Flax v. US

• Decision Date: 12 January 1994
• Docket Number: Civ. No. 91-2807.
• Citation: 847 F. Supp. 1183
• Parties: Marilyn FLAX, Administratrix Ad Prosequendum of the Estate of Irving Flax, and Marilyn Flax, Individually, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Jersey

847 F. Supp. 1183

Marilyn FLAX, Administratrix Ad Prosequendum of the Estate of Irving Flax, and Marilyn Flax, Individually, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 91-2807.

United States District Court, D. New Jersey.

January 12, 1994.

Pamela B. Keitz, Cuccio & Cuccio, Hackensack, NJ, for plaintiffs.

Anthony J. LaBruna, Sp. Asst. U.S. Atty., Newark, NJ, for defendant.

OPINION

CHESLER, United States Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court on the motion of defendant, the United States of America, to dismiss the above-captioned action for lack of subject matter jurisdiction or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. In accordance with the provisions of § 636(c) of Title 28 of the United States Code, the parties consented to have this motion tried before the undersigned and, by Order dated December 20, 1991, all proceedings with regard to this matter were referred to the undersigned for disposition.

After plaintiff filed her complaint and defendant filed its answer, defendant moved for dismissal or, in the alternative, for summary judgment. This Court found that plaintiff's claims against the Federal Bureau of Investigation ("FBI") fell within the discretionary function exception to the Federal Torts Claims Act,¹ and granted defendant's motion for summary judgment. See Flax v. U.S., 791 F.Supp. 1035 (D.N.J.1992). Plaintiff then appealed the decision to the United States Court of Appeals for the Third Circuit. The Third Circuit determined that plaintiff was entitled to further discovery of the FBI's rules and regulations before the Court could find that defendant had a right to summary judgment as a matter of law. Accordingly, the Court of Appeals vacated this Court's Order and remanded the action for further proceedings consistent with its opinion 983 F.2d 1050.

After plaintiff completed her examination of the FBI's regulations, defendant renewed its motion for dismissal or, alternatively, for summary judgment. Oral argument was reheard on October 12, 1993.

II. BACKGROUND

A. Facts

The facts significant to the resolution of this motion are not in dispute, and have been set forth in both this Court's earlier opinion and again in the opinion issued by the Third Circuit. On the morning of January 23, 1989, at approximately 9:30 a.m., Irving Flax, plaintiff's deceased ("decedent"), left his home intending to go to work. Affidavit of Marilyn Flax ("Flax Aff.") at ¶ 2. Before he could enter his vehicle, the decedent was abducted by John Martini Sr. and his accomplice, Theresa Afdahl. Complaint, First Count at ¶ 1. Later that morning, at approximately 10:30 a.m., plaintiff Marilyn Flax received a telephone call from Martini. Flax Aff. at ¶ 3. Martini informed plaintiff that he had kidnapped the decedent and demanded $100,000 for his release. Id.

Plaintiff then contacted the Fair Lawn Police Department. Id. at ¶ 7. The Fair Lawn Police Department, in turn, contacted the Bergen County Prosecutor's Office and the Federal Bureau of Investigation ("FBI"). Id. at ¶ 8.

Plaintiff received a second call from Martini at approximately 11:30 a.m. Id. at ¶ 9. Martini asked plaintiff if she had obtained the ransom money. Id. When plaintiff advised Martini that she could not obtain the entire $100,000 ransom, Martini asked if she could raise $25,000. Id. Martini told plaintiff that he would telephone again later that day to see whether plaintiff had raised $25,000. Id.

At approximately 2:30 p.m. that afternoon, FBI special agents arrived in Fair Lawn and assumed command of the kidnapping investigation and surveillance. Id. at ¶ 10. The agents installed a tap on plaintiff's phone, although it was of no avail when Martini subsequently contacted plaintiff.

At approximately 5:00 p.m., Martini telephoned plaintiff a third time and asked plaintiff if she had secured the ransom money. Id. at ¶ 14. Plaintiff advised Martini that she had raised the $25,000. Id. Martini then instructed plaintiff regarding when and where plaintiff was to leave the money. Id. After plaintiff withdrew the ransom money from a bank, the FBI recorded the serial numbers and arranged for plaintiff to drop off the money in accordance with Martini's instructions.

