337 F.Supp.2d 370 (2004) | Cited 1 time | D. Massachusetts | September 29, 2004


This is an action brought by Elaine Barrett (the "plaintiff")as the administratrix of the Estate of Arthur M. Barrett (the"Estate") against the United States of America, RobertFitzpatrick and John Morris, (the "agents," both of whom were FBIagents at the times relevant to the complaint), and others. Thecase arises out of the circumstances surrounding the murder ofArthur M. Barrett ("Barrett"), who was killed sometime after hedisappeared on or about July 26, 1983. The plaintiff has allegedthat crime lords James J. Bulger and Stephen J. Flemmi and theirassociates murdered Barrett. The plaintiff also alleges that, atthe time of Barrett's murder, Bulger and Flemmi were "topechelon" informants for the Federal Bureau of Investigation (the"FBI") and leaders of the Boston area's Winter Hill Gang, anassociation of individuals engaged in criminal activities. Thecomplaint alleges that the United States, Fitzpatrick, Morris,and others allegedly permitted Flemmi and Bulger to commitcriminal activities with impunity, including the murder ofBarrett. The complaint is in twelve counts.1 In counts I throughIV, the plaintiff asserts wrongful death claims by the Estateagainst the United States, Fitzpatrick, and Morris. Count VIcontains an additional claim against the United States forwrongful death. The claims against the United States purport tohave been brought pursuant to the Federal Tort Claims Act("FTCA"), 28 U.S.C. §§ 1346, 2401, 2671, et seq. The UnitedStates has moved to dismiss all of the claims against it for lackof subject matter jurisdiction, claiming that the plaintifffailed to present her administrative claim to the appropriatefederal agency within two years of the accrual of that claim, asrequired by the FTCA, 28 U.S.C. § 2401(b). The plaintiffpresented her administrative complaint on behalf of the Estate onJanuary 14, 2003.

In counts IX, X, XII, and XIII, the plaintiff also maintainsthat the conduct of Fitzpatrick and Morris is actionable underthe rule stated in Bivens v. Six Unknown Named Agents of FederalBureau of Narcotics, 403 U.S. 388 (1971), because the conductviolated Barrett's rights under the Fourth and Fifth amendmentsto the Constitution of the United States and the Estate's rightto access to courts guaranteed by the First and Fifth amendments.The plaintiff's Bivens and wrongful death claims againstFitzpatrick and Morris are subject to three-year statutes oflimitations.2 The plaintiff filed her lawsuit on April 2,2003. Fitzpatrick and Morris moved to dismiss the claims against them as time-barred (docket entries 24and 12).3 In their respective motions, Fitzpatrick andMorris adopt the argument of the United States has made insupport of its motion to dismiss.

For the reasons stated below, I hold that the plaintiffpresented her administrative claim more than two years after itsaccrual, and therefore I GRANT the motion to dismiss of theUnited States. I also hold that the plaintiff filed this lawsuitmore than three years after her state law and Bivens claimsagainst Fitzpatrick and Morris accrued, and therefore I GRANTtheir motions to dismiss.


In considering the United States' motion to dismiss for lack ofsubject matter jurisdiction, I "accept[] the plaintiff's versionof jurisdictionally-significant facts as true" and "assesswhether the plaintiff has propounded an adequate basis forsubject matter jurisdiction." Valentín v. Hospital BellaVista, 254 F.3d 358, 363 (1st Cir. 2001).4 Inconsidering the motions to dismiss of Fitzpatrick and Morris, I must "accept the plaintiff'swell-pleaded facts as true and draw all reasonable inferences infavor of the plaintiff." United States ex rel. Karvelas v.Melrose-Wakefield Hosp., 360 F.3d 220, 224 (1st Cir. 2004). Inonetheless "reject claims that are made in the complaint if theyare `bald assertions' or `unsupportable conclusions.'" Id. Inanalyzing the motions, I may consider certain extrinsic materialswithout engaging in jurisdictional factfinding or converting themotion to dismiss into one for summary judgment. See Valentín,254 F.3d at 363; Dynamic Image Techs., Inc. v. United States,221 F.3d 34, 37 (1st Cir. 2000); Watterson v. Page, 987 F.2d 1,3 (1st Cir. 1993) (explaining that "documents the authenticityof which are not disputed by the parties," "official publicrecords," "documents central to [the] plaintiffs' claim," or"documents sufficiently referred to in the complaint" may beconsidered in ruling on a motion under Fed.R. Civ. P. 12(b)(6)).

