15-935-cv
Simone v. United States of America

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
16th day of March, two thousand sixteen.

Present:         ROSEMARY S. POOLER,
                 RICHARD C. WESLEY
                            Circuit Judges.
                 JANET C. HALL,1
                            Chief District Judge.

_____________________________________________________

PHILIP SIMONE, GERTRUDE SIMONE,

                                     Plaintiffs-Appellants,

                         v.                                                       15-935-cv

UNITED STATES OF AMERICA,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:             Loren F. Selznick, Clarks Summit, PA.

Appearing for Appellee:              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.
1
 The Honorable Janet C. Hall, United States District Court for the District of Connecticut, sitting
by designation.
       Appeal from the United States District Court for the Eastern District of New York (Chen,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        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, 260 A.2d 863, 868 (N.J. Sup. Ct. 1969)). Based on the facts as found by the
district court, which were not clearly erroneous, we hold for substantially the same 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, 972 A.2d 1112, 1120 (N.J. 2009) (alteration in original) (internal quotation marks
omitted). It is “well-settled,” in New Jersey, “that malice may be inferred from want of probable
cause.” Id. (internal quotation marks omitted). “That said, a plaintiff cannot simply point to the
absence of probable cause as sufficient proof of the required element of malice.” Id. (internal
quotation marks omitted). Rather, to defeat a summary judgment motion, a plaintiff must
“produce at least some extrinsic evidence of malice.” Id.; see also Prince v. Aiellos, No. 09-CV-
5429, 2013 WL 6865619, at *5 (D.N.J. Dec. 20, 2013), aff’d, 594 F. App’x 742 (3d Cir. 2014);

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Severubi v. Boro.Sayreville, No. 10-CV-5707, 2011 WL 1599630, at *5 (D.N.J. Apr. 27, 2011);
Pittman v. Metuchen Police Dep’t, No. 08-CV-2373, 2010 WL 4025692, at *8 (D.N.J. Oct. 13,
2010); Campanello v. Port Auth. of N.Y. & N.J., No. 07-CV-4929, 2010 WL 3429571, at *4
(D.N.J. Aug. 27, 2010). We find no error in the district court’s analysis. Although a fact finder
may be permitted to infer malice from the absence of probable cause, assuming there was such
an absence, the district court, sitting as the fact finder, was not required to make such a finding,
and its failure to do so was not clearly erroneous. Further, the district court did not clearly err in
finding that there was no extrinsic evidence of malice for the reasons stated in its well-reasoned
opinion and in light of our precedent holding that the collective knowledge doctrine “has
traditionally been applied to assist officers in establishing probable cause—not to impute bad
faith to one member of an enforcement team on the basis of another member’s knowledge.”
Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003). For these reasons, we affirm the
district court’s judgment in favor of defendant on the malicious prosecution claim against the
Marshals.

        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 28 U.S.C. § 1346(b)(1). In a provision known as the intentional tort exception, codified at 28
U.S.C. § 2680(h), the FTCA excepts from the waiver of immunity (and thus provides that
immunity exists) for, as is relevant here, “[a]ny claim arising out of . . . false arrest [and]
malicious prosecution.” 28 U.S.C. § 2680(h). This exception does not apply to “investigative or
law enforcement officers of the United States Government,” id., and such officers are therefore
not immune from such claims. Investigative or law enforcement officers includes “any officer of
the United States who is empowered by law to execute searches, to seize evidence, or to make
arrests for violations of Federal law.” Id. Because the OIA attorneys and staff are not
investigative or law enforcement officers, a district court finding unchallenged on appeal, they
are immune from suit on malicious prosecution and false arrest claims or claims arising out of
malicious prosecution and false arrest claims. See Bernard v. United States, 25 F.3d 98, 104 (2d
Cir. 1994).

        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 (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, 972 A.2d 1112 (N.J. 2009). In Brunson,

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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.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




2
 We note that although we may have otherwise been inclined to certify this question to the New
Jersey Supreme Court, we are not permitted to do so. See N.J. Ct. R. 2:12A-1; Harrington v. Atl.
Sounding Co., 602 F.3d 113, 131 (2d Cir. 2010) (Calabresi, J., dissenting); Stichting Ter
Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v.
Schreiber, 407 F.3d 34, 47 n.6 (2d Cir. 2005).
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