Sindram v. United States Marshal Service et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MICHAEL JOSEPH SINDRAM,
Debtor.
____________________________
MICHAEL JOSEPH SINDRAM,
Plaintiff,
v.
UNITED STATES MARSHALS
SERVICE,
Defendant.
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Case No. 08-00559
(Chapter 7)
Adversary Proceeding No.
09-10041
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
This addresses the defendants’ motion to dismiss the above-
captioned adversary proceeding. 	For the reasons set forth below,
I will grant the motion.
I
On August 18, 2008, the plaintiff, Michael Joseph Sindram
(“Sindram”), commenced a case under chapter 13 of the Bankruptcy
The document below is hereby signed.
Signed: April 20, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Code (11 U.S.C.), which he thereafter converted to a case under
chapter 7. 	In January, 2009, Sindram received his discharge and
on February 6, 2009, the court closed his case. 	The same day his
case was closed, the court entered a memorandum decision and
order reopening Sindram’s case for the limited purpose of
allowing him to pursue a pending contempt motion against his
condo association for violations of the automatic stay. 	Prior to
the court addressing Sindram’s contempt motion in the main case,
Sindram filed a complaint commencing this adversary proceeding
against the United States Marshals Service and several of its
employees. 	On January 22, 2010, the clerk issued a summons to
the Marshals Service. 	Sindram thereafter filed an amended
complaint, naming only the Marshals Service as a defendant, and
personally delivered the summons and his amended complaint to the
Marshals’ office in the E. Barrett Prettyman Courthouse in the
District of Columbia.
In his amended complaint, Sindram alleges several acts by
Marshals Service employees in violation of his “constitutionally-
guaranteed rights and interest”:
• 	“Heavy-handed tactics” against Sindram in open court on
February 3, 2009;
• 	Interference with Sindram’s meeting with the trustee on
November 13, 2008;
• 	Sindram’s detention and arrest in the courthouse prior
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to a hearing before this court on April 21, 2009;
• 	A Marshals Service’s employee’s refusal to admit
Sindram to the courthouse on multiple occasions;
• 	An employee of the Marshals Service checking for
firearms using a magnetic wand “in and about
[Sindram’s] crotch area for no other reason than to
intimidate and harass [Sindram]” and to put a chilling
effect upon his court filings;
• 	A Marshals Service employee rifling through Sindram’s
filings after having passed them through the
magnetometer for the purpose of harassing and
intimidating him in front of counsel;
• 	A Marshals Service employee “stalking” Sindram at a
hearing before this court for the purpose of chilling
Sindram’s ability to concentrate and testify at a
hearing;
• 	Various statements made to Sindram by a Marshals
Service employee, including: “I am going to make you my
girlfriend and we are going to shop at Victoria Secrets
for your lingerie.”; “I am going to make you into
chopped liver like the others while I was a cop in New
York City so you will not be coming back to my turf in
this courthouse!”; and “You are dead meat white boy.”;
and
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• 	Sindram’s detention by several Marshals Service
employees while he was attempting to make an after-
hours filing in his bankruptcy case.
On March 5, 2010, the Marshals Service timely filed a motion to
dismiss this adversary proceeding. 	Sindram filed in response,
and the Marshals Service submitted reply memorandum in support of
its motion.
II
The purpose of a Fed. R. Civ. Proc. 12(b)(6) motion is “to
test the legal sufficiency of the complaint.” 	Kingman Park Civic
Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003). 	In
deciding a motion to dismiss, although the court “must construe
the allegations and facts in the complaint in the light most
favorable to the plaintiff . . . ,” Gustave-Schmidt v. Chao, 226
F. Supp. 2d 191, 195 (D.D.C. 2002), the complaint must
nevertheless plead “enough facts to state a claim to relief that
is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and “the court need not accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts set
out in the complaint . . . . [nor must it] accept legal
conclusions cast in the form of factual allegations.” 	Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
In deciding a 12(b)(6) motion to dismiss, “the Court may only
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consider the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt, 226 F. Supp. 2d at 196.
III
In its motion, the Marshals Service argues that dismissal is
proper for four reasons. 	I will address each in turn.
A
The Marshals Service first asserts that dismissal is proper
because this court lacks subject matter jurisdiction to hear
Sindram’s claims. 	Bankruptcy courts are courts of limited
jurisdiction. 	Valley Historic Ltd. P’Ship v. Bank of New York,
486 F.3d 831, 837 (4th Cir. 2007). 	Under 28 U.S.C. § 1334 and
§ 157, bankruptcy courts are only empowered to hear cases that
either arise under title 11 or that arise in or relate to a case
under title 11.