For purposes of this memorandum, I will assume the reader'sfamiliarity with the numerous allegations contained in theplaintiff's lengthy complaint. Most of the plaintiff'sallegations were drawn from the findings of fact in UnitedStates v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999) (Wolf,J.), rev'd in part on other grounds by United States v. Flemmi,225 F.3d 78 (1st Cir. 2000). See Compl. ¶ 6 ("This complaintclosely tracks the findings and rulings of the United StatesDistrict Court for the District of Massachusetts [contained inSalemme].") The complaint also appears to have been created bya manual cutting and pasting of the complaint in McIntyre v.United States, et al, Civil Action No. 01-10408-RCL. Indetermining whether the plaintiff's FTCA claims accrued more thantwo years before she presented her administrative claim, I haveconsidered the numerous media reports the government submitted inconjunction with this motion, focusing in particular on anarticle published on March 9, 2000, in which the plaintiff was quoted as having said, in reference to Barrett'sdeath that, "the government is responsible." U.S. Mem. Supp. Mot.Dismiss Ex. 1 (Shelley Murphy, Burglar Caught in Violent WebVictim Made Last Desperate Calls for Money, BOSTON GLOBE, Mar.9, 2000, at B1 (the "Murphy article"), available at 2000 WL3317093).5 The plaintiff has not contested theauthenticity of these documents or the attribution of thepreceding statement to her. I have relied on the same documentsin analyzing whether the plaintiff's Bivens and wrongful deathclaims against Fitzpatrick and Morris accrued more than threeyears before she filed this lawsuit.

According to the plaintiffs, Barrett disappeared on July 26,1983 and was subsequently tortured and murdered by Bulger,Flemmi, and others. "For more than 16 years after Barrett'sdisappearance . . . his family was ignored by the FBI, except fora brief early visit following his disappearance, when the FBIclaimed that Barrett was alive and a fugitive." Compl. ¶ 5. "OnSeptember 15, 1999, [the Salemme decision] disclosed, for thefirst time, information bearing on the complicity of the FBI inenabling and covering up the murders of Barrett and others."Compl. ¶ 5. "Four months following the issuance of [Salemme],Barrett's bones were uncovered. . . . ." Compl. ¶ 5. On March 9,2000, the Murphy article reported that Barrett's remains had beenidentified the previous day. Murphy, supra.6 Thearticle also reported that Kevin Weeks, a former associate ofBulger, cooperating with the police, had led the police toBarrett's remains and had implicated Bulger and Flemmi in the murder of Barrett.Id. After explaining that Bulger and Flemmi had been FBIinformants, the Murphy article quoted the plaintiff as stating,"I think the government is responsible because if they put[Bulger and Flemmi] away when they should have, [Barrett] wouldbe alive today. . . . They gave them a license to kill and dowhatever they wanted." Id. Murphy also reported that theplaintiff "said she feels some closure in knowing what happenedto her husband" Id. The same article also quoted Kevin Glynnand identified him as an attorney representing the Barrettfamily. Id. Glynn later signed the Estate's administrativeclaim as well as the complaint in this lawsuit.


A. Motion of the United States

"The general rule, within the meaning of the FTCA, is that atort claim accrues at the time of the plaintiff's injury."Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003)(quoting Atallah v. United States, 955 F.2d 776, 779 (1st Cir.1992)), cert. denied, 124 S. Ct. 2836 (2004). Under theso-called discovery rule, however, "the test [of accrual] iswhether plaintiff knows, or in the exercise of reasonablediligence should have known, the factual basis of the cause ofaction, including the fact of the injury and the injury's causalconnection to the government." Cascone v. United States,370 F.3d 95, 104 (1st Cir. 2004). The standard of accrual under thediscovery rule is an objective one, Cascone, 370 F.3d at 104,and the "reasonable diligence component" of the rule prevents aplaintiff from preserving her claim by "bury[ing] her head in thesand," Skwira, 344 F.3d at 77 (quoting Diaz v. United States,165 F.3d 1337, 1339 (11th Cir. 1999)). Moreover, the "knowledge"necessary to trigger accrual need not be conclusive or absolute;rather, it consists of "the discovery of sufficient facts aboutthe injury and its cause to prompt a reasonable person to inquire and seekadvice preliminary to deciding if there is a basis for filing anadministrative claim against the government." Id.

