372 F.Supp.2d 195 (2005) | Cited 0 times | D. Massachusetts | June 8, 2005


This is a wrongful death suit brought under the Federal TortClaims Act ("FTCA")1 by Catherine Deegan Patterson andYvonne Deegan Gioka, the daughters of Edward "Teddy" Deegan.Plaintiffs claim that the FBI and former agent Dennis Condonnegligently caused, or failed to prevent, the murder of TeddyDeegan in 1965. Defendants argue that Plaintiffs' claims arebarred by the FTCA's statute of limitations. Background

On March 12, 1965, FBI informants Vincent James Flemmi2and Joseph Barboza murdered Teddy Deegan in Chelsea,Massachusetts.3 Before the murder, FBI agents had actualknowledge that Flemmi planned to kill Deegan. The FBI agents,however, did not warn Deegan, and failed to take any actions tocontrol Flemmi or to prevent Deegan's murder. Other individuals,including Peter Limone and Joseph Salvati, were wrongly convictedof the murder. These men spent decades in prison. For over thirtyyears, the FBI concealed its relationship with Flemmi and itsknowledge that Flemmi and Barboza murdered Teddy Deegan. Thetruth eventually came to light.

On December 21, 2000, the Boston Globe published an articleentitled, "FBI reportedly hid key evidence; Documents show itknew of Deegan slaying plot in `65." The article began: Secret documents recently discovered in a Justice Department probe of FBI corruption appear to show that the bureau knew not only that the wrong men were convicted of a 1965 gangland murder, but also that agents were told about the plot two days before it happened and apparently did nothing to stop it.4Defendant Dennis Condon was one of the FBI agents who allegedlyknew that Flemmi planned to murder Deegan. In early January of2001, several other New England newspapers published these explosive revelations.5

Based on this newly discovered evidence, Massachusetts SuperiorCourt Justice Margaret Hinkle vacated Peter Limone'sconviction.6 On January 8, 2001, Justice Hinkle issued anunpublished opinion discussing the internal FBI documents showingthe Bureau's knowledge of the plot to murder Deegan.7This decision immediately generated extensive regional andnational media coverage.8

On January 18, 2001, Justice Hinkle also vacated the convictionof Joseph Salvati.9 Salvati had been convicted along withPeter Limone for the murder of Teddy Deegan. This decision alsoreceived extensive national media attention.10 On January 27, 2003, Richard Deegan, Teddy Deegan's brother,filed a notice with the FBI of his claim for wrongful death underthe FTCA.11 Richard Deegan filed notice of the claimpurportedly acting on behalf of the Deegan Estate. RichardDeegan, however, was a voluntary administrator.12 Assuch, he had no authority under Massachusetts law to bring orsettle a wrongful death suit.13 The Department of Justicedenied his claim, and apparently he did not pursue it further.14

Subsequently, Catherine Deegan Patterson was appointedAdministratrix of the Deegan Estate. On December 5, 2003,Plaintiffs Catherine Deegan Patterson and Yvonne Deegan Gioka,Teddy Deegan's daughters, filed notice of their claims with theFBI for wrongful death and for emotional distress. Plaintiffshave sued both in their individual capacities and on behalf ofthe Deegan Estate. The United States and former FBI agent DennisCondon have moved to dismiss the complaint pursuant to Rule12(b)(1) of the Federal Rules of Civil Procedure. Discussion

In considering Defendants' motion to dismiss, this court must"construe the Complaint liberally and treat all well-pleadedfacts as true, according the plaintiff the benefit of allreasonable inferences."15 When faced with a Rule 12(b)(1)motion to dismiss, however, a district court "may considerextrinsic materials and, to the extent it engages injurisdictional factfinding, is free to test the truthfulness ofthe plaintiff's allegations."16 To determinejurisdiction, this court will consider the exhibits attached tothe pleadings and the evidentiary materials submitted by theparties. In doing so, this court does not convert the motion todismiss into a motion for summary judgment.17

Defendants argue that this court lacks subject matterjurisdiction because Plaintiffs did not file an administrativenotice of their claims within two years of the accrual of theaction, as required by 28 U.S.C. § 2401(b). Defendants contendthat Plaintiffs' cause of action accrued, at the very latest, onor about January 8, 2001 — the day Justice Hinkle issued heropinion vacating Peter Limone's conviction in light of the newlydiscovered internal FBI memoranda. Plaintiffs filed notice of theirclaims with the FBI on December 5, 2003, almost three years later.

