McGonagle v. United States
| Decision Date | 05 January 2016 |
| Docket Number | Civil Action No. 15-12003-FDS |
| Citation | 155 F.Supp.3d 130 |
| Parties | Mary McGonagle, Paul McGonagle, Jr., and Sean McGonagle, Plaintiffs, v. United States of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Timothy C. Foley, Timothy C. Foley, Attorney at Law, Quincy, MA, Michael L. Coyne, Coyne and Condurelli, Andover, MA, for Plaintiffs.
Elliott M. Davis, Lawrence Eiser, U.S. Department of Justice, Washington, DC, Rosemary Connolly, U.S. Attorney's Office, Boston, MA, for Defendant.
alleging that the FBI negligently caused them to endure mental anguish by failing to report the location of McGonagle's body for more than twenty years.
The United States has filed a motion to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim. It contends primarily that because a private person would not have owed plaintiffs a duty to report the location of McGonagle's body, the United States has not waived its sovereign immunity under the FTCA. For the reasons stated below, that motion will be granted.
The following facts are taken from the complaint unless otherwise noted.1
Paul McGonagle, Sr., was a resident of South Boston, Massachusetts. Mary McGonagle was his wife, and Paul McGonagle, Jr., and Sean McGonagle were his sons.
Paul McGonagle, Sr., was murdered by James “Whitey” Bulger in 1974. (Compl. at ¶ 11). From 1974 until 1995, Bulger and his associate, Steven Flemmi, served as informants for the Federal Bureau of Investigation. (Id. at ¶¶ 6, 7). Special Agent John Connolly of the FBI's Boston office served as the “handler” for both Bulger and Flemmi from 1975 until 1990, when he left the FBI. (Id. at ¶¶ 8, 9).
Although McGonagle was reported missing in November 1974, his family did not learn the location of his remains until September 2000, when authorities were led to a shallow grave at Tenean Beach in Dorchester. (Id. at ¶¶ 10, 15).
In October 2003, Flemmi pleaded guilty to ten counts of murder. (Id. at ¶ 12). Nearly ten years later, in July 2013, Flemmi was called as a government witness in Bulger's trial. (Id. at ¶ 17). Flemmi testified at trial that during the time he was an informant, he, Bulger, and Connolly regularly met at Tenean Beach. (Id. at ¶ 18). Flemmi further testified that during these meetings, Bulger often commented on the fact that McGonagle was buried at the beach, and would even point out the location of the burial site. (Id. at ¶ 20).2
The complaint alleges that though Connolly learned of the location of McGonagle's body during these meetings, he never reported it to local authorities. The complaint further alleges that as a result of Connolly's failure to report McGonagle's burial site, his family endured more than twenty years of mental anguish and distress. (Id. at ¶ 25).
On June 1, 2015, plaintiffs filed a two-count complaint against the United States of America. Count One asserts a claim for negligence and Count Two asserts a claim for intentional infliction of emotional distress. Both counts are brought under the Federal Tort Claims Act. On August 3, 2015, the United States moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim.
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and give ... plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir.2007)
(citing Rogan v. Menino , 175 F.3d 75, 77 (1st Cir.1999) ). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. 1955 (citations omitted). “The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Dismissal is appropriate if the facts as alleged do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC , 521 F.3d 76, 84 (1st Cir.2008) (alterations omitted) (internal quotation marks omitted).
Plaintiffs have sued the United States under the FTCA, alleging negligence and intentional infliction of emotional distress on the part of FBI agent John Connolly. The FTCA acts as a partial waiver of sovereign immunity, rendering the United States liable for certain tort and contract claims. See 28 U.S.C. 2671 et seq.
The grant of jurisdiction to the district courts to hear FTCA claims against the United States is coextensive with the act's waiver of sovereign immunity. Thus, actions that do not fall under the express terms of the FTCA's waiver must be dismissed for lack of subject-matter jurisdiction. Id. ; Wood v. United States , 290 F.3d 29, 35 (1st Cir.2002).
The FTCA grants jurisdiction to the district courts to hear claims arising from acts of the United States or its employees acting within the scope of their employment to the extent that “the United States, if a private person , would be liable to the claimant ... in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1)
(emphasis added). A claimant against the government must therefore identify some basis on which a private party would be liable for acts analogous to those the government is alleged to have taken. McCloskey v. Mueller , 446 F.3d 262, 267 (1st Cir.2006). As a result, FTCA liability cannot result from “obligations that are peculiar to governments or official-capacity state actors and which have no private counterpart in state law.” Id.
