Smith v. The United States of America

Filing 29

OPINION AND ORDER granting Defendant the United States of Americas Motion to Dismiss 22 . Signed by Judge William S. Duffey, Jr on 11/14/16. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
AMANDA SUE SMITH,
Plaintiff,
v.

1:15-cv-726-WSD

THE UNITED STATES OF
AMERICA,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant the United States of America’s
(“United States”) Motion to Dismiss [22].
I.

BACKGROUND
A.

Facts

Plaintiff Amanda Sue Smith (“Plaintiff”) brings this negligence action
against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
et seq. (“FTCA”), for alleged damages resulting from a commercial transaction in
which she engaged with a person who failed to perform his obligations to her.
Plaintiff alleges that, on or about July 2010, she was introduced to Mani Chulpayev
by Joseph Sciullara, a friend and business partner of Plaintiff’s then-boyfriend,
Vincent Antonacci. (Second Am. Compl. (“Compl.”) [21] ¶ 11).

Plaintiff was advised by Sciullara that Chulpayev was in the business of
“leasing” new or used vehicles. She was told that this “leasing” arrangement
involved Chulpayev using a company called US Asset Protection, LLC (“USAP”)
to “take over the payments” due on a promissory note or retail installment contract
by which the purchaser of the vehicle acquired the vehicle. Chulpayev then leased
the vehicles to his customers. (Compl. ¶ 12). In return for “leasing” the vehicles
to Chulpayev, purchasers were promised a fixed amount advance payment and,
thereafter, monthly payments that exceeded the vehicle insurance costs and the
applicable promissory note or retail installment contract payments due. (Compl.
¶ 12). Plaintiff alleges that Chulpayev and Sciullara told her that these transactions
were legal, and that “all she had to do was to go to the automobile dealership(s)
that Chulpayev selected in Georgia and Florida, purchase a vehicle selected by
Chulpayev and sign the loan documents.” (Compl. ¶ 12). Plaintiff was promised
by Chlupayev that he would pay her a sufficient amount to cover her note
payments and insurance on the automobile she purchased. (Compl. ¶ 12). In
July 2011, Plaintiff purchased three (3) automobiles from Carmax, and “subleased”
them to USAP. (Compl. ¶¶ 14-17).
Plaintiff received payments from Chulpayev for the vehicles for about four
(4) months, after which the payments discontinued. (Compl. ¶ 20). Plaintiff
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continued to pay her promissory note and insurance payments, and did so for
approximately two (2) years. Unable to make further payments, on or about
August 1, 2013, Plaintiff defaulted on her loans. She claims the default
“destroy[ed] her previously stellar credit.” (Compl. ¶ 20).
Plaintiff alleges that the United States knew Chulpayev did not intend to
make additional payments, and that he failed to make payment on similar lease
arrangements. (Compl. ¶ 21). Plaintiff claims that, in July 2012, she learned of
Chulpayev’s alleged role as a FBI confidential informant. (Compl. 44). Plaintiff
alleges that SA Jackson and the FBI had a close, personal relationship with
Chulpayev, and that Chulpyaev had been used by the FBI as a confidential
informant. (Compl. ¶¶ 23-30, 34-35). Plaintiff claims SA Jackon allegedly
received, from Chulpayev, sporting event tickets and the use of expensive
automobiles, and SA Jackson promised Chulpayev that he would intervene to
adjust Chulpayev’s immigration status. (Compl. ¶¶ 25-27). She alleges further
that FBI supervisory personnel were aware of the use of Chulpayev as a
confidential informant, and that use of him as a confidential informant violated FBI
and Department of Justice (“DOJ”) confidential informant policies and a court
order. (Compl. ¶¶ 31-32, 38-42, 68-71; Exs. 3, 6).

