United States District Court, D. Minnesota
W. PRATT, JUDGE
the Court is the Government's Second Motion to Dismiss
for Lack of Jurisdiction, filed on August 17, 2018. ECF No.
46. Plaintiffs Ayesha McKinney, Tracina Ross, and Tammy
Bloomer resist the motion. ECF No. 55. The Government filed a
Reply on October 12, 2018. ECF No. 57. The matter is fully
2, 2018, this Court entered an Order granting the
Government's Motion to Dismiss for Lack of Jurisdiction
and for Failure to State a Claim (ECF No. 19). ECF No. 37.
The Court concluded Plaintiffs' claim for negligent
supervision was barred by the discretionary-function
exception, see 28 U.S.C. § 2680(a), to the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b)(1), 2671-2680, and dismissed the claim pursuant to
Federal Rule of Civil Procedure 12(b)(1). Id. at
8-9. Next, the Court determined that because Plaintiffs had
not alleged that Defendant Bresnahan's conduct toward
them was a “well-known” hazard and foreseeable in
his particular profession, their claims of assault, battery,
abuse of process, and intentional infliction of emotional
distress-the latter being tied to the three intentional-tort
claims-were barred by the FTCA's intentional-tort
exception, see 28 U.S.C. § 2680(h), and
dismissed these four claims pursuant to Rule 12(b)(1).
Id. at 11, 12-13. Additionally, the Court dismissed
Plaintiffs' other unspecified torts claims pursuant to
Rule 12(b)(6). Id. at 14. Finally, the Court sua
sponte invited Plaintiffs to amend their Complaint again to
correct the identified deficiencies. Id.
their Third Amended Complaint filed on July 17, 2018,
Plaintiffs state claims of assault, battery, and abuse of
process against the United States, in accordance with the
laws of the State of Minnesota. ECF No. 38 at ¶¶ 92-98.
Plaintiffs allege Defendant Dennis Bresnahan was a federal
law enforcement officer within the meaning of 28 U.S.C.
§ 2680(h) and was acting within the scope of his
employment when he committed the alleged acts. Id.
¶¶ 12-13. Plaintiffs further assert Defendant
Bresnahan's conduct was foreseeable and a “known
risk” in his role as a U.S. Probation Officer.
Id. ¶¶ 68, 82; see Id. ¶ 55.
STANDARD OF REVIEW
Court regards the Government's subject-matter
jurisdictional challenge under Rule 12(b)(1) as a facial
attack. See ECF No. 37 at 4. Accordingly, the Court
accepts Plaintiffs' factual allegations as true and
merely checks to see whether Plaintiffs have
“sufficiently alleged a basis of subject matter
jurisdiction.” Branson Label, Inc. v. City of
Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015) (quoting
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980)).
Government reasserts its argument that Plaintiffs have failed
to prove the Court has subject-matter jurisdiction over
Plaintiffs' claims of assault, battery, and abuse of
process because they are barred by the intentional-tort
exception, 28 U.S.C. § 2680(h). See Fed. R.
Civ. P. 12(b)(1). As discussed in the Court's prior
Order, § 2680(h) of the FTCA operates to bar claims of
intentional torts, including “[a]ny claim arising out
of assault, battery, . . . [or] abuse of process, ”
except with respect to acts or omissions committed by federal
law enforcement officers who are acting within the scope of
their employment. 28 U.S.C. § 2680(h); Millbrook v.
United States, 569 U.S. 50, 55 (2013). Thus, in order
for Plaintiffs' claims to survive, they must sufficiently
allege that Defendant Bresnahan was a federal law enforcement
officer acting within the scope of his employment, as defined
by Minnesota law, when he committed the alleged intentional
torts. See Eubank v. Kan. City Power &
Light Co., 626 F.3d 424, 427 (8th Cir. 2010) (applying
“the substantive law of the State where the act or
issue is whether Defendant Bresnahan's alleged conduct
was “related” to his duties. See Lange v.
Nat'l Biscuit Co., 211 N.W.2d 783, 786 (Minn. 1973)
(providing that an employee acts within the scope of his
employment (1) “when the source of the attack is
related to the duties of the employee” and (2)
“the assault occurs within work-related limits of time
and place”); see also ECF No. 37 at 10 (noting
the parties do not dispute that Defendant Bresnahan committed
the alleged assault within the work-related limits of time
and place). “[A] sexual assault may be considered
‘related to' [an] employee's duties” when
it is “a foreseeable risk of that [particular]
profession.” Longen v. Fed. Express Corp., 113
F.Supp.2d 1367, 1371 (D. Minn. 2000) (citing Fahrendorff
v. North Homes, Inc., 597 N.W.2d 905, 912-13 (Minn.
1999); P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn.
1996); and Marston v. Minneapolis Clinic of Psychiatry
& Neurology, Ltd., 329 N.W.2d 306, 311 (Minn.
1982)). Central to the inquiry is a plaintiff's inclusion
of expert evidence alleging that sexual assault is a
“well-known hazard” in a particular profession.
P.L., 545 N.W.2d at 668; see Fahrendorff,
597 N.W.2d at 911-12; Marston, 329 N.W.2d at 311.
their Third Amended Complaint, Plaintiffs allege expert
evidence that a federal probation officer's sexual
assault of someone he or she is supervising is foreseeable
and a known risk. See Fahrendorff, 597 N.W.2d at
911-12 (accepting an expert's sworn statement that
“inappropriate sexual contact or abuse of power in
[group home] situations, although infrequent, is a well known
hazard in this field, ” despite it being
“somewhat conclusory and lacking specific examples,
” as evidence of foreseeability sufficient to survive a
motion for summary judgment (alteration in original)
(emphasis omitted)). Plaintiffs additionally allege facts
demonstrating that other federal probation officers have used
their authority over supervisees to gain sexual favors. The
Court accepts these allegations as true, as it must, and
finds that they satisfy Plaintiffs' burden at this stage
“to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 5, 570 (2007)); see Fed. R. Civ. P. 8(a).
Court concludes Plaintiffs' claims of assault, battery,
and abuse of process are not barred by the intentional-tort
exception to the FTCA because they fall within the law
enforcement proviso. Therefore, Plaintiffs have established
that the Court has subject-matter jurisdiction over
Plaintiffs' intentional-tort claims.
foregoing reasons, the Government's Second Motion to
Dismiss for Lack of ...