At approximately 7:30 p.m. that evening, plaintiff proceeded to the designated location, a local diner, to make the ransom payment. Id. at ¶ 18. Upon observing Martini, plaintiff deposited the ransom money and drove off. Id. Because at this point the agents had not yet ascertained the location of Irving Flax, and suspected that another kidnapper was involved, they did not immediately apprehend Martini. Instead, the agents observed the kidnapper and attempted to follow him until they could determine the location of Irving Flax. At some point, however, the agents lost track of Martini. After unsuccessfully searching for him in New York and New Jersey, the agents terminated the search.

The decedent's body was discovered on the morning of January 24, 1989. Id. at ¶ 19. The decedent had been shot to death. Id. On January 25, 1989, Martini and Afdahl were apprehended. They were charged with, and subsequently convicted of, the kidnapping and murder of decedent. Complaint, First Count at ¶ 22.

B. Procedural History

On or about March 27, 1990, plaintiff, on behalf of herself individually and as administratrix of the decedent's estate, filed an administrative tort claim against defendant through its agency, the FBI. Complaint, Exhibit B. Plaintiff's claim sought damages under the Federal Tort Claims Act, 28 U.S.C. § 1346(b),² in the amount of $15,000,000.00. Id. On January 23, 1991, the United States Department of Justice denied the administrative claim. Complaint, Exhibit C.

Thereafter, on June 26, 1991, plaintiff filed a complaint with this Court. Plaintiff's complaint alleged that the defendant, through its agents, conducted the surveillance of Martini and Afdahl in a negligent and wrongful manner. Specifically, the complaint alleged that the FBI agents responsible for the surveillance of Martini and Afdahl failed "to follow and/or implement valid, established FBI procedures and regulations" in the tailing and apprehension of the assailants. Complaint, First Count at ¶ 18. The complaint charged that, as a result of agents' negligence, the decedent suffered fatal injuries and that the plaintiff has suffered, and will continue to suffer, substantial pecuniary loss and severe emotional distress. Id. at ¶¶ 24, 25.

Defendant filed its answer on September 23, 1991. Defendant then filed its initial motion for summary judgment and/or to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).³ In support of its motion for summary judgment, defendant claimed that to be immune from suit by virtue of the discretionary function exception to the Federal Tort Claims Act, which is codified at 28 U.S.C. § 2680(a). Defendant contended that the FBI actions that plaintiff challenged involved elements of judgment and choice and were based upon considerations of public policy. Therefore, defendant maintained that the agents' actions fell within the discretionary function exception. Declaration of John Walker ("Walker Decl.") ¶¶ 4-7. Defendant further argued that, because such actions cannot form the basis of a suit under the Federal Tort Claims Act, there existed no genuine issue as to any material fact and defendant was entitled to judgment as a matter of law.

Plaintiff countered that summary judgment was inappropriate because there existed genuine issues of material fact concerning the surveillance operations of the FBI. Plaintiff also argued that defendant's actions did not fall within the discretionary function exception to the Federal Tort Claims Act.

On April 14, 1992, this Court issued an opinion holding that the Federal Bureau of Investigation's actions in surveilling the kidnappers fell within the discretionary function exception to the Federal Tort Claims Act. Accordingly, the Court granted defendant's motion for summary judgment.

Plaintiff appealed this Court's determination to the United States Court of Appeals for the Third Circuit. The Third Circuit, in an opinion filed on December 31, 1992, determined that adjudication of the summary judgment motion should be postponed until plaintiff could examine the content of the rules and regulations contained in the FBI's Manual of Internal Operating Guidelines. Accordingly, the Third Circuit vacated this Court's decision and remanded the case for further proceedings consistent with its December 31, 1992, opinion.

After plaintiff received and examined the relevant provisions of the FBI's Manual of Internal Operating Guidelines, defendant renewed its motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment. In support of its motion, defendant contends that the agents' acts fall within the discretionary function exception to the Federal Tort Claims Act. Defendant claims that the internal operating manual of the FBI is merely a guideline which did not prescribe a specific course of action for situations such as the one giving rise to this dispute. Accordingly, defendant asserts, plaintiff's complaint should be dismissed for lack of subject matter jurisdiction or, in the alternative, for summary judgment.

Plaintiff disputes defendant's assertion that the agents had discretion to terminate the surveillance. Plaintiff contends that the internal operating manual of the FBI makes clear that a subject of a close mobile surveillance must be kept under surveillance at all times.⁴ Thus, plaintiff contends, the agents had no authority to terminate the surveillance, and their actions do not fall within the discretionary function exception.

III. DISCUSSION

A. The Standard To Be Applied To A Motion For Summary Judgment

A court may grant summary judgment only if the pleadings, supporting papers,...