Wright v. United States of America et al

Filing 42

Memorandum Opinion and Order granting re 23 MOTION to Dismiss for Lack of Jurisdiction or in the Alternative for Summary Judgment, denying 32 MOTION for Discovery limited to immunity motion. Signed by District Judge Tom S. Lee on 11/18/14 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ANTHONY WRIGHT, FOR AND ON
BEHALF OF HIS WIFE, STACEY
DENISE SCOTT WRIGHT, DECEASED,
AND ON BEHALF OF ALL WRONGFUL
DEATH BENEFICIARIES
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:13-CV-637TSL-JCG

UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, RAND BEERS,
RUBEN ORLANDO BENITEZ,
AND LANDMARK OF D’IBERVILLE, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
United States of America and the United States Department of
Homeland Security (collectively the Government) to dismiss, or in
the alternative for summary judgment, pursuant to Rule 56 of the
Federal Rules of Civil Procedure.

As the motion was premised in

part on sovereign immunity, the court, upon the Government’s
filing of the motion, entered an order staying the case pending
resolution of the motion.

In response, plaintiff Anthony Wright

moved to extend the deadline for responding to the motion and to
lift the stay to permit immunity-related discovery.
Government responded in opposition to that motion.

The
Plaintiff has

since filed a response to the Government’s motion in which he both
reiterates his request for an extension and an opportunity for

discovery and presents merits-based arguments.

For reasons that

follow, the court concludes that plaintiff’s motion to lift the
stay to permit immunity-related discovery should be denied.

The

court further concludes that the Government’s motion to dismiss is
well taken and should be granted.
Facts:
On September 17, 2011, Stacey Denise Scott Wright, an
employee of the Transportation Security Administration (TSA), an
agency of the United States Department of Homeland Security (DHS),
was stabbed to death at her apartment in D’Iberville, Mississippi
by her supervisor at TSA, Ruben Orlando Benitez, with whom Mrs.
Wright was having an affair.

Benitez was tried and convicted of

Mrs. Wright’s murder in March 2013 and sentenced to life in
prison.

Evidence at Benitez’s trial established that he spent the

two days prior to the murder with Mrs. Wright at her apartment.
The murder occurred on a Saturday night, soon after Benitez and
Mrs. Wright had returned to the apartment following dinner at a
local restaurant.

According to Benitez’s testimony at his trial,

on the way to the apartment from dinner, the two had begun arguing
about their relationship.

Upon entering the apartment, a comment

by Mrs. Wright comparing Benitez to her husband, from whom Mrs.
Wright was separated, caused him to go into an uncontrollable rage
in which he grabbed a knife from the counter and began stabbing
her repeatedly, resulting in her death.
2

Prior Litigation:
On July 23, 2012, Anthony Wright, Mrs. Wright’s husband,
filed a lawsuit asserting claims against the Government and
Benitez for sexual harassment, assault and battery, wrongful death
and alienation of affection, and against the Government for
negligence in failing to prevent the attack.

Additionally,

plaintiff sued Landmark of D’Iberville (Landmark), the Mississippi
limited liability company which owned and managed the apartment
complex where the murder occurred, for alleged negligence in
failing to maintain the premises in a reasonably safe condition.
On motion of the Government, the court dismissed plaintiff’s
sexual harassment claims, which were necessarily brought under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., for
failure to exhaust administrative remedies; dismissed his claim
against the Government for alienation of affection for lack of
jurisdiction due to plaintiff’s failure to present an
administrative tort claim encompassing this tort, as required by
the Federal Tort Claims Act (FTCA) 28 U.S.C. § 2675(a); and
dismissed his claims against the Government for wrongful death,
assault and battery and negligence in failing to prevent the
assault and battery, on the basis that the FTCA does not waive the
Government’s sovereign immunity as to these claims.

See Wright ex

rel. Wright v. United States, 914 F. Supp. 2d 837 (S.D. Miss.

3

2012).

Following the dismissal of these federal claims, there

remained only state tort claims for alienation of affection
and assault and battery against Benitez and for negligence against
Landmark.1

The court declined to exercise supplemental

jurisdiction over these claims pursuant to 28 U.S.C. § 1367(a) and
on September 10, 2013 dismissed plaintiff’s complaint in its
entirety.

