Estate of O'Connor v. United States, Case No. 8:12-cv-02070-T-27MAP

Decision Date26 March 2013
Docket NumberCase No. 8:12-cv-02070-T-27MAP
PartiesESTATE OF PAULA O'CONNOR, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — Middle District of Florida
ORDER

BEFORE THE COURT are Defendant's Motion to Dismiss (Dkt 20) the First Amended Complaint for Wrongful Death Damages (Dkt. 16) and Plaintiffs' Request for Oral Argument (Dkt. 28). Because Plaintiffs failed to file a timely administrative claim under the Federal Tort Claims Act ("FTCA"), the Court lacks subject matter jurisdiction to consider Plaintiffs' claims.1

Introduction

The First Amended Complaint alleges that certain "actions, inactions and/or omissions" by the United States led to the murder of Paula O'Conner and her 14 month old son, Alijah O'Conner,in July of 2007.2 The First Amended Complaint asserts claims against the United States for (1) direct negligence based on an independent duty to protect (Count I), (2) direct negligence based upon a good Samaritan duty (Count II), (3) negligence under 28 U.S.C. § 2680(h) based on conduct of an investigative or law enforcement officer (Count III), (4) negligent hiring and supervision (Count IV), and (5) intentional infliction of emotional distress (Count V).3

The United States moves to dismiss the First Amended Complaint on the grounds that (1) the Court lacks subject matter jurisdiction because Plaintiffs' claims are time barred under 28 U.S.C. § 2401(b), (2) the United States cannot be held vicariously liable for a tort committed by an assailant who acted outside the scope of his employment, and (3) Plaintiffs' claims are excepted under the FTCA. Plaintiffs respond by arguing that they filed a timely administrative claim and that they assert viable claims for relief under the FTCA and Florida law.

Facts Relating to Substantive Claims: The Murders of Paula and Alijah O'Conner

On July 6, 2007, Paula O'Conner and her 14 month old son, Alijah O'Conner, were murdered by Alijah's father, Ralph Daniel Wright, Jr. ("Wright"). See, e.g., First Amended Wrongful Death Complaint for Damages (Dkt. 16), ¶ 23.4 At the time of the murders, Wright was a reserve sergeant and law enforcement officer employed by the United States Air Force and stationed at MacDill Air Force Base in Tampa, Florida. See, e.g., id. at ¶¶ 4, 22.d., 24.

Paula O'Conner and Wright met on an unknown internet site approximately a year and a half before the murders. The couple engaged in a sexual relationship that resulted in the birth of Alijah O'Conner. See, e.g., id. at ¶ 22. Alijah O'Conner was born with various medical disabilities and deformities that resulted in substantial and continuing medical expenses. Id.

During the course of their relationship and thereafter, Wright continually deceived Paula O'Conner with respect to his martial status, his intentions towards Paula and Alijah, the nature of his work for the Air Force, and his whereabouts. Id. Plaintiffs allege:" For months, Sergeant Ralph Daniel Wright, Jr. ignored Paula O'Connor's [sic] calls and his purposeful unavailability to avoid Paula O'Connor [sic] was assisted by his co-workers including his commanding officer ... ." Id. at ¶ 22.j.

Wright refused to provide any financial or emotional support for Paula or Alijah O'Conner and ultimately cutoff all communication and denied paternity. As a result, Paula O'Conner filed a paternity lawsuit against Wright, placed a sign on Wright's lawn, and created a website entitled www.militarvdeadbeatdads.com5 in an effort to compel Wright to provide support for Alijah. Id.Paula O'Conner also retained an attorney, John Tuthill, Esq.,to assist her with the paternity lawsuit and a private investigator in an attempt to locate Wright Together, Paula O'Conner and Tuthill reached out to the Air Force on numerous occasions seeking the Air Force's assistance in connection with the paternity action. For the most part, it appears that the Air Force failed to respond to these requests for assistance.6

While Plaintiffs premise the liability of the United States on various legal theories, the crux of their argument is that the Air Force breached a legal duty to Paula and Alijah by assisting Wright with his deception and by failing to take appropriate steps to protect them despite allegedly having knowledge of Paula's O'Conner's relationship with Wright, Wright's deception, and Wright's dangerous propensities.7 Facts Relating to Subject Matter Jurisdiction:

Plaintiffs' Actual or Constructive Knowledge of

Facts Relating to the Murders and the Air Force8

The day after the murders, the Tampa Bay Times reported that police were investigating the deaths of Paula and Alijah O'Conner as homicides, that Wright was interviewed by police regarding the murders, and that Wright was a member of the military working at MacDill Air Force Base. See Motion to Dismiss (Dkt. 20-1), Exhibit 6. The article also outlined Paula O'Conner's relationship with Wright, the pending paternity suit, Paula O'Conner's decision to hire an attorney and investigator to locate Wright, and described how Paula O'Conner had created the website www.militarvdeadbeatdads.com to tell her story. Id. A similar article, without any reference to police interviewing Wright, ran in The Tampa Tribune on the same day. Id.9

