2004 | Cited 0 times | D. Massachusetts | October 14, 2004

1 With the parties' consent, this case has been referred andreassigned to the undersigned for all purposes including trialand the entry of judgment pursuant to 28 U.S.C. § 636(c).


On September 17, 2002, plaintiff Fieldwork Boston, Inc.("Fieldwork") filed a one-count complaint (#1) against defendantUnited States of America ("United States" or "government"). Thesingle claim was one for common law tort-based indemnity under the Federal Tort Claims Act ("FTCA")arising from the plaintiff having settled a prior civil actionfor an alleged violation of the Massachusetts Wiretap Act, Mass.Gen. L. c. 272, § 99Q on June 14, 1995. Fieldwork seeks damagesfrom the government for the costs it incurred in defending andsettling the prior lawsuit, plus applicable statutory interest aswell as the costs and attorneys' fees incurred in this action. Inlieu of answering the complaint, on January 31, 2003 the UnitedStates filed a motion to dismiss. (#5) Two weeks later onFebruary 14, 2003, the plaintiff filed an opposition to thedispositive motion (#7) and on March 31, 2003, the governmentfiled a reply. (#10)

In response to an argument advanced by the government, on July24, 2003, the District Judge to whom the case was then assignedordered Fieldwork to brief the issue of subject matterjurisdiction. (#11) Thereafter the plaintiff timely submitted itssupplemental memorandum addressing the jurisdictional question.(#12) On August 28, 2003, the Court determined that Fieldwork'svicarious liability argument failed to state a claim upon whichrelief may be granted, but further found that the plaintiff'ssecond theory of indemnification based upon comparative-fault wasviable. The Court denied the government's motion to dismiss(#13), but never addressed the issue of subject matter jurisdiction.

On September 22, 2003, plaintiff Fieldwork filed its firstamended complaint (#16) which contains a claim in a single countfor "common law tort based indemnification." Approximately twomonths later, the United States filed a Rule 12(b)(1) motion todismiss the first amended complaint for lack of subject matterjurisdiction. (#23) On December 4, 2003, Fieldwork filed itsmemorandum in opposition to defendant's motion to dismiss.

Following a hearing on the dispositive motion, the plaintiffwas ordered to file and serve a supplemental brief on or beforethe close of business on June, 4, 2004, and the defendant wasgranted leave to file a reply brief on or before the close ofbusiness on June 11, 2004. With these further filings, the recordis now complete, the motion to dismiss the first amendedcomplaint is in a position to be resolved.


Fieldwork is a Massachusetts corporation that provides focusgroup facilities, including facilities for audio- andvideo-taping the focus group discussions. (#16, ¶ 8) TheDepartment of Veteran Affairs is a cabinet department of theUnited States, the named defendant in this case. (#16, ¶ 2)

According to the amended complaint, in 1995 the Veterans Administration ("VA") sponsored a research project entitled "ThePerceptions and Experiences of Women Veterans in Accessing HealthCare." (#16, ¶ 6) The project was designed to survey femaleveterans on their perceptions and experiences in regard to healthcare they received at the VA. (#16, ¶ 6) In implementing thisproject, the VA employed a research team comprised of threefemale physicians and a female research assistant. (#16, ¶ 7) TheVA's research team made arrangements to use Fieldwork's facilityin Waltham, Massachusetts to conduct their focus groups. (#16, ¶8) In the parties' May 10, 1995 contract, Fieldwork agreed toprovide the VA with a focus group room, an adjacent observationroom, refreshments, and audio- and video-taping facilities. (#16,¶ 8)

On June 20, 1995, Dr. Amy Stern of the VA's research teamcontacted Fieldwork's receptionist to confirm that the focusgroup session would be audioand video-taped. (#16, ¶ 13) Pursuantto her instructions, the focus group session in fact was bothaudio- and video-taped. (#16, ¶ 13) Despite its customarypractice of advising focus group participants using theirfacilities that they would be audio- and video-taped, in order tocomply with the request of the VA's research group, Fieldwork didnot advise the VA focus group participants that their discussionswould be recorded. (#16, ¶ 15) Similarly, although Fieldwork routinely used sign-in sheets which notifiedparticipants that a focus group might be audio-taped and/orvideo-taped, it agreed to forego use of its own sign-in sheets onthe evening of June 20, 1995. (#16, ¶¶ 10, 12) Instead, pursuantto Dr. Stern's instructions, it used a different sign-in sheetcreated by another member of the research team which did notcontain such a notification, but only asked the participants toprovide their names and social security numbers for paymentpurposes. (#16, ¶ 11) It is alleged that Fieldwork abdicated itscustomary procedures in reliance on an oral agreement with Drs.Wolfe, Stern and Daley that the doctors would ". . . orallynotify the focus group participants that they were being taped."(#16, ¶ 12)

