Cline v. United States

Filing 32

MEMORANDUM AND ORDER: For the reasons stated herein, the government's motion to dismiss is GRANTED WITHOUT PREJUDICE. It is further ORDERED that the plaintiffs shall have a period of 14 days to amend the Complaint. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 9/18/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KIMBERLY CLINE, individually,
and on behalf of her minor child, E.C.,

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Plaintiffs,
v.
UNITED STATES,
Defendant.

Case No. 3:13-cv-0776
Judge Trauger

MEMORANDUM AND ORDER
Pending before the court is a Motion to Dismiss the Amended Complaint (Docket No.
25) filed by the defendant, the United States of America, to which the plaintiffs have filed a
Response in opposition (Docket No. 30). For the reasons discussed herein, the motion to dismiss
will be granted without prejudice.
BACKGROUND1
On April 7, 2014, this court granted without prejudice the government’s Motion to
Dismiss the plaintiffs’ original Complaint. (Docket No. 21.) The court’s April 7, 2014 Order
permitted the plaintiffs a period of 14 days to amend their Complaint. On April 18, 2014, the
plaintiffs filed an Amended Complaint, which the government has moved to dismiss.
I.

Allegations of the Amended Complaint
The factual allegations of the Amended Complaint are similar to the factual allegations of
the original Complaint, which were detailed in the court’s April 7, 2014 opinion, familiarity with

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Unless otherwise noted, the facts are drawn from the Amended Complaint (Docket No. 22).
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which is assumed. For purposes of context, the court will briefly summarize the events
underlying the plaintiffs’ claims.
In 2007, plaintiff Kimberly Cline (“KC”), who is the mother of plaintiff EC, a minor
child born in 2001, married Joshua Matthew Cline (“JMC”). At the time, JMC was an active
duty soldier in the United States Army. KC, JMC, and EC reside in Clarksville, Tennessee.
According to the Amended Complaint, around March 2008, the Army and other federal
agencies began to investigate JMC for possession and distribution of child pornography. Around
the same time, on March 1, 2008, JMC returned to Tennessee from Iraq, where he had been
deployed, for a two-week rest and relaxation tour (“R&R”). During his R&R, JMC created and
produced pornographic material, including videos and photographs of himself sodomizing and
raping EC, who was six years old. JMC returned to Iraq around March 19, 2008.
On or around September 29, 2008, the Army’s Criminal Investigation Division (“CID”)
interviewed JMC regarding his suspected distribution and possession of child pornography. The
plaintiffs allege that, during that interview, JMC admitted that he possessed child pornography
and that he was specifically interested in pornography involving children between seven and ten
years old. According to the Amended Complaint, the CID specifically asked JMC about EC
during the September 29, 2008 interview.
The plaintiffs allege that, following the interview and JMC’s admission related to child
pornography, CID took no action against JMC and did not contact KC, law enforcement in
Tennessee, the Tennessee Department of Children’s Services (“DCS”), or any authority. Around
October 2008, however, the Army confiscated JMC’s computer, which contained photographs
and videos of JMC raping and sodomizing EC.

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The plaintiffs allege that, around October 3, 2008, JMC called KC from Iraq and alerted
her that she would be receiving calls about an Army investigation of JMC. JMC instructed KC
“not to answer” questions because he had hired an attorney, and KC was entitled to spousal
privilege. JMC did not inform KC about the nature of the investigation. Around October 15,
2008, the Army contacted KC. Initially, KC refused to meet with the Army because of JMC’s
instruction to keep quiet and assert spousal privilege. The plaintiffs allege that, upon this initial
communication, the Army and CID did not inform or warn KC, EC, or any law enforcement in
Tennessee regarding the nature of the investigation or any suspected danger that JMC posed to
EC.
Around October 19, 2008, CID again contacted KC and threatened that, if she did not
meet with Army Family Services, KC would face criminal prosecution. The next day, KC met
with local personnel, including Army Family Services and CID, at Fort Campbell Army base.2
During the October 20, 2008 meeting, KC informed the government that she knew that an
investigation was taking place and that JMC had told her that it was a mistake. According to the
Amended Complaint, the government and its agents did not permit KC to review the file
regarding the CID’s investigation of JMC and did not inform her that JMC was being
investigated for possession of child pornography. The plaintiffs further allege that KC asked the
Army personnel if JMC should be allowed around EC and, in response, all government
employees assured KC that the investigation had nothing to do with EC. The agents did,
however, instruct “[KC] to limit JMC’s interaction with Plaintiff EC.” The plaintiffs allege that
KC “explicitly and directly asked personnel for Defendant’s agencies, Army Services and CID,
whether JMC should be allowed to return to the home and be alone with Plaintiff EC and the