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Plaintiff claims her attorney contacted the FBI in 2012 and reported her car
transactions and Chulpayev’s conduct to Federal Bureau of Investigation (“FBI”)
Special Agent Dante Jackson (“SA Jackson”). She alleges further that her attorney
also contacted (i) the Special Agent in Charge of the FBI’s Atlanta office in or
about August 2013, (ii) the FBI’s Atlanta Legal Unit in 2013, and (iii) the USAO
in or about September 2013. (Compl. ¶¶ 44-46, 50-51).
Based on this relationship, Plaintiff thus alleges the United States knew of
Chulpayev’s modus operandi in his dealings with numerous individuals, and that
the FBI and the United States Attorney’s Office (“USAO”) knew of Chulpayev’s
propensity to engage in criminal activity. (Compl. ¶¶ 21, 43). She claims the
United States is liable for Plaintiff’s damages apparently because she claims the
government should have prohibited Chulpayev from engaging in the conduct or
warned Plaintiff about it. Plaintiff asserts claims of negligence (Count 1),
“deliberate indifference” (Count 2), and, under O.C.G.A. § 51-20-1, injury to
personalty (Count 3). Plaintiff seeks compensatory damages and costs.
B.

Procedural History

On July 1, 2016, the United States filed its Motion to Dismiss. It argues that
Plaintiff fails to state a cognizable FTCA claim, including because Plaintiff fails to
identify a duty owed to her by the United States, a breach of that duty, or a causal
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connection between the breach and Plaintiff’s alleged injuries. The United States
also seeks to dismiss Plaintiff’s deliberate indifference claim, arguing that it fails to
state a claim and is barred by sovereign immunity. The United States next seeks to
dismiss Plaintiff’s injury to personalty claim, arguing that Plaintiff fails to allege
facts to show that the United States converted her automobiles or had actual
possession of them.
II.

DISCUSSION
A.

Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the
Court is not required to accept conclusory allegations and legal conclusions as true.
See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)

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(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the the United States is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires
more than the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290
(quoting Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their
claims across the line from conceivable to plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
B.

Analysis
1.

Federal Tort Claims Act

Under the Federal Tort Claims Act, the United States has waived its
sovereign immunity in limited circumstances and can be liable for negligent or
wrongful acts or omissions of government employees only “under circumstances
where the United States, if a private person, would be liable to the claimant in
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accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b).1 The United States’s liability for negligence arises only if state
law imposes a duty that the government tortfeasor allegedly breached. Tisdale
v. United States, 62 F.3d 1367, 1371 (11th Cir. 1995). The Court looks to Georgia
law to decide whether state law imposes a duty that the United States breached
here.
Plaintiff claims that the United States is liable for negligence in Plaintiff’s
transaction with Chulpayev. In Georgia, a plaintiff in a negligence action must
prove (i) that the defendant had a legal duty to conform to some standard of
conduct, (ii) a breach of that duty, (iii) a causal connection between the conduct
and the resulting injuries, and (iv) damages as a result of the alleged breach.
Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693, 695 (Ga. 1982). Plaintiff claims the
United States’s duty arises from the “special relationship” exception.
Under Georgia law, there is no general duty to stop third persons from
causing harm to others. Id. at 696. Where, however, there is a special relationship
between a defendant and the third party at issue, an independent duty may arise.
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The Court here borrows from the explanation of FTCA and Georgia law set
forth in Frazier v. United States, No. 1:15-CV-1174-TWT, 2016 WL 3633541, at
*2 (N.D. Ga. July 7, 2016), a case in which the Court considered similar
allegations against Mani Chulpayev. The Court examines Frazier in further detail
below.
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Id. A special relationship for tort law purposes exists when the defendant has
control over a third party, such as in the case of a physician who knows or should
know a patient is likely to cause bodily harm to others. Id. The special
relationship exception is based on the principle that “[o]ne who takes charge of a
third person whom he knows or should know to be likely to cause bodily harm to
others if not controlled is under a duty to exercise reasonable care to control the
third person to prevent him from doing such harm.” Id. (quoting Restatement
(Second) of Torts § 319 (1965)).2
The control required to support that a special relationship exists is high.
Frazier v. United States, No. 1:15-CV-1174-TWT, 2016 WL 3633541, at *2 (N.D.
Ga. July 7, 2016). For example, a psychiatrist exercises the requisite control over
an inpatient in a mental hospital whom he knows or reasonably should know is
likely to cause bodily harm to others, but does not exercise the requisite control
over a voluntary outpatient. Ermutulu v. McCorkle, 416 S.E.2d 792, 794-95 (Ga.
1992). Where the defendant has the “legal authority to confine or restrain [a third

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The Wessner court noted that, “[o]f particular interest here is the second
illustration accompanying this Restatement section: ‘2. A operates a private
sanitarium for the insane. Through the negligence of the guards employed by A,
B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A
is subject to liability to C.’” 296 S.E.2d at 696 n.1.

