Geraci v. Women's Alliance, Inc., No. 1:03-cv-129.

• Decision Date: 29 June 2006
• Docket Number: No. 1:03-cv-129.
• Citation: 436 F.Supp.2d 1022
• Parties: Christopher GERACI, Plaintiff, v. WOMEN'S ALLIANCE, INC. d/b/a Domestic Violence and Rape Crisis Center, and Stark County, North Dakota, Defendants.
• Court: U.S. District Court — District of North Dakota

436 F.Supp.2d 1022

Christopher GERACI, Plaintiff, v. WOMEN'S ALLIANCE, INC. d/b/a Domestic Violence and Rape Crisis Center, and Stark County, North Dakota, Defendants.

No. 1:03-cv-129.

United States District Court, D. North Dakota, Southwestern Division.

June 29, 2006.

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Irvin B. Nodland, Nodland Law Offices, Bismarck, ND, for Plaintiff.

James S. Hill, Rebecca S. Thiem, Zuger Kirmis & Smith, Michael Craig Waller, Fleck, Mather & Strutz, Ltd., Bismarck, ND, for Defendants.

ORDER GRANTING DEFENDANTS' DISPOSITIVE MOTIONS

HOVLAND, Chief Judge.

Before the Court are several motions filed by defendants Women's Alliance, Inc. d/b/a Domestic Violence and Rape Crisis Center and Stark County, North Dakota. On November 28, 2005, the defendant, Women's Alliance, Inc. d/b/a Domestic Violence and Rape Crisis Center, filed a Motion for Summary Judgment as to the Plaintiffs state and federal RICO claims. See Docket No. 38. On December 12, 2005, Women's Alliance filed a second Motion for Summary Judgment as to the Plaintiffs remaining claims of negligent infliction of emotional distress and intentional infliction of emotional distress. See Docket No. 39.¹ On December 15, 2005, the defendant, Stark County, North Dakota, filed a Motion for Summary Judgment as to all three of the Plaintiffs claims. See Docket No. 40. The plaintiff, Christopher Geraci, has filed a response opposing each. For the following reasons, the motions are granted.

I. BACKGROUND

The plaintiff, Christopher Geraci, and his ex-wife Heather Geraci were married in 1998. They lived in the state of New York and had two daughters. See Amended Complaint, ¶ 3. The couple was separated several times over the course of their relationship. Christopher and Heather first separated in April of 1999 for a period of five months. See Deposition of Christopher Geraci, p. 111. The couple also separated for extended periods during the summer and fall of 2001. The final separation occurred in April of 2002.² See Deposition of Heather Geraci McCray, p. 9. During each period of separation, the two children lived with Heather. See Deposition of Christopher Geraci, p. 109.

In April 2002, Christopher and Heather were involved in legal proceedings in New York concerning the custody of the children and visitation rights. See Amended Complaint, ¶ 3. Heather was awarded physical custody of the children and they lived with her. See Deposition of Heather Geraci McCray, p. 10. Christopher was given supervised visitation. See Deposition of Christopher Geraci, p. 118. In August 2002, Christopher was given unsupervised visitation. See Deposition of Heather Geraci McCray, p. 42. The change in visitation prompted Heather to leave New York. Id. at 10. She did not tell Christopher. Id.

After leaving New York, Heather traveled to the Domestic Violence and Rape Crisis Center ("Rape Crisis Center") in Dickinson, North Dakota.³ See Deposition of Heather Geraci McCray, p. 12. Heather arrived at the Rape Crisis Center in February of 2003 using the name Marie Johnson.⁴ Id. at 14-15. Heather told the Rape Crisis Center that she was trying to keep herself and her children away from a "violent situation," but did not provide details. Id. at 65-66.

During her time away, Christopher continued to pursue custody and visitation. On October 1, 2002, due in part to Heather's disappearance, Christopher was awarded custody of the two children. See Deposition of Christopher Geraci, p. 126. Heather was unaware that such an order had been entered. See Deposition of Heather Geraci McCray, pp. 48-49.

On June 22, 2003, Eva Rohr, a social, worker at Stark County Social Services, learned the true identity of Heather Geraci and learned that the Geraci children had been reported missing. See Deposition of Eva Rohr, pp. 10-11. This information came to her from Jacqueline Baker, a former resident at the Rape Crisis Center who had befriended Heather.⁵ Id; see Affidavit of Jackie Baker, pp. 1-3. Eva Rohr reported the information to the Dickinson Police Department that same day. See Deposition of Eva Rohr, p. 64. The Dickinson Police Department then contacted the Cohoes City Police Department in New York and learned that the case was still open and the children were believed to be with the non-custodial parent, Heather Geraci. See Deposition of William Leach, pp. 8-9; Leach Deposition Ex. 1, p. 2. The Dickinson Police Department also learned of the court order awarding custody of the children to Christopher. Id. at 9. The New York authorities requested that the children be picked up and taken into custody. See Leach Deposition Ex. 1, p. 2.

