Miller v. Wackenhut Services, Inc.

Decision Date21 October 1992
Docket NumberNo. 91-0877-CV-W-9.,91-0877-CV-W-9.
Citation808 F. Supp. 697
PartiesMashel M. MILLER, et al., Plaintiffs, v. WACKENHUT SERVICES, INC., Defendant.
CourtU.S. District Court — Western District of Missouri

Daniel Robert DeFoe, Tyree, Grimes, Martin and Roberts, Blue Springs, MO, Ronald D. Benedict, Independence, MO, for plaintiffs.

Patrick J. Doran, Niewald, Waldeck & Brown, PC., Kansas City, MO, for defendant.


BARTLETT, District Judge.

Defendant Wackenhut Services, Inc. moves to dismiss Counts I through VIII of the Second Amended Petition for Damages pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure or, in the alternative, for summary judgment.

Plaintiffs Mashel and Donald Miller's Petition contains 14 counts: six counts based upon Title VII (42 U.S.C. § 2000e, et seq.), six counts based upon Missouri employment discrimination statutes (Mo.Rev.Stat. § 213.010, et seq.) and two counts based upon Missouri common law for negligent and intentional infliction of emotional distress.

Defendant argues that the Missouri statutory and common law claims must be dismissed because 1) the allegedly discriminatory acts occurred at the Lake City Army Ammunition Plant (Lake City), a federal enclave, and Congress has exclusive power to legislate in regard to federal enclaves; 2) the common law claim for intentional infliction of emotional distress is preempted by the Missouri Worker's Compensation Act; and 3) the conduct complained of in the emotional distress claim was not outrageous.

Defendant moves for leave to file sur-reply suggestions. Defendant's Motion for Leave to File Sur-Reply Suggestions will be granted and the sur-reply suggestions have been considered.

I. Motion to Dismiss
A. Standard for Dismissal Pursuant to Rule 12(b)(6)

All factual allegations in the Complaint are to be taken as true as well as all inferences that reasonably may be drawn from those facts. Hishon v. King and Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). A Complaint should not be dismissed for failure to state a claim for relief unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

B. Plaintiff's Employment Discrimination Claims Based on Missouri Statutes Will Be Dismissed
The Congress shall have the Power ... To exercise exclusive Legislation in all Cases whatsoever, ... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings....

U.S. Const. art. I, § 8, cl. 17. When the federal government acquires title to state land with the consent of the state legislature, Congress acquires exclusive power to legislate in respect thereto. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 538, 5 S.Ct. 995, 1002, 29 L.Ed. 264 (1885); Paul v. United States, 371 U.S. 245, 264, 83 S.Ct. 426, 438, 9 L.Ed.2d 292 (1963). The consent of the state is necessary for the extinguishing of state power. Ft. Leavenworth, 114 U.S. at 538, 5 S.Ct. at 1002; Silas Mason Co. v. Tax Commission, 302 U.S. 186, 197, 58 S.Ct. 233, 239, 82 L.Ed. 187 (1937).

On December 6, 1940, the United States purchased the land on which the Lake City Plant now rests. See Choplin v. Francis, 181 S.W.2d 222, 223-24 (Mo.App.1944). On June 11, 1942, the United States condemned an additional 320 acres to expand the Lake City Plant. See Clark v. United States, 155 F.2d 157, 158-59 (8th Cir.1946).

The Missouri General Assembly gave its consent to federal acquisition of the Lake City Plant land in 1947:

The consent of the State of Missouri is given, in accordance with the seventeenth clause, eighth section of the first article of the Constitution of the United States, to the acquisition by the United States by purchase, condemnation, or otherwise, of any land in this state as sites for custom houses, courthouses, post offices, arsenals, forts and other needful buildings required for military purposes.

Mo.Ann.Stat. § 12.030 (as amended in 1978).

