Bennett ex rel. Estate of Bennett v. F.B.I., CIV.A. 02-11802-RCL.

• Decision Date: 21 August 2003
• Docket Number: No. CIV.A. 02-11802-RCL.,CIV.A. 02-11802-RCL.
• Citation: Bennett ex rel. Estate of Bennett v. F.B.I., 278 F.Supp.2d 104 (D. Mass. 2003)
• Parties: Edward BENNETT, as administrator of the Estate of William Frederick Bennett, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, H. Paul Rico, and the United States of America, Defendants.
• Court: U.S. District Court — District of Massachusetts

278 F.Supp.2d 104

Edward BENNETT, as administrator of the Estate of William Frederick Bennett, Plaintiff, v.FEDERAL BUREAU OF INVESTIGATION, H. Paul Rico, and the United States of America, Defendants.

No. CIV.A. 02-11802-RCL.

United States District Court, D. Massachusetts.

August 21, 2003.

Stacey Bosshardt, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for Federal Bureau of Investigation, USA, Defendants.

Frank C. Corso, Law Office of Frank C. Corso, Boston, for Edward Bennett, Plaintiff.

Margaret Krawiec, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for Federal Bureau of Investigation, USA, Defendants.

Dean A. Mazzone, Attorney General's Office, Boston, for Attorney General of Massachusetts, District Attorneys for the

Suffolk, Norfolk, and Middlesex Districts of Massachusetts, Interested Partys.

E. Peter Parker, Boston, for H. Paul Rico, Defendant.

Peter J. Perroni, Nolan/Perroni, LLP, Lowell, for Edward Bennett, Plaintiff.

MEMORANDUM AND ORDER ON UNITED STATES' MOTION TO DISMISS

LINDSAY, District Judge.

I.Introduction

This is a suit filed by the Estate (the "Estate") of William Frederick Bennett("William Bennett"), of which William Bennett's son Edward is the administrator (the "plaintiff").Named as defendants are the United States of America ("United States"); H. Paul Rico("Rico"), who at the times relevant to the complaint was an agent of the Federal Bureau of Investigation ("FBI"); and the FBI itself.The plaintiff's claims, as set forth in the first amended complaint (the "complaint"), arise from the December 1967 homicide of William Bennett, allegedly at the hands of Stephen J. Flemmi("Flemmi") often called in the Boston press, at least, by the moniker "The Rifleman."Flemmi was associated with the Winter Hill Gang, an alleged criminal organization operating in the Boston area.The complaint is in two counts: the first count, asserted against all the defendants, is brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),2671-2680; the second, asserted against Rico only, is a Bivens claim.Each count seeks to hold the defendants liable for William Bennett's wrongful death and conscious suffering under Massachusetts state law.

This memorandum and order addresses the motion of the United States to dismiss claims against it and the FBI for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).The motion asserts that the plaintiff cannot make a claim against the United States for its alleged role in causing William Bennett's death because the administrative notice of claim required by the FTCA was not timely filed.¹The United States further argues that the FBI is not a proper defendant in this action, and that the claims against the FBI should therefore be dismissed.The plaintiff does not contest this latter point, but counters with regard to the United States' first argument that the notice of claim filed in September of 2001 was timely because certain acts of the FBI constituted a pattern of fraudulent concealment, thus tolling the FTCA limitations period.For the reasons stated below, I DENY the United States' motion with respect to the FTCA claims against the United States itself and GRANT the motion with respect to the FBI.

II.Background

A.Factual Background.

Unless otherwise noted, the following facts are drawn from the complaint.

In 1965, Flemmi was recruited by Rico to serve as a confidential informant for the FBI. Compl. ¶¶ 9, 10.Rico believed that Flemmi could provide information useful in the FBI's investigation of the organized crime enterprise known as La Cosa Nostra (the "LCN").Id.¶ 12.Rico knew that Flemmi, a reputed murderer, and at least one of William Bennett's brothers were associated with the Winter Hill Gang.Id.¶¶ 14-16.In exchange for assistance in the investigation intended to bring down the LCN, Rico promised Flemmi that he would not reveal his cooperation with the government to anyone outside of the FBI.Id.¶ 18.Rico also promised Flemmi that the FBI would not investigate or prosecute him for any crimes Flemmi might commit while he acted as an informant.Id.¶¶ 20, 29.

One of the crimes allegedly committed by Flemmi during the course of his relationship with the FBI was the murder of William Bennett's brother, Edward "Wimpy" Bennett.The plaintiff alleges that Flemmi told Rico about his involvement in Edward Bennett's death, and that Rico subsequently filed a false report with the FBI, indicating falsely that Flemmi told him that others were responsible for the murder.Id.¶¶ 22-24.Upon Edward Bennett's death, Flemmi took over the criminal operations his victim had formerly supervised.Notwithstanding Flemmi's involvement in this murder and his day-to-day operation of a criminal enterprise, the FBI promoted him to Top Echelon informant status.Id.¶¶ 22, 25.