On June 24, 2003, officers from the Dickinson Police Department went to the Rape Crisis Center and took custody of the two children. See Deposition of Heather Geraci McCray, p. 21. Christopher was notified the same day. See Deposition of Christopher Geraci, p. 125. The children were then placed in foster care. See Deposition of Eva Rohr, p. 15.

After a hearing held on June 25, 2003, in the District Court of Stark County, in Dickinson, the court found there was probable cause to believe that the Geraci children were deprived and there were reasonable grounds to believe that it was necessary to enter a temporary shelter care order for their protection. The court ordered that Stark County Social Services be granted custody of the Geraci children for a period of sixty (60) days. If Stark County Social Services did not file a formal petition within thirty (30) days the children would be returned to the custody of their custodial parent, Christopher. See Shelter Care Order, pp. 1-2.

While in the custody of Stark County Social Services, visitation for Christopher was arranged through Family Connection, a facility that provides supervised visitation for families where it may not be safe for the parents and the children to be alone without observation. See Deposition of Eva Rohr, p. 19. Visitation for Heather was arranged at the Rape Crisis Center. Id. The children's visits took place between the hours of 8:00 a.m. and 5:00 p.m. Overnight visits were not permitted. See Deposition of Carrie Kovash, pp. 39-40. Extra staff members were always on site at the Rape Crisis Center when the Geraci children visited Heather. Id. at 39.

Stark County Social Services decided not to pursue a formal petition to retain custody of the children beyond the sixty (60) day time period provided for in the shelter care order. Stark County then began making arrangements to return custody of the children to Christopher. See Deposition of Eva Rohr, p. 101. Transfer of custody was scheduled for Friday, July 24, 2003, at 9:00 a.m. See Deposition of Carrie Kovash, p. 22. In light of the impending transfer, Eva Rohr increased security at the Rape Crisis Center to one-on-one supervision with Heather and the children; meaning a staff person would be with Heather at all times during the children's visits. Id; Deposition of Eva Rohr, p. 92. Neither Christopher nor his lawyer at the time were opposed to such visitations. See Deposition of Christopher Geraci, p. 114; Deposition of Eva Rohr, p. 101.

On July 24, 2003, Heather left the Rape Crisis Center with the two children. See Deposition of Heather Geraci McCray, pp. 25-26. To carry out her plan, Heather coerced a fellow resident at the Rape Crisis Center to create a diversion to occupy the supervising employee. Id. at 52. Heather then told the remaining Rape Crisis Center employee that she was going to go outside and pick flowers, a common activity for herself and the two children. Id. at 52-53. Instead, Heather and the children got into a waiting car and left the Rape Crisis Center. Id. at 27.

Heather did not inform any Rape Crisis Center or Stark County employees of her decision to leave. See Deposition of Heather Geraci McCray, pp. 28-29. In fact, Heather told others that she intended to pursue legal action to regain custody of the children. Id. at 29 and 33. No employee of either the Rape Center Crisis Center or Stark County assisted Heather in formulating or carrying out her plan. Id. at 28-29. Heather never contacted any Rape Crisis Center or Stark County employees after she left the Center. Id. at 31.

On December 13, 2003, Christopher Geraci filed an action against the Rape Crisis Center and Stark County in United States District Court for the District of North Dakota.⁶ The complaint alleges three causes of action: (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress; and (3) state and federal RICO claims. See Amended Complaint, ¶¶ 5-8.

In January of 2005, Heather and the two children were located in the state of Utah. The children were returned to Christopher, and Heather was extradited to North Dakota to face criminal charges. Heather later pled guilty to the charge of custodial interference in state court. See Deposition of Heather Geraci McCray, p. 101.

II. LEGAL DISCUSSION

Both Defendants have filed motions for summary judgment seeking dismissal of all three claims included in the complaint, namely negligent infliction of emotional distress, intentional infliction of emotional distress, and state and federal RICO claims. Defendant Stark County has raised discretionary immunity as a defense to each.

A. STANDARD OF REVIEW

It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir.1999). A fact is "material" if it might affect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The basic inquiry for purposes of summary...