Fieldwork Boston, Inc. v. U.S.

• Decision Date: 04 November 2004
• Docket Number: No. CIV.A. 02-11824-RBC.<SMALL><SUP>1</SUP></SMALL>,CIV.A. 02-11824-RBC.<SMALL><SUP>1</SUP></SMALL&gt
• Citation: 344 F.Supp.2d 257
• Parties: FIELDWORK BOSTON, INC., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

344 F.Supp.2d 257

FIELDWORK BOSTON, INC., Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV.A. 02-11824-RBC.¹

United States District Court, D. Massachusetts.

October 14, 2004.

Memorandum and Order Denying Motion to Amend Judgment November 4, 2004.

COPYRIGHT MATERIAL OMITTED

Philip M. Howe, Matthew W. Perkins, Lecomte, Emanuelson & Doyle, Quincy, MA, for Fieldwork Boston, In, Plaintiff.

Michael P. Sady, United States Attorney's Office, Boston, MA, for United States of America, Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT (# 23)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

On September 17, 2002, plaintiff Fieldwork Boston, Inc. ("Fieldwork") filed a one-count complaint (# 1) against defendant United States of America ("United States" or "government"). The single claim was one for common law tort-based indemnity under the Federal Tort Claims Act ("FTCA") arising from the plaintiff having settled a prior civil action for an alleged violation of the Massachusetts Wiretap Act, Mass. Gen. L. c. 272, § 99Q on June 14, 1995. Fieldwork seeks damages from the government for the costs it incurred in defending and settling the prior lawsuit, plus applicable statutory interest as well as the costs and attorneys' fees incurred in this action. In lieu of answering the complaint, on January 31, 2003 the United States filed a motion to dismiss. (# 5) Two weeks later on February 14, 2003, the plaintiff filed an opposition to the dispositive motion (# 7) and on March 31, 2003, the government filed a reply. (# 10)

In response to an argument advanced by the government, on July 24, 2003, the District Judge to whom the case was then assigned ordered Fieldwork to brief the issue of subject matter jurisdiction. (# 11) Thereafter the plaintiff timely submitted its supplemental memorandum addressing the jurisdictional question. (# 12) On August 28, 2003, the Court determined that Fieldwork's vicarious liability argument failed to state a claim upon which relief may be granted, but further found that the plaintiff's second theory of indemnification based upon comparative-fault was viable. The Court denied the government's motion to dismiss (# 13), but never addressed the issue of subject matter jurisdiction.

On September 22, 2003, plaintiff Fieldwork filed its first amended complaint (# 16) which contains a claim in a single count for "common law tort based indemnification." Approximately two months later, the United States filed a Rule 12(b)(1) motion to dismiss the first amended complaint for lack of subject matter jurisdiction. (# 23) On December 4, 2003, Fieldwork filed its memorandum in opposition to defendant's motion to dismiss.

Following a hearing on the dispositive motion, the plaintiff was ordered to file and serve a supplemental brief on or before the close of business on June, 4, 2004, and the defendant was granted leave to file a reply brief on or before the close of business on June 11, 2004. With these further filings, the record is now complete, the motion to dismiss the first amended complaint is in a position to be resolved.

II. THE FACTS

Fieldwork is a Massachusetts corporation that provides focus group facilities, including facilities for audio- and video-taping the focus group discussions. (# 16, ¶ 8) The Department of Veteran Affairs is a cabinet department of the United States the named defendant in this case. (# 16, ¶ 2)

According to the amended complaint, in 1995 the Veterans Administration ("VA") sponsored a research project entitled "The Perceptions and Experiences of Women Veterans in Accessing Health Care." (# 16, ¶ 6) The project was designed to survey female veterans on their perceptions and experiences in regard to health care they received at the VA. (# 16, ¶ 6) In implementing this project, the VA employed a research team comprised of three female physicians and a female research assistant. (# 16, ¶ 7) The VA's research team made arrangements to use Fieldwork's facility in Waltham, Massachusetts to conduct their focus groups. (# 16, ¶ 8) In the parties' May 10, 1995 contract, Fieldwork agreed to provide the VA with a focus group room, an adjacent observation room, refreshments, and audio- and video-taping facilities. (# 16, ¶ 8)