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party] against his will,” a special relationship exists. Baldwin v. Hosp. Auth. of
Fulton Cty., 383 S.E.2d 154, 156-57 (Ga. 1989); see also Douglas Asphalt Co.
v. QORE, Inc., 657 F.3d 1146, 1157-58 (11th Cir. 2011) (“[S]ubsequent decisions
interpreting and applying Wessler have made it clear that the ‘control’ that gave
rise to the duty in that case was the ‘legal authority’ to restrain a person’s
liberty.”).
As an initial matter, Plaintiff does not provide any authority to support that
the special relationship exception set forth in Wessner extends to claims of
economic, rather than physical, harm. “Georgia courts . . . have assiduously
resisted efforts to extend Wessner’s holding to . . . claim[s] for economic losses (as
opposed to physical harm or property damages) that resulted from
negligen[ce] . . . .” Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1158
(11th Cir. 2011) (citing cases). Because the special relationship exception does not
apply to claims of economic loss, the United States did not have a duty to stop
Chulpayev, a third party, from causing economic harm to Plaintiff or to warn
others of the possibility of it.
Even if the special relationship exception applied to claims of negligence
resulting in economic loss, Plaintiff fails to allege facts to demonstrate the degree
of control required to create a special relationship under Georgia law. In Frazier,
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the Court considered allegations involving Mani Chulpayev similar to those
alleged in this case. The plaintiffs in Frazier alleged, like here, that Chulpayev was
a FBI confidential informant, and that he had a “very special relationship” with the
FBI and FBI agents. Frazier, 2016 WL 3633541, at *2. The plaintiffs alleged that
Chulpayev was involved in the murder of Melvin Vernell III, and sought to hold
the United States liable for the murder. The Court found:
What the Plaintiffs do not allege, however, is that the United States
exercised such a degree of control over Chulpayev that it owed a duty
to protect third parties from his conduct. There are no allegations in
the complaint that would indicate a degree of control even close to
that exercised by a doctor over an inpatient in a mental hospital. In
fact, the Plaintiffs’ own allegations suggest that the United States did
not exercise enough control over Chulpayev to create the necessary
special relationship. Specifically, the Plaintiffs allege that
“Chulpayev had his own pressing legal reasons to facilitate the murder
of [Melvin] Vernell [III].”
Id. The Court in Frazier concluded that, “[b]ecause no special relationship existed,
the [United States] had no duty to protect third parties from Chulpayev’s
actions[.]” Id. The Court granted the United States’s motion to dismiss the
plaintiffs’ FTCA negligence claims. Id.
Here, Plaintiff purports to allege a special relationship based on SA Jackson
“promis[ing] Chupayev that he would intervene for him to adjust his immigration
status as Chulpayev specifically made such an inquiry of SA Jackson regarding
said adjustment in status.” (Compl. ¶ 25). Plaintiff claims that “SA Jackson
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received expensive jewelry[,]” “sporting event tickets[,]” and “the use of expensive
automobiles from Chulpayev.” (Compl. ¶¶ 26-28). SA Jackson allegedly provided
protection for Chulpayev “from any investigations into Chulpayev’s activities,
illegal or otherwise . . . .” (Compl. ¶ 29). “[A]s an example of SA Jackson’s
control over Chulpayev,” Plaintiff alleges that SA Jackson told Chulpayev not to
speak with the Sandy Springs Police Department regarding Chulpayev’s alleged
role in the murder of Mr. Vernell. (Compl. ¶ 37). Plaintiff also offers conclusory
allegations that the United States exercised “a degree of control over Chulpayev
and his activities.” (See, e.g., Compl. ¶ 80).
These allegations do not demonstrate the degree of control required to create
a special relationship under Georgia law. The allegations appear to show, at most,
an arrangement, mutually beneficial to SA Jackson and Chulpayev, which included
various gifts to SA Jackson, and for which Chulpayev allegedly received cover for
his allegedly illegal activity and the promise of work to adjust his immigration
status. “Such allegations indicate that Chulpayev was acting of his own free will
without control from the [United States].” Frazier, 2016 WL 3633541, at *2.
Even if the allegations indicated the United States possessed some degree of
control over Chulpayev, the allegations do not demonstrate that the United States
had a degree of control analogous to the “legal authority to confine or restrain
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[Chulpayev] against his will.” Baldwin, 383 S.E.2d at 156-57. If the special
relationship exception applied to economic loss claims—which the Court finds it
does not—Plaintiff does not allege facts to demonstrate a special relationship
between the United States and Chulpayev. The United States thus did not have a
duty to protect Plaintiff from Chulpayev’s actions. Plaintiff’s negligence
allegations do not state a claim under Georgia law, and the United States’s Motion
to Dismiss Plaintiff’s negligence claim under the FTCA is granted.
2.