Sometime in 1967, Rico visited William Bennett's home looking for papers relating to the activities of Edward Bennett and a third Bennett brother who allegedly had also been murdered by Flemmi.The complaint alleges that Rico's purpose in this visit was to obtain information that would assist Flemmi in his conduct of criminal activities.Id.¶¶ 31-32.The complaint alleges further that on December 23, 1967, Flemmi murdered William Bennett.Id.¶ 35.The plaintiff claims Rico assisted and participated in the death of William Bennett in order to strengthen Flemmi's position in his criminal operations, thus assuring the continuing flow of information regarding the LCN to the FBI, by way of Flemmi's underworld connections.Id.¶¶ 37-38.Thereafter, Rico continued to insulate Flemmi from investigation and prosecution for his crimes.Id.¶ 39.The plaintiff asserts that the defendants deliberately, fraudulently or otherwise concealed the truth regarding the FBI's protection of Flemmi.Id.¶ 42.

B.Procedural History.

A few words are in order regarding the criminal cases brought in connection with William Bennett's death: Flemmi and another prominent figure reputed to be involved in the Boston organized crime scene, Francis "Cadillac Frank" Salemme ("Salemme"), were indicted for William Bennett's murder in 1969, approximately two years following the murder.(Memorandum in Support of United States' Motion to Dismiss(hereinafter "Mot. to Dismiss")), at 3.Subsequently, Flemmi and Salemme departed Boston and became fugitives.United States v. Salemme,91 F.Supp.2d 141, 183(D.Mass.1999).In 1974, Flemmi returned to Boston and the Bennett murder charge (among others) was dropped, just as the same charge against Salemme had earlier been dropped.Id. at 185.The pair were indicted again in 1996.Mot. to Dismissat 3.

According to the briefs submitted in this case, the plaintiff filed a presentment of claim under the FTCA on September 10, 2001.Plaintiff's Opposition to Motion to Dismiss(hereinafter "Pl. Opp.")at 7.The United States argues that this case should be dismissed because, for purposes of the FTCA, the Estate's claim had most likely accrued by December 23, 1969(two years from the date of William Bennett's death) and in any event earlier than the September 10, 1999 cutoff implied by the 2001 filing date.The disagreement between the plaintiff and the United States as to when the cause of action accrued is at the center of the dispute before me; I address it in several parts below.

III.FTCA Claim Against the United States.

A.Legal Standard.

The motion before me is a motion to dismiss for lack of subject matter jurisdiction.In evaluating such a motion, I must view the plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences therefrom.Muniz-Rivera v. United States,326 F.3d 8, 11(1st Cir.2003).In addition, I may consider the complaint, affidavits or other sources of uncontested facts in reaching my conclusion as to whether subject matter jurisdiction has been properly asserted.Valentin v. Hospital Bella Vista,254 F.3d 358, 363(1st Cir.2001).

With regard to the plaintiff's substantive claims, I begin with the fundamental principle that no case can be asserted against the United States without its consent.The FTCA represents a compromise that allows plaintiffs to file tort claims against the United States in federal court so long as they first file administrative claims with the appropriate agency within two years after their tort claims accrue.28 U.S.C. § 2401(b);see alsoUnited States v. Kubrick,444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259(1979);Attallah v. United States,955 F.2d 776, 779(1st Cir.1992);Cutting v. United States,204 F.Supp.2d 216, 221(D.Mass.2002).The filing of a timely administrative claim under 28 U.S.C. § 2401(b) is a jurisdictional requirement that cannot be waived.Gonzalez v. United States,284 F.3d 281, 288(1st Cir.2002).Therefore, should a plaintiff fail to file a timely administrative claim, any action filed in court must be dismissed.Id.

The United States alleges that the plaintiff's administrative claim of September 10, 2001 was untimely filed, and that the claims asserted in the complaint are therefore time-barred and must be dismissed.Mot. to Dismissat 7.The plaintiff argues that the claims are timely because they did not accrue for FTCA purposes until some time in 2000.SeePl. Opp.at 7.Alternatively, the plaintiff argues that the doctrines of fraudulent concealment and equitable tolling should be applied to toll the FTCAstatute of limitations.Id. at 15.

B.Accrual of FTCA Claims.

Under the FTCA, the general rule is that a claim accrues at the time of injury.SeeGonzalez,284 F.3d at 288.Under this rule, the United States argues, the plaintiff's claim accrued on December 23, 1967— the date of William Bennett's murder— and therefore the administrative claim should have been filed by December 23, 1969.SeeCompl.at ¶ 35;Mot. to Dismissat 9.To support this proposition, the United States...