Case 1:05-cv-05402-DLC Document 14 Filed 06/26/06 Page 1 of 5
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`05 CIV. 5402 (DLC)
`OPINION & ORDER
`
`X::::
`
`:::::::::::::::::::::::::::::::::::X
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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`--------------------------------------
`WILLIAM RODRIGUEZ,
`
`Plaintiff,
`
`-v-
`GEORGE HERBERT WALKER BUSH, GEORGE
`WALKER BUSH, JOHN JEB BUSH, NEIL MALLON
`BUSH, MARVIN BUSH, RICHARD CHENEY,
`DONALD H. RUMSFELD, DOV ZAKHEIM, COLIN
`POWELL, RICHARD ARMITAGE, CONDOLEEZA
`RICE, JOHN ASHCROFT, ROBERT MUELLER,
`GEORGE TENET, PORTER GOSS, NORMAN
`MINETA, LARRY ARNOLD, TOM RIDGE, MARC
`RACICOT, THE REPUBLICAN NATIONAL
`COMMITTEE, INC., ALAN GREENSPAN, THOMAS
`KEAN, JAMIE GORELICK, PHILIP ZELIKOW,
`JOHN LEHMAN, FRED FIELDING, KARL ROVE,
`TOM DELAY, RICHARD PERLE, PAUL
`WOLFOWITZ, RICHARD MYERS, RALPH
`EBERHART, KENNETH FEINBERG, HALLIBURTON
`CO., KELLOG BROWN & ROOT SERVICES, THE
`PROJECT FOR THE NEW AMERICAN CENTURY,
`INC., ELECTION SYSTEMS & SOFTWARE,
`WALDEN O’DELL, SEQUOIA VOTING SYSTEMS,
`INC., CHUCK HAGEL, JOE ALLBAUGH,
`Director of FEMA, JAMES BAKER III, JOHN
`SWEENY, MATTHEW SCHLAPP, THOMAS PYLE,
`MICHAEL MURPHY, GARY MALPHRUS, CHARLES
`ROYAL, KEVIN SMITH, THE UNITED STATES
`OF AMERICA, THE UNITED STATES
`DEPARTMENT OF HOMELAND SECURITY, THE
`FEDERAL EMERGENCY MANAGEMENT AGENCY,
`DOE #1-100, DIEBOLD VOTING SYSTEMS,
`INC., GA SAXBY CHAMBLISS,
`Defendants.
`--------------------------------------
`Appearances:
`For Plaintiff:
`Philip Berg
`706 Ridge Pike
`Lafayette Hill, PA 19444
`For Defendants United States of
`America, Department of Homeland
`Security, and Federal Emergency
`
`
`
`05 CIV. 5402 (DLC)
`OPINION & ORDER
`
`X::::
`
`:::::::::::::::::::::::::::::::::::X
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`--------------------------------------
`WILLIAM RODRIGUEZ,
`
`Plaintiff,
`
`-v-
`GEORGE HERBERT WALKER BUSH, GEORGE
`WALKER BUSH, JOHN JEB BUSH, NEIL MALLON
`BUSH, MARVIN BUSH, RICHARD CHENEY,
`DONALD H. RUMSFELD, DOV ZAKHEIM, COLIN
`POWELL, RICHARD ARMITAGE, CONDOLEEZA
`RICE, JOHN ASHCROFT, ROBERT MUELLER,
`GEORGE TENET, PORTER GOSS, NORMAN
`MINETA, LARRY ARNOLD, TOM RIDGE, MARC
`RACICOT, THE REPUBLICAN NATIONAL
`COMMITTEE, INC., ALAN GREENSPAN, THOMAS
`KEAN, JAMIE GORELICK, PHILIP ZELIKOW,
`JOHN LEHMAN, FRED FIELDING, KARL ROVE,
`TOM DELAY, RICHARD PERLE, PAUL
`WOLFOWITZ, RICHARD MYERS, RALPH
`EBERHART, KENNETH FEINBERG, HALLIBURTON
`CO., KELLOG BROWN & ROOT SERVICES, THE
`PROJECT FOR THE NEW AMERICAN CENTURY,
`INC., ELECTION SYSTEMS & SOFTWARE,
`WALDEN O’DELL, SEQUOIA VOTING SYSTEMS,
`INC., CHUCK HAGEL, JOE ALLBAUGH,
`Director of FEMA, JAMES BAKER III, JOHN
`SWEENY, MATTHEW SCHLAPP, THOMAS PYLE,
`MICHAEL MURPHY, GARY MALPHRUS, CHARLES
`ROYAL, KEVIN SMITH, THE UNITED STATES
`OF AMERICA, THE UNITED STATES
`DEPARTMENT OF HOMELAND SECURITY, THE
`FEDERAL EMERGENCY MANAGEMENT AGENCY,
`DOE #1-100, DIEBOLD VOTING SYSTEMS,
`INC., GA SAXBY CHAMBLISS,
`Defendants.