See Wright ex rel. Wright v. United States, Civ. Action

No. 3:12CV514TSL-MTP (S.D. Miss. Sept. 10, 2013).
The Present Lawsuit:
A month later, on October 10, 2013, plaintiff filed this
second lawsuit against Benitez, the Government and Landmark,
asserting many of the same claims as in his original suit.
Specifically, plaintiff has reasserted his state law claims
against Benitez for assault and battery and wrongful death and
against Landmark for negligence and wrongful death, and he has
asserted claims against the Government (1) for alienation of
affection, based on allegations that the Government, through its
employees, knew or should have known about the affair between
Benitez and Stacey Wright and yet failed to take appropriate
preventative and/or corrective action to prevent the affair;

1

The court notes that Landmark has reached a settlement
of plaintiff’s claims against it and been dismissed from the
action.
4

(2) for alleged negligence in failing to prevent the affair and
the attack as the Government knew or should have known both of the
affair and of Benitez’s propensity for violence and yet failed to
protect Mrs. Wright; (3) for assault and battery, based on
allegations that Benitez’s attack on Mrs. Wright was done in the
course and scope of his employment, making the Government
vicariously liable for his actions; and (5) for wrongful death
based on all of the foregoing.

The Government again seeks

dismissal of all of the claims against it.

The court considers

each claim in turn.
Assault and Battery
“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.”

United States v. Mitchell, 463

U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983).

The FTCA

waives the federal government's immunity from suit “for injury or
loss of property, or personal injury or death arising or resulting
from the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment.”

28 U.S.C. § 2679(b)(1).

See also 28 U.S.C.

§ 1346(b)(1) (giving federal courts jurisdiction over claims
against the United States for “personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
5

employment, under circumstances where 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.”);
Richards v. United States, 369 U.S. 1, 6, 82 S. Ct. 585, 7 L. Ed.
2d 492 (1962) (“The Tort Claims Act was designed primarily to
remove the sovereign immunity of the United States from suits in
tort and, with certain specific exceptions, to render the
Government liable in tort as a private individual would be under
like circumstances.”).

However, the FTCA enumerates a number of

exceptions to the waiver of immunity, including, as is pertinent
here, an exception for all claims “arising out of assault,
battery” and other specified intentional torts.

See 28 U.S.C. §

2680(h) (providing that FTCA does not waive sovereign immunity for
certain enumerated intentional torts, including “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights”
unless the government actor was an investigative or law
enforcement officer).
In plaintiff’s previous lawsuit, the court dismissed his
claims against the Government for assault and battery and for
wrongful death arising from assault and battery based on the
assault and battery exception to the FTCA’s waiver of immunity.
See Wright, 914 F. Supp. 2d at 845-46.
6

In its motion in this

case, the Government argues that plaintiff’s claim for assault and
battery and for wrongful death based on assault and battery are
likewise barred by the assault and battery exception.

It further

argues that there is no waiver of immunity since Benitez was
plainly not acting in the course and scope of his employment when
he attacked Mrs. Wright.

The Government is correct on both

points.
Under the FTCA, the Government is only liable for torts of
its employees committed in the course and scope of their
employment.

See 28 U.S.C. § 2679(b)(1) and § 1346(b)(1).

In his

response to the Government’s motion, and in his separate motion to
lift stay and permit immunity discovery, plaintiff argues that he
needs limited discovery in order to gather evidence to determine
whether or not Benitez was acting within the course and scope of
his employment.

In the court’s opinion, discovery will not aid

plaintiff for two reasons.

First, because of the assault and

battery exception to the FTCA waiver of immunity, even if Benitez
was in the course and scope of his employment at the time of the
attack, the Government could not be held vicariously liable for
his actions.

Second, plaintiff has offered no plausible theory

upon which one could reasonably conclude that Benitez was acting
within the scope of his employment when he murdered Mrs. Wright.
“The issue of whether an employee is acting within the scope
of his employment for purposes of the FTCA is governed by the law
7

of the state in which the wrongful act occurred.”

