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
Honorable Edward J. Lodge, United States District Judge
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.
AND PROCEDURAL BACKGROUND
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.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.)
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. 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,
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
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.
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.)
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.)
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.
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.)
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.)