Cline v. United States, Case No. 3:13–cv–0776.

• Citation: 13 F.Supp.3d 868
• Decision Date: 07 April 2014
• Docket Number: Case No. 3:13–cv–0776.
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Kimberly CLINE, individually, and on behalf of her minor child, E.C., Plaintiffs, v. UNITED STATES, Defendant.

13 F.Supp.3d 868

Kimberly CLINE, individually, and on behalf of her minor child, E.C., Plaintiffs

v.UNITED STATES, Defendant.

Case No. 3:13–cv–0776.

United States District Court, M.D. Tennessee, Nashville Division.

Filed April 7, 2014.

Amy C. Bates, Lee W. Berry, Kennedy Law Firm, PLLC, Clarksville, TN, for Plaintiffs.

Sam Delk Kennedy, Jr., Office of the United States Attorney, Nashville, TN, for Defendant.

MEMORANDUM AND ORDER

ALETA A. TRAUGER, District Judge.

Pending before the court is a Motion to Dismiss (Docket No. 12) filed by the defendant, the United States of America, to which the plaintiffs have filed a Response in opposition (Docket No. 16), and the United States has replied (Docket No. 19). For the reasons discussed herein, the motion to dismiss will be granted without prejudice.

BACKGROUND¹

This case stems from the tragic victimization of a child by her stepfather. Plaintiff Kimberly Cline (“KC”) is the mother of plaintiff EC, a minor child born on April 18, 2001. In 2007, KC married Joshua Matthew Cline (“JMC”), who was, at that time, an active duty soldier in the United States Army. Around October 2007, JMC was deployed to Iraq.

The plaintiffs allege that, around March 2008, the Army and other federal agencies began to investigate JMC. That same month, JMC returned from Iraq to his home with KC in Clarksville, Tennessee for a two-week “rest and relaxation” tour. The plaintiffs further allege that, during his time at home, JMC made and produced pornographic material, including photographs and videos of himself forcibly raping and sodomizing his stepdaughter, EC, who was then 6 years old. Around March 19, 2008, JMC returned to his duties in Iraq.

In early October 2008, the Army confiscated JMC's computer, which contained the pornographic photographs and videos from his rape of EC. Around October 3, 2008, JMC called KC from Iraq and advised her not to speak to Army investigators if they were to contact her. JMC allegedly instructed KC to avoid conversations with investigators because he had hired an attorney and she did not need to answer anything because of spousal privilege. Around October 15, 2008, an agent for the Army's Criminal Investigation Division (“CID”) contacted KC. KC initially refused to speak to the agent, per JMC's instructions. A few days later, around October 19, 2008, the CID agent informed KC that if KC did not visit Army Family Services, she may face criminal prosecution. Around October 20, 2008, KC met with personnel from CID and Army Family Services. KC alleges that, in that meeting, KC expressly asked agents from the Army whether she should forbid JMC from spending time with EC alone and that the agents assured her that the investigation had nothing to do with EC. She further alleges that agents told KC to limit JMC's interaction with EC and nothing more.

JMC returned to Tennessee from Iraq around November 14, 2008. KC alleges that, at that time, KC had no knowledge of the danger posed by JMC to herself or to EC because the government agents did not warn her. Around December 6, 2008, KC gave birth to a son fathered by JMC. While KC was in the hospital giving birth to their child, JMC was alone with EC at their home. KC alleges that, during the time that she was in the hospital, JMC repeatedly raped and sodomized EC and produced a pornographic video of the assault.

KC further avers that JMC attempted to sell the videos and photographs of EC on the internet and that he successfully sold a video produced in 2008 for $25,000.

Around January 15, 2009, KC returned to work after her maternity leave. KC alleges that, around January 21, 2009, Tennessee's Department of Children's Services contacted KC to warn her that it would be taking her children into state custody unless she returned home immediately. Upon arriving at her home, KC discovered that federal agents had searched her entire house. KC was interviewed by one of the federal agents, who informed her that the Army was investigating JMC for allegations of production and distribution of child pornography but failed to inform her that EC was a suspected victim of JMC. Over a year later, in March 2010, EC told a psychiatrist about her stepfather's abuse. The psychiatrist informed KC of her daughter's victimization.

KC alleges that the Army failed to warn her and her daughter, as well as federal and local law enforcement, of the dangers posed by JMC when he returned from Iraq. She claims that such omissions were negligent, willful, deliberate, knowing, and malicious, and she alleges that the defendant's actions resulted in pain, suffering, emotional distress, and a variety of other damages.

The plaintiffs filed this action on August 5, 2013, alleging five claims under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. (“FTCA” or “Act”): intentional infliction of emotional distress, negligent infliction of emotional distress, negligence in standard and duty of care, negligence per se, and failure to warn. Specifically, the plaintiffs allege that the government's agencies have duties set forth by Army Regulations and federal law “to control the conduct of their employees” and “to protect military families.”

The United States filed the pending motion on November 15, 2013. The United States has moved for dismissal of the Complaint upon two grounds: first, because the court lacks subject matter jurisdiction over the plaintiffs' claims and second, because the plaintiffs have failed state a claim upon which relief can be granted.

ANALYSIS

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Because a court that lacks subject matter jurisdiction over a case does not have the power to hear it, the question of subject matter jurisdiction may be raised at any time. See Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ; United States v. Adesida, 129 F.3d 846, 850 (6th Cir.1997). When a defendant attacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff must meet the burden of proving jurisdiction. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005).

A Rule 12(b)(1) motion may challenge the complaint on its face or it may contest the existence of subject matter in fact. If the motion attacks the face of the complaint, the plaintiff's burden “is not onerous.” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). The plaintiff need only demonstrate that the complaint alleges a “substantial” federal claim, meaning that prior decisions do not inescapably render the claim frivolous. Id. A court evaluating a facial attack must consider the allegations of fact in the complaint to be true. Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir.1999). Thus, “the plaintiff can survive the motion by showing any arguable basis in law for the claim made.” Musson Theatrical, 89 F.3d at 1248.

Alternatively, if a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the court “must weigh the evidence” in order to determine whether it has the power to hear the case. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004). When the facts are disputed, “[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary.” Cooley v. United States, 791 F.Supp. 1294, 1298 (E.D.Tenn.1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir.1994). The court can do so without converting the Rule 12(b)(1) motion into a motion for summary judgment. Id.

Here, in its initial brief in support of its Motion to Dismiss, the United States challenged the Complaint solely on its face. Accordingly, when the plaintiffs responded to the motion, the plaintiffs did not submit any contrary evidence in support of the court's jurisdiction over their claims. In its Reply, however, the government raised a factual challenge to the Complaint and submitted the Declaration of John Edward Lennier, a records custodian for the Criminal Investigation Division of the United States Army, along with records from the Army's investigation of JMC. (Docket No. 20 (“Lennier Decl.”).) The plaintiffs did not request leave to file a sur-reply or to submit any evidence in favor of the court's subject matter jurisdiction.

II. Motion to Dismiss for Failure to State a Claim

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007) ; Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “ ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

The complaint's allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173...