The focus group conducted on June 20, 1995 consisted of sevenor eight women. (#16, ¶ 14) In order to assist her with leadingthe discussion, Dr. Jennifer Daley of the VA's research team hadbeen provided beforehand with a written script. (#16, ¶ 16)Although one of the sentences in the introduction of the scriptnotified the group's members that their discussions would beaudiorecorded and video-taped, Dr. Daley omitted that sentenceduring her presentation. (#16, ¶ 16) Moreover, throughout thecourse of the session, she never advised the participants of thetaping and apparently did not realize this until the session hadconcluded. (#16, ¶ 16) Consequently, the focus group participants were audio- and video-taped without their priorauthorization. (#16, ¶ 18) Dr. Wolfe later informed theparticipants that a mistake had occurred when Dr. Daley failed toinform them that the session would be recorded. (#16, ¶ 17)

Three of the participants thereafter filed suit againstFieldwork in the Middlesex Superior Court. (#16, ¶ 20) In theircomplaint, they alleged a civil violation of the MassachusettsWiretap Act, Mass. Gen. L. c. 272, § 99Q, invasion of privacy,and negligent infliction of emotional distress. (#16, ¶ 20) OnOctober 31, 2000, Fieldwork requested that the VA defend andindemnify it for its attorneys' fees as well as settlement costs.(#16, ¶ 21) On December 7, 2000, Fieldwork settled with theparticipants agreeing to pay an aggregate sum of $165,000, witheach participant receiving $55,000. (#16, ¶ 22)

Consequent to this settlement, in 2001 Fieldwork filed suit inthe United States Court of Federal Claims seeking indemnificationfrom the United States. Fieldwork set forth three claims, namely,breach of express contract, breach of implied contract andindemnification. The United States filed a motion to dismissarguing, inter alia, that the Court of Federal Claims lackedjurisdiction pursuant to the Tucker Act given that Fieldwork'sclaims were not contract claims, but rather "sounded in tort." Honorable Loren A. Smith, Senior Judge of the Court of FederalClaims, heard oral arguments on the motion to dismiss on December10, 2001. (#31) Judge Smith ruled from the bench dismissingFieldwork's suit on the grounds that no viable contract claimshad been pled. (#31) He added that the Court of Federal Claimshad no jurisdiction over Fieldwork's possible tort claims, whichcould properly be filed in the United States District Courtpursuant to the FTCA.

On September 17, 2002, Fieldwork filed the instant suit seekingtort-based indemnification. (#16)


Pursuant to Rule 12(b)(1), Fed.R. Civ. P., a defendant maymove to dismiss an action based on lack of federal subject matterjurisdiction. Because federal courts are considered courts oflimited jurisdiction, "federal jurisdiction is never presumed."Viquiera v. First Bank, 140 F.3d 12, 16 (1 Cir., 1998).Instead, "`the party invoking the jurisdiction of a federal courtcarries the burden of proving its existence.'" Murphy v. UnitedStates, 45 F.3d 520, 522 (1 Cir.), cert. denied, 515 U.S. 1144(1995) (quoting Taber Partners, I v. Merit Builders, Inc.,987 F.2d 57, 60 (1 Cir.), cert. denied, 510 U.S. 823 (1993)).

Once a defendant challenges the jurisdictional basis for aclaim under Rule 12(b)(1), the plaintiff bears the burden of provingjurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942);Aversa v. United States, 99 F.3d 1200, 1209 (1 Cir., 1996);Murphy, 45 F.3d at 522. The First Circuit has held that theproponent must clearly indicate the grounds upon which the Courtmay properly exercise jurisdiction over the matter presented:"[I]t is black-letter law that jurisdiction must be apparent fromthe face of the plaintiffs' pleading." PCS 2000 LP v. RomulusTelecommunications, Inc., 148 F.3d 32, 35 (1 Cir., 1998)(quoting Viquiera, 140 F.3d at 18). Hence, if the plaintifffails to show a basis for either diversity or federal questionjurisdiction, the district court must grant the defendant's Rule12(b)(1) motion.

