McGonagle et al v. United States of America
Filing
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Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Defendant's Motion to Dismiss. (Pezzarossi, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
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MARY MCGONAGLE,
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PAUL MCGONAGLE, JR., and
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SEAN MCGONAGLE,
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Plaintiffs,
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Civil Action No.
v.
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15-12003-FDS
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UNITED STATES OF AMERICA,
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Defendant.
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___________________________________________)
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
SAYLOR, J.
This lawsuit is yet another civil action arising out of the corrupt relationship between the
Federal Bureau of Investigation and convicted criminals James “Whitey” Bulger and Stephen
“the Rifleman” Flemmi. Plaintiffs in this case are the widow and two sons of Paul McGonagle,
Sr., who was murdered by Bulger in 1974. Plaintiffs have brought suit against defendant the
United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., alleging
that the FBI negligently caused them to endure mental anguish by failing to report the location of
McGonagle’s body for more than twenty years.
The United States has filed a motion to dismiss the complaint for lack of subject-matter
jurisdiction and failure to state a claim. It contends primarily that because a private person
would not have owed plaintiffs a duty to report the location of McGonagle’s body, the United
States has not waived its sovereign immunity under the FTCA. For the reasons stated below,
that motion will be granted.
I.
Background
A.
Factual Background
The following facts are taken from the complaint unless otherwise noted. 1
Paul McGonagle, Sr., was a resident of South Boston, Massachusetts. Mary McGonagle
was his wife, and Paul McGonagle, Jr., and Sean McGonagle were his sons.
Paul McGonagle, Sr., was murdered by James “Whitey” Bulger in 1974. (Compl. at
¶ 11). From 1974 until 1995, Bulger and his associate, Steven Flemmi, served as informants for
the Federal Bureau of Investigation. (Id. at ¶¶ 6, 7). Special Agent John Connolly of the FBI’s
Boston office served as the “handler” for both Bulger and Flemmi from 1975 until 1990, when
he left the FBI. (Id. at ¶¶ 8, 9).
Although McGonagle was reported missing in November 1974, his family did not learn
the location of his remains until September 2000, when authorities were led to a shallow grave at
Tenean Beach in Dorchester. (Id. at ¶¶ 10, 15).
In October 2003, Flemmi pleaded guilty to ten counts of murder. (Id. at ¶ 12). Nearly
ten years later, in July 2013, Flemmi was called as a government witness in Bulger’s trial. (Id. at
¶ 17). Flemmi testified at trial that during the time he was an informant, he, Bulger, and
Connolly regularly met at Tenean Beach. (Id. at ¶ 18). Flemmi further testified that during these
meetings, Bulger often commented on the fact that McGonagle was buried at the beach, and
would even point out the location of the burial site. (Id. at ¶ 20). 2
1
The facts surrounding the sordid relationship between Bulger and certain agents of the FBI have been set
out at great length in multiple other sources, and need not be repeated here except in the relatively skeletal form laid
out in the complaint.
2
According to the government, Flemmi’s actual trial testimony, which occurred on July 19, 2013, was as
follows:
2
The complaint alleges that though Connolly learned of the location of McGonagle’s body
during these meetings, he never reported it to local authorities. The complaint further alleges
that as a result of Connolly’s failure to report McGonagle’s burial site, his family endured more
than twenty years of mental anguish and distress. (Id. at ¶ 25).
B.
Procedural Background
On June 1, 2015, plaintiffs filed a two-count complaint against the United States of
America. Count One asserts a claim for negligence and Count Two asserts a claim for
intentional infliction of emotional distress. Both counts are brought under the Federal Tort
Claims Act. On August 3, 2015, the United States moved to dismiss for lack of subject-matter
jurisdiction and failure to state a claim.
II.
Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
Q.
And who would you meet with [at Tenean Beach]?
A.
The three—John Connolly, James Bulger, myself.
Q.
And when you went to that location, at Tenean Beach, for those meetings, would Mr. Bulger make
comments about Mr. McGonagle?
A.
He told me where he buried him.
(Gov’t Mem. Ex. D) (emphasis added).
