United States District Court, D. Idaho
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.
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge
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.
AND PROCEDURAL BACKGROUND
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. 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.)
August 5, 2013, the San Diego Sheriff's office obtained a
warrant to search Mr. DiMaggio's residence. 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.)
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
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.
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).
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).
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).
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 ...