On October 23, 2007, a local television station reported that Wright was the primary focus of the police investigation and that police had ruled everyone else out as a possible suspect. Motionto Dismiss (Dkt. 20-1), Exhibit 8.10 The report further noted that during the two days surrounding the murders Wright was AWOL from his job at MacDill Air Force Base. Id. Also on October 23, 2007, an article in The Tampa Tribune reported that Wright was the "focus" of the police investigation and provided a detailed account of Paula O'Conner's relationship with Wright and the paternity suit. Id. The Tampa Tribune article also highlighted Wright's unsatisfactory performance in his prior jobs with the Orange County Sheriff's Office and the Eatonville Police Department,11 that Wright was assigned to guard duty at MacDill Air Force Base, and that Wright could drive law enforcement vehicles. Id.

On December 18, 2008, Wright was indicted for premeditated first degree murder in the deaths of Paula and Alijah O'Conner. Motion to Dismiss (Dkt. 20-1), Exhibit 10. The indictment was accompanied by an Affidavit of Probable Cause from a St. Petersburg Police Detective and an Investigator with the Florida State Attorney's Office. Motion to Dismiss (Dkt. 20-2), Exhibit 12. The probable cause affidavit described in detail the investigation that led to the indictment as well as Paula O' Conner's relationship with Wright. Id. The affidavit described Wright's financial motive for the murders and noted: "[T]he allegations in O'Conner's letters to the military and her website potentially threatened Defendant Wright's military career (adultery is a violation of the UCMJ)... ." Id.

Newspaper articles appearing in the Tampa Bay Times and The Tampa Tribune on December 31, 2008, detailed Wright's arrest for the murders of Paula and Alijah O'Conner and recounted the events leading up to the murders, Wright's indictment, and Wright's arrest. See Motion to Dismiss (Dkt. 20-2), Exhibit 13. On January 1, 2009, a similar article appeared in the Orlando Sentinel describing Wright's relationship with O'Conner and his unsatisfactory performance in his prior law enforcement jobs with the Orange County's Sheriff's Office and the Eatonville Police Department. See Motion to Dismiss (Dkt. 20-2), Exhibit 14. During January 2009, the circumstances surrounding the murders and Wright's arrest were again reported in various newspapers throughout the Tampa Bay Region. Id.

On June 25, 2009, Henry Hart, as the personal representative of the Estate of Paula O'Conner, filed a Motion for Final Judgment of Paternity, Child Support Arrearages, Medical Expenses of the Child and Attorney Fees and Costs in Pinellas County Circuit Court. See Motion to Dismiss (Dkt. 20-3), Exhibit 15. The motion describes Paula O'Conner's relationship with Wright, her attempts to communicate with Wright through the American Red Cross, her creation of the website www.militarvdeadbeatdads.com, and Wright's arrest and indictment for the murder of Paula and Alijah O'Conner. Id.

A deposition taken on May 13, 2010, as part of the criminal proceeding against Wright, reveals that prior to the murders Paula O'Conner's stepfather was aware of her relationship with Wright, Wright's employment at MacDill Air Force Base, the paternity suit, O'Conner's communications with representatives of MacDill Air Force Base, and the fact that O'Conner was scared of Wright. See Motion to Dismiss (Dkt. 20-3), Exhibit 16. Similarly, the deposition of Paula O'Conner's daughter, Victoria Rose Goodin, reveals that she was aware of her mother's relationshipwith Wright and at the time of the murders she suspected that Wright was responsible. See Motion to Dismiss (Dkt. 20-3), Exhibit 17.

Plaintiffs filed their Notice of Claim with the United States on August 8, 2011, more than four years after the murders and more than two years after Wright was indicted. See Motion to Dismiss (Dkt. 20-1), Exhibit 1. The United States denied Plaintiffs' claims on March 16, 2012. See Motion to Dismiss (Dkt. 20-1), Exhibit 5. Plaintiffs filed this action on September 13, 2012, within six months of the denial.

Applicable Legal Standard

"Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms, 'facial' and 'factual' attacks." Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). Facial attacks are based on the allegations in the complaint, which the court must take as true in deciding whether to grant the motion. Morrison, 323 F.3d at 925 n. 5. Factual attacks challenge subject matter jurisdiction "in fact, irrespective of the pleadings," and a court "may...

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