Under the FTCA, once a plaintiff's claim against the UnitedStates accrues, she has two years to present her administrativeclaim to the relevant agency of the United States.28 U.S.C. § 2401(b) A plaintiff presents an administrative claim bycompleting a two-page form, and "the burden of preparing thisform is minimal." Skwira, 344 F.3d at 70. Contrary to anargument advanced by the plaintiff, the certificationrequirements of Fed.R. Civ. P. 11(b) apply only to practice inthe federal district courts and are irrelevant to the presentmentof an administrative claim. See Fed.R. Civ. P. 1, 11;Gaultier v. United States, 837 F. Supp. 360, 365-66 (D. Kan.1993).

In this case, the plaintiff unquestionably had notice of thefactual basis of her claim more than two years before shepresented that claim on January 14, 2003. For purposes of thismotion, the plaintiff's case is indistinguishable from a relatedcase included in the consolidated appeal McIntyre v. UnitedStates, 367 F.3d 38 (1st Cir. 2004). In McIntyre, the theoryof liability of the Wheeler plaintiffs was essentially identicalto the one advanced by the plaintiff — that the United Stateswas liable for the death of Roger Wheeler because the FBI allowedBulger and Flemmi to commit crimes with impunity, including themurder of Wheeler. In proceedings leading to the appeal beforethe First Circuit, I granted a motion by the United States todismiss the Wheeler complaint for lack of subject matterjurisdiction, based on the statute of limitations. The FirstCircuit affirmed the dismissal. In so doing, the court explainedthat the knowledge required to trigger accrual of the FTCA claimsof the Wheeler plaintiffs consisted of facts available that would permit a reasonable person to conclude (1) that Bulger and Flemmi were instrumental in the murder of Roger Wheeler; (2) that Bulger and Flemmi were informants for the FBI; and (3) that the FBI had a special relationship with Bulger and Flemmi that protected and encouraged them in their criminal activity, including Wheeler's murder.

Id. at 58. Pointing to the substantial news coverage of therelationship between the FBI and Bulger and Flemmi, includinginformation found in reports quoting a representative of RogerWheeler's estate concerning that relationship, the First Circuitconcluded that the Wheeler plaintiffs had or should havediscovered all three of the triggering facts more than two yearsprior to filing of the administrative claim. Id. at 58-61.

Like the Wheeler plaintiffs, the plaintiff in this case knewmore than two years prior to the filing of her administrativeclaim that "Bulger and Flemmi were instrumental in the murder of[Barrett]," that "Bulger and Flemmi were informants for the FBI,"and that "the FBI . . . protected and encouraged [Bulger andFlemmi] in their criminal activity, including [Barrett]'smurder." Id. at 58. The plaintiff alleges that the 1999Salemme decision "disclosed, for the first time, informationbearing on the complicity of the FBI in enabling and covering upthe murders of Barrett and others," Compl. ¶ 5, but she has notalleged any delay in learning of the contents of the opinion.Moreover, on March 9, 2000, the Murphy article quoted theplaintiff as stating that the government was responsible forBarrett's murder, because the FBI had given Bulger and Flemmi a"license to kill." Murphy, supra. The plaintiff has notchallenged the attribution of that statement to her. Thus, bythat statement, the plaintiff has admitted that, not later thanMarch 8, 2000, she had actual knowledge of the involvement ofBulger and Flemmi in Barrett's murder, the fact that Bulger andFlemmi were FBI informants at the time of Barrett's murder, andthe fact that the FBI encouraged and protected Bulger and Flemmi in the murderof Barrett.7 In short, her statement indicates that byMarch 8, 2000, she knew that the government was responsible forthe murder of her husband The plaintiff's claims accrued nolater than that date. Because the plaintiff did not comply withthe two-year presentment requirement of the FTCA, I am withoutjurisdiction over her claims and GRANT the motion of the UnitedStates.