Deliberate Indifference Claim

The United States next seeks dismissal of Plaintiff’s “deliberate
indifference” claim, which Plaintiff purports to bring under the FTCA. In FTCA
cases, state law determines the extent of the United States’s liability. See Pate
v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th Cir. 2004). In
dismissing the plaintiffs’ “deliberate indifference” claim, the Court in Frazier noted
that the plaintiffs “cite no Georgia law that allows a claim for deliberate
indifference[,]” and the Court stated it was “also unaware of [an independent
deliberate indifference] claim under Georgia law.” 2016 WL 3633541, at *2.3 The

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As the United States points out, the only regular application of the phrase
“deliberate indifference” is to define the scope of liability against local
governments in civil rights claims brought under 42 U.S.C. § 1983.

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United States’s Motion to Dismiss Plaintiff’s deliberate indifference claim is
granted.
3.

Injury to Personalty Claim

Finally, the United States seeks to dismiss Plaintiff’s claim for “injury to
personalty” under O.C.G.A. § 51-10-1. Section 51-10-1, which codifies the
common-law action of conversion, provides that “[t]he owner of personalty is
entitled to its possession. Any deprivation of such possession is a tort for which an
action lies.” O.C.G.A. § 51-10-1. Georgia courts have construed Section 51-10-1
as authorizing “recovery of damages when a government official, without lawful
authority, deprives an individual of his or her property on even a temporary basis.”
Carter v. Butts Cty., 821 F.3d 1310, 1324 (11th Cir. 2016) (quoting Romano v. Ga.
Dep’t of Corr., 693 S.E.2d 521, 524 (Ga. Ct. App. 2010)). To establish a claim for
conversion under Georgia law, a plaintiff must prove: (1) proof of ownership or
title to the disputed property, or the right to immediate possession of the property;
(2) actual possession of the property by the defendant; (3) demand by the plaintiff
for the return of the property; (4) the defendant’s refusal to return the property; and
(5) the value of the property. Id. (citing, among others, Buice v. Campbell, 108
S.E.2d 339, 341 (Ga. Ct. App. 1959)).

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Plaintiff fails to allege any facts to show the United States ever had “actual
possession” of the automobiles. To the contrary, Plaintiff consistently alleges that
Chulpayev, not the United States, possessed the automobiles. (See Compl. ¶ 17
(“Chulpayev or one of his associates took possession of the vehicles.”)); Id. ¶ 79
(Plaintiff requested SA Jackson “to require . . . Chulpayev[] to return the
automobiles . . .”); Id. ¶ 80 (“SA Jackson, with full knowledge that Chulpayev had
possession of these automobiles . . . .”)). Plaintiff thus fails to state a claim for
conversion under Georgia law, and the United States’s Motion to Dismiss
Plaintiff’s claim for injury to personalty under Section 51-10-1 is granted.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the United States of America’s Motion to

Dismiss [22] is GRANTED. This action is DISMISSED.

SO ORDERED this 14th day of November, 2016.

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