Bodin v.

Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (citations omitted).
Under Mississippi law, to be within the scope of employment, the
acts must have been “committed in the course of and as a means to
accomplishing the purposes of the employment and therefore in
furtherance of the master's business... [or] incidental to the
authorized conduct.”

Adams v. Cinemark U.S.A., Inc., 831 So. 2d

1156, 1159 (Miss. 2002).

“An employee's unauthorized acts may yet

be within the course and scope of employment if they are of the
‘same general nature as the conduct authorized or incidental to
that conduct.’”

Tanks v. Lockheed Martin Corp., 417 F.3d 456, 464

(5th Cir. 2005).

But “[a]n intentional violent assault on a

co-worker is quite obviously neither committed as a means of
accomplishing the purposes of the employment nor of the same
general nature as authorized conduct.”
2

Id.2

Accordingly,

The only facts to which plaintiff has alluded as a basis
for his allegation that Benitez was acting within the scope of his
employment at the time of the attack are these: Benitez’s duties
as a TSA official included mandatory weekly travel to the
Gulfport-Biloxi International Airport (which is also where Mrs.
Wright worked); that Benitez traveled to the Mississippi Gulf
Coast in a government-owned vehicle; and that when he traveled to
the Gulf Coast for work, he stayed with Mrs. Wright at her
apartment. Plaintiff declares that “[a]t all times that Ruben
Orlando Benitez was in use of the government vehicle, including
his visit to the Gulfport/Biloxi International Airport, he was
within the scope of his employment.” However, while Benitez may
have traveled to the Gulf Coast to perform work-related duties, he
did not go to the airport or do any work on the day of the murder
but rather remained at Mrs. Wright’s apartment. After Mrs. Wright
returned home from work, the two went to the grocery store
together, after which they returned to the apartment to watch a
8

plaintiff cannot possibly establish that Benitez was acting in the
course and scope of his employment when he murdered Mrs. Wright.3
Therefore, his claims against the Government for assault and
battery and wrongful death based on the assault and battery are
barred as a matter of law.
Negligence
The assault and battery exceptions to the FTCA’s waiver of
sovereign immunity do not merely bar claims for assault and
battery but instead broadly exclude from the FTCA's waiver of

movie, and then went out to dinner, using Mrs. Wright’s vehicle.
There is no arguable basis for concluding that the attack
following their return to the apartment was committed by Benitez
“in the course of and as a means to accomplishing the purposes of
[his] employment and therefore in furtherance of [TSA’s] business
... [or] incidental to the authorized conduct.” Adams v. Cinemark
U.S.A., Inc., 831 So. 2d 1156, 1159 (Miss. 2002).
3

Plaintiff apparently posits that Benitez could be found
to have been within the scope of his employment if his position at
TSA enabled him to continue the affair with Mrs. Wright and thus
to continue to have contact with her, which contact ultimately led
to her murder. His position has no merit. The Mississippi courts
have recognized that an employer may be held liable on agency
principles for an employee’s acts outside the course and scope of
his employment “if the [employee] was aided in accomplishing the
tort by the existence of the agency relation.” Jones v. B.L. Dev.
Corp., 940 So. 2d 961, 966 (Miss. Ct. App. 2006) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 757, 118 S. Ct.
2257, 141 L. Ed. 2d 633 (1998), in turn, quoting Restatement of
Agency § 219(2)(d)); id. (“‘scope of employment does not define
the only basis for employer liability under agency principles’”)
(quoting Ellerth, 524 U.S. at 758, 118 S. Ct. 2257). However, as
the FTCA’s waiver of immunity extends only to torts committed
within the scope of employment, agency principles that might be
advanced as a basis for imposing liability for acts committed
outside the course and scope of employment have no relevance.
9

immunity any claim “arising out of assault or battery,” including
claims “‘that sound in negligence but stem from a battery
committed by a Government employee.’”

Bodin, 462 F.3d at 488

(quoting Shearer v. United States, 473 U.S. 52, 55, 105 S. Ct.
3039, 87 L. Ed. 2d 38 (1985)).