Plaintiffs argue that Catherine Deegan Patterson knew nothingof Justice Hinkle's decisions or the internal FBI documents untilshe "received sketchy information from a friend" in February of2001.18 Ms. Patterson lives in New Hampshire, and she"did not read the Boston media or watch any programs on television about these newdisclosures."19 Throughout the relevant time period,Yvonne Deegan Gioka was living in Georgia.20 Ms. Giokabecame physically disabled as a result of a car accident in1996.21 She also has Lyme disease, chronic fatiguesyndrome, and she suffered a stroke in 2002.22 Ms. Giokahad no actual knowledge of the FBI's involvement in her father'smurder until her sister informed her of the latest developmentsin the summer of 2002.23

Because the FTCA is a waiver of sovereign immunity, the statutemust be strictly construed.24 The FTCA provides, "A tortclaim against the United States shall be forever barred unless itis presented in writing to the appropriate Federal agency withintwo years after such claim accrues."25 The First Circuithas held that a claim accrues under the FTCA "when the plaintiffdiscovers, or in the exercise of reasonable diligence should havediscovered, the factual basis for the cause of action."26Furthermore, "[t]he test for whether a plaintiff should have discovered necessary facts is an objective one."27 Adetermination as to when a cause of action accrues under this"discovery rule" involves a two-step inquiry.

First, this court must determine "whether sufficient facts wereavailable to provoke a reasonable person in the plaintiff'scircumstances to inquire or investigate further" with respect tothe factual basis for the cause of action.28 Once thisduty to investigate is established, the plaintiff is deemed tohave knowledge of what she would have discovered through areasonably diligent investigation.29 Second, this courtmust determine "whether the plaintiff, if armed with the resultsof that investigation, would know enough to permit a reasonableperson to believe that she had been injured and that there is acausal connection between the government and herinjury."30 Where there are multiple plaintiffs, eachplaintiff's circumstances must be considered individually.31

In her affidavit, Catherine Deegan Patterson admits that shelearned, in February of 2001, that the FBI could have preventedher father's murder.32 At this time, a reasonable personin Ms. Patterson's circumstances would have been provoked toinvestigate further. Had she done so, she would have discoveredcredible evidence of the following: (1) Vincent James Flemmi andJoseph Barboza murdered Teddy Deegan; (2) at the time, Flemmi wasa FBI informant; (3) Flemmi's relationship with the FBI helped him become a full-time assassin;(4) FBI agents knew of Flemmi's plans to kill Deegan before themurder occurred; and (5) FBI agents, including Dennis Condon, didnothing to prevent the murder. Every material fact alleged inPlaintiffs' complaint became public knowledge in late December of2000 and early January of 2001.

Armed with the results of this hypothetical investigation, areasonable person would have known enough to believe that she hadbeen injured and that there was a causal connection between theGovernment and her injury. Yet Plaintiffs filed notice of theirclaims with the FBI on December 5, 2003, roughly two years andnine months after Ms. Patterson's claims accrued.

Plaintiff Yvonne Deegan Gioka, on the other hand, claims tohave had no actual knowledge of the FBI's complicity in herfather's murder until her sister informed her in the summer of2002.33 Ms. Gioka lived in Georgia, and she suffers from"severe physical problems."34 Moreover, Ms. Gioka had"relatively little contact" with the Deegan side of thefamily.35 Though the inquiry is an objective one, thesecircumstances must be considered in determining when Ms. Giokareasonably should have discovered the facts of hercase.36

On January 8, 2001, Superior Court Justice Margaret Hinkleissued her opinion vacating Peter Limone's conviction for themurder of Ms. Gioka's father. A reasonable person in Ms. Gioka'scircumstances would have had a significant interest in thisevent. Justice Hinkle's opinion specifically discussed the internal FBI documents, and herdecision generated extensive national media coverage.37For example, on January 8, 2001, Bryant Gumbel interviewed PeterLimone and his attorney, John Cavicchi, on CBS's "Early Show." Atone point during the interview, Mr. Gumbel asked, "What did theFBI documents reveal that led to this release?" Mr. Cavicchianswered, "Well, the FBI documents reveal that two days beforethe murder took place, the FBI knew who the murdererwas."38

On January 18, 2001, Justice Hinkle also vacated the convictionof Joseph Salvati.39 Salvati had been convicted alongwith Peter Limone for the murder of Plaintiffs' father. Thisdecision also received widespread media attention.40 OnMay 3, 2001, a Congressional committee investigating the BostonFBI office apologized to Mr. Salvati and his wife.41

Given her circumstances, Ms. Gioka cannot reasonably beexpected to have read any specific Boston newspaper. Whereevents, however, receive "widespread publicity, plaintiffs may becharged with knowledge of their occurrence."42 Areasonable person in Ms. Gioka's situation, would have discovered, within a reasonable period of time, thatthe persons convicted of her father's murder had been exonerated.At least some of the national media coverage surrounding theseevents should have come to her attention. Indeed, Ms. Giokaremembers seeing something about Joseph Salvati on CNN.43Although it is unclear when Ms. Gioka learned that Salvati andLimone had been exonerated, she should have discovered this factbefore December 5, 2001 — almost one year after Justice Hinkle'sdecisions.