B. Motions of Fitzpatrick and Morris

The test of accrual of the Bivens and wrongful death claimsagainst Fitzpatrick and Morris is essentially the same as thetest of accrual of the plaintiff's claims under the FTCA. SeeMarrapese v. Rhode Island, 749 F.2d 934, 938 n. 8 (1st Cir.1984); M.G.L. ch. 229 § 2. The plaintiff has not argued thatthere is any difference between the factual basis of her claimsunder the FTCA and the factual bases of her Bivens and wrongfuldeath claims; nor do I find such a distinction. Thus, for thereasons stated above, I find that the plaintiff's Bivens andwrongful death claims accrued not later than March 8, 2000 — morethan three years prior to the April 2, 2003 filing of thislawsuit.

The plaintiff argues that the certification requirements ofRule 11(b) either delayed accrual of her claim or served as anobstacle to the filing of her lawsuit within the three-yearperiod of limitations following the accrual of her claim. Thisproposition is wholly without merit. Indeed, it strains the straight-face test.8 When an attorney signs acomplaint (or other pleading) in a federal district court, he orshe certifies that "to the best of the person's knowledge,information, and belief, formed after an inquiry reasonable underthe circumstances, . . . (3) the allegations and other factualcontentions have evidentiary support or . . . are likely to haveevidentiary support after a reasonable opportunity for furtherinvestigation or discovery." Id. Fed.R. Civ. P. 11(b). Whilethe reasonable inquiry requirement is not to be taken lightly,Rule 11 does "allow pleadings based on evidence reasonablyanticipated after further discovery or investigation." Rotellav. Wood, 528 U.S. 549, 560 (2000) (holding that plaintiff's RICOclaim was barred by the statute of limitations). Whether aninquiry is "reasonable under the circumstances" takes intoaccount the lack of access to information within the defendant'sexclusive control. See Robinson v. Dean Witter Reynolds, Inc.,129 F.R.D. 15, 22 (D. Mass. 1989) ("If the lawyer has onlylimited . . . access to information prior to filing, it isreasonable for her to conduct a less extensive inquiry. . . ."(quoting Note, Plausible Pleadings: Developing Standards forRule 11 Sanctions, 100 Harv. L. Rev. 630, 642-43 (1987))).Moreover, an attorney's reliance on public reports ofcircumstances alleged in a complaint may be a reasonable inquiryfor purposes of Rule 11(b). Cook v. Rockwell Int'l Corp., 147 F.R.D. 237, 246 (Colo. 1993).9

Here, there was an abundance of information available prior toMarch 8, 2003 that the plaintiff's attorneys could have used toconduct an inquiry comporting with the requirements of Rule11(b). Most notably, the detailed findings in Salemme — basedon sworn testimony taken in hearings that spanned a year andproduced 17,000 pages of transcripts, 141 F.2d at 163 — providedan ample factual basis for performing such an inquiry yearsbefore the plaintiff filed her complaint. Moreover, the fact thatthe attorneys for the plaintiff relied on Salemme in draftingthe complaint filed on April 2, 2003 is proof positive that theopportunity for a reasonable inquiry was available within theperiod of limitations. IV. CONCLUSION

For the reasons stated above, the motions of the United States,Fitzpatrick, and Morris to dismiss are GRANTED.


1. The complaint does not contain a claim captioned as "CountV" but does contain two counts captioned as "Count XIII." Becausethe second "Count XIII" is a request for attorneys' fees, Iconsider it a request for relief rather than a cause of action.

2. Because Congress has not established a time limitation forBivens actions, the three-year Massachusetts statute oflimitations applicable in tort actions for personal injuries,Mass. Gen. Laws ch. 260, § 2A, or civil rights actions, Mass.Gen. Laws ch. 260, § 5B, and any associated state tolling lawswill apply, provided they are not inconsistent with federal lawor policy. Wilson v. Garcia, 471 U.S. 261, 266-67, 276-80(1985). Because both statutes have a three-year period oflimitations, it is unnecessary to decide whether Mass. Gen. Lawsch. 260, § 5B supplants Mass. Gen. Laws ch. 260, § 2A forpurposes of federal civil rights actions. Street v. Vose,936 F.2d 38, 39 n. 2 (1st Cir. 1991). Under Massachusetts law, an action for wrongful death "shall becommenced within three years from the date of death, or withinthree years from the date when the deceased's executor oradministrator knew, or in the exercise of reasonable diligence,should have known of the factual basis for a cause of action."M.G.L. ch. 229 § 2.

