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Laloup v. United States

United States District Court, E.D. Pennsylvania

March 20, 2015

CRAIG LALOUP, et ux.
v.
UNITED STATES OF AMERICA

For CRAIG LALOUP, BEVERLY LALOUP, Plaintiffs: AARON J. FREIWALD, LEAD ATTORNEY, LAYSER & FREIWALD PC, PHILADELPHIA, PA; GLENN A. ELLIS, LAYSER & FREIWALD PC, PHILADELPHIA, PA.

For UNITED STATES DEPT. OF DEFENSE, UNITED STATES DEPT. OF NAVY, UNITED STATES OF AMERICA, Defendants: COLIN MICHAEL F.X. CHERICO, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.

Page 341

MEMORANDUM

STEWART DALZELL, J.

I. Introduction

Plaintiffs Craig and Beverly LaLoup are suing the United States of America for negligent infliction of emotional distress by the Marine Corps in the course of its informing them that the body of their son, Marine Sergeant Brian LaLoup, had been returned to them without his heart after his death and autopsy while deployed in Athens, Greece.[1]

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After discovery, the LaLoups moved for partial summary judgment (the " PSJ" ). The Government responded with a motion to dismiss, or, in the alternative, motion for summary judgment (the " MTD" ).

In their motion for partial summary judgment, the LaLoups argue that the Government owed them a duty of care (1) not to withhold information from them as his next-of-kin about Sgt. LaLoup, the deceased service member, and (2) to take all necessary steps to preserve, recover, and return Sgt. LaLoup's remains to them. PSJ at 6, 8-9.

In response, the Government argues that we should dismiss the LaLoups' complaint because they cannot state a claim for negligent infliction of emotional distress under the Federal Tort Claims Act (" FTCA" ), as 28 U.S.C. § 2680(h) bars claims based upon a misrepresentation. MTD at 7. In the alternative, the Government argues that it, and not the LaLoups, is entitled to summary judgment because the LaLoups cannot establish the required duty between the Marine Corps and themselves to support their negligent infliction of emotional distress claim under Pennsylvania law. MTD at 11.

II. Standards of Review

As the LaLoups filed a motion for partial summary judgment and the Government filed a motion to dismiss, or, in the alternative, motion for summary judgment, we will discuss both legal standards as they apply to the arguments before us.

A. Motion to Dismiss

If we determine at any time that we lack subject-matter jurisdiction, we must dismiss the action. Fed.R.Civ.P. 12(h)(3). Parties may assert such a defense by motion. Fed.R.Civ.P. 12(b)(1). A motion under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject-matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a facial attack, we must only consider -- in the light most favorable to the plaintiff -- the allegations of the complaint and documents attached thereto. Id. But in a factual attack we may consider evidence outside the pleadings. Id. We may therefore consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction. Gotha v. United States, 115 F.3d 176, 179, 36 V.I. 392 (3d Cir. 1997), citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir. 1977) (explaining that the court is free to weigh the evidence to satisfy itself as to the existence of its power to hear the case). Factual attacks under Rule 12(b)(1) differ markedly from motions under Rule 12(b)(6) and Rule 56 because " no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional

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claims." Mortensen, 549 F.2d at 891. The plaintiff bears the burden of showing that subject-matter jurisdiction exists. Id.

Our Court of Appeals has cautioned that district courts must be careful not to reach the merits of a case when deciding Rule 12(b)(1) motions, and so we are to demand less by way of jurisdictional proof than we would at the trial stage. CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008) (quoting Gould, 220 F.3d at 178). We are obliged to impose a lower factual showing than would be required to succeed on the merits of a plaintiff's claims at trial so that we do not prematurely dismiss claims that might be established given the benefit of discovery. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 344, 56 V.I. 901 (3d Cir. 2012); CNA, 535 F.3d at 145.

Where jurisdictional challenges are intertwined with merits challenges under the FTCA, our Court of Appeals has instructed district courts to treat such challenges as jurisdictional ones. See, e.g., CNA, 535 F.3d at 144 (explaining that the approach of the Third Circuit has been to " make disputes over the scope-of-employment requirement . . . jurisdictional." ); Gould, 220 F.3d at 178 (explaining that " when the merits and jurisdiction are closely related, a court may determine subject matter jurisdiction without reaching the merits . . . ." ).

