Laloup v. United States

• Decision Date: 10 July 2014
• Docket Number: Civil Action No. 13–7124.
• Citation: 29 F.Supp.3d 530
• Parties: Craig LaLOUP, et al. v. UNITED STATES, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

29 F.Supp.3d 530

Craig LaLOUP, et al.
v.
UNITED STATES, et al.

Civil Action No. 13–7124.

United States District Court,
E.D. Pennsylvania.

Signed July 10, 2014.

[29 F.Supp.3d 533]

Aaron J. Freiwald, Glenn A. Ellis, Layser & Freiwald PC, Philadelphia, PA, for Craig LaLoup, et al.

Colin Michael F.X. Cherico, U.S. Attorney's Office, Philadelphia, PA, Elliott M. Kroll, Arent Fox, LLP, New York, NY, Jennifer A. Fischer, Ralph A. Taylor, Jr., Timothy J. Feighery, Arent Fox LLP, Washington, DC, for United States, et al.

MEMORANDUM
DALZELL, J.
I. Introduction

This unusual matter arises out of the handling of Marine Sergeant Brian LaLoup's body after his death in Athens, Greece. Sgt. LaLoup's parents, Craig and Beverly LaLoup, brought this action against the United States of America, the United States Department of Defense, the United States Department of the Navy, the Hellenic Republic (or “Greece”), and Evangelismos General Hospital in Athens (“the Hospital”).¹ The LaLoups bring claims of mishandling of their son's body and intentional and negligent infliction of emotional distress.

The federal defendants ² and the Hellenic Republic move to dismiss for lack of

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subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The federal defendants argue that we lack subject matter jurisdiction under the Federal Tort Claims Act, while the Hellenic Republic argues for dismissal under Rule 12(b)(1) on the grounds of foreign sovereign immunity, insufficient service of process, and improper venue. The facts giving rise to the motions are the same, but the legal arguments the parties raise differ, and so we will consider the motions separately after rehearsing the facts.

For the reasons discussed herein, we will grant in part and deny in part the federal defendants' motion to dismiss, and we will grant the Hellenic Republic's motion to dismiss.

II. Facts

The complaint alleges that Sergeant Brian LaLoup was stationed in Greece on August 11, 2012, when he attended a party at the Marine Security Guard Residence in Athens. Comp. ¶ 20. At about 1:35 a.m. the next morning, some Marines saw Sgt. LaLoup sprinting from the party to the chancery, where he entered the embassy response room where Marines attached to the embassy security detail keep their weapons. Id. at ¶¶ 26–29. Sgt. LaLoup then pointed one of the guns at his head and fired. Id. at ¶ 32. The Marines took Sgt. LaLoup to Evangelismos General Hospital, and, at 3:45 a.m., he was pronounced dead. Id. at ¶¶ 36–37. The complaint alleges that after his death Sgt. LaLoup's body was left “unguarded and alone in the Hospital morgue.” Id. at ¶ 37. On August 12, the Marine Corps informed the plaintiffs about Sgt. LaLoup's death. Id. at ¶ 39.

The complaint alleges that on August 18, 2012 the Greek defendants performed an autopsy on Sgt. LaLoup over the objection of the United States. Id. at ¶ 39. See also Fed. Def. Resp. at 3 (same); August 18, 2012 Forensics Necropsy–Autopsy Report,³ Greece Resp. Ex. 2 (hereinafter, “Report”). Either during or after the autopsy, hospital workers removed Sgt. LaLoup's heart. Comp. ¶ 40. The autopsy report corroborates the complaint's allegation on this issue. As the medical examiner explained, “It must be mentioned that after the examination, the heart is kept in the First Pathology anatomy Lab of the Medical School of the University of Athens for at least three (3) months.” Report at 3. On August 20, 2012, the Marines flew Sgt. LaLoup's body to Dover, Delaware, and on August 22 his body underwent a second autopsy at the Dover Air Force Base. Comp. ¶ 40; Fed. Def. Resp. at 3. During the August 22 autopsy, American officials discovered that Sgt. LaLoup's heart had been removed. Comp. ¶ 43.

