United States District Court, M.D. Florida, Fort Myers Division
JAY P. PORTON, Plaintiff,
THE SALVATION ARMY OF GEORGIA, INC., TIM GILLIAM, JILLIANA ROE and ERIN K. KANDIK, Defendants.
MIRANDO UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon review of United States of
America's Motion to Dismiss Defendant Erin K. Kandik
(“Kandik”) and Substitute the United States as a
Defendant (Doc. 4) filed on July 25, 2017 and United States
of America's Motion to Set Aside State Court Order
Granting Plaintiff's Motion for Default (Doc. 9) filed on
August 7, 2017. Plaintiff has not responded to the United
States' motion to substitute (Doc. 4), and his time to do
so has expired. Plaintiff's non-response to the motion
creates a presumption that the motion is unopposed. Great
Am. Assur. Co. v. Sanchuk, LLC, No.
8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan.
23, 2012). The United States states that Plaintiff opposes
the motion to vacate the state court's order granting
default. Doc. 9 at 6.
about June 1, 2017, Plaintiff filed a lawsuit against
Defendants with the Circuit Court of the Twentieth Judicial
Circuit in and for Lee County, Florida. Doc. 4 at 1. On July
21, 2017, this case was removed from state court to this
Court. Doc. 1. Plaintiff's Complaint alleges that
Plaintiff was a resident at the Salvation Army and a
participant in the federal reentry program. Doc. 2 ¶ 1.
Plaintiff also alleges that he was under the supervision of
Kandik, who is a United States Probation Officer.
Id. Plaintiff alleges that due to his medical
condition, he stayed at Lee Memorial Hospital for medical
treatment on September 20, 2016. Id. ¶ 3.
Plaintiff appears to claim that his hospital stay was against
the condition to stay confined at his residence. Id.
Plaintiff further appears to allege that although he notified
all relevant personnel of his condition and medical
treatment, he was evicted from the Salvation Army with an
unsatisfactory status. Id. ¶ 5. He argues that
his eviction was the result of retaliation by Kandik and
Defendant Jilliana Roe a/k/a Jilliana Perez. Id.
Plaintiff seeks monetary damages and compensatory damages of
one million two hundred and fifty thousand dollars.
Id. ¶¶ 7-8.
The United States' Motion to Dismiss Kandik and
Substitute the United States as a Defendant
United States seeks to substitute Kandik as a party defendant
because she was acting within the scope of her office or
employment at the time of the underlying incident. Doc. 4 at
2. The Acting United States Attorney for the Middle District
of Florida has certified that Kandik was acting within the
scope of her federal employment as a United States Probation
Officer during all times relevant to Plaintiff's claim.
Id. at 3; Doc. 1-2 at 2. As a result, the United
States argues that the substitution is appropriate under
Section 6 of the Federal Employees Liability Reform and Tort
Compensation Act, 28 U.S.C. § 2679(d)(1), (2). Doc. 4 at
2. Pursuant to 28 U.S.C. § 2672 and subject to certain
statutory conditions, the head of each federal agency or his
in accordance with regulations prescribed by the Attorney
General, may consider, ascertain, adjust, determine,
compromise, and settle any claim for money damages against
the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the agency while acting within
the scope of [her] 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. § 2672. The statute further provides that for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the United States Government while acting within
the scope of her office or employment, the remedy against the
United States provided under 28 U.S.C. § 2672 is
“exclusive of any other civil action or proceeding for
money damages by reason of the same subject matter against
the employee whose act or omission gave rise to the claim or
against the estate of such employee.” 28 U.S.C. §
civil action or proceeding against any employee of the United
States Government or her estate for any such damage or
injury, the Attorney General is required to defend the
employee or her estate. 28 U.S.C. § 2679(c).
Furthermore, once the Attorney General certifies that the
defendant employee was acting within the scope of her office
or employment at the time of the underlying incident, any
civil action or proceeding commenced in a state court must be
removed at any time before trial to an appropriate district
court of the United States. 28 U.S.C. § 2679(d)(2).
Accordingly, this civil action or proceeding “shall be
deemed an action against the United States, ” and the
United States shall be substituted as the party defendant. 28
U.S.C. § 2679(d)(1).
the regulations, the United States Attorney for the district
where the civil action or proceeding is brought is authorized
to make the statutory certification that the employee was
acting within the scope of her office or employment with the
United States Government at the time of the underlying
incident. 28 C.F.R. § 15.4. The certification is
“prima facie evidence that the employee acted
within the scope of [her] employment.” Flohr v.
Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) (citation
omitted). The burden to prove that the employee acted outside
the scope of employment is on a plaintiff. Id.
in accordance with the relevant statutes, the Acting United
States Attorney for the Middle District of Florida has
certified that Officer Kandik was acting within the scope of
her employment at all times relevant to Plaintiff's
claim. Docs. 1-2 at 2; 4 at 3. See 28 U.S.C. §
2679(d); 28 C.F.R. § 15.4. Plaintiff has not challenged
the certification by not responding to the motion. As a
result, pursuant to 28 U.S.C. § 2679(d)(1), the Court
will substitute the United States as a party defendant for
Kandik in this matter.
The United States' Motion to Set Aside State Court Order
Granting Plaintiff's Motion for Default (Doc. 9)
United States seeks to vacate the state court's order
dated July 26, 2017, which granted Plaintiff's motion for
default against Kandik. Docs. 9, 9-1. This case was removed
from state court on July 21, 2017. Doc. 1. Once a defendant
files a notice of removal with the district court and the
clerk of the state court and provides written notice to all
adverse parties, “the [s]tate court shall proceed no
further unless and until the case is remanded.” 28
U.S.C. § 1446(d). Accordingly, “after removal, the
jurisdiction of the state court absolutely ceases and the
state court has a duty not to proceed any further in the
case.” Maseda v. Honda Motors Co., Ltd., 861
F.2d 1248, 1254 (11th Cir. 1988) (citing Steamship Co. v.
Tugman, 106 U.S. 118, 122 (1882)). Any subsequent state
court proceedings are “void ab initio.”
Id. at 1254-55 (citing Steamship, 106 U.S.
at 122). As a result, the Court finds that the state
court's order dated July 26, 2017 is void and renders the
present motion moot. See id.