United States District Court, M.D. Tennessee, Nashville Division
CANDACE MOTT, individually and on behalf of her minor child E.J., and LILLIAN ROUSSEAU, individually and on behalf of her minor child M.C., Plaintiffs
UNITED STATES OF AMERICA, Defendant
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the United States' Motion to Dismiss
(Doc. No. 15.) For the reasons stated herein, the Motion to
Dismiss will be granted.
Mott and Rousseau brought this action, pursuant to the
Federal Tort Claims Act (specifically 42 U.S.C. § 1346),
on behalf of their minor children, E.J. and M.C. Plaintiffs
allege that Staff Sergeant Jeremiah Austin, an active duty
solider stationed at Fort Campbell, sexually assaulted E.J.
and M.C. on numerous occasions during 2013 and early 2014.
Plaintiffs contend that the United States was aware of prior
alleged incidents of sexual assault committed by Austin in
Georgia, and that the United States breached its duty to
report suspected child abuse to the proper authorities in
Tennessee, ultimately causing E.J. and M.C. to be sexually
assaulted by Austin.
have sued the United States for intentional and negligent
infliction of emotional distress, negligence, negligence
per se, and failure to warn or report. (Doc. No. 1).
The United States has moved to dismiss Plaintiffs'
claims, pursuant to Fed.R.Civ.P. 12(b), for lack of
jurisdiction and for failure to state a claim for which
relief may be granted. (Doc. No. 15).
purposes of a motion to dismiss, the Court must take all of
the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Id. 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. Id. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. When
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Id.
at 1950. A legal conclusion couched as a factual allegation
need not be accepted as true on a motion to dismiss, nor are
recitations of the elements of a cause of action sufficient.
Fritz v. Charter Township of Comstock, 592 F.3d 718,
722 (6th Cir. 2010).
TORT CLAIMS ACT
immunity generally bars claims against the United States
without its consent. Kohl v. United States, 699 F.3d
935, 939 (6th Cir. 2012). Congress, through the
Federal Tort Claims Act (“FTCA”), waived this
governmental immunity for claims brought for injury or loss
of property caused by the negligent or wrongful act or
omission of any employee of the United States while acting
within the scope of his employment, under circumstances where
the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where
the act or omission occurred. 42 U.S.C. § 1346(b)(1);
Kohl, 699 F.3d at 939.
first argues that the court has no subject matter
jurisdiction over this action because any wrongful actions by
Austin were not taken within the scope of his employment as
required by the FTCA. Plaintiffs have clarified, however,
that their claims do not arise from Austin's
actions; rather, they arise from the actions or
inactions of Defendant after learning of the allegations
against Austin and the potential harm to children exposed to
Austin. Plaintiffs assert that Defendant owed a duty to
Plaintiffs, independent of Austin's employment. With this
understanding of the nature of Plaintiffs' claims, the
scope of employment issue is moot.
also argues that the court lacks subject-matter jurisdiction
because of two exceptions to the FTCA. The FTCA excepts
certain claims from its waiver of sovereign immunity.
Cline v. United States, 13 F.Supp.3d 868, 872 (M.D.
Tenn. 2014). If a claim falls within an exception, then
federal courts lack subject-matter jurisdiction.
Id.; Kohl, 699 F.3d at 940.
exception to the FTCA is any claim based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or employee of the government, whether or not the
discretion involved be abused. 42 U.S.C. § 2680(a).
Conduct cannot be discretionary unless it involves an element
of judgment or choice. Berkovitz by Berkovitz v. United
States, 486 U.S. 531, 536 (1988). The discretionary
function exception will not apply if a federal statute,
regulation or policy specifically prescribes a course of
action for an employee to follow because the employee has no
rightful option but to adhere to the directive. Id.
This exception protects only governmental actions and
decisions that involve an element of judgment or choice and
are based upon public policy considerations. Id. at
539; A.O. Smith Corp. v. United States, 774 F.3d
359, 364-65 (6th Cir. 2014).
argues that its decisions to take action or not take action
regarding these abuse allegations involved judgments and
choices and that the statutes themselves explicitly require
assessment and discretion. For example, the federal reporting
statute provides that any person who learns facts that
“give reason to suspect that a child has suffered an
incident of child abuse” shall report such abuse. 42
U.S.C. § 20341.What the United States learned in this
case were allegations. There is discretion and judgment
involved in deciding whether the allegations give reason to
suspect that a child has been abused. Similarly, the state
statute requires reporting “if the harm is of such a
nature as to reasonably indicate that it has been caused by
brutality, abuse or neglect or that, on the basis of
available information, ...