In ruling on a motion to dismiss for lack of jurisdiction, "thedistrict court must construe the complaint liberally, treatingall well-pleaded facts as true and indulging all reasonableinferences in favor of plaintiff." Aversa, 99 F.3d at 1210;Murphy, 45 F.3d at 522. That is not to say that this leniencyeliminates the plaintiff's burden of proving an appropriatejurisdictional basis. Indeed, a plaintiff cannot assert a properjurisdictional basis "merely on `unsupported conclusions orinterpretations of law.'" Murphy, 45 F.3d at 522 (quotingWashington Legal Foundation v. Massachusetts Bar Foundation,993 F.2d 962, 971 (1 Cir., 1993)). Accordingly, a motion todismiss should be granted where, even after assuming all well-pleaded facts as true anddrawing all reasonable inferences in favor of the plaintiff, "itis clear that no relief could be granted under any set of factsthat could be proved consistent with the allegations." Doran v.Massachusetts Turnpike Authority, 348 F.3d 315, 318 (1 Cir.,2003), cert. denied, 124 S.Ct. 2107 (2004) (quoting Gorski v.New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1 Cir.,2002) (citing Hishon v. King and Spalding, 467 U.S. 69, 73(1984))).


A. Is It A Tort?

As noted in the May 10th Procedural Order (#28), theFederal Tort Claims Act, 28 U.S.C. § 2671 et seq., provides, asthe name implies, that the United States shall be liable for tortclaims in certain circumstances. The Court had a substantialquestion as to whether the first amended complaint set forth anytort claim against the United States. As the facts are pleaded,there is nothing to indicate that, at the time the representationwas made that the government would notify participants of thetaping, the representation was false. Rather, what is alleged isthat after the representation was made, the government failed tocomply with what it said it had intended to do. Isn't this afailure of the government to do what it said it would do ratherthan the government failing to do what it said it intended at a time when it, in fact, neverintended to do what it represented? And if this is so, what isthe tort for which the plaintiff seeks to hold the governmentliable?

Consider this. Under the Restatement (Second) of Torts, § 530(1): A representation of the maker's own intention to do or not to do a particular thing is fraudulent if he does not have that intention.And the Comment provides: If the statement is honestly made and the intention in fact exists, one who acts in justifiable reliance upon it cannot maintain an action of deceit if the maker for any reason changes his mind and fails or refuses to carry out his expressed intention into effect. If the recipient wishes to have legal assurance that the intention honestly entertained will be carried out, he must see to it that it is expressed in an enforceable contract, and his action must be on the contract. (Emphasis supplied).

Responding to the Court's query, the plaintiff insists that ithas pled a tort claim, citing several cases in support of itsposition. In the primary case upon which Fieldwork relies,Mullins v. Pine Manor College, the plaintiff, a student, suedthe college she attended after she was raped on campus. PineManor, 389 Mass. 47, 47, 449 N.E.2d 331, 333 (1983). Althoughthe college contended that it owed "no duty to protect studentsagainst the criminal acts of third parties", the Massachusetts Supreme Judicial Court concluded thatjust such a duty could be "grounded on either of two wellestablished principles of law." Pine Manor, 389 Mass. at 50-1,449 N.E.2d at 334-5. It is the second ground to which Fieldworkpoints:

It is an established principle that a duty voluntarily assumed must be performed with due care. Black v. New York, N.H., & H.R.R., 193 Mass. 448, 79 N.E. 797 (1907). See Phillips v. Chicago Hous. Auth., 89 Ill.2d 122, 123, 59 Ill.Dec. 281, 431 N.E.2d 1038 (1982); Cross v. Wells Fargo Alarm Servs., 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472 (1980); Pippin v. Chicago Hous. Auth., 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979). Restatement (Second) of Torts § 323 (1965), states: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking."Pine Manor, 389 Mass. at 52-3, 449 N.E.2d at 336 (footnoteomitted).

The SJC reiterated this principle in a case where a pharmacyasserted that it owed no duty to its customers to warn them aboutpossible side effects of prescribed drugs. Cottam v. CVSPharmacy, 436 Mass. 316, 317, 764 N.E.2d 814, 817 (2002). Indenouncing that argument, the Court wrote: A pharmacy, like any other person or entity, may voluntarily assume a duty that would not otherwise be imposed on it, and thus may voluntarily assume a duty to provide information, advice or warnings to its customers. Massachusetts recognizes that "a duty voluntarily assumed must be performed with due care," and we have approved the principles pertaining to voluntary assumption of a duty as set forth in the Restatement (Second) of Torts § 323 (1965). Mullins v. Pine Manor College, 389 Mass. 47, 52, 53, 449 N.E.2d 331 (1983). "If a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for her protection, that person may be liable for harm caused because of the negligent performance of his undertaking." Thorson v. Mandell, 402 Mass. 744, 748, 525 N.E.2d 375 (1988).2

Cottam, 436 Mass. at 323-4, 764 N.E.2d at 821-2 (footnoteomitted).