First, Sindram’s claims do not arise under title 11.
Sindram cites no provision of the Bankruptcy Code as a basis for
relief, and the court can find no provision that would entitle
Sindram to the relief he requests. 	This is unsurprising as
Sindram’s amended complaint sounds in tort: he is seeking relief
under theories of battery, assault, false imprisonment, and
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constitutional tort. 1 	And tort claims are, by their nature,
state law claims; they are not rights created by the Bankruptcy
Code.
1 	Even if the amended complaint could also be viewed as
sounding in contempt based on the Marshals Service’s acts having
interfered with proceedings in the bankruptcy court, the court
would still lack jurisdiction to hear his claims.
Sindram is not seeking to enforce an order of the court.
Any contempt proceeding would necessarily be one to vindicate the
authority of the court and thus a proceeding sounding in criminal
contempt. 	See Cobell v. Norton, 334 F.3d 1128, 1145 (D.C. Cir.
2003) (explaining that courts generally use civil contempt to
enforce compliance with an order, while criminal contempt is used
to “vindicate the authority of the court following a
transgression rather than to compel future compliance or to aid
the plaintiff”) (internal quotations and citations omitted). 	As
I have previously held, “this court does not have the authority
to hear a criminal contempt matter relating to past conduct not
presently occurring in a hearing.” 	In re Akl, 2008 WL 5102277,
*1 (Bankr. D.D.C. Sept. 4, 2009).
Sindram has not alleged that he is seeking compensatory
civil contempt sanctions and has failed to allege facts that
would establish civil contempt. 	A party may not be held in civil
contempt if there was no failure to comply with a clear and
unambiguous court order of which it had knowledge. 	Armstrong v.
Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir.
1993). 	Sindram does not point to any such order.
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Second, Sindram’s claims do not arise in the case. 2 	That
the acts of the Marshals Service arose from events in the
bankruptcy case is insufficient to confer “arising in”
jurisdiction. 	"In other words, an 'arising in' proceeding is one
that must not only arise from events in the bankruptcy case but
that by its nature is of an 'administrative' character because it
requires a disposition in the bankruptcy case in order for the
bankruptcy case to be administered." 	Virginia Hosp.
Center-Arlington Health Sys. v. Akl (In re Akl), 397 B.R. 546,
550 (Bankr. D.D.C. 2008).
Finally, Sindram’s claims are not related to the bankruptcy
case. 	The test for determining whether something is related to a
bankruptcy proceeding is whether “the outcome of that proceeding
could conceivably have any effect on the estate being
administered in bankruptcy.” 	Pacor, Inc. v. Higgins, 743 F.2d
984, 994 (3d Cir. 1984) (citations omitted). 	Here, there is no
conceivable effect on the estate. 	All of the misconduct alleged
2 	Because Sindram emphasizes the nexus of the Marshals
Service’s conduct to the bankruptcy case, I have opted to address
the issue of “arising in” jurisdiction separate from the “related
to” jurisdiction issue. 	I could have proceeded instead to
dispose of the “arising in” and “related to” jurisdictional
issues together by addressing only the “related to” issue. 	The
“arise in” and “relate to” standards operate conjunctively in the
sense that if a case “arises in” the bankruptcy case, it
necessarily is “related to” the bankruptcy case (meaning it has
some impact on the administration of the case). 	Therefore, it
would only be necessary to determine whether this adversary
proceeding is at least “related to” the bankruptcy case. 	Wood v.
Wood, 825 F.2d 90, 93 (5th Cir. 1987).
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by Sindram happened post-petition. 	Under § 541 of the Bankruptcy
Code, the estate consists solely of Sindram’s assets before he
filed for bankruptcy. 	Any claim against the Marshals Service
that arose post-petition belonged solely to Sindram and could not
be used for distribution to his creditors. 3 	Accordingly, the
court is without jurisdiction to hear Sindram’s complaint.