Knowing that Limone and Salvati had been exonerated wouldprovoke a reasonable person in Ms. Gioka's circumstances toinquire further into the reasons for Justice Hinkle's decisions.With reasonable diligence, she would have discovered the entirefactual basis for her cause of action. And she would have knownenough to believe that she had been injured and that there was acausal connection between the Government and her injury.

Plaintiffs argue, however, that the filing of theiradministrative notice should relate back to January 27, 2003 —the date that Plaintiffs' uncle, Richard Deegan, filed notice ofhis claim. In seeking to adopt Richard Deegan's filing date,Plaintiffs point out that the burden of filing a notice under theFTCA is "minimal."44 "[A]s long as the language of anadministrative claim serves due notice that the agency shouldinvestigate the possibility of particular (potentially tortious)conduct and includes a specification of the damages sought, itfulfills the notice-of-claim requirement."45

Minimal as the notice-of-claim requirement may be, this courtis unaware of any case in which a plaintiff has been permitted to adopt a differentclaimant's filing date. Perhaps the closest case is Williams v.United States.46 In Williams, the Fifth Circuit heldthat minor plaintiff's mother, who had long been involved in thecase as "next friend," could amend the complaint to sue on herown behalf after the FTCA's statute of limitations hadrun.47 Under these circumstances, the Fifth Circuitreasoned that the Government was on notice, from the beginning,that the mother's claim was involved.48

Here, Richard Deegan's separate and earlier claim for wrongfuldeath did not give the United States sufficient notice ofPlaintiffs' individual claims for emotional distress. A strongercase can be made for "relation back" with respect to Plaintiffs'wrongful death claims. These are the very same claims thatRichard Deegan attempted to pursue. Richard Deegan, however, hadno authority under Massachusetts law to bring or compromise awrongful death suit.49 Because Richard Deegan lacked suchauthority, the United States had no incentive to investigate themerits of his claim or to attempt settlement. The purpose ofproviding the United States notice of the claim is to encouragesuch investigation and, hopefully, extra-judicialresolution.50 Consistent with the purpose of thenotice-of-claim requirement, and a strict construction of theFTCA's waiver of sovereign immunity, this court finds thatRichard Deegan did not provide the United States sufficient notice of Plaintiffs' wrongful death claims.Relation back would be inappropriate under the circumstances. Forthe foregoing reasons, Defendants' Motion to Dismiss is ALLOWED.


1. 28 U.S.C. §§ 1346, 2671 et seq.

2. Vincent James Flemmi is the brother of Stephen "TheRifleman" Flemmi. Ralph Ranalli, FBI Reportedly Hid KeyEvidence, Boston Globe, Dec. 21, 2000, at B1.

3. Compl. ¶¶ 10, 13. Unless otherwise noted, the backgroundfacts are drawn from Plaintiffs' complaint. This court assumes,for the purposes of this motion, that Plaintiffs' allegations aretrue.

4. Ralph Ranalli, FBI Reportedly Hid Key Evidence, BostonGlobe, Dec. 21, 2000, at B1.

5. E.g., J.M. Lawrence, Lawyer Urges Judge to Free ManJailed in 1965 Mob Killing, Boston Herald, Jan. 2, 2001, at 12;Jonathan Wells, Another Day in Court; DA to Seek New Trials forConvicts in Mob Hit, Boston Herald, Jan. 4, 2001, at 4; FourConvicted in Mob Killing Could Be Cleared, Prosecutor ExaminingFresh Evidence; Men May Have Been Framed, The Hartford Courant,Jan. 4, 2001, at A7; New Trial Ordered for Man Who Served 32Years for Murder, Providence J., Jan. 6, 2001, at 5A.

6. Commonwealth v. Limone, Nos. 32367, 32369, 32370, 2001 WL30494 (Mass.Super. Jan. 8, 2001).

7. See id. at *3-4.

8. E.g., John Bacon, Freedom Means Family After ThreeDecades, USA Today, Jan. 8, 2001, at A3; Convicted KillerFreed, Orlando Sentinel, Jan. 8, 2001, at A11; MassachusettsMan Jailed for 32 Years is Freed in Murder Case, Miami Herald,Jan. 6, 2001, at 22A; Murder Conviction Tossed in 60's Case,N.Y. Times, Jan. 7, 2001, § 1 (Magazine), at 15; See UnitedStates' Reply to Pls.' Opp'n to Mot. Dismiss Exs. 1, 2.