In yet a third case, Pierre v. United States, the plaintiffsued the government on behalf of her minor child for personalinjuries resulting from the Department of Housing and Urban Development's ("HUD") allegednegligence in performing a voluntary undertaking of painting ahome she had purchased. Pierre, 741 F. Supp. 306, 307 (D.Mass., 1990). The house was repainted several times but keptpeeling. Pierre, 741 F. Supp. at 308. Although HUD was awarethat given its age the house had lead paint, no one from HUDinspected the premises for lead paint. Pierre,741 F. Supp. at 308. The plaintiff's daughter ingested paint chips andconsequently suffered from lead poisoning. Pierre,741 F. Supp. at 308. Relying on the Mullins decision, the Court found HUDnegligent in its voluntary undertaking and thus liable for theresulting harm.3 Pierre, 741 F. Supp. at 309-10.

Although Fieldwork relies on these decisions for theproposition that "tort liability lies against the Governmentbecause the government voluntarily assumed the duty to notify thefocus group participants of the taping of the proceedings," (#30at 7), it is clear that the good Samaritan rule incorporated inthe Restatement (Second) of Torts § 323 is inapplicable to thefacts at hand The reason for this is simple: section 323mandates that an actor "is subject to liability to the other forphysical harm resulting from his failure to exercise reasonable care to perform his undertaking." There is no physicalinjury at issue in the case at bar.

Fieldwork also cites a second tier of cases, but again, thefacts of each are readily distinguishable. For example, inLaClair v. Silberline Manufacturing Co., Inc., theadministratrix of a decedent employee sued, inter alia, theofficers and directors of the employer company for negligentfailure to provide workmen's compensation insurance. LaClair,379 Mass. 21, 22-3, 393 N.E.2d 867, 868-9 (1979). In discussingthat claim, the Supreme Judicial Court wrote as follows: We hold only that negligence may be found, if the facts permit, where a business official disregards a duty to purchase such insurance or certify his firm as a self-insurer. It is not unusual for the employment relation to give rise to a duty to act on the part of the employer or its agents. E.g., Newman v. Redstone, 354 Mass. 379, 237 N.E.2d 666 (1968) (master has duty to render aid to servant who becomes hurt while in his employ). Cf. Becker v. Interstate Properties, 569 F.2d 1203 (3d Cir. 1977) cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). See generally M.S. Shapo, The Duty to Act: Tort Law, Power & Public Policy 8 (1977).LaClair, 379 Mass. at 29, 393 N.E.2d at 872.

Similarly in the case of Rae v. Air-Speed, Inc., the SJCreiterated

The "well settled rule (is) that an insurance agent or broker who, with a view to compensation for his services, undertakes to procure insurance for another, and through his fault and neglect fails to do so, will be held liable for any damage resulting therefrom." Annot., 64 A.L.R.3d 398, 404, 410 (1975), and cases cited. Massachusetts law, in accordance with the general rule, clearly permits a potential insured (Air-Speed, in this case) to recover in tort for the failure of an insurance agent to perform his duty to obtain an insurance policy. See Rayden Eng'r Corp. v. Church, 337 Mass. 652, 660, 151 N.E.2d 57 (1958).Rae, 386 Mass. 187, 192, 435 N.E.2d 628, 631 (1982).

These cases do not involve the voluntary assumption of a duty.Rather, the duty was imposed by virtue of a given relationshipbetween the parties. This principle is incorporated in theRestatement (Second) of Torts § 314A (1965), § 314A. Special Relations Giving Rise To Duty To Aid Or Protect (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) An innkeeper is under a similar duty to his guests. (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the well as the Restatement (Second) of Torts § 314B (1965),

§ 314B. Duty To Protect Endangered Or Hurt Employee

(1) If a servant, while acting within the scope of his employment, comes into a position of imminent danger of serious harm and this is known to the master or to a person who has duties of management, the master is subject to liability for a failure by himself or by such person to exercise reasonable care to avert the threatened harm.