B
The Marshals Service’s second argument is that even if the
court finds subject matter jurisdiction, this adversary
proceeding should nevertheless be dismissed as to it under the
doctrine of sovereign immunity. 	Sovereign immunity is the
doctrine whereby, absent an express waiver, the Federal
Government is immune from suit. 	United States v. Mitchell, 463
U.S. 206, 212 (1983). 	Importantly, courts construe waivers of
sovereign immunity narrowly, Orff v. United States, 545 U.S. 596,
3 	I note that Sindram’s case started under chapter 13.
Prior to his conversion to chapter 7, Sindram alleged one
instance of misconduct. 	The mere fact that Sindram converted,
however, did not bring this preconversion claim into the estate.
See 11 U.S.C. § 348(f)(1)(A) (providing that “property of the
estate in the converted case shall consist of property of the
estate as of the date of filing of the petition, that remains in
the possession of or is under the control of the debtor on the
date of conversion”). 	Sindram did not convert his case to
chapter 7 in bad faith such as to make 11 U.S.C. § 348(f)(2)
applicable. 	Moreover, even if the claim were property of the
estate, the claim was never scheduled and only the chapter 7
trustee would have authority to pursue the claim. 	See 11 U.S.C.
§§ 323 and 554(c).
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601 (2005), and the waiver must be “unequivocally expressed,”
Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999).
Two potential waivers are applicable to this case: the Federal
Torts Claims Act (“FTCA”) and § 106 of the Bankruptcy Code.
First, I decline to decide whether Sindram’s claims fall
within the Federal Government’s waiver of sovereign immunity
under the FTCA because even if they did, this court would be
without jurisdiction to hear those claims. 	The FTCA is limited
solely to tort claims. 	See 	28 U.S.C. § 2674 (providing that the
“United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances
. . . .”). 	As I explained above, because Sindram’s post-petition
tort claims cannot be said to be at least “related to” his case
under title 11 because they could have no impact on the estate,
this court is without subject matter jurisdiction to hear the
claims. 	Rather, the district court is the court of competent
jurisdiction in this instance. 4 	Accordingly, I decline to decide
4 	This decision is in no way meant to imply that a suit
under the FTCA could never be maintained in this court. 	It is
not difficult to conceive of a situation where a debtor has a
pre-petition claim against the Federal Government that he or the
trustee could bring in this court seeking recovery for the
benefit of general unsecured creditors. 	That, however, is not
the situation here: all the alleged acts by the Marshals Service
happened post-petition; Sindram received a discharge under
chapter 7; the time for a party in interest to move to revoke the
discharge under § 727 has passed; and, the trustee has filed a
final report of no distribution.
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whether Sindram’s claims fall within the framework of the FTCA.
Second, the Federal Government has not waived its immunity
under the Bankruptcy Code for the acts of which Sindram
complains. 	Section 106(a) of the Bankruptcy Code abrogates the
Federal Government’s sovereign immunity with respect to certain
provisions of the Bankruptcy Code. 	But as I stated above,
Sindram is not claiming relief under any provision of the
Bankruptcy Code. 5
C
The Marshals Service’s next argument is that dismissal is
proper because Sindram has failed to effect proper service.
Under both Fed. R. Civ. Proc. 4(i) and Fed. R. Bankr. Proc. 7004,
when a party institutes a suit against an agency of the United
5 	The only potential argument that Sindram could make is
that he is seeking relief under the Bankruptcy Code under 11
U.S.C. § 105. 	Section 105(a) empowers the court to “issue any
order, process or judgment that is necessary or appropriate to
carry out the provisions of” the Bankruptcy Code. 	Section 105(a)
cannot be divorced from the other provisions of the Bankruptcy
Code to provide the court with an independent basis on which to
issue orders outside the scope of title 11. 	Without a statutory
hook in the Bankruptcy Code for Sindram’s amended complaint,
§ 105 would not come into operation and therefore does not
provide a waiver of the Federal Government’s sovereign immunity.
Although civil contempt can be pursued under 11 U.S.C. § 105(a)
(see ZiLOG, Inc. v. Corning (In Re ZiLOG, Inc.), 450 F.3d 996,
1007 (9th Cir. 2006)), and thus against the Federal Government by
reason of 11 U.S.C. § 106(a) (see Jove Engineering, Inc. v.
I.R.S., 92 F.3d 1539, 1554-55 (11th Cir. 1996)), as discussed
already (n.1, supra), Sindram has not alleged facts forming a
basis for pursuing civil contempt.