3
“The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the facts as alleged do
not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations omitted) (internal quotation marks
omitted).
III.
Analysis
Plaintiffs have sued the United States under the FTCA, alleging negligence and
intentional infliction of emotional distress on the part of FBI agent John Connolly. The FTCA
acts as a partial waiver of sovereign immunity, rendering the United States liable for certain tort
and contract claims. See 28 U.S.C. 2671 et seq. The grant of jurisdiction to the district courts to
hear FTCA claims against the United States is coextensive with the act's waiver of sovereign
immunity. Thus, actions that do not fall under the express terms of the FTCA's waiver must be
dismissed for lack of subject-matter jurisdiction. Id.; Wood v. United States, 290 F.3d 29, 35 (1st
Cir. 2002).
The FTCA grants jurisdiction to the district courts to hear claims arising from acts of the
United States or its employees acting within the scope of their employment to the extent that “the
United States, if a private person, would be liable to the claimant . . . in accordance with the law
of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (emphasis added). A
claimant against the government must therefore identify some basis on which a private party
would be liable for acts analogous to those the government is alleged to have taken. McCloskey
v. Mueller, 446 F.3d 262, 267 (1st Cir. 2006). As a result, FTCA liability cannot result from
“obligations that are peculiar to governments or official-capacity state actors and which have no
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private counterpart in state law.” Id.
The United States contends, in substance, (1) that it has not waived its sovereign
immunity under the FTCA for plaintiffs’ claims because a private individual would not have
owed plaintiffs a legal duty to report the location of McGonagle’s remains; (2) that the
“misrepresentation” exception to the FTCA applies, and likewise precludes subject-matter
jurisdiction; and (3) that plaintiffs’ claims are barred by the statute of limitations. Because the
Court finds that the first argument is meritorious, it does not reach the misrepresentation
exception or statute of limitations issues.
A.
Count One - Negligence
Count One asserts a claim for negligence based on Connolly’s failure to report the
location of McGonagle’s burial site at Tenean Beach. “Negligence is the failure to exercise that
degree of care which a reasonable person would exercise in the circumstances.” Guzman v.
Pring–Wilson, 81 Mass. App. Ct. 430, 432 (2012) (quoting Morgan v. Lalumiere, 22 Mass. App.
Ct. 262, 267 (1986)). 3 “To prevail on a negligence claim, a plaintiff must prove that the
defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that
damage resulted, and that there was a causal relation between the breach of the duty and the
damage.” Cracchiolo v. Eastern Fisheries, Inc., 740 F.3d 64, 69 (1st Cir. 2014) (quoting Jupin
v. Kask, 447 Mass. 141, 146 (2006)); see also Lev v. Beverly Enterprises–Massachusetts, Inc.,
457 Mass. 234, 239-240 (2010).
Thus, a claim for negligence may not be sustained without a showing that the defendant
owed a legal duty to the plaintiff. Gorfinkle v. U.S. Airways, Inc., 431 F.3d 19, 23 (1st Cir.
2005) (citing Davis v. Westwood Group, 420 Mass. 739, 742 (1995)); O'Gorman v. Antonio
3
“Since every relevant event in this case occurred in Massachusetts, the substantive law of that jurisdiction
constitutes the ‘law of the place’ for present purposes.” McCloskey, 446 F.3d at 266-67.
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Rubinaccio & Sons, Inc., 408 Mass. 758, 760 (1990). The key issue here is the existence of such
a duty—whether a private person in Connolly’s position (that is, a person who became aware of
the location of McGonagle’s body) would have owed a duty to McGonagle’s family to report
that fact.
1.
Common-Law Duty to Report
No Massachusetts case has ever held that a private person has a duty to disclose the
location of a dead body to the decedent’s family, absent a special relationship. As a general
matter, “[u]nder common law, inaction rarely gives rise to liability unless some special duty of
care exists.” Hasenfus v. LaJeunesse, 175 F.3d 68, 71 (1st Cir. 1999) (citing Restatement
(Second) of Torts § 314 & cmt. a (1965)). As then-Judge Breyer put it, “a passerby seeing a man
drown in a pond may have a moral obligation to extend a helping hand, but he does not
necessarily have a legal obligation to do so.” Carrier v. Riddell, Inc., 721 F.2d 867, 869 (1st Cir.