The United States contends, in substance, (1) that it has not waived its sovereign immunity under the FTCA for plaintiffs' claims because a private individual would not have owed plaintiffs a legal duty to report the location of McGonagle's remains; (2) that the “misrepresentation” exception to the FTCA applies, and likewise precludes subject-matter jurisdiction; and (3) that plaintiffs' claims are barred by the statute of limitations. Because the Court finds that the first argument is meritorious, it does not reach the misrepresentation exception or statute of limitations issues.
Count One asserts a claim for negligence based on Connolly's failure to report the location of McGonagle's burial site at Tenean Beach. “Negligence is the failure to exercise that degree of care which a reasonable person would exercise in the circumstances.” Guzman v. Pring–Wilson , 81 Mass.App.Ct. 430, 432, 963 N.E.2d 1196 (2012)
(quoting Morgan v. Lalumiere , 22 Mass.App.Ct. 262, 267, 493 N.E.2d 206 (1986) ).3 “To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Cracchiolo v. Eastern Fisheries, Inc. , 740 F.3d 64, 69 (1st Cir.2014) (quoting Jupin v. Kask , 447 Mass. 141, 146, 849 N.E.2d 829 (2006) ); see also
Lev v. Beverly Enterprises–Massachusetts, Inc. , 457 Mass. 234, 239–240, 929 N.E.2d 303 (2010).
Thus, a claim for negligence may not be sustained without a showing that the defendant owed a legal duty to the plaintiff. Gorfinkle v. U.S. Airways, Inc. , 431 F.3d 19, 23 (1st Cir.2005)
(citing Davis v. Westwood Group , 420 Mass. 739, 742, 652 N.E.2d 567 (1995) ); O'Gorman v. Antonio Rubinaccio & Sons, Inc. , 408 Mass. 758, 760, 563 N.E.2d 231 (1990). The key issue here is the existence of such a duty—whether a private person in Connolly's position (that is, a person who became aware of the location of McGonagle's body) would have owed a duty to McGonagle's family to report that fact.
No Massachusetts case has ever held that a private person has a duty to disclose the location of a dead body to the decedent's family, absent a special relationship. As a general matter, “[u]nder common law, inaction rarely gives rise to liability unless some special duty of care exists.” Hasenfus v. LaJeunesse , 175 F.3d 68, 71 (1st Cir.1999)
(). As then-Judge Breyer put it, “a passerby seeing a man drown in a pond may have a moral obligation to extend a helping hand, but he does not necessarily have a legal obligation to do so.” Carrier v. Riddell, Inc. , 721 F.2d 867, 869 (1st Cir.1983) (applying Massachusetts law).
Plaintiffs nonetheless contend that such a duty exists, relying in part on the Restatement (Second) of Torts § 868
. Section 868 provides:
One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.
Restatement (Second) of Torts § 868 (1979)
. Plaintiffs essentially contend that by failing to report the location of McGonagle's corpse, Connolly negligently prevented its...
To continue reading
Request your trial
-
Ahern v. Sig Sauer, Inc.
... ... SIG SAUER, INC. and CITY of CAMBRIDGE Defendants. No. 21-cv-11007-DJCUnited States District Court, D. MassachusettsDecember 7, 2021 ... MEMORANDUM AND RDER ... Denise ... J. Casper, United States District Judge ... I ... Introduction ... Plaintiff ... recall in lieu of actions it otherwise took even as alleged ... See McGonagle v. United States, 155 F.Supp.3d 130, ... 136 (D. Mass. 2016) (dismissing intentional ... ...
-
Irwin v. Eclectic Dining, Inc.
... ... 13-cv-10974-ADBUnited States District Court, D. Massachusetts.Signed January 5, 2016155 F.Supp.3d 127 Scott E. Charnas, Charnas ... Caron, Adler, Pollock & Sheehan PC, Boston, MA, for Defendant.Memorandum and OrderBURROUGHS, UNITED STATES DISTRICT COURT JUDGEI. INTRODUCTIONOn August 5, 2012, Plaintiff Megan C. Irwin (Ms. Irwin) ... ...