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Estate of DiMaggio v. United States

United States District Court, D. Idaho

March 31, 2017

THE ESTATE OF JAMES LEE DIMAGGIO, by its personal representative, LORA DIMAGGIO ROBINSON, and LORA DIMAGGIO ROBINSON, an individual, Plaintiffs,
UNITED STATES, SIX UNKNOWN FBI AGENTS, and DOES 1 - 25, inclusive, Defendants.


          Edward J. Lodge United States District Judge


         Before the Court in the above entitled matter is the Defendants' Motion to Dismiss. (Dkt. 17.) The parties have filed responsive briefing and the Motion is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion shall be decided on the record before this Court without oral argument.


         The circumstances giving rise to this case began on August 3, 2013 when Hannah Anderson, a sixteen year old girl, went missing in San Diego County, California.[1] The following day, Hannah was spotted on a surveillance video riding in a car with James Lee DiMaggio, a friend of the Anderson family with whom Hannah was familiar. (Dkt. 10 at ¶ 28.) Later that same day, local police responded to a fire at Mr. DiMaggio's home where the bodies of two individuals were discovered. (Dkt. 10 at ¶ 27.)

         On August 5, 2013, the San Diego Sheriff's office obtained a warrant to search Mr. DiMaggio's residence.[2] An Amber Alert for Hannah and her younger brother was issued in California. (Dkt. 10 at ¶ 29.) On August 6, 2013, autopsy results revealed that the bodies found at the home were those of Hannah's mother and younger brother. (Dkt. 10 at 27.) An arrest warrant for Mr. DiMaggio was issued that same day. The search for Hannah was expanded and the Amber Alert was extended outside of California. (Dkt. 10 at 35.)

         On August 8, 2013, a group of horseback riders notified law enforcement that on the preceding day they had encountered Mr. DiMaggio and Hannah near Morehead Lake in the Frank Church River of No Return Wilderness located near Cascade, Idaho. (Dkt. 10 at ¶ 33.) Several state and federal law enforcement agencies dispatched officers and agents to that area to begin a search. On August 9, 2013, Mr. DiMaggio's car was found near Cascade, Idaho under layers of brush. (Dkt. 10 at ¶ 36.) On August 10, 2013, a United States Marshals Service plane flew over a campsite north of Morehead Lake where they spotted the pair. (Dkt. 10 at ¶ 38.) The parties dispute whether just Hannah or both she and Mr. DiMaggio were waving in the air in an attempt to get the attention of the plane. (Dkt. 10 at ¶ 38) (Dkt. 17 at 4.)

         Members of the FBI Hostage Rescue Team then hiked several miles to the campsite. The parties dispute the specifics of the facts that occurred as the FBI agents approached the campsite. The Complaint alleges Hannah suggested to Mr. DiMaggio that he fire his gun into the air three times to signal for SOS. (Dkt. 10 at ¶ 40.) The Complaint goes on to allege that Mr. DiMaggio then fired his gun once in the air in an attempt to signal for SOS but, before attempting his second shot into the air, the FBI agents shot Mr. DiMaggio six times in his head, chest, and extremities. (Dkt. 10 at ¶¶ 41-42.) Defendants contend that Hannah's subsequent interview contradicts those allegations when she stated that after Mr. DiMaggio fired the first shot, he lowered his gun and fired a second time. (Dkt. 17 at 5.) Mr. DiMaggio died from the gunshot wounds.

         Plaintiffs, the Estate of James Lee DiMaggio and Lora DiMaggio Robinson, have brought this action alleging numerous claims including three Bivens claims (Counts 1-3) against the Defendants “Six Unknown FBI Agents” and six claims under the Federal Tort Claims Act (Counts 4-9), (“FTCA”), 28 U.S.C. §§ 1346(b); 2671-2680, against Defendant the United States of America. (Dkt. 1, 10.) In general, the claims are for excessive force; violations of the First and Fifth Amendments; wrongful death; intentional and negligent infliction of emotional distress; negligence; assault; and battery. (Dkt. 10.) The United States filed this Motion to Dismiss the FTCA claims (Counts 4-9) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 17.)


         A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a party's claim for relief. When considering such a motion, the Court's inquiry is whether the allegations in a pleading are sufficient under applicable pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum pleading rules, requiring only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         In general, a motion to dismiss will only be granted if the complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 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 (2009) (citations omitted). Although “we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. Therefore, “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Caviness v. Horizon Comm. Learning Cent., Inc., 590 F.3d 806, 811-12 (9th Cir. 2010) (citation omitted).


         1. Personal Representative

         Ms. Robinson is Mr. DiMaggio's sister and sole heir of his estate. (Dkt. 10 at ¶ 7.) Defendants argue Ms. Robinson, a non-resident of Idaho, cannot bring suit in Idaho as a personal representative of Mr. DiMaggio's estate without satisfying certain conditions. (Dkt. 17.) Plaintiffs maintain Ms. Robinson has the proper capacity to bring this action and should be granted leave to amend in order to cure any procedural filing requirements to act as a foreign administrator. (Dkt. 23.) Defendants do not oppose allowing Plaintiff to amend the Complaint if ...

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