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Estate of Dimaggio v. United States

United States District Court, D. Idaho

August 9, 2017

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

          MEMORANDUM DECISION AND ORDER

          Honorable Edward J. Lodge, United States District Judge

         INTRODUCTION

         Before the Court in the above entitled matter is the Defendants' Second Motion to Dismiss. (Dkt. 31.) 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         The circumstances giving rise to this case began on August 3, 2013 when Hannah Anderson, a sixteen year old girl, was found 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. 28 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. 28 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. 28 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. 28 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. 28 at ¶ ¶ 28, 30.)

         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. 28 at ¶ 33.) Several state and federal law enforcement agencies dispatched officers and agents to that area to begin a search. (Dkt. 28 at ¶ 37.) On August 10, 2013, a United States Marshals Service plane flew over a campsite north of Morehead Lake where they spotted the pair. (Dkt. 28 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. 28 at ¶ 40.)

         Members of the FBI Hostage Rescue Team then hiked several miles to the campsite. The parties dispute the specifics of what 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. 28 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. 28 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, 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 a Motion to Dismiss the FTCA claims (Counts 4-9) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 17.)

         This Court issued a Memorandum and Decision on March 31, 2017, dismissing, with Plaintiffs' concession, Counts 5 through 9. The Court granted Plaintiffs leave to amend its complaint in order to cure any procedural filing requirements in order to act as a foreign administrator. (Dkt. 27.)

         On the remaining claim, Count Four, Plaintiffs' wrongful death claim, Defendants argued the Plaintiffs had failed to allege a plausible wrongful death claim under Idaho law because the allegations failed to sufficiently show that Mr. DiMaggio's death was caused by a wrongful act. (Dkt. 17, 27.) This Court found that the allegations in the Complaint stated a plausible claim for wrongful death and denied the Motion as to Count Four in this regard.

         Additionally, Defendants argued Plaintiffs' wrongful death claim should be dismissed because they did not have standing to bring the claim. This Court found while Ms. Robinson had not made any allegations or showing she was financially dependent on Mr. DiMaggio it was possible she “could, as Mr. DiMaggio's sister, fall within the definition of an ‘heir, ' provided she was ‘partly or wholly dependent on the decedent for support or services'” under Idaho Code § 5-311(2)(b). (Dkt. 27.) As such, the C ourt gra n te d Defendants' Motion to Dismiss to this extent with leave to amend. (Dkt. 27.)

         On April 28, 2017, Plaintiffs filed its Second Amended Complaint. In response, Defendants filed another Motion to Dismiss, or in the alternative a Motion for Summary Judgment, arguing that Plaintiffs again failed to plausibly state facts that would allow Ms. Robinson to pursue the wrongful death claim under Idaho law. (Dkt. 31-1.)

         STANDARD ...


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