In Shearer, the Court,

interpreting the “arising out of” language, explained:
[A plaintiff] cannot avoid the reach of § 2680(h) by
framing her complaint in terms of negligent failure to
prevent the assault and battery. Section 2680(h) does
not merely bar claims for assault or battery; in
sweeping language it excludes any claim arising out of
assault or battery. We read this provision to cover
claims ... that sound in negligence but stem from a
battery by a Government employee.
473 U.S. at 55, 105 S. Ct. 3039 (emphasis in original).
at 55, 105 S. Ct. 3039).

473 U.S.

However, in Sheridan v. United States,

487 U.S. 392, 401, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), the
Court “clarified that the intentional tort exception does not bar
all negligence claims that are related to an assault or battery
committed by a government employee[,]” Bodin, 462 F.3d at 488
(citing Sheridan), holding that “the negligence of other
Government employees who allowed a foreseeable assault and battery
to occur may furnish a basis for Government liability that is
entirely independent” of the employment status of the person
committing the assault[,] Sheridan, 487 U.S. at 401, 108 S. Ct.
2449.

10

Relying on Sheridan, plaintiff argued against dismissal of
his negligence claim in his prior case, asserting that discovery
might reveal evidence that other TSA or DHS personnel knew or
should have known of Benitez’s intention to harm Stacey Wright and
yet failed to act to prevent such harm.

The court rejected

plaintiff’s attempt to avoid dismissal on this basis, reasoning
that since plaintiff had made no such claim in his complaint, the
issue was not properly before the court for consideration.
Wright, 914 F. Supp. 2d at 846.

See

In contrast to his earlier

complaint, plaintiff alleges in his complaint in this cause that
TSA and DHS knew or should have known that Benitez and Mrs. Wright
were engaged in an affair; that TSA and DHS also knew or should
have known that Mrs. Wright, at some point, desired to end the
relationship so that Benitzez’s advances thereafter were unwanted;
that TSA and DHS also knew that Benitez was of “dangerous
character and ungovernable temper” and had a propensity for
violence; that TSA and DHS knew or should have known that Mrs.
Wright’s safety was in danger; and yet TSA and DHS failed to take
any appropriate corrective action to prevent the affair and
instead allowed Benitez to pursue and continually have contact
with Mrs. Wright, which proximately led to her death.

Even if all

this were true, however, plaintiff still has not stated a
cognizable claim for relief.

11

In concluding that the negligence of Government employees
other than the assailant who allowed a foreseeable assault and
battery to occur “may furnish a basis for Government liability
that is entirely independent” of the employment status of the
person committing the assault, Sheridan, 487 U.S. at 401, 108 S.
Ct. 2449, the Court reasoned that “in a case in which the
employment status of the assailant has nothing to do with the
basis for imposing liability on the Government, it would seem
perverse to exonerate the Government because of the happenstance
that [the assailant] was on a federal payroll.”
S. Ct. 2449.

Id. at 402, 108

The Fifth Circuit has explained the Court’s holding

in Sheridan, as follows:
“Sheridan stands for the principle that negligence
claims related to a Government employee's § 2680(h)
intentional tort may proceed where the negligence arises
out of an independent, antecedent duty unrelated to the
employment relationship between the tortfeasor and the
United States.” Leleux v. United States, 178 F.3d 750,
757 (5th Cir. 1999). The actual assault “thus serves
only to establish the extent of the plaintiff's injury,
not to establish the ... breach of duty.” Thigpen v.
United States, 800 F.2d 393, 399 n. 10 (4th Cir. 1986)
(Murnaghan, J., concurring in result). In other words,
the plaintiffs can recover only if the United States
breached a duty independent of its employment
relationship with (the tortfeasor).
Bodin, 462 F.3d at 488-89.

The question whether the Government

owes such an an independent duty to protect is a question of state
law where the assault occurred.

See id. at 489 (citing 28 U.S.C.

12

§ 1346(b)(1) (rendering United States liable “in accordance with
the law of the place where the act or omission occurred”)).
Bodin is an example of a case where such a duty was found to
exist.