(2) If a servant is hurt and thereby becomes helpless when acting within the scope of his employment and this is known to the master or to a person having duties of management, the master is subject to liability for his negligent failure or that of such person to give first aid to the servant and to care for him until he can be cared for by others.4 There is no special relationship between Fieldwork and thegovernment which would give rise to any duty between the two.

Perhaps at bottom this conclusion rests on the basicdistinction between contract and tort law and the distinctionbetween malfeasance and nonfeasance. As Judge Keeton wrote in thecase of Redgrave v. Boston Symphony Orchestra,557 F. Supp. 230, 237 (D. Mass., 1983): Actions for breach of contract protect interests in having promises performed, and tort actions protect interests in freedom from harms incident to intrusions upon legally protected interests. See, e.g., W. Prosser, Torts 613, § 92 (4th ed. 1971). The duties of conduct enforced in tort actions may or may not be based in part upon manifested promises, and the interests protected may or may not arise from relationships that involve contracts. Id. A contract for services may create a relationship between parties by reason of which the law recognizes a duty of reasonable care in performance that will support a tort action as well as an action for breach of contract. Massachusetts precedents establish the availability of a tort remedy in such circumstances. When a party binds himself by contract to do a work or to perform a service, he agrees by implication to do a workmanlike job and to use reasonable and appropriate care and skill in doing it. . . . The count in tort states a cause of action as well as the count in contract. Although the duty arises out of the contract and is measured by its terms, negligence in the manner of performing that duty as distinguished from mere failure to perform it, causing damage, is a tort. Abrams v. Factory Mut. Liability Ins. Co., 298 Mass. 141, 143-44, 10 N.E.2d 82, 83-84 (1937). See also Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 F. 573 (1st Cir. 1917); Previews, Inc. v. Everets, 326 Mass. 333, 94 N.E.2d 267 (1950); Damiano v. National Grange Mut. Liab. Co., 316 Mass. 626, 56 N.E.2d 18 (1944); Dorr v. Massachusetts Title Ins. Co., 238 Mass. 490, 131 N.E. 191 (1921).The instant case involves nonfeasance (a complete failure toperform a promise) which does not give rise to tort liabilityrather than malfeasance (negligence in the manner of performingwhat has been promised) which can result in tort liability. Asone commentator has noted, "[m]uch scorn has been poured in thedistinction [between nonfeasance and malfeasance], but it doesdraw a valid line between the complete non-performance of apromise, which in the ordinary case is a breach of contract only,and a defective performance, which may also be a matter of tort." Prosser & Keeton on Torts, 660, § 92(5th ed. 1984).5

In sum, the plaintiff has not articulated a viable theory uponwhich it can recover in tort on the facts of this case.6None of the cases upon which Fieldwork relies support its allegedcause of action. Given these circumstances, the plaintiff's claimmust fail.

B. Judicial Estoppel

1. The Doctrine

The doctrine of judicial estoppel or "preclusion ofinconsistent positions" prevents a party from asserting aposition in one legal proceeding which is antithetical to a position previously taken in an earlierproceeding. Patriot Cinemas, Inc. v. General Cinema Corp.,834 F.2d 208, 211-12 (1 Cir., 1987). The First Circuit recognizesthat the doctrine of judicial estoppel is utilized in situationswhen a "litigant is `playing fast and loose with the courts,' andwhen `intentional self-contradiction is being used as a means ofobtaining unfair advantage in a forum provided for suitorsseeking justice.'" Patriot Cinemas, 834 F.2d at 212 (quotingScarano v. Central R. Co., 203 F.2d 510, 518 (3 Cir., 1953)).The underlying purpose of the doctrine "is to safeguard theintegrity of the courts by preventing parties from improperlymanipulating the machinery of the judicial system." AlternativeSystem Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1Cir., 2004) (citations omitted).

In order for judicial estoppel to be applicable, it is "widelyrecognized" that "at a minimum, two conditions must besatisfied." Synopsys, 374 F.3d at 33. Initially, the previouslyasserted position or estopping position, and the presentlyasserted position or estopped position, must be "mutuallyexclusive" and "clearly inconsistent." Synopsys,374 F.3d at 33; New Hampshire v. Maine, 532 U.S. 742, 750 (2001). Second,the party to be estopped, in this instance the United States,must "have succeeded in persuading a court to accept its priorposition." Synopsys, 374 F.3d at 33 (citing Lydon v. BostonSand & Gravel, Co., 175 F.3d 6, 13 (1 Cir., 1999)); Gens v. RTC, 112 F.3d 569, 572(1 Cir.), cert. denied, 522 U.S. 931 (1997). Together these twoconditions give the impression that either the "first court hasbeen misled or the second court will be misled, thus raising thespecter of inconsistent determinations and endangering theintegrity of the judicial process." Synopsys, 374 F.3d at 33(citing New Hampshire, 532 U.S. at 750-51).

