Callahan v. U.S.

• Decision Date: 28 September 2004
• Docket Number: No. CIV.A.02-123720RCL.,CIV.A.02-123720RCL.
• Citation: 337 F.Supp.2d 348
• Parties: Mary Jane CALLAHAN, Individually and as Administratrix of the Estate of John B. Callahan, Kathleen Ellen Phelps, and Patrick Shawn Callahan, Plaintiffs, v. THE UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

337 F.Supp.2d 348

Mary Jane CALLAHAN, Individually and as Administratrix of the Estate of John B. Callahan, Kathleen Ellen Phelps, and Patrick Shawn Callahan, Plaintiffs, v. THE UNITED STATES of America, et al., Defendants.

No. CIV.A.02-123720RCL.

United States District Court, D. Massachusetts.

September 28, 2004.

William A. Brown, Boston, MA, A. Douglas Matthews, Fall River, MA, for Robert Fitzpatrick, Defendant.

Katherine A. Carey, Margaret Krawiec, Pater Schlossman, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, Catherine J. Finnegan, U.S. Department of Justice, Washington, DC, for USA, Defendant.

James P. Duggan, Boston, MA, Stephen Neyman, Boston, MA, for Kathleen Ellen Phelps, Mary Jane Callahan, Patrick Shawn Callahan, Plaintiffs.

Edward J. Lonergan, Boston, MA, E. Peter Mullane, Mullane, Michel &amp McInnes, Cambridge, MA, for John J. Connolly, Jr., Defendant.

MEMORANDUM AND ORDER ON THE UNITED STATES' MOTION TO DISMISS

LINDSAY, District Judge.

I. INTRODUCTION

This is an action brought by Mary Jane Callahan (the "plaintiff"), individually and as administratrix of the estate of John B. Callahan (the "Estate"), and individual members of the Callahan family against the United States of America and others.¹ The case arises out of the circumstances surrounding the death of John B. Callahan ("Callahan") on or about August 1, 1982. The plaintiff has alleged that one John Martorano, acting at the behest of crime lords James J. Bulger and Stephen J. Flemmi, murdered Callahan. The plaintiff also alleges that, at the time of Callahan's murder, Bulger and Flemmi were "top echelon" informants for the Federal Bureau of Investigation (the "FBI") and leaders of the Boston area's Winter Hill Gang, an association of individuals engaged in criminal activities. The complaint is in ten counts. In count IV and counts VI through IX, the plaintiff asserts claims by the Estate against the United States for wrongful death and emotional distress. The claims against the United States purport to have been brought pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346, 2401, 2671, et seq. The United States has moved to dismiss all of the claims against it for lack of subject matter jurisdiction, claiming that the plaintiff failed to present her administrative claim to the appropriate federal agency within two years of the accrual of that claim, as required by the FTCA, 28 U.S.C. § 2401(b). The plaintiff presented her administrative complaint on behalf of the Estate on May 14, 2002.

For the reasons stated below, I hold that the plaintiff failed to make a timely presentment of her claim. I therefore GRANT the motion to dismiss.

II. FACTUAL BACKGROUND

In considering the motion of the United States to dismiss for lack of subject matter jurisdiction, I "accept[] the plaintiff's version of jurisdictionally-significant facts as true" and "assess whether the plaintiff has propounded an adequate basis for subject-matter jurisdiction." Valentín v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir.2001). In undertaking this analysis, I must "credit the plaintiff's well-pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge [to subject matter jurisdiction] accordingly." Id.²

In my disposition of the present motion, I have considered the plaintiff's administrative complaint, see U.S. Br. Supp. Mot. Dismiss Ex. 3, her complaint in this lawsuit, and the documents attached to the plaintiff's memorandum in opposition to the government's motion. (I.e., Affidavit of Mary Jane Callahan; Affidavit of Richard Nazzaro; Florida v. Martarano [sic], Case No. F01-008287C (Fla.Cir.Ct. Mar. 20, 2001) (Silverman, J.) (transcript of hearing of John Martorano's plea of guilty to Callahan's murder)). I have also considered numerous media reports the government submitted in conjunction with this motion, focusing in particular on an article published on September 12, 1999, in which the plaintiff was quoted as having said, in reference to Callahan's murderer, that she "need[ed] to forgive him." U.S. Br. Supp. Mot. Dismiss Ex. 4 (Andrea Estes, Outraged Hit Man Turned Rat for Revenge, BOSTON HERALD, Sept. 12, 1999, at 1 (the "Estes article"), available at 1999 WL 3407747).³ The plaintiff has not contested the authenticity of these documents, and she admits that the statement in the Estes article was properly attributed to her. M. Callahan Aff. ¶ 31. I have relied also on the publicly available plea agreement between Martorano and the United States Attorney and state prosecutors from Florida, Oklahoma, and Massachusetts. U.S. Reply Br. Ex. 2 (letter from James Farmer to Francis DiMento of 8/24/99 and attachments thereto (the "plea agreement")), and the docket order of United States District Judge Mark L. Wolf denying the request of the United States' to seal the entire plea agreement, U.S. Reply Br. at 1 n. 1 (quoting United States v. Martorano, Crim. No. 97-10009-MLW (D.Mass. Sept. 9, 1999) (docket entry 52)).⁴ Further, I have drawn on the findings of fact in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), to which the plaintiff has referred in her complaint, Compl. ¶ 15.