1983) (applying Massachusetts law).
Plaintiffs nonetheless contend that such a duty exists, relying in part on the Restatement
(Second) of Torts § 868. Section 868 provides:
One who intentionally, recklessly or negligently removes, withholds, mutilates or
operates upon the body of a dead person or prevents its proper interment or cremation is
subject to liability to a member of the family of the deceased who is entitled to the
disposition of the body.
Restatement (Second) of Torts § 868 (1979). Plaintiffs essentially contend that by failing to
report the location of McGonagle’s corpse, Connolly negligently prevented its proper interment.
Whether Massachusetts courts would follow § 868 is not completely clear. Plaintiffs
contend that Massachusetts adopted § 868 in Kelly v. Brigham & Women’s Hosp., 51 Mass. App.
Ct. 297, 307 (2001). The Kelly court, however, merely cited the Restatement in support for the
court’s holding that a plaintiff need not allege physical consequences of mental distress in
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connection with a “wrongful autopsy” claim. Id. Even assuming, however, that Massachusetts
law would follow § 868, it is unlikely that Massachusetts courts would apply it so as to find an
affirmative duty under the facts and circumstances of this case.
The Kelly court noted that a claim for wrongful autopsy under Massachusetts law is
“based on the general principles governing the tort of negligence.” Id. at 303. To the extent that
plaintiffs’ claim here is grounded in § 868 of the Restatement, it similarly must be based on
general principles governing negligence. As noted, one such general principle is that absent a
special relationship (such as that of a parent and child), the law imposes no duty to assist others
affirmatively or to relieve their suffering. See Doe v. Walker, 193 F.3d 42, 43 (1st Cir. 1999)
(citing Jean W. v. Commonwealth, 414 Mass. 496 (1993)). Thus, even under § 868, a person
could be found liable only if he had done something affirmatively to prevent a proper interment;
he could not found liable if he simply had knowledge of a fact (such as the location of a body)
and failed to act.
The complaint does not plead any facts that suggest that a duty to McGonagle’s family
might arise under the circumstances presented by this case. For example, plaintiffs do not
dispute that Connolly did not at any point have control or custody of McGonagle’s remains, as
would a doctor performing an autopsy. See, e.g., Kelly, 51 Mass. App. Ct. at 307. Nor did
Connolly assist Bulger in wrongfully burying the body. See, e.g., Papieves v. Lawrence, 437 Pa.
373, 375 (1970). Indeed, the Court of Appeals of Ohio has expressly rejected the existence of
such a duty under circumstances somewhat similar to the present case: “Assuming that appellee
knew about Janice’s death and the whereabouts of her remains prior to 1999, appellee had no
legal duty to disclose that information to appellants. Where appellee had no duty to disclose
such information, her failure to disclose cannot be deemed to constitute intentional infliction of
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emotional distress.” Hartman v. Smith, 2005 WL 1523862, at *4 (Ohio Ct. App. June 29, 2005).
The issue is not Connolly’s moral failings, which appear to have been legion. Rather, it
is whether a private person in his position, having knowledge of the location of McGonagle’s
remains, would have had a legal duty to report that fact to his survivors. Under Massachusetts
law, such a person would not, and therefore the United States has not waived its sovereign
immunity with regard to plaintiffs’ claim.
2.
Statutory Duty to Report
Plaintiffs further contend that Mass. Gen. Laws ch. 38, § 3 creates a statutory duty to
report a death by apparent criminal violence. That statute provides:
It shall be the duty of any person having knowledge of a death which occurs under the
circumstances enumerated in this paragraph immediately to notify the office of the chief
medical examiner, or the medical examiner designated to the location where the death has
occurred, of the known facts concerning the time, place, manner, circumstances and
cause of such death:
(1) death where criminal violence appears to have taken place, regardless of the time
interval between the incident and death, and regardless of whether such violence appears
to have been the immediate cause of death, or a contributory factor thereto . . . .