The United States answered the amended complaint on August 6, 2014. See Def. Answer. We ordered the parties to complete discovery in October of 2014. See August 11, 2014 Order. We have therefore moved into the realm of a factual challenge to our subject-matter jurisdiction. See Mortensen, 549 F.2d at 891-92 (explaining that the court may make a factual evaluation under Rule 12(b)(1) at any stage of the proceeding after the answer has been served until after the trial has been completed). As we explained, a factual challenge to subject-matter jurisdiction is quite different from a facial one. Id. at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists, and if the defendant presents evidence contesting any allegations in the pleadings, then the presumption of truthfulness does not attach to the plaintiff's allegations, and the plaintiff may present facts by affidavit, deposition, or evidentiary hearing. Moyer Packing Co. v. United States, 567 F.Supp.2d 737, 748 (E.D. Pa. 2008).

B. Summary Judgment

Fed. R. Civ. P. 56(a) provides:

A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

A party moving for summary judgment bears the initial burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by " identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). If the moving party meets this initial burden, Fed.R.Civ.P. 56 then obliges the non-moving party to show, via submissions beyond the pleadings, that there are genuine factual issues for trial. Id. at 324. We treat cross-motions for summary judgment as if they were two distinct, independent motions. Arnold Pontiac-GMC, Inc. v. General Motors Corp.,

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700 F.Supp. 838, 840 (W.D. Pa. 1988). In evaluating each motion, we consider the facts and inferences in the light most favorable to the non-moving party. Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996).

There is a genuine issue of material fact only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining further that a mere scintilla of evidence is insufficient). Material facts are those that would affect the outcome of the case under the governing law. Id. at 248. We may not make credibility determinations or weigh the evidence, and we must draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Armour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001). Our function is to determine whether there is a genuine issue for trial, and we may not prevent a case from reaching a jury simply because we favor one of several reasonable views of the evidence. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 249).

III. Factual Background

As the Government has made a factual attack as to our subject-matter jurisdiction under Rule 12(b)(1), and both parties have moved for summary judgment, we may consider matters outside the pleadings, including affidavits and depositions. We recite the facts pertinent to the resolution of the parties' motions.

On August 12, 2012, Marine Sergeant Brian LaLoup died of a self-inflicted gunshot wound while deployed on active duty in Athens, Greece. Amend. Compl. at ¶ ¶ 18, 32-37; MTD at 3; PSJ at 3. Upon Sgt. LaLoup's death, the Marine Corps began the process of notifying the next-of-kin -- his parents, Craig and Beverly LaLoup -- in accordance with its Casualty Assistance Calls Program (" the Program" ), as documented in Marine Corps Order 3040.4 (the " MCO" ), attached by the Government as MTD Ex. G.

When the Marine Corps must notify next-of-kin of a casualty incident, it appoints a Casualty Assistance Call Officer (" CACO" ). MTD Ex. G at 6; Dixon Dep. at 18:1-19:16. CACOs are " liaisons who assist with benefits, entitlements, burial, making sure the next of kin gets personally notified of the death, [and] assist[s] with copies of investigations." Castle Dep. at 27:9-15. The CACO's task begins with notifying the next-of-kin of the casualty incident, and, after this notification and condolence phase, the CACO assists the next-of-kin with mortuary affairs and funeral honors, benefits and entitlements, and transition to the Marine Corps' long-term assistance program. MTD Ex. G at 6 (notification and condolence); id. at 18 (mortuary affairs and funeral honors); id. at 27 (benefits and entitlements); id. at 31 (long-term assistance program). See also Dixon Dep. at 21:14-24:5.

The difficult task of notifying the LaLoups fell to Staff Sergeant (" SSgt." ) David McClendon. MTD at 3; McClendon Dep. at 31:15-33:6. In the early morning hours of August 12, 2012, SSgt. McClendon drove from Wilmington, Delaware, to Craig and Beverly LaLoup's home in Pennsylvania to notify them in person of Sgt. LaLoup's death. McClendon Dep. at ...


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