Another consideration weighed by courts, albeit "not a formalelement of a claim of judicial estoppel," is whether the partyasserting the alleged inconsistent position would gain an unfairadvantage. Synopsys, 374 F.3d at 33. This element, however, isnot a "sine qua non to the applicability of judicial estoppel"for it is the court's acceptance of the argument, "not thebenefit flowing from the acceptance, that primarily implicatesjudicial integrity." Synopsys, 374 F.3d at 33.

In sum, it can generally be stated that in the situation where"`a party has adopted one position, secured a favorable decision,and then taken a contradictory position in search of legaladvantage" the doctrine of judicial estoppel may be invoked.Synopsys, 374 F.3d at 33 (quoting Intergen v. Grina,344 F.3d 134, 144 (1 Cir., 2003)).

It has also been recognized by the First Circuit as well asother circuit courts and the Supreme Court that "courts are for obvious reasonsreluctant to permit estoppels against the UnitedStates."7 Howell v. F.D.I.C., 986 F.2d 569, 575 (1Cir., 1993) (citing Heckler v. Services of Crawford County,467 U.S. 51, 60 (1984)); see also United States v. Owens,54 F.3d 271, 274 (6 Cir.), cert. dism. by, Spirko v. U.S., 516 U.S. 983(1995); E.E.O.C. v. Exxon, Corp., 1 F. Supp.2d 635, 646-47(N.D. Tex., 1998), aff'd, 202 F.3d 775 (5 Cir., 2000). Asarticulated by the Supreme Court: When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.Heckler v. Community Health Services of Crawford County, Inc.,467 U.S. 51, 60 (1984) (footnote omitted).

The Sixth Circuit on a rare occasion enforced the judicialestoppel doctrine against the United States, finding that therehad been a "knowing assault upon the integrity of the judicialsystem" where the defendant had taken one position, securingjudicial acquiescence, "and then knowingly attempt[ed] topersuade a different court to accept a fundamentally inconsistentposition." Reynolds v. Commissioner of Internal Revenue,861 F.2d 469, 474 (6 Cir., 1988). In a subsequent decision, UnitedStates v. Owens, the Sixth Circuit highlighted the reasoning inReynolds that judicial estoppel, which may apply against thegovernment where equitable estoppel may not, should still "beconstrued narrowly against the government for the policy reasonsstated in Heckler." Owens, 54 F.3d at 275.

Accordingly, it is appropriate to evaluate the facts of thecase at bar using the elements set forth in Patriot Cinemas andits progeny bearing in mind that the party sought to be estoppedin this case is the United States government.

2. Application of the Doctrine

In the Court of Federal Claims, the government took theposition that that court lacked jurisdiction for two reasons: (1)that it lacked jurisdiction over the indemnification claim whichwas really a tort claim and (2) that it lacked jurisdiction overthe alleged breach of express and implied contract claims.(Affidavit of Matthew W. Perkins #31, Exh. 2) It is the firstclaim that represents the alleged estopping position at issuehere.

The United States argued that the indemnification claim"sounded in tort" and thus fell outside of the jurisdictiongranted to the Court of Federal Claims by the Tucker Act. (#31, Exh. 2) It was further asserted in themoving papers that the claim was in fact a tort claim likelygoverned by the FTCA such that proper jurisdiction would lie inthe District Court if the prerequisites of 28 U.S.C. § 2675 couldbe satisfied, that is, if under Massachusetts law, tort-basedindemnification is available. (#31, Exh. 2) The governmentelaborated on this position during oral argument, stating thatthis scenario is "precisely the type of situation that theFederal Tort Claims Act provides relief for, where there is anegligent omission by a government actor in the course ofperforming duties, the official duties of that government actor."(#31, Exh. 4) At no time, however, did the United States discussthe viability of Fieldwork's purported tort claim underMassachusetts law. In the instant case it is the government'sposition that under Massachusetts law, Fieldwork had anon-delegable duty to inform the group participants that theywould be recorded and therefore is not entitled toindemnification under the FTCA. (#34)