There, the plaintiffs, psychiatric patients of Dr. Gregory

Vagshenian at an outpatient facility operated by the Department of
Veterans Affairs, alleged that Dr. Vagshenian performed illegal,
inappropriate, and unnecessary physical examinations of their
genitalia, and they sued the United States for failing to take
steps to prevent the doctor’s assault and malpractice.
at 484.

462 F.3d

The Fifth Circuit identified three separate bases on

which a duty arose under Texas law to protect the plaintiffs from
the assault, none of which depended on the employment status of
the assailant:

the duty of a hospital to exercise care to

safeguard patients from known and reasonably known dangers, which
duty included taking reasonable steps to prevent assaults by third
persons; the heightened duty of care of a provider of
psychological services to its patients because of their
vulnerability and the resulting special relationship; and the duty
of a possessor of land to invitees to protect them from
foreseeable assaults on the premises.

Id. at 489.

Thus, the

FTCA’s intentional tort exception did not preclude the plaintiffs’
suit.
As is clear from Bodin, the first step is to determine
whether there existed “an independent, antecedent duty unrelated
13

to the employment relationship between the tortfeasor and the
United States.”

Leleux, 178 F.3d at 757.

law for the court.

This is a question of

Rein v. Benchmark Constr. Co., 865 So. 2d

1134, 1143 (Miss. 2004).

The Government maintains it had no

independent duty to protect Mrs. Wright from Benitez.

In his

response, plaintiff does not even acknowledge this as an issue.
Instead, he merely insists that dismissal of his claim at this
time would be premature as he has not yet had the opportunity to
conduct discovery aimed at ascertaining the Government’s knowledge
of a “potential problem” involving Benitez and Wright.

The

“potential problem” to which plaintiff refers is evidently the
affair between Benitez and Mrs. Wright.

However, even if

plaintiff could show that the Government knew about the affair,
mere knowledge of the affair, even coupled with alleged knowledge
that Mrs. Wright did not desire to continue the affair, would not
give rise to a duty on the part of the Government, independent of
the employment relationship, to protect Mrs. Wright from an
assault and battery by Benitez.

There is simply no basis in

Mississippi law to find that the Government owed or breached any
duty to protect Mrs. Wright, independent of its employment
relationship with Benitez.
Plaintiff has certainly identified no such duty.

In the

negligence count of his complaint, plaintiff alleges that TSA
and/or DHS “breached its duty of care to Stacey Wright in failing
14

to maintaining [sic] working conditions that are reasonably safe.”
Yet any duty that state law might possibly impose to provide a
safe place to work by protecting an employee from the predation of
a co-worker/supervisor would not qualify as an independent duty
unrelated to Benitez’s employment relationship with TSA.

In his

response to the Government’s motion, plaintiff also vaguely
asserts that TSA and DHS had “a duty to prevent” the affair
between Benitez and Mrs. Wright; but again, even if there were
arguably a duty to prevent the affair, that does not equate to a
duty to protect Mrs. Wright from a physical attack at her home
after work hours.

Moreover, even if the Government had been under

a state-law duty to prevent an affair between co-workers, any such
duty would not be “independent of the employment relationship.”4
The Mississippi courts have found a duty to protect from the
criminal assault of third persons in limited circumstances.

In

Faul v. Perlman, 104 So. 3d 148 (Miss. Ct. App. 2012), the court
recognized that while “[c]ommon law traditionally has not imposed
a broad duty upon individuals to control the conduct of others[,]”
id. at 153 (internal quotation marks and citation omitted), “there

4

Plaintiff’s allegation that Benitez, a TSA management
official and Stacey Wright’s superior, pursued the affair with
Mrs. Wright against her wishes, could be construed as a claim of
sexual harassment, which the court has already held is not
actionable by Mr. Wright. See 914 F. Supp. 2d at 842-43.
Moreover, an employer’s duty to prevent sexual harassment of its
employees is obviously completely dependent on the employment
relationship.
15

are circumstances in which a person owes a duty to protect against
the actions of another,” id.