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States, the party must also provide service of process upon the
United States Attorney for the district in which the action is
commenced and the United States Attorney General. 	Although
Sindram initially provided service only upon the Marshals
Service, he has now cured the defect by providing service upon
both the Attorney General and the United States Attorney for the
District of Columbia, and dismissal on this basis is improper. 6
D
The Marshals Service’s final argument is that to the extent
Sindram seeks relief against federal employees in their
individual capacities, the court should dismiss the suit against
them for lack of personal jurisdiction. 	The Marshals Service
contends that dismissal on this basis is proper for two reasons:
(1) Sindram has failed to effect proper service upon any federal
employees he is suing in an individual capacity and (2) Sindram
has not met his burden of establishing personal jurisdiction over
any federal employees he is suing in their individual capacity.
I will address each contention in turn.
As an initial matter, I note that it is not clear from
Sindram’s amended complaint whether he is seeking relief against
6 	I note that Sindram’s personal service upon the
defendants is improper because he delivered the summons and
complaint himself. 	Fed. R. Bankr. Proc. 7004(a). 	The Marshals
Service has not raised this argument, however, and I choose not
to address it due to dismissal on other bases.
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any federal employees in their individual capacities. 	First,
Sindram’s amended complaint only names the Marshals Service as a
defendant in the caption. 	Second, Sindram has not sought a
summons against any entities besides the Marshals Service, the
Attorney General of the United States, and the United States
Attorney for the District of Columbia. 	In the body of his
amended complaint, however, Sindram refers to defendants Jessup,
Leak, Hooker, and Gardner, and unnamed defendants. 	Moreover,
throughout his amended complaint Sindram references “defendants”,
plural, and asks for judgment against the “defendants jointly,
severally, collectively, and individually.” 	Viewing these
allegations in a light most favorable to Sindram, I find it
reasonable to construe his complaint as seeking relief against
these employees in their individual capacities in addition to
seeking relief against the Marshals Service.
Regarding the Marshals Service’s first argument––that
personal jurisdiction does not lie because Sindram has failed to
effect proper service upon the individuals defendants-–this is
not a valid basis for dismissal at this time. 	Although one of
the requirements for personal jurisdiction over an individual is
valid service of process, Omni Capital Int’l, Ltd. v. Rudolph
Wolff & Co., 484 U.S. 97, 104 (1987), under Rule 4(m) Sindram
need not effect service until 120 days after his amended
complaint was filed, see Guerrero v. Univ. of Dist. Of Columbia,
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251 F. Supp. 2d 13, 27 (D.D.C. 2003) (using 120 days from the
filing of the amended complaint as the operative deadline under
Rule 4(m)). 	Here, Sindram filed his amended complaint with the
court on February 2, 2010. 	Accordingly, Sindram would not need
to effect service on the federal employees he is seeking relief
against in their individual capacities until June 2, 2010, and
dismissal on this basis is premature.
Furthermore, the Marshals Service’s argument that Sindram
has failed to plead personal jurisdiction over the individual
defendants also fails. 	Under Rule 4(k)(1), personal jurisdiction
exists when a defendant “is subject to the jurisdiction of a
court of general jurisdiction in the state where the district
court is located.” 	Even assuming that none of the individuals
against whom Sindram is seeking relief were residents of the
District of Columbia, 7 jurisdiction would lie by virtue of the
District’s long arm-statute, which provides for personal
jurisdiction “over a person . . . as to a claim for relief
arising from the person . . . (c) causing tortious injury in the
District of Columbia by an act or omission in the District of
Columbia. 	D.C. Code § 13-423. 	Sindram has alleged acts by the
individual defendants that occurred while he was present in
District of Columbia Federal Courthouse sufficient to fall under
7 	Any defendants who were residents of the District would
be subject to personal jurisdiction by virtue of D.C. Code § 13-
422.
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the District’s long-arm statute, 8 and, consequently, personal
jurisdiction against the individual defendants would lie in this
court. 	All of this, however, is merely academic as this court is
without subject matter jurisdiction to hear Sindram’s claims in
the first instance.
IV
In accordance with the foregoing it is
ORDERED that the Marshals Service’s motion to dismiss
Sindram’s amended complaint is GRANTED.
[Signed and dated above.]
Copies to: All counsel of record; Office of United States
Trustee.
8 	Although research reveals no cases addressing whether
contempt actions fall under this section of the District’s long-
arm statute, I believe it would extend to contempt actions and,
consequently, personal jurisdiction would lie here, too.
14	O:\TEEL\Garrett\Decisions\SindramMTDMarshalAPV4.wpd
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