A physician, police officer, hospital administrator, licensed nurse, or licensed funeral
director, within the commonwealth, who, having knowledge of such an unreported death,
fails to notify the office of the chief medical examiner of such death shall be punished by
a fine of not more than five hundred dollars.
Mass. Gen. Laws ch. 38, § 3. The United States contends (1) that the statute does not create a
private right of action and (2) that the statute does not impose a duty that runs to the family
members of a deceased person. 4 At oral argument, plaintiffs appeared to concede the first
point—that § 3 does not create a private right of action—but instead argued that the statute
4
The United States also argues that even if the statute creates a duty, it did not become effective until
1993, three years after Connolly left the FBI. At oral argument, plaintiffs represented that “legislative history” and
“predecessor statutes” supported the existence of a similar duty prior to 1993, (Hrg. Tr. 19:10-19), but did not cite or
otherwise supply the Court with relevant authority. Regardless, resolution of that issue is unnecessary for the
reasons discussed in this memorandum and order.
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created a duty to report McGonagle’s death. (Hrg. Tr. 20:4-10).
Although the language of ch. 38, § 3 does create a duty for “any person having
knowledge of a death” resulting from criminal violence to report it, the duty it creates is to report
the death to the medical examiner. See Mass. Gen. Laws ch. 38 § 3 (“It shall be the duty of any
person having knowledge . . . to notify the office of the chief medical examiner.”). The statute’s
language simply does not create a duty to report to the deceased’s family. While it may be true
that a disclosure to the medical examiner might inevitably lead to disclosure to the family, it does
not follow that a duty runs directly to the family from a person with knowledge of the body’s
location. 5
Finally, the Court must be mindful that in considering claims made under the waiver of
sovereign immunity under the FTCA must be construed strictly. Mahon v. United States, 742
F.3d 11, 14 (1st Cir. 2014). In the absence of a reasonably clear common-law or statutory right
to recovery, federal courts should not create new bases for liability. See Nicolaci v. Anapol, 387
F.3d 21, 27 (1st Cir. 2004) (the federal courts “should be cautious about pushing state law to new
frontiers”).
In short, although Connolly may have been aware of the location of the remains, the
Court concludes that a private person in his position would not have owed a legal duty to the
McGonagle family to report that knowledge. Because a private person in Connolly’s position
would not be liable to plaintiffs for negligence, the FTCA does not waive sovereign immunity
for their claims against the United States. Count One will therefore be dismissed.
5
Mass. Gen. Laws ch. 38 § 4 requires the chief medical examiner to “carefully inquire” into the
circumstances of a death when notified in accordance with § 3.
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B.
Count Two – Intentional Infliction of Emotional Distress
Count Two asserts a claim for intentional infliction of emotional distress. “In the absence
of evidence sufficient to support findings of circumstances adequate for a duty to act
affirmatively, however, [a] failure to act cannot serve as a basis for a successful claim of
intentional infliction of emotional distress.” Armstrong v. Lamy, 938 F. Supp. 1018, 1049
(D. Mass. 1996) (citing Mitchell v. Subramanya, 27 Mass. App. Ct. 365, 368 (1989)). Thus, in
the absence of a legal duty to plaintiffs to report the location of McGonagle’s remains, a private
person in Connolly’s position would not be liable for intentional infliction of emotional distress.
As with Count One, the FTCA’s waiver of sovereign immunity does not apply. Count Two will
therefore be dismissed.
IV.
Conclusion
Whatever crimes Paul McGonagle, Sr., may have committed, he did not deserve to be
murdered by Whitey Bulger, and his family deserved to know of the circumstances of his death
and location of his body. Furthermore, this Court does not intend to condone the conduct of
Special Agent Connolly in any respect. It does not follow, however, that McGonagle’s survivors
have a claim for money damages against the United States. The government permits itself to be
sued only under certain circumstances, and the circumstances here do not qualify.
Accordingly, and for the foregoing reasons, the motion to dismiss is GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: January 5, 2016
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