On June 20, 1995, Dr. Amy Stern of the VA's research team contacted Fieldwork's receptionist to confirm that the focus group session would be audio- and video-taped. (# 16, ¶ 13) Pursuant to her instructions, the focus group session in fact was both audio- and video-taped. (# 16, ¶ 13) Despite its customary practice of advising focus group participants using their facilities that they would be audio- and video-taped, in order to comply with the request of the VA's research group, Fieldwork did not advise the VA focus group participants that their discussions would be recorded. (# 16, ¶ 15) Similarly, although Fieldwork routinely used sign-in sheets which notified participants that a focus group might be audio-taped and/or video-taped, it agreed to forego use of its own sign-in sheets on the evening of June 20, 1995. (# 16, ¶¶ 10, 12) Instead, pursuant to Dr. Stern's instructions, it used a different sign-in sheet created by another member of the research team which did not contain such a notification, but only asked the participants to provide their names and social security numbers for payment purposes. (# 16, ¶ 11) It is alleged that Fieldwork abdicated its customary procedures in reliance on an oral agreement with Drs. Wolfe, Stern and Daley that the doctors would "...orally notify the focus group participants that they were being taped." (# 16, ¶ 12)

The focus group conducted on June 20, 1995 consisted of seven or eight women. (# 16, ¶ 14) In order to assist her with leading the discussion, Dr. Jennifer Daley of the VA's research team had been provided beforehand with a written script. (# 16, ¶ 16) Although one of the sentences in the introduction of the script notified the group's members that their discussions would be audio- recorded and video-taped, Dr. Daley omitted that sentence during her presentation. (# 16, ¶ 16) Moreover, throughout the course of the session, she never advised the participants of the taping and apparently did not realize this until the session had concluded. (# 16, ¶ 16) Consequently, the focus group participants were audio- and video-taped without their prior authorization. (# 16, ¶ 18) Dr. Wolfe later informed the participants that a mistake had occurred when Dr. Daley failed to inform them that the session would be recorded. (# 16, ¶ 17)

Three of the participants thereafter filed suit against Fieldwork in the Middlesex Superior Court. (# 16, ¶ 20) In their complaint, they alleged a civil violation of the Massachusetts Wiretap Act, Mass. Gen. L. c. 272, § 99Q, invasion of privacy, and negligent infliction of emotional distress. (# 16, ¶ 20) On October 31, 2000, Fieldwork requested that the VA defend and indemnify it for its attorneys' fees as well as settlement costs. (# 16, ¶ 21) On December 7, 2000, Fieldwork settled with the participants agreeing to pay an aggregate sum of $165,000, with each participant receiving $55,000. (# 16, ¶ 22)

Consequent to this settlement, in 2001 Fieldwork filed suit in the United States Court of Federal Claims seeking indemnification from the United States. Fieldwork set forth three claims, namely, breach of express contract, breach of implied contract and indemnification. The United States filed a motion to dismiss arguing, inter alia, that the Court of Federal Claims lacked jurisdiction pursuant to the Tucker Act given that Fieldwork's claims were not contract claims, but rather "sounded in tort."

Honorable Loren A. Smith, Senior Judge of the Court of Federal Claims, heard oral arguments on the motion to dismiss on December 10, 2001.(# 31) Judge Smith ruled from the bench dismissing Fieldwork's suit on the grounds that no viable contract claims had been pled. (# 31) He added that the Court of Federal Claims had no jurisdiction over Fieldwork's possible tort claims, which could properly be filed in the United States District Court pursuant to the FTCA.

On September 17, 2002, Fieldwork filed the instant suit seeking tort-based indemnification. (# 16)

III. THE STANDARD

Pursuant to Rule 12(b)(1), Fed.R.Civ.P., a defendant may move to dismiss an action based on lack of federal subject matter jurisdiction. Because federal courts are considered courts of limited jurisdiction, "federal jurisdiction is never presumed." Viqueira v. First Bank, 140 F.3d 12, 16 (1 Cir., 1998). Instead, "`the party invoking the jurisdiction of a federal court carries the burden of proving its existence.'" Murphy v. United States, 45 F.3d 520, 522 (1 Cir.), cert. denied, 515 U.S. 1144, 115 S.Ct. 2581, 132 L.Ed.2d 831 (1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1 Cir.), cert. denied, 510 U.S. 823, 114 S.Ct. 82, 126 L.Ed.2d 50 (1993)).

Once a defendant challenges the jurisdictional basis for a claim under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Aversa v. United States, 99 F.3d 1200, 1209 (1 Cir., 1996); Murphy, 45 F.3d at 522. The First Circuit has held that the proponent must clearly indicate the grounds upon which the Court may properly exercise jurisdiction over the matter presented: "[I]t is black-letter law that jurisdiction must be apparent from the face of the plaintiffs' pleading." PCS 2000 LP v. Romulus Telecommunications, Inc., 148 F.3d 32, 35 (1 Cir., 1998) (quoting Viqueira, 140 F.3d at 18). Hence, if the plaintiff fails to show a basis for either diversity or federal question jurisdiction, the district court must grant the defendant's Rule 12(b)(1) motion.

In ruling on a motion to dismiss for lack of jurisdiction, "the district court must construe the complaint liberally, treating all well-pleaded facts as...