The court stated:

“Where ... a complaint alleges injuries resulting from
the criminal acts of third persons the common law,
reluctant to impose liability for nonfeasance, generally
does not impose a duty upon a defendant to control the
conduct of another, or to warn of such conduct, unless
the defendant stands in some special relationship either
to the person whose conduct needs to be controlled, or
to the foreseeable victim of such conduct.”
Id. at 154 (quoting Chaney v. Superior Court, 39 Cal. App. 4th
152, 46 Cal. Rptr.2d 73, 75 (1995)).
For example, “[a]lthough not an insurer of an invitee's
safety, a premises owner owes a duty to exercise
reasonable care to protect the invitee from reasonably
foreseeable injuries at the hands of another.” Simpson
[v. Boyd, 880 So.2d 1047, 1051 (¶ 14) (Miss. 2004)] (¶
14) (citing Newell v. S. Jitney Jungle Co., 830 So. 2d
621, 623 (¶ 6) (Miss. 2002)). Similarly, “[a]lthough a
board of education is not an insurer of the safety of
its students, there is an obligation to supervise
adequately the activities of students within its charge,
and it will be held liable for a foreseeable injury
proximately related to the absence of supervision.”
Summers ex rel. Dawson v. St. Andrew's Episcopal Sch.,
Inc., 759 So. 2d 1203, 1214 (¶ 47) (Miss. 2000) (citing
James v. Gloversville Enlarged Sch. Dist., 155 A.D.2d
811, 548 N.Y.S.2d 87, 88 (N.Y.1989)).
104 So. 3d at 153-54.

See also id. at 154 (holding that wife who

invited child into her home assumed a special relationship with
the child based on the child’s dependence on her and hence had a
duty to protect the child against and/or warn about her husband’s
reasonably foreseeable criminal conduct toward her); Washington v.
Casino Amer., Inc.

820 So. 2d 743, 746 (Miss. Ct. App. 2002)

(stating that “while generally there is no duty to protect others
16

from the criminal activities of third persons, when a duty to
protect others against such criminal misconduct has been assumed,
liability may be created by a negligent breach of that duty.”).
In the case at bar, Benitez’s attack of Mrs. Wright occurred
at her apartment and not on government property so that the
Government owed Mrs. Wright no duties as a premises owner.

The

Government did not voluntarily undertake any duty to protect Mrs.
Wright from a criminal attack by third persons.

And, there is

nothing in the Mississippi cases to suggest that the Mississippi
Supreme Court would treat the employer/employee relationship as a
“special relationship” giving rise to a duty on the employer to
protect its employees from criminal assault away from the
employer’s premises.5
In the absence of a duty to protect Mrs. Wright, independent
of any duty arising by virtue of the Government’s employment
relationship with Benitez, plaintiff’s negligence claim against
5

Some courts have recognized a duty by an employer to
protect an employee from imminent danger while at work. See,
e.g., Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 713, 798
A.2d 587 (2002). There are no Mississippi cases recognizing such
a duty; but even if such a duty did exist, plaintiff has alleged
no basis for finding such a duty in the circumstances of this
case. There is no allegation of a specific imminent threat posed
by Benitez. Plaintiff merely refers in his complaint to Benitez’s
“ungovernable temper” and “propensity for violence,” and does not
indicate that the Government should have known of any threat of
imminent danger to Mrs. Wright. It is worth noting, too, that
there is no allegation or factual basis for inferring that Mrs.
Wright, who had been involved in an affair with Benitez for more
than a year, was unaware of his alleged “ungovernable temper”
and/or “propensity for violence.”
17

the Government for failing to prevent the attack fails as a matter
of law and will be dismissed.
Alienation of Affection
As discussed supra, under the FTCA, the court must look to
Mississippi law to determine whether or not a tort claim is
actionable, since the FTCA waives sovereign immunity for a
government employee’s tort committed in the scope of employment
only in circumstances where a private person would be liable in
accordance with the law of the place where the tort occurred.
The Mississippi Supreme Court has held that an employer may not be
held vicariously liable for alienation of affection allegedly
arising out of an illicit relationship between two employees.

See

Children’s Medical Group, P.A. v. Phillips, 940 So. 2d 931, 935
(2006) (holding that as a matter of law, a doctor’s affair with a
nurse working in the same clinic was “so clearly beyond [the
doctor’s] course and scope of employment that [it could not] form
the basis for a claim of vicarious liability, as a matter of
law”).