3. Morris and Fitzpatrick captioned their motions as motionsto dismiss for lack of subject matter jurisdiction. Becausesubject matter jurisdiction is not at issue with respect to theplaintiff's common law or Bivens claims against Morris andFitzpatrick, I will treat their motions as having been broughtpursuant to F.R.C.P. 12(b)(6).

4. The First Circuit's shorthand for the method of consideringa motion to dismiss for lack of subject matter jurisdictionwithout challenging the truthfulness vel non of plaintiff'sallegations is the "sufficiency challenge." Valentiacute;n,254 F.3d at 363. I could also determine whether the plaintiff'sallegations supporting subject matter jurisdiction can withstanda "factual challenge." Id. Under this approach, "theplaintiff's jurisdictional averments are entitled to nopresumptive weight," and "the court must address the merits ofthe jurisdictional claim by resolving the factual disputesbetween the parties." Id. In this case, however, I do not needto engage in differential factfinding because the government hastreated the plaintiff's factual allegations as true.

5. Shelly Murphy authored other articles concerning Barrett.See, e.g., U.S. Mem. Supp. Mot. Dismiss Ex. 5. In thismemorandum, however, the term "Murphy article" or the shortenedcitation "Murphy, supra" will refer to this March 9, 2000article.

6. The plaintiff has alleged that "post-mortem determinationsand procedures sufficient to identify and permit release ofBarrett's remains for cremation were not completed until April,2000." Compl. ¶ 5 (emphasis added). Because this allegationrefers to the timing of both the identification and release ofBarrett's remains, it does not contradict the statement in theMurphy article that Barrett's remains were identified on March 8,2000.

7. Because March 8, 2000 is more than two years prior to thedate the plaintiff presented her administrative claim and morethan three years before the date she filed her lawsuit, I do notneed to decide the earliest date at which her claims could haveaccrued. Nonetheless, by referring to March 8, 2000 as a date bywhich the plaintiff knew of the factual basis her claim, I do notexclude the possibility that she acquired or should have acquiredthat knowledge well before March 2000.

8. A more appropriate concern for the requirements of Rule 11would have counseled caution in the filing of a complaint thatwas so clearly time-barred as the one here. See Brubaker v. Cityof Richmond, 943 F.2d 1363, 1385 (4th Cir. 1991) ("Where anattorney knows that a claim is time-barred and has no intentionof seeking reversal of existing precedent . . . he makes a claimgroundless in law and is subject to Rule 11 sanctions.");McHenry v. Utah Valley Hosp., 724 F. Supp. 835, 838 (D. Utah1989) (concluding that "a reasonable inquiry into the law wouldhave shown that [the plaintiff]'s claim was time-barred and thestatute of limitations is constitutionally sound," and awardingRule 11 sanctions); Murphy v. Klein Tools, Inc.,123 F.R.D. 643, 646-47 (D. Kan. 1988) (citing circuit and district courtcases where courts found "sanctionable conduct under Rule 11 forbringing claims clearly time-barred under the respective statutesof limitations.").

9. See also Forbes v. Eagleson, 19 F. Supp. 2d 352, 375-76(E.D. Pa. 1998) (holding that the plaintiffs' RICO claims weretime-barred, and explaining that reliance on a report written bya lawyer and based on extensive investigations would havesatisfied Rule 11(b); also explaining that "[p]laintiffs wouldhave acted consistent with Rule 11" if, after having read newsarticles describing "self-enriching" schemes between RICOdefendants, the plaintiff had "simply contacted sources cited by[the media reports]"); Greenfield v. U.S. Healthcare, Inc.,146 F.R.D. 118, 125 (E.D. Pa. 1993) (attorney who had relied onarticles in respected newspaper and industry publications,publicly available documents, and securities law in filing classaction securities litigation complied with Rule 11(b)); In reAir Disaster at Lockerbie, Scotland, 144 F.R.D. 618, 621(E.D.N.Y. 1992) ("[P]arties and their attorneys may base theircomplaints and requests for discovery on . . . hearsay reportsand statements of others until such time, if ever, as they aresatisfied that the statements . . . are not competent or areotherwise untrustworthy."); Kamerman v. Steinberg,113 F.R.D. 511, 514-15 (S.D.N.Y. 1986) (news articles and public documentsprovide a reasonable factual basis for claims based on securitiesviolations).

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