A. The Murder of Callahan

On August 2, 1982, Callahan's body was found in the trunk of his car at the Miami International Airport. He had been shot to death. Compl. ¶ 1. The complaint alleges that in the years leading to the Callahan murder, the Boston office of the FBI "had maintained an illicit ... relationship with members of the Winter Hill Gang, specifically Bulger and Flemmi." Id. ¶ 12. The Winter Hill Gang was a "clandestine criminal enterprise" that, "through a membership of gang associates, operatives and enforcers," engaged in crimes, including "murder, bribery, extortion, loan sharking, and illegal gambling in the greater Boston area." Id. ¶ 110. In the mid-1970's, the FBI "sought out and recruited both Bulger and Flemmi to serve as informants in the Bureau's `Top Echelon' informant program" as part of the FBI's "dogged pursuit of, and efforts to investigate, penetrate and bring down, the Boston branch of La Cosa Nostra ..., otherwise known as the mafia." Id. ¶¶ 12, 157, 158. The FBI's relationship with Bulger and Flemmi was illicit because the FBI "violated its own rules and regulations" in order to "protect[] Bulger and Flemmi from prosecution for their ongoing criminal activities" and to "preserve Bulger and Flemmi's status as Agency informants." Id. ¶¶ 13, 17. For example, FBI Organized Crime Squad agent John Connolly — the "handler" for Bulger and Flemmi — and agent John Morris, Connolly's direct supervisor, "tipped Bulger and Flemmi to the identity of individuals who were providing criminal information against Bulger and Flemmi." Id. ¶¶ 29, 113, 118. "As a direct and natural consequence of the disclosures of this ... information, and as [the FBI] knew or had reason to believe would be the case, these individuals were murdered." Id. ¶ 119.

According to the complaint, Callahan's murder was in the pattern of the relationship between the FBI and Bulger and Flemmi, described in the preceding paragraph. In 1981, Callahan learned that "various individuals" had been "skimming profits" from World Jai Alai ("WJA"), a company of which Callahan had been the president and chief executive officer. Callahan reported this criminal activity to others, but his complaints "fell on deaf ears." Id. ¶¶ 4, 7, 245.⁵ At about the same time, Roger Wheeler, the chairman of WJA, was murdered. Id. ¶ 8; Estes, supra. Callahan feared a connection between the murder and Wheeler's knowledge of the profit-skimming and voiced these concerns to H. Paul Rico, WJA's head of security and a former FBI agent who had developed Flemmi as an informant in the 1960's. Compl. ¶¶ 5, 8, 77-81.

In January 1982, Brian Halloran, a criminal defendant "facing a state murder charge, began to cooperate with the FBI in Boston." Id. ¶ 230. Halloran told agents Leo Brunnick and Gerald Montanari of the FBI's Labor and Racketeering Squad "that he met Bulger and Flemmi at Callahan's apartment and was asked if he [Halloran] was willing to murder Wheeler." Id. Halloran reported to the agents that "Bulger and Flemmi along with John Callahan and John Martorano had caused Wheeler to be murdered." Id. Brunnick relayed these allegations to Morris to get the latter's "assessment of Halloran's reliability as a potential witness." Id. Realizing that "Halloran's allegations threatened future [of Bulger and Flemmi] as FBI informants, ... Morris told Brunnick that Halloran was untrustworthy and unstable and would not be a believable witness." Id. ¶¶ 230, 231. In May 1982, Connolly alerted Bulger and Flemmi that Halloran had implicated them in the Wheeler murder. At about the same time, the FBI denied Halloran's request to be placed in the witness security program. Id. ¶¶ 235, 236. Shortly thereafter, Bulger and others murdered Halloran to prevent him from testifying before a federal grand jury investigating Wheeler's murder. Id. ¶¶ 237, 238.

"In or about June 1982, Connolly told Bulger and Flemmi that the investigative efforts relating to the murder of Roger Wheeler were being directed toward John B. Callahan...." Id. ¶ 245. "Concerned that Callahan might implicate Bulger and Flemmi in the Wheeler murder, and to prevent his cooperating with law enforcement authorities and providing testimony in the Wheeler homicide investigation," Bulger and Flemmi "decided that they would kill Callahan in Florida and make the murder to appear robbery related." Id. ¶¶ 224, 246. On or about August 1, 1982, Martorano murdered Callahan at the direction of Bulger and Flemmi. Id. ¶¶ 10, 247.

On August 3, 1982, two Miami-Dade Florida police detectives came to the plaintiff's house in Winchester, Massachusetts and informed her...