9. National News Briefs; Conviction Thrown Out in Mob MurderCase, N.Y. Times, Jan. 19, 2001, at A21.

10. E.g., Martin Finucane, Judge Vacates Man's MurderConviction, Associated Press, Jan. 18, 2001; Carey Goldberg, AnInnocent Man Goes Free 33 Years After Conviction, N.Y. Times,Feb. 2, 2001, at A12; Charges Nixed for 2 Claiming FBIFrame-Up, USA Today, Jan. 31, 2001, at A5; Duo's ChargesDropped in `65 Underworld Killing, Houston Chronicle, Jan. 31,2001, at A5; Injustice, St. Petersburg Times (Florida), Feb. 7,2001, at 12A; Innocent Man Goes Free 33 Years After Conviction,Charleston Gazette (West Virginia), Feb. 4, 2001, at 10A; Nationin Brief/Massachusetts; Charges Dropped in 1965 Mob Killing,L.A. Times, Jan. 31, 2001, at A5; News in Brief, The Herald-Sun(Durham, NC) Jan. 31, 2001, at A3.

11. Opp'n of Pls. to United States' Mot. to Dismiss Ex. C.

12. Id.

13. See Marco v. Green, 615 N.E.2d 928, 932 (Mass. 1993)("In sum, we hold that a voluntary administratrix acting pursuantto § 16 possesses no authority to bring a wrongful death claim,or to settle one.").

14. See United States' Reply to Pls.' Opp'n to Mot. toDismiss Ex. 4.

15. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995).

16. Dynamic Image Techs., Inc. v. United States,221 F.3d 34, 37-38 (1st Cir. 2000).

17. Rakes v. United States, 352 F. Supp. 2d 47, 70 (D. Mass.2005).

18. Opp'n of Pls. to United States' Mot. to Dismiss at 4.

19. Id.

20. Aff. of Yvonne Deegan Gioka ¶ 5.

21. Id. ¶ 9.

22. Id.

23. Id. ¶ 10.

24. Skwira v. United States, 344 F.3d 64, 73 (1st Cir.2003); Rakes v. United States, 352 F. Supp. 2d 47, 70 (D. Mass.2005).

25. 28 U.S.C. § 2401(b).

26. McIntyre v. United States, 367 F.3d 38, 52 (1st Cir.2004) (quoting Gonzalez v. United States, 284 F.3d 281, 288(1st Cir. 2002)) (quotations omitted).

27. Id. (emphasis added).

28. Id.

29. Id.

30. Id.

31. Id. at 59.

32. Aff. of Catherine Deegan Patterson ¶ 7.

33. Aff. of Yvonne Deegan Gioka ¶ 10.

34. Id. ¶ 9.

35. Id. ¶ 6.

36. McIntyre, 367 F.3d at 59-60.

37. See, e.g., newspapers cited supra note 8.

38. United States' Reply to Pls.' Opp'n to Mot. to Dismiss Ex.2.

39. National News Briefs; Conviction Thrown Out in Mob MurderCase, N.Y. Times, Jan. 19, 2001, at A21.

40. See, e.g., newspapers cited supra note 10.

41. The FBI's Controversial Handling of Organized CrimeInvestigations in Boston: Hearing Before the House Gov't ReformComm., 107th Cong. (2001) (statements of Rep. ChristopherShays); Ken Maguire, Panel Probing FBI Apologizes to Man WronglyJailed, Associated Press, May 3, 2001.

42. McIntyre, 367 F.3d at 60 (quoting United Klans of Am.v. McGovern, 621 F.2d 152, 154 (5th Cir. 1980)).

43. Aff. of Yvonne Deegan Gioka ¶ 8.

44. Opp'n of Pls. to United States' Mot. to Dismiss at 6.

45. Dynamic Image Techs., Inc. v. United States,221 F.3d 34, 40 (1st Cir. 2000).

46. 405 F.2d 234 (5th Cir. 1968).

47. Id. at 239.

48. Id. See also Avila v. I.N.S., 731 F.2d 616 (9th Cir.1984) (holding that a father's individual claim related back tothe claim he filed on behalf of his mentally incompetent son).

49. See Marco v. Green, 615 N.E.2d 928, 932 (Mass. 1993).

50. See Cadwalder v. United States, 45 F.3d 297, 302 (9thCir. 1995).

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