Aldabe v. United States ( 2022 )

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND PETER J. MESSITTE 6500 CHERRYWOOD LANE . NITED STATES DISTRICT JUDGE GREENBELT, MARYLAND 20770 301-344-0632 □ MEMORANDUM To: Counsel of Record From: Judge Peter J. Messitte Re: Aldabe v. Cohen, et. al Civil No. PIM 21-803 . Date: December 1, 2022 . oe oR 2k eo a ak ak : After the Court granted the United States’ Motion to Substitute on March 30, 2022, ECF No. 36, the United States filed a Motion to Dismiss, ECF No. 39, The Court issued an Order granting the Motion on November 3, 2022, but did not issue a corresponding memorandum opinion. ECF No. 46. On November 4, 2022, the United States sent the Court a letter requesting that it issue a revised Order explaining its bases for its granting of the United States’ Motion to Dismiss (EF No. 39) □□ that the district court record would be clear should an appeal be noted. The Court’s bases for granting the United States’ Motion to Dismiss (ECF No. 39) replicate those stipulated in its Memorandum Opinion granting the FTC’s Motion to Substitute and other parties’ Motions to Dismiss. ECF No. 35. Nonetheless, the Court will address them here as well: After the United States is substituted for a federal employee—here the FTC—the action becomes . governed by the Federal Tort Claims Act (“FTCA”). Osborn v. Haley, 549 US. 225, 229 (2007); United States v. Smith, 499 U.S. 160, 163 (1991). Although the FTCA waives the United States’ sovereign immunity for certain tort claims, the Act provides for various exceptions and preserves □ “the Government's immunity from suit for ‘{a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.’” Millbrook v. United States, 569 U.S. 50, 52 (2013) (emphasis added) (quoting 28 U.S.C. § 2680(h)). . In this case, Aldabe sues for negligent misrepresentation (Counts 1-3 and 15-16), negligent personal injury (Counts 4-10 and 13), conscious/fraudulent misrepresentation (Count 14), intentional infliction of emotional distress (TED) (Count 17), and demands punitive damages (Count 19). All of these claims are excluded under the FTCA. Since the Government has not waived immunity as to such claims, Aldabe’s complaint is DISMISSED in its entirety. □ ( Peter J. Messitte UnitedStates District Judge CC: Court File