These positions are not totally inconsistent and do not rise tothe level necessary to invoke the doctrine of judicial estoppel.In Patriot Cinemas the plaintiffs argued that they would notrevive their antitrust claim if the defendant's motion for a staywas denied. See Patriot Cinemas, 834 F.2d at 212. While givingno reasons, the Court did deny the stay. Patriot Cinemas, 834 F.2d at 212. Subsequently, Patriot Cinemas attempted torevive its antitrust claim and have it remanded to state court.Patriot Cinemas, 834 F.2d at 212. The Court pointed out thatPatriot Cinemas attempted to obtain an advantage by telling theSuperior Court it would take the exact opposite course of action,i.e., not reviving its antitrust claim. Patriot Cinemas,834 F.2d at 212. Had Patriot Cinemas not made this representation,the Superior Court would have granted the defendant's motion.Patriot Cinemas, 834 F.2d at 212.

In Synopsys, an action for breach of contract, theplaintiff's initial argument was that the defendant had breacheda letter of understanding between two of the parties. Synopsys,374 F.3d at 34. In a subsequent motion, plaintiffs argued thatthe breach of contract did not relate to the letter ofunderstanding, but rather to a permanent oral agreement.Synopsys, 374 F.3d at 34. The First Circuit observed that thistactic was used to "dance[] out of the reach of Synopsys' statuteof frauds defense," and "[h]aving skirted that pitfall, ASC thenadopted a vastly different position." Synopsys, 374 F.3d at 34.The Court found "these positions [to be] totally inconsistent,"and added that ASC's second argument "directly contradicts" itsprior claim. Synopsys, 374 F.3d at 34.

In the case at bar, the government's conduct does not rise tothat level of "directly contradict[ing]" its previous argument, nor is it"totally inconsistent" with its position in the Court of FederalClaims. The United States, while stating that Fieldwork's claimwas a tort claim, not contract claim, did not discuss theviability of the potential tort claim or what the Massachusettslaw was with respect to the availability of indemnification. Tothe extent that the government did discuss the indemnificationclaim as a tort, it merely stated that the requisite necessitiesfor a common law negligence claim were present, thus jurisdictionwould be appropriate in the District Court and not the Court ofFederal Claims.

Given the deficiency in the first element, the inquiry couldend here. However, an examination of the second element will makethe picture even clearer.

Part two of the judicial estoppel formula is missing as well.It must be evident from a review of the record that in the othertribunal the contrary argument was relied on by the court inmaking its decision. Synopsys, 374 F.3d at 33 (citing Lydon v.Boston Sand & Gravel, Co., 175 F.3d 6, 13 (1 Cir., 1999)).Again, Patriot Cinemas is helpful in this analysis. TheSuperior Court in Patriot Cinemas, as noted above, denied thedefendant's motion for a stay because of the plaintiff'srepresentation. See Patriot Cinemas, 834 F.2d at 213. The First Circuit noted that "Patriot can be said to have made abargain with the superior court. It traded its chance for successon the antitrust claim for an increased pace in the proceedingson the remaining three counts." See Patriot Cinemas,834 F.2d at 213. This is the sort of successful persuasion necessary tospur the application of judicial estoppel.

Synopsys also offers guidance on the second element. Recallin Synopsys the plaintiffs first argued to the district court,upon Synopsys' motion to dismiss, that their claim was based noton a permanent oral contract, but on a breach of the letter ofunderstanding. Synopsys, 374 F.3d at 34. The first court, inits decision, noted this position in denying the defendant'smotion: "`Synopsys mistakenly assumes that ASC is claiming abreach of an oral agreement . . .'" The reviewing court foundthat "[t]here is no question but that the district court boughtwhat ASC was selling that first time around." Synopsys,374 F.3d at 34. Although the position taken by ASC only temporarilyhelped them get around the defendant's statute of frauds defense,the First Circuit noted that the district court had "relied onASC's stated position to repulse Synopsys's statute of fraudsassault and allow the breach of contract count to go forward."Synopsys, 374 F.3d at 34.