In Mo.Rev.Stat. § 12.040 (as amended in 1978), the Missouri General Assembly also granted exclusive jurisdiction to the United States over land acquired with state consent by the United States, which would include the Lake City Plant:

Exclusive jurisdiction in and over any land acquired as set out in section 12.030 or otherwise lawfully acquired and held for any of the purposes set out in section 12.030 by the United States, is ceded to the United States for all purposes, saving and reserving, however, to the state of Missouri the right of taxation to the same extent and in the same manner as if this cession had not been made; and further saving and reserving to the state of Missouri the right to serve thereon any civil or criminal process issued under the authority of the state, in any action on account of rights acquired, obligations incurred, or crimes committed in this state, outside the boundaries of the land but the jurisdiction ceded to the United States continues no longer than the United States owns the lands and uses the same for purposes set out in section 12.030.

The grant of exclusive legislative power to Congress over enclaves that meet the requirements of Art. I, Sec. 8, Clause 17, bars state regulation unless Congress consents to state regulation. Paul v. United States, 371 U.S. 245, 263, 83 S.Ct. 426, 437, 9 L.Ed.2d 292 (1963); West River Electric v. Black Hills Power & Light Co., 918 F.2d 713, 716 (8th Cir.1990). Furthermore,

because of the fundamental importance of the principles shielding federal installations and activities from regulation by the states, an authorization of state regulation is found only when and to the extent there is a clear congressional mandate, specific congressional action that makes this authorization of state regulation clear and unambiguous.

Hancock v. Trane, 426 U.S. 167, 179, 96 S.Ct. 2006, 2013, 48 L.Ed.2d 555 (1976) (citations omitted); West River, 918 F.2d at 716. Thus, federal law is the only law governing Lake City Plant, except to the extent Congress specifically authorizes state regulation.1

Plaintiffs argue that the following language is an express authorization of state legislation in federal enclaves:

Nothing in this subchapter 42 U.S.C. § 2000e, et seq. shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

42 U.S.C. § 2000e-7.

This provision provides that Title VII does not preempt state statutes that also prohibit employment discrimination. It does not state that state law shall govern in a federal enclave where it otherwise would not apply. Thus, plaintiff's claims under Missouri's statutes prohibiting employment discrimination must be dismissed.

C. Plaintiff's Common Law Claims Are Not Preempted by Federal Law

In the two common law counts, plaintiffs allege that harassing telephone calls were made from the Lake City Plant to plaintiff Mashel Miller at her apartment in Independence, Missouri. Defendant argues that the alleged torts occurred on federal property outside the legislative power of Missouri.

A cause of action for negligence does not arise until the plaintiff suffers an injury. Biscoe v. Kowalski, 290 S.W.2d 133, 138 (Mo. banc 1956); Quick v. All Tel Missouri, Inc., 694 S.W.2d 757, 759 (Mo. App.1985). When the injury is to a plaintiff's person, as opposed to her property, the claim generally will arise wherever the plaintiff happens to be when she is injured. The same principle applies to intentional torts.

Here, the alleged distress occurred in plaintiff's home in Independence. Thus, the claim arose in Independence, not at the Lake City Plant. Independence is subject to the legislative power of Missouri. Therefore, plaintiff Mashel Miller's Missouri common law claims cannot be dismissed on the ground that the tort occurred on federal property.

D. Plaintiff's Claim For Intentional Infliction of Emotional Distress Will Be Dismissed

Defendant argues that plaintiff Mashel Miller's claim for intentional infliction of emotional distress must be dismissed because plaintiffs do not allege outrageous conduct.

The elements of the tort of intentional infliction of emotional distress are: 1) defendant's conduct was extreme and outrageous, 2) defendant acted in an intentional or reckless manner, and 3) defendant's conduct resulted in severe emotional distress. Hendrix v. Wainright Industries, 755 S.W.2d 411, 412 (Mo.App.1988). For the third element it is necessary to plead "the emotional distress is medically diagnosable and medically significant." Id. Plaintiff properly pled the third element. See Second Amended Petition for Damages at 11.

"As a threshold it is first for the court to determine whether an average member of the community upon learning of the facts alleged by plaintiff would exclaim `outrageous!'" Hendrix, 755 S.W.2d at 412. The conduct must be so outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.; Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566, 569 (Mo. banc 1965).

Here, plaintiff alleges:

defendant, by and through its employees, on several occasions made telephone calls to the plaintiff at her residence in Independence, Missouri. The defendant, by and through its employees, during the aforestated telephone calls repeatedly insisted that plaintiff immediately attempt to requalify with a firearm and that her failure

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