Moreover, the Mississippi Supreme Court has clearly held

that an employer has no duty to “‘uncover his employee’s
concealed, clandestine, personal activities.’”

Baker Donelson

Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 489
(Miss. 2010) (quoting Tichenor v. Roman Catholic Church of the
Archdiocese of New Orleans, 32 F.3d 953, 960 (5th Cir. 1994)).
Yet in Children’s Medical Group, the court denied a Rule 12(b)(6)
18

motion to dismiss a husband’s suit against his wife's employer for
allegedly allowing her and a coworker to engage in an extramarital
affair.

940 So. 2d at 932.

Similar to plaintiff’s allegations

herein, the plaintiff in Children’s Medical Group alleged that the
employer “knew of and negligently and recklessly allowed the
illicit relationship between” one of the doctors at Children’s
Medical Group and an employee, “to be carried on while employed
with said [doctor] at its office and elsewhere.”

Id. at 933.

Children’s Medical Group sought dismissal, arguing it owed no duty
to the plaintiff to prevent the doctor from pursuing a consensual
affair with another employee.

Id.

The court denied the motion,

stating it was unable to say as a matter of law that there were no
possible facts which could result in Children’s Medical Group’s
liability for alienation of affection based on its own actions.
The Mississippi Supreme Court has refused to abolish the tort
of alienation of affection “on public policy grounds ‘in the
interest of protecting the marriage relationship and providing a
remedy for intentional conduct which causes a loss of
consortium.’”

Brent v. Mathis, --- So. 3d ----, 2014 WL 5766919,

at 2 (Miss. 2014) (quoting Fitch v. Valentine, 959 So. 2d 1012,
1020 (Miss. 2007)).

To succeed on a claim of alienation of

affection, a plaintiff must prove the following elements:
“(1)wrongful conduct of the defendant; (2) loss of affection or
consortium; and (3) causal connection between such conduct and
19

loss.”

Fitch, 959 So. 2d at 1025.

The Mississippi Supreme Court

has described the tort as
the only available avenue to provide redress for a
spouse who has suffered loss and injury to his or her
marital relationship against the third party who,
through persuasion, enticement, or inducement, caused or
contributed to the abandonment of the marriage and/or
the loss of affections by active interference.
Id. at 1020.

There is nothing in plaintiff’s complaint in the

case at bar to indicate in what manner the Government could be
found to have actively interfered in the relationship between
plaintiff and his wife, or to have persuaded, enticed or induced
Mrs. Wright to engage in an extramarital affair with Benitez.
Plaintiff alleges nothing more than that the Government knew or
should have known of the affair and failed to take corrective
action to stop the affair, thereby allowing the affair to
continue.

Under Mississippi law, merely to allege and prove that

the employer “should have known” of the affair is not sufficient
to state a claim, since the employer has no duty to “‘uncover his
employee’s concealed, clandestine, personal activities.’”

Baker

Donelson, 42 So. 3d at 489 (quoting Tichenor, 32 F.3d at 960).
But even if the plaintiff had alleged and could prove that the
Government knew of the affair, in the court’s opinion, that
knowledge would not suffice to support liability for alienation of
affection.

Accepting that under Mississippi law, there may be

some circumstance in which an employer could be held liable for

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alienation of affection, it defies reason to consider that an
employer who merely does nothing in the face of knowledge of an
affair can be found to have persuaded, enticed or induced the
affair or to have actively interfered in the relationship between
a complainant and his spouse.

For that reason, the court is of

the opinion that the complaint fails to state a claim against the
Government for alienation of affection.
Even if Mississippi law were to the contrary, however, the
court would find that the complaint in this cause should be
dismissed on summary judgment.

Despite having alleged that the

Government knew or should have known of the affair, plaintiff
effectively concedes that he has no proof that the Government did,
in fact, know about the affair between Benitez and Mrs. Wright.
Plaintiff requests that he be granted an opportunity for discovery
aimed at uncovering proof of such knowledge.