`--------------------------------------
`Appearances:
`For Plaintiff:
`Philip Berg
`706 Ridge Pike
`Lafayette Hill, PA 19444
`For Defendants United States of
`America, Department of Homeland
`Security, and Federal Emergency
`
`
`
`Case 1:05-cv-05402-DLC Document 14 Filed 06/26/06 Page 2 of 5
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`Management Agency:
`Jeanette Vargas
`Assistant United States Attorney
`United States Attorney’s Office for the
`Southern District of New York
`86 Chambers Street, 3rd Floor
`New York, NY 10007
`DENISE COTE, District Judge:
`Plaintiff William Rodriguez (“Rodriguez”) has brought a
`litany of claims related to injuries he suffered on September 11,
`2001. Defendants United States of America, Department of
`Homeland Security and Federal Emergency Management Agency
`(“FEMA”) (collectively “Government Defendants”) have moved to
`dismiss the claims brought against them in Rodriguez’s complaint
`filed on October 22, 2004 (“Complaint”) based on their sovereign
`immunity. For the following reasons, defendants’ motion is
`granted.
`
`Background
`Rodriguez worked as a janitor in the North Tower of the
`World Trade Center for nineteen years until it was destroyed on
`September 11, 2001. Rodriguez was present in the North Tower on
`the morning of September 11 and is alleged to have saved the
`lives of fifteen people by assiting in their evacuation from the
`tower.
`The Complaint details a dramatic conspiracy between
`President George W. Bush and other high-level government
`officials to bring about the September 11 attacks. The
`conspiracy includes a plan to have FEMA take control of the
`economy and infrastructure of the United States after the
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`Case 1:05-cv-05402-DLC Document 14 Filed 06/26/06 Page 3 of 5
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`President makes a declaration of marital law.
`The Complaint was filed in the Eastern District of
`Pennsylvania. On October 26, 2004, the United States Attorney
`for the Eastern District of Pennsylvania accepted service on
`behalf of the United States. On December 27, 2004, the United
`States and several individual defendants moved to dismiss, or in
`the alternative, transfer the case to the Southern District of
`New York. On March 15, 2005, the plaintiff moved for an
`extension of time to serve defendants. On May 2, the case was
`transferred to the Southern District of New York in accordance
`with the provisions of the Air Transportation Safety and System
`Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230
`(Sept. 22, 2001), which vests original and exclusive jurisdiction
`for damages arising out of the September 11 hijackings in the
`Southern District of New York, see Rodriguez v. Bush, 367 F.
`Supp. 2d 765, 767 (E.D.Pa. 2005), and plaintiff’s motion for an
`extension of time to serve defendants was denied without
`prejudice to being renewed in the transferee forum. Id. at 773.
`The plaintiff has not renewed his motion for an extension of
`time to serve. There is no record that any defendants, other
`than the Government Defendants, have been served. On September
`30, 2005, the Government Defendants moved to dismiss the
`Complaint based on, inter alia, lack of subject matter
`jurisdiction.
`
`
`Discussion
`“Absent a waiver, sovereign immunity shields the Federal
`3
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`
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`Case 1:05-cv-05402-DLC Document 14 Filed 06/26/06 Page 4 of 5
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`Government and its agencies from suit.” Federal Deposit
`Insurance Corporation v. Meyer, 510 U.S. 471, 475 (1994)
`(citation omitted). “It is axiomatic that the United States may
`not be sued without its consent and that the existence of consent
`is a prerequisite for jurisdiction.” United States v. Mitchell,
`463 U.S. 206, 212 (1983).
`Rodriguez does not contest that the Government Defendants
`are entitled to sovereign immunity and that they have not
`consented to be sued in this action. Instead, Rodriguez argues
`that while sovereign immunity may protect the Government
`Defendants from liability, it is does not prevent them from
`having to participate in a trial. Rodriguez’s view of sovereign
`immunity is derived from his reading of State of Alaska v. United
`States, 64 F.3d 1352 (9th Cir. 1995).
`In State of Alaska, the question presented to the Ninth
`Circuit was whether a district court order denying a motion to
`dismiss for lack of subject matter jurisdiction by the United
`States was immediately appealable under the collateral order
`doctrine. Id. at 1354. The issue presented in State of Alaska
`was significantly different from the issue of whether the United
`States may be forced to stand trial despite its sovereign
`immunity.
`Because the Government Defendants have not waived their
`sovereign immunity, this Court lacks subject matter jurisdiction
`to hear the claims against them. Rodriguez’s claims against the
`Government Defendants are dismissed for lack of subject matter
`jurisdiction.
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`Case 1:05-cv-05402-DLC Document 14 Filed 06/26/06 Page 5 of 5
`Case 1:O5—cv—O5402—DLC Document 14 Filed 06/26/06 Page 5 of 5
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`Conclusion
`
`The Government Defendants’ motion to dismiss is granted.
`
`Although Rodriguez filed this case on October 22, 2004, he has
`
`not served any defendant except
`
`the Government Defendants. This
`
`case was transferred to this Court over a year ago, and during
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`the intervening time the plaintiff has not renewed a request to
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`extend the time to serve any defendant.
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`The plaintiff shall have
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`until July 7, 2006 to show cause why the Complaint should not be
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`dismissed as to the remaining defendants without prejudice for
`
`failure to serve them.
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`SO ORDERED:
`
`Dated:
`
`New York, New York
`June 26, 2006
`
`
`
`United St tes District Judge
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