Rakes v. U.S., No. CIV.A.02-10480-WGY.

• Decision Date: 03 January 2005
• Docket Number: No. CIV.A.02-10480-WGY.,No. CIV.A.02-10867-WGY.
• Citation: 352 F.Supp.2d 47
• Parties: Stephen M. RAKES, Gary W. Cruickshank, as Trustee in Bankruptcy of Stephen M. Rakes, Nichole Rakes, Meredith Rakes, Colby Rakes, and Stippo's, Incorporated, Plaintiffs, v. UNITED STATES of America, John J. Connolly, Jr., John M. Morris, James J. ("Whitey") Bulger, Stephen J. ("The Rifleman") Flemmi, Kevin Weeks, John Does, Nos. 1-50, United States Department of Justice, and Federal Bureau of Investigation, Defendants. Julie Rakes Dammers, Plaintiff, v. United States of America, John J. Connolly, Jr., and John M. Morris, Defendants.
• Court: U.S. District Court — District of Massachusetts

352 F.Supp.2d 47

Stephen M. RAKES, Gary W. Cruickshank, as Trustee in Bankruptcy of Stephen M. Rakes, Nichole Rakes, Meredith Rakes, Colby Rakes, and Stippo's, Incorporated, Plaintiffs, v. UNITED STATES of America, John J. Connolly, Jr., John M. Morris, James J. ("Whitey") Bulger, Stephen J. ("The Rifleman") Flemmi, Kevin Weeks, John Does, Nos. 1-50, United States Department of Justice, and Federal Bureau of Investigation, Defendants.

Julie Rakes Dammers, Plaintiff, v. United States of America, John J. Connolly, Jr., and John M. Morris, Defendants.

No. CIV.A.02-10480-WGY.

No. CIV.A.02-10867-WGY.

United States District Court, D. Massachusetts.

January 3, 2005.

COPYRIGHT MATERIAL OMITTED

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Lisa M. Asiaf, Kelly, Libby & Hoopes, P.C., Boston, MA, for Stippo's, Inc., Colby Rakes, Meredith Rakes, Nichole Rakes, Stephen M. Rakes, Gary W. Cruickshank, Plaintiffs.

Stacey Bosshardt, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for USA, Defendant.

Richard E. Bowman, Rose & Associates, Boston, MA, for James Ring, Defendant.

William A. Brown, Boston, MA, for Robert Fitzpatrick, Defendant.

Thomas J. Butters, Butters, Brazilian & Small, Boston, MA, for Kevin P. O'Neil, Defendant.

Brian P Fitzsimmons, Hanley, Hassett & Fitzsimmons, LLC, Quincy, MA, for James Ahearn, Defendant.

Andrew D. Kaplan, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for USA, Defendant.

Paul V. Kelly, Kelly, Libby & Hoopes, PC, Boston, MA, for Stippo's, Inc., Colby Rakes, Meredith Rakes, Nichole Rakes, Stephen M. Rakes, Plaintiffs.

Margaret Krawiec, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for USA, Defendant.

Edward J. Lonergan, Boston, MA, for John J. Connolly, Jr., Defendant.

Joseph F. McDowell, III, McDowell & Osburn, P.A., Manchester, NH, for Julie Rakes Dammers, Movant.

E. Peter Mullane, Mullane, Michel & McInnes, Cambridge, MA, for John J. Connolly, Jr., Defendant.

Megan E. Perrotta, Butters, Brazilian & Small, LLP, Boston, MA, for Kevin P. O'Neil, Defendant.

Christine M. Roach, Roach & Carpenter, P.C., Boston, MA, for James Greenleaf, Defendant.

Alan D. Rose, Jr., Rose & Associates, Boston, MA, for James Ring, Defendant.

Alan D. Rose, Sr, Rose & Associates, Boston, MA, for James Ring, Defendant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

This case consolidates two separate suits, essentially alleging the same misconduct. Julie Rakes Dammers ("Dammers"), her former husband Stephen Rakes ("Rakes"), and other members of the Rakes family brought suits against the United States of America (the "United States"), the Federal Bureau of Investigation (the "Bureau"), Federal Bureau of Investigation agents John J. Connolly, Jr. ("Connolly") and John M. Morris ("Morris"), and others. Dammers and the Rakes family claim that Bureau agents cultivated special relationships with members of the criminal organization known as the "Winter Hill Gang" (the "Gang") for use as informants. While nurturing their relationships with informants James J. "Whitey" Bulger ("Bulger") and Stephen J. "The Rifleman" Flemmi ("Flemmi"), in particular, the plaintiffs argue that the United States and its agents protected Bulger and Flemmi from investigation, arrest, and prosecution, and leaked confidential law enforcement information to Bulger. The plaintiffs contend that these acts, allegedly carried out in contravention of Bureau rules and regulations regarding the proper handling of informants, emboldened Bulger and Flemmi to commit criminal acts and led to the Gang's 1984 extortion of Rakes and Dammers's liquor store and the threats made against the Rakes family.

