi v. Norton

United States District Court, D. Massachusetts

November 2, 2016

PHILIP R. GINDI, Plaintiff,
v.
RONALD B. NORTON, Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE

         Plaintiff Philip Gindi (“Gindi” or “plaintiff”) alleges that defendant Ronald Norton (“Norton” or “defendant”) committed, inter alia, intentional and/or negligent infliction of emotional distress and assault upon him. Norton's motion to dismiss and Gindi's motion to remand are now pending before the Court. For the reasons that follow, the motion to dismiss will be allowed and the motion to remand will be denied as moot.

         I. Factual and Procedural Background

         Gindi is a civilian employee of the United States Air Force at the Hanscom Air Force Base (“Hanscom”) in Bedford, Massachusetts. Norton was Gindi's branch chief and supervisor during the time period at issue. Gindi's claims arise from interactions that occurred while he was at work. He alleges that Norton became very upset after he responded to a work- related email. According to Gindi, Norton “shouted” and “sh[ook] his finger” in Gindi's face in an intimidating manner and “threatened to . . . give him a bad review.” This purportedly resulted in Gindi becoming “physically ill” and requiring “medical intervention”.

         In October, 2015 Gindi filed a complaint in Massachusetts District Court alleging 1) violation of the Massachusetts Discrimination Statute, M.G.L. c. 151B, 2) discrimination under the Civil Services Reform Act, 5 U.S.C. § 2301(b), 3) retaliation for whistle blowing and 4) eight common law torts. Defendant subsequently removed the case to the United States District Court for the District of Massachusetts. Thereafter, defendant filed a statement of Carmen Ortiz, the United States Attorney for the District of Massachusetts, (“U.S. Attorney”) certifying that Norton was acting within the scope of his employment during the events at issue and substituting the United States as the defendant for the common law tort claims.

         Defendant has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that plaintiff has failed to state claims upon which relief can be granted. Plaintiff has, in turn, filed a motion to remand the case to state court and an opposition to Norton's substitution of the United States as a defendant. Those motions are the subject of this memorandum.

         II. Motion to Dismiss

         1. Legal Standard

         To survive a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a complaint must contain “sufficient factual matter” to state a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if, after accepting as true all non-conclusory factual allegations, the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A court may not disregard properly pled factual allegations even if actual proof of those facts is improbable. Id. Rather, the relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw. Id. at 13.

         When rendering that determination, a court may not look beyond the facts alleged in the complaint, documents incorporated by reference therein and facts susceptible to judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).

         2. Analysis

         Defendant moves to dismiss all 12 counts in the complaint. Plaintiff opposes only the dismissal of Count VIII, intentional infliction of emotional distress, Count IX, negligent infliction of emotional distress, and Count XII, assault. Accordingly, this memorandum will address only the three viable counts.

         In defendant's view, the remaining counts should be dismissed because they are 1) preempted by the CSRA, 2) unripe for review and 3) exempted from the sovereign immunity waiver under the Federal Torts Claims Act (“FTCA”). Finally, defendant contends that ...


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