A review of the transcript from the Court of Federal Claimsreveals that the case at bar is entirely distinguishable from both PatriotCinemas and Synopsys. (#31, Exh. 4) Judge Smith, whileapparently under the impression that there may be a viable tortclaim, ultimately dismissed the case for the lack of anydiscernable contract claim. (#31, Exh. 4 at 27-8) Indeed, theJudge stated that, as then pled, the case was not eventransferable to the District Court because no distinguishabletort claim existed; "since a claim has not been made, there is nojurisdiction at this point in the District Court." (#31, Exh. 4at 29) Whether the claim was a tort was not pivotal to theJudge's determination. Rather, the Judge decided the motion todismiss premised on his view that "there really is not a basisfor finding a contract in this case." (#31) In other words, JudgeSmith would have dismissed the action for the lack of anycontract claim irrespective of the government's position that theclaim sounded in tort. This is to say, not only is it uncertainwhether the Court of Federal Claims "bought what [the government]was selling the first time around," it is equally uncertain theUnited States was really "selling" that a valid tort claimexisted. Synopsys, 374 F.3d at 34.

V. CONCLUSION To summarize, Fieldwork has not alleged a viable tortclaim.8 Further, the United States is not judiciallyestopped from arguing that Fieldwork has not stated a viable tortclaim. In these circumstances, and for the reasons stated, it isORDERED that Defendant's Motion To Dismiss First AmendedComplaint (#23) be, and the same hereby is, ALLOWED. Judgmentshall enter for the defendant.

1. In the Thorson case, while rehearsing for a play on thedefendant's premises, the plaintiff was gravely injured when shefell while attempting to perform a backflip. Reviewing potentialgrounds upon which to premise liability, the Supreme JudicialCourt wrote: Thorson's first theory is based on an asserted applicability of the "good Samaritan" principles expressed in Restatement (Second) of Torts § 323 (1965), and recognized in Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983), and earlier cases. If a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for her protection, that person may be liable for harm caused because of the negligent performance of his undertaking. The YWCA did not assume any duty to Thorson nor did it undertake to render any services to her which the YWCA should have recognized as necessary for her protection.Thorson, 402 Mass. at 748, 525 N.E.2d at 378 (footnoteomitted).

2. HUD was also liable "on account of [its] violation of itsduty to obey its own regulations when it repainted the premises."Pierre, 741 F. Supp. at 309.

3. This notion of a duty arising by virtue of a relationshipis also set forth in a tentative draft for the Restatement(Third) of Torts: § 41. Duty To Another Based On Special Relationship With The Other Tentative Draft No. 4: An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. Special relationships imposing this duty include: (1) a common carrier with its passengers, (2) an innkeeper with its guests, (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises, (4) an employer with its employees, (5) a school with its students, (6) a landlord with its tenants, and (7) a custodian with those in its custody, if the custodian is required by law to take custody or voluntarily takes custody of the other and the custodian has a superior ability to protect the other.

4. It does not appear to be disputed that the allegedagreement whereby the agents of the VA would obtain the consentswas a separate oral agreement apart from the written contractbetween the parties. The written agreement between the parties,which was in the form of a Purchase Order (see #6, Exh. A),contains no provisions which in any way cover the issue ofobtaining consent. Consequently, it cannot be argued that thefailure to obtain consent was negligence in the manner ofperforming the written contract.

5. As indicated, the single count in Fieldwork's first amendedcomplaint (#16) is for "common law tort based — indemnification."In order to be entitled to indemnification on this theory, theUnited States has to be liable in tort. As indicated, the Courtfinds that the United States' liability, if any, is not in tort.The undersigned thus disagrees with Judge Wolf's analysis in hisMemorandum and Order of August 28, 2003 (p. 6) in this case inwhich he wrote: Fieldwork's . . . theory of indemnification, that of comparative fault, is tenable at this stage. The theory allows a negligent party — the indemnitee [i.e., Fieldwork] — to recover when "the indemnitee's negligence has been insignificant in relation to that of the indemnitor." Rathburn [v. Western Mass. Elect. Co.,], 395 Mass. [361] at 364 [(1985)]. Fieldwork alleges that it only provided the facilities to the VA and did not notify the participants of the recording in reliance upon the express representation of the focus group leaders that they would seek releases. If proven, these allegations would be sufficient to require that the United States indemnify Fieldwork on a comparative fault theory. Id.

6. According to the First Circuit, "[t]here are many reasonsfor the reluctance, including a concern for the public purse anda recognition that the government — unlike the normal actor — isan enterprise so vast and complex as to preclude perfectconsistency." Howell, 986 F.2d at 575 (citation omitted).

7. The "law of the case" is not transgressed by thisconclusion. That Judge Smith determined there was no basis forfinding a contract on the facts as then alleged simply does notcompel the conclusion that a viable tort claim is stated.

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