Dammers and the Rakes family have put forth, inter alia, various claims under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, including theft and conversion, intentional torts, negligence, intentional and negligent infliction of emotional distress, loss of parental and spousal consortium, and loss of prospective business relationships. The United States has moved for summary judgment on the plaintiffs' FTCA claims [Doc. No. 195], and the plaintiffs have opposed the motion [Doc. No. 236] ("Pls.' Opp'n").¹ The United States has also filed a renewed motion to dismiss the FTCA claims as time-barred under the FTCA's two-year statute of limitations, 28 U.S.C. § 2401(b). [Doc. No. 179]. The United States contends that Rakes and Dammers's FTCA claims accrued before the cut-off date of May 11, 1999. Rakes and Dammers separately oppose the renewed motion to dismiss, arguing that their claims accrued on September 15, 1999, the day Judge Wolf issued his opinion in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999) [Doc. No. 234]; [Dammers Doc. No. 164]. On November 16, 2004, this Court heard oral arguments on both of the United States' motions. After careful reflection, the Court now addresses each motion in turn.

I. UNITED STATES' MOTION FOR SUMMARY JUDGMENT ON RAKES AND DAMMERS'S FTCA CLAIMS

The following facts do not appear to be in dispute for purposes of this motion for summary judgment. Bulger and Flemmi were members of the Winter Hill Gang, a criminal organization engaged in activities including murder and extortion. Pls.' Opp'n at 2.² From 1967 to 1990, Bulger and Flemmi also acted as FBI informants, providing valuable information on La Cosa Nostra. Id. at 3. They were handled by FBI Special Agent John Connolly and Supervisory Special Agent John Morris, the supervisor in charge of the Organized Crime Squad of the Boston Office of the FBI. Id. At the time Connolly officially opened Bulger as an informant in September 1975, Bulger had a criminal background. Def.'s Mem. [Doc. No. 196] at 3. Likewise, at the time Connolly officially re-opened Flemmi as an informant in September 1980, Flemmi had a criminal background and was suspected of being involved in murder. Id. During their years as confidential informants for the FBI, Bulger and Flemmi were involved in numerous murders, as described in United States v. Salemme, 91 F.Supp.2d 141, and United States v. Flemmi, 195 F.Supp.2d 243 (D.Mass.2001) (Wolf, J.). Def.'s Mem. at 3.

Prior to May 1982, Connolly and Morris met socially with Bulger and Flemmi. Id. They also received gifts from Bulger and Flemmi between 1976 and 1994. Id. In 1976, for instance, Connolly improperly accepted a diamond ring from Bulger and Flemmi. Id. Bulger and Flemmi gave Morris a case of wine in late 1981 or early 1982, $1,000 in spring 1982 and again in late 1982 or early 1983, and $5,000 in 1986 or 1987. Id.

Plaintiffs Rakes and Dammers opened a liquor store in South Boston in December 1983. Id. at 2. Within approximately two weeks of opening, Bulger, Flemmi, and defendant Kevin Weeks ("Weeks") extorted the store from Rakes and Dammers in exchange for $67,000 and promises of more money. See id. Dammers contacted her uncle, Boston Police Detective Joseph Lundbohm ("Lundbohm"), for help, and he said that he would call a friend at the FBI for her. Id. Lundbohm contacted Connolly regarding the extortion, and Connolly responded that unless Rakes and Dammers were willing to wear a wire during their meetings with Bulger, the FBI was unlikely to intervene. Id. at 2-3. Connolly never documented his conversation with Lundbohm or investigated Rakes and Dammers's allegations of extortion. Id. at 3. Instead, Connolly informed Bulger of his conversation with Lundbohm. Id. In late 1994 or early 1995, Connolly leaked to Bulger and Flemmi that they had been indicted for murder. Id. at 3-4. This tip allowed Bulger to flee and to evade arrest to this day. Id. at 4.

Based on the foregoing facts, the United States argues that it should be granted summary judgment on the plaintiffs' FTCA claims because (1) Connolly and Morris's conduct was outside the scope of their employment, Def.'s Mem. at 4; (2) the discretionary function exception bars the plaintiffs' claims, id. at 9; and (3) the plaintiffs' claims would fail under Massachusetts tort law, id. at 16.

Summary judgment is warranted if, after reviewing the facts in the light most favorable to the nonmoving party, no genuine issues of material fact remain. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(c). A "genuine" issue of fact is one that a reasonable jury, on the record before the court, could resolve in favor of either party. Anderson, 477 U.S. at 251, 254, 106 S.Ct. 2505. A fact is material when it "might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. 2505; Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir.1993). In making its determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. The movant has the initial burden of production, which it can meet either by offering evidence to disprove an element of the plaintiff's case or by demonstrating an "absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the non-moving party must "go beyond the pleadings, and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial." Id. at 323-24, 106 S.Ct. 2548 (internal quotation marks omitted). Guided by this standard of review, the Court examines each of the United States' arguments for summary judgment.

A. Scope of Employment

The FTCA grants jurisdiction for claims that are "caused by the negligent or wrongful act or omission of any employee of the government, while acting within the scope of his office or employment" under state law. 28 U.S.C. § 1346(b). Under Massachusetts law, conduct is within the scope of employment if (1) "it is of the kind [the agent] is employed to perform;" (2) ...