However, he offers

no sound basis for predicting that such proof exists.

In support

of his request for discovery, plaintiff has offered the affidavit
of his “expert in law enforcement [and] criminal justice”, John
Tisdale, who relates that during the course of “studying this
case”, he interviewed Mrs. Wright’s sister, Lisa Williams, and she
indicated to him that Mrs. Wright “was a victim of sexual
harassment [by Benitez] and was scared to report this behavior.”6
6

The court is uncertain as to Tisdale’s interest in this
issue in any event. As a professed expert in “law enforcement and
criminal justice,” it would seem he could offer nothing of
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Tisdale further describes two memos he reviewed, one from Benitez
and one from Stacey Wright, sent to David Wynn, their superior at
TSA, in July 2012 (two months before the murder), in response to
an inquiry directed to each of them by Wynn concerning an
anonymous letter he had received claiming there was an
inappropriate relationship between Benitez and Wright.
and Wright both flatly denied any such relationship.

Benitez

Benitez

responded that there was “no truth to me dating LTSO Wright,” and
he claimed to believe the submission was “fabricated by an
individual who has a specific agenda in ruining my reputation.”
Mrs. Wright similarly informed Wynn that this allegation was “a
total fabrication and strictly unheard from those who are
spreading these lies.”
Plaintiff maintains that while these memos tend to show the
Government had knowledge of a “potential problem” involving
Benitez and Mrs. Wright, Tisdale was not able to complete an indepth investigation into the Government’s knowledge of the affair
due to a lack of access to materials that can only be gained
through discovery, including, for example, disciplinary records,
corrective actions, internal investigations, travel logs, training
logs and files relating to the murder.
To secure a continuance for the purpose of obtaining
discovery, “the party opposing summary judgment must show that the
relevance on this issue.
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additional discovery will be more than a mere ‘fishing
expedition.’” Addison v. Allstate Ins. Co., 97 F. Supp. 2d 771,
774 (S.D. Miss. 2000) (internal quotation marks and citation
omitted); see also Robbins v. Amoco Prod. Co., 952 F.2d 901, 907
(5th Cir. 1992) (“Because [R]ule 56(f) cannot be relied upon to
defeat a summary judgment motion ‘where the result of a
continuance to obtain further information would be wholly
speculative,’ the district court's refusal to grant Robbins's
request for additional discovery was not an abuse of discretion.”
(internal citation and quotation marks omitted)); Paul Kadair,
Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1029 (5th Cir. 1983)
(“The intent of Rule 56(f) of the Federal Rules of Civil Procedure
is not to open the discovery net to allow a fishing expedition.”)
(internal quotation marks and citation omitted).

Here, it is

entirely speculative that discovery might aid plaintiff in proving
that the Government was aware of the affair between Benitez and
Mrs. Wright.

Mrs. Wright’s sister reportedly has stated that her

sister was “scared” to report the relationship, or, as
characterized by plaintiff, the “harassment”.

Furthermore, it is

undisputed that when the affair was brought to the attention of
TSA officials, inquiry was made of Benitez and Mrs. Wright and
both vehemently denied the allegation – an allegation which was
received from an anonymous source thus precluding questioning
concerning the allegation.

In addition, in his testimony at his
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criminal trial, Benitez indicated that prior to the murder, TSA
officials were unaware of the affair.

According to Benitez,

during the argument between him and Mrs. Wright just prior to his
attack, she threatened to report the affair to TSA officials.

In

the face of such evidence indicating that the Government had no
knowledge of the affair, plaintiff has failed to suggest any
reason to anticipate that discovery might uncover facts that show
otherwise.

In the absence of such a showing, this court perceives

no valid basis for postponing consideration of the Government’s
motion while plaintiff goes on a fishing expedition.
The court concludes that as plaintiff has presented no
evidence to show that the Government had knowledge of the affair
between Benitez and Mrs. Wright, summary judgment is proper on his
claim for alienation of affection.
Conclusion
Based on all of the foregoing, it is ordered that the
Government’s motion to dismiss, or in the alternative, for summary
judgment, is granted, as set forth herein.
SO ORDERED this 18th day of November, 2014.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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