According to the complaint, on August 23 or 24 Marine Staff Sergeant McClendon (“SSgt. McClendon”), a Casualty Assistance Calls Officer (“CACO”) called Mrs. LaLoup and told her that she needed to sign a form that would allow the Marines to release Sgt. LaLoup's body from Dover

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for the funeral. During the call, SSgt. McClendon told Mrs. LaLoup that parts of Sgt. LaLoup's scalp were missing, but he told her Sgt. LaLoup's hat would cover the area and allow the LaLoups to have an open casket at the memorial service. Comp. ¶¶ 46–51. The form, attached to the federal defendants' motion to dismiss, is a “Disposition of Remains Election Statement, Initial Notification of Identified Partial Remains.” Fed. Def. MTD at Ex. A. Shortly after the phone call, SSgt. McClendon went to Mrs. LaLoup's workplace so that she could sign the form. The plaintiffs aver that “SSgt. McClendon went so far in his efforts to conceal Sgt. LaLoup's heart that he signed the election portions of the form himself, instead of having the Plaintiffs sign.” Comp. ¶ 52. The federal defendants object by stating that plaintiffs contradict this assertion by admitting that Mrs. LaLoup also signed the form. Fed. Def. MTD at 9. It is undisputed that Mrs. LaLoup did sign the form, which contained the following statement:

I, the undersigned, understand that every effort is being made for the full recovery of remains, but only partial remains have been recovered and identified at this time. I am aware that additional subsequent remains may be recovered at a later date and individually identified or designated for inclusion with a group interment.

Disposition of Remains Election Statement, Fed. Def. MTD at Ex. A.

As the complaint details, the LaLoups buried their son with full military honors on August 29, 2012. On September 4, 2012, First Sergeant Dixon went to the LaLoups' home to ask them to sign a Request for Autopsy Report and Supplemental Information Form. Comp. ¶ 63. First Sgt. Dixon returned to the LaLoups' home on September 5 and September 17 with additional forms. Id. at ¶ 64. Mrs. LaLoup avers, and the defendants do not dispute, that on September 17 she had a conversation with First Sgt. Dixon that she describes as follows:

During this visit, I asked him what would happen if more of Brian's scalp was recovered. Would it be returned to us? He looked at me funny as he started to go thru [sic] his folder and said “Ma'am, what are you talking about?” I replied, the missing scalp parts.... He replied to me ... that the scalp is not what was missing. He even stated that he had just gone thru [sic] the folder before he came to make sure he was familiar with everything and did not recall seeing anything about missing scalp parts.... “Ma'am, that is not what was missing.” “I stated, what do you mean?” He extended to me a piece of paper as he stated it was his heart that was missing. I asked him why were we told it was parts of his scalp. His reply was, “that they were not going to tell us because that is not something you tell a grieving mother.”

Id. at ¶ 66.

The plaintiffs aver that this news left them “absolutely devastated”, id. ¶ 67, and that the “actions to conceal Sgt. LaLoup's missing heart created new levels of grief and emotional pain and suffering. Plaintiffs were left to wonder what had really happened to their son, what had happened to his heart....” Id. at ¶ 68.

The Complaint avers that the Hellenic Republic and the Evangelismos General Hospital shipped a heart to Dover, Delaware that they claimed belonged to Sgt. LaLoup, but DNA testing revealed that it was not his, and the LaLoups have to this day not received Sgt. LaLoup's actual heart. Id. at ¶¶ 73–75.

[29 F.Supp.3d 536]

III. Standard of Review

Both sets of defendants bring their motions pursuant to Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) motion “may be treated as either a facial or factual challenge to the court's subject matter jurisdiction.” Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). The substantive distinction between a facial attack and a factual attack is that in a facial attack the defendant contests the sufficiency of the complaint, while a factual attack challenges the existence in fact of federal subject matter jurisdiction. Procedurally, in the case of a facial attack “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff”, but in considering a factual attack, “the court may consider evidence outside the pleadings.” Id.

Our Court of Appeals has explained that a defendant cannot assert a factual attack under Rule 12(b)(1) until he has filed an answer. See Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 892, 892 n. 17 (3d Cir.1977). See also, e.g., Rinaldi v. American Family Theatre, Inc., No. 93–5009, 1995 WL 12057 at *1 (E.D.Pa. Jan. 12, 1995) (Buckwalter, J.) (“a defendant must first file his answer to plaintiff's complaint before filing a 12(b)(1) motion to dismiss as a factual jurisdictional proceeding cannot occur until plaintiff's allegations have been controverted.”) (internal quotations omitted).⁴

No defendant has filed an answer in this case, and so we will consider the motions to dismiss as facial attacks under Rule 12(b)(1), and we will consider the allegations in the complaint and the documents on which the complaint relies ⁵, taking all facts in the light most favorable to the LaLoups.⁶

With respect to the federal defendants' motion to dismiss, and although neither party raises the issue, in determining the standard of review we observe that the arguments the federal defendants raise concern both our jurisdiction—traditionally challenged under Rule 12(b)(1)—and the merits of the case—traditionally challenged under Rule 12(b)(6). Our Court of Appeals has explained that jurisdiction is intertwined with the merits where the two inquiries involve “overlapping issues of proof.” See CNA v. United States, 535 F.3d 132, 143 (3d Cir.2008). Such is the case here. Because liability under the FTCA depends upon a showing of hypothetical state tort liability—under Pennsylvania law in this case—proving that we have jurisdiction over the plaintiffs'...