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Fort Campbell is a military base located in Kentucky and Tennessee.
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personnel told her that JMC returning was not a problem, only to limit his time with EC.”
Following the October 20, 2008 meeting, the government continued its pattern of silence and did
not contact law enforcement authorities in Tennessee.
Around November 14, 2008, JMC returned to the marital home in Tennessee from his
deployment in Iraq. Following his return, the Army and its employees made no action to warn
KC or to contact law enforcement in Tennessee about any dangers posed by JMC to EC. Around
December 6, 2008, JMC repeatedly raped and sodomized EC in the Cline family home while KC
was in the hospital giving birth to a son. Following the rape, JMC attempted to sell videos and
photographs that he had created in March 2008 showing his past abuse of EC.
In late January 2009, DCS employees contacted KC and threatened that, if she did not
return home from work immediately, her children would be taken into state custody.3 When KC
returned to her home, federal agents had searched her property. She was interviewed by one
agent, Agent Hendrix, who informed her for the first time that the Army investigation of JMC
was based on possession of child pornography. The plaintiffs allege that Agent Hendrix did not
inform KC at that time that EC was a suspected victim of JMC. Over a year later, in March
2010, EC told a psychologist about her stepfather’s abuse. The psychologist informed KC of her
daughter’s victimization.
The plaintiffs plead that the Army failed to warn KC and her daughter, as well as federal
and local law enforcement, of the dangers posed by JMC when the government began its
investigation in March 2008 and after JMC admitted to possession of child pornography in
September 2008. They assert that such omissions were negligent, willful, deliberate, knowing,

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Although it is not properly considered at the Rule 12 stage, the court notes that the Lennier
Declaration represents that, sometime before DCS threatened to take KC’s children, the Army
determined that JMC had in fact raped and sodomized EC.
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and malicious, and allege that the defendant’s actions resulted in pain, suffering, emotional
distress, and a variety of other losses.
II.

Procedural Background
The plaintiffs filed this action on August 5, 2013, alleging five claims under the Federal
Tort Claims Act, 28 U.S.C. § 1346 et seq. (“FTCA” or “Act”): (1) intentional infliction of
emotional distress, (2) negligent infliction of emotional distress, (3) common law negligence, (4)
negligence per se, and (5) failure to warn. On November 15, 2013, the government moved to
dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). In their Response in opposition to the
government’s first Motion to Dismiss, the plaintiffs asserted a new theory of liability based on
Tennessee’s mandatory child abuse reporting statutes, T.C.A. §§ 37-1-403(a) and 37-1-605.
The plaintiffs argued that the state of Tennessee imposes an affirmative duty on any person who
has knowledge of child abuse to report the abuse to the authorities. Accordingly, the plaintiffs
contended that the government had breached its duty to the plaintiffs because it had known of or
suspected JMC’s abuse of EC, yet failed to report the abuse immediately.
On April 7, 2014, the court granted the government’s motion to dismiss after it concluded
that the intentional tort exception to the FTCA bars the plaintiffs’ claims as pled in the
Complaint, which were premised solely upon the Army’s negligent supervision and retention
within its ranks of JMC. The court further noted that, because the plaintiffs did not mention
T.C.A. §§ 37-1-403(a) and 37-1-605 in their Complaint (only in their brief opposing dismissal),
the court could not consider the Tennessee statutory duty in its evaluation of the government’s
first motion to dismiss.
The plaintiffs filed their Amended Complaint on April 18, 2014. The Amended
Complaint pleads five causes of action under the FTCA: (1) intentional infliction of emotional

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distress, (2) negligent infliction of emotional distress based upon the government’s breach of its
duty to warn, as set forth by T.C.A. §§ 37-1-403(a) and 37-1-605, (3) common law negligence
based upon the government’s breach of its duty under T.C.A. §§ 37-1-403(a) and 37-1-605, (4)
negligence per se, rooted in the government’s failure to report/warn under T.C.A. §§ 37-1-403(a)
and 37-1-605, and (5) an individual claim for failure to report/warn in violation of T.C.A. §§ 371-403(a) and 37-1-605.
The government articulates a variety of alternative theories in the instant motion to
dismiss. First, the government argues that it is entitled to dismissal pursuant to Rule 12(b)(6)
because the Amended Complaint does not allege a breach of any recognized duty owed by the
United States. Specifically, the government argues that the plaintiffs have failed to state a claim
for negligence because (1) Tennessee’s reporting statute does not create a private right of action
for individuals, and (2) the plaintiffs have not pled that the United States knew that JMC abused
EC and failed to report it to the state. The government further argues that the plaintiffs have
failed to properly plead their intentional infliction of emotional distress claim because the
intentional tort exception bars their claim and, even if the claim were not barred, the alleged
government misconduct was not so outrageous as to plead a prima facie case of intentional
infliction of emotional distress.
The government also moves to dismiss the plaintiffs’ claims on the ground that the court
lacks subject matter jurisdiction. In particular, the government contends that the plaintiffs’
claims are barred by the FTCA’s “discretionary function exception.” The government further
argues that the court lacks jurisdiction over claims for negligence because Tennessee statutory
law does not apply to the CID agents who investigated JMC in Iraq, even if they were negligent
as to EC. Finally, the government asserts a factual challenge to the court’s subject matter

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jurisdiction, submitting the Declaration of John Lennier, which includes Army CID records
related to the investigation of JMC. The government appears to argue that the Lennier
Declaration and its exhibits demonstrate that CID did not know of abuse until January 2009, after
the last alleged incident of rape occurred, and therefore, the government’s omission could not
have caused the plaintiffs’ injuries. For these reasons, the government contends, the court lacks
subject matter jurisdiction to hear the claim.
ANALYSIS
The government has moved for dismissal based on Federal Rules of Civil Procedures
12(b)(1) and 12(b)(6). This court is bound to consider the 12(b)(1) motion first, as the 12(b)(6)
challenge becomes moot if subject matter jurisdiction is lacking. See Moir v. Greater Cleveland
Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bell v. Hood, 327 U.S. 678, 682
(1946) (concluding that a motion to dismiss for failure to state a claim may be decided only after
the establishment of subject matter jurisdiction because determination of the validity of the claim
is itself an exercise of jurisdiction)).
I.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
A. Standard
Because a court that lacks subject matter jurisdiction over a case does not have the power

to hear it, the question of subject matter jurisdiction may be raised at any time. See Kontrick v.
Ryan, 540 U.S. 443, 455 (2004); United States v. Alesida, 129 F.3d 846, 850 (6th Cir. 1997).
When a defendant attacks subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), the plaintiff must meet the burden of proving jurisdiction. Golden v. Gorno Bros., Inc.,
410 F.3d 879, 881 (6th Cir. 2005).

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A Rule 12(b)(1) motion may challenge the complaint on its face, or it may contest the
existence of subject matter jurisdiction in fact. If the motion attacks the face of the complaint,
the plaintiff's burden “is not onerous.” Musson Theatrical, Inc. v. Federal Express Corp., 89
F.3d 1244, 1248 (6th Cir. 1996). The plaintiff need only demonstrate that the complaint alleges
a “substantial” federal claim, meaning that prior decisions do not inescapably render the claim
frivolous. Id. A court evaluating a facial attack must consider the allegations of fact in the
complaint to be true. Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir. 1999). Thus, “the
plaintiff can survive the motion by showing any arguable basis in law for the claim made.”
Musson Theatrical, 89 F.3d at 1248.
Alternatively, if a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the
court “must weigh the evidence” in order to determine whether it has the power to hear the case.
DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). When the facts are disputed, “[t]he
district court has broad discretion to consider affidavits, documents outside the complaint, and to
even conduct a limited evidentiary hearing if necessary.” Cooley v. United States, 791 F. Supp.
1294, 1298 (E.D. Tenn. 1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir.
1994). The court can do so without converting the Rule 12(b)(1) motion into a motion for
summary judgment. Id.
B. Subject Matter Jurisdiction and the Amended Complaint
The government argues that the court lacks subject matter jurisdiction over the plaintiffs’
claims for three reasons: (1) the discretionary function exception to the FTCA applies and,
therefore, sovereign immunity of the United States is not waived; (2) the Tennessee mandatory
reporting statutes, the only alleged basis for inferring a duty on the part of the government, does
not apply to federal employees operating on Army bases in Iraq and elsewhere; and (3) the

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Lennier Declaration supports a finding that CID did not know of JMC’s abuse of EC until
January 2009 and, therefore, the government’s failure to act could not have proximately caused
JMC’s abuse of EC in December 2008. The first two grounds for dismissal pursuant to 12(b)(1)
appear to be facial challenges to the Amended Complaint, but the government identifies the third
ground for dismissal as a “factual” attack.
As an initial matter, the government’s “factual attack” based on the Lennier Declaration
and the element of “proximate cause” is not a challenge to the court’s power to hear the case.
The question of when the government knew or reasonably suspected that JMC had abused EC is
irrelevant to the question of whether or not the court has power to hear the action. Indeed, the
government appears to ask the court to weigh its evidence—the Lennier Declaration—against the
allegations of the Amended Complaint for purposes of evaluating the truth of the allegations.
Such a challenge is, in reality, an attack on the factual accuracy of the plaintiffs’ claims that is
inappropriate at the Rule 12 stage. Accordingly, the court need not consider the government’s
faux “factual” challenge for purposes of assessing its subject matter jurisdiction over the
Amended Complaint.
1. The FTCA’s Discretionary Function Exception
The FTCA provides a waiver of sovereign immunity for a plaintiff to bring state-law tort
claims against the United States “in the same manner and to the same extent as a private
individual under like circumstances,” to the extent that those tort claims arise from the acts of
federal employees acting within the scope of their employment. 28 U.S.C. § 2674; see Young v.
United States, 71 F.3d 1238, 1241 (6th Cir. 1995). The liability of the United States under the
FTCA is “determined in accordance with the laws of the state where the event giving rise to
liability occurred.” Young, 71 F.3d at 1242.

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The FTCA’s waiver of sovereign immunity is limited and contains a series of exceptions.
See 28 U.S.C. § 2680(h). Among others, these exceptions include the intentional tort exception,
which was discussed in the court’s April 7, 2014 opinion, and the discretionary function
exception, which the government now alleges bars the claims alleged in the Amended
Complaint. The discretionary function exception states that the FTCA’s waiver does not apply
to “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” Id. § 2680(a). “If a claim falls within this
exception, then federal courts lack subject-matter jurisdiction, and the claim must be dismissed.”
See Kohl v. United States, 699 F.3d 935, 940 (6th Cir. 2012).
To determine whether a claim falls within the discretionary function exception, courts
apply a two-part test. Id. (citing United States v. Gaubert, 499 U.S. 315, 322-23 (1991))
(“Gaubert test”). The first step
requires a determination of whether the challenged act or omission violated a
mandatory regulation or policy that allowed no judgment or choice. If there was
such a violation of a mandatory regulation or policy, then the discretionaryfunction exception will not apply, because there was no element of judgment or
choice, and thus the employee has no rightful option but to adhere to the directive.
Id. (internal citations omitted). On the contrary, if “there was room for judgment or choice in the
decision made, then the challenged conduct was discretionary. In such a case, the second step of
the test requires a court to evaluate whether the conduct is of the kind that the exception was
designed to shield from liability.” Id.
Here, the government argues that the conduct challenged by the plaintiffs is the manner
in which the Army conducted its investigation of JMC. The government argues that, because no
federal statute, regulation, or policy specifically prescribes a course of action that the Army
should have followed in terms of reporting the danger that JMC posed to EC, the Army’s
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decision not to notify the appropriate authorities in Tennessee was discretionary and, therefore,
falls within the exception.
In response, the plaintiffs narrow the conduct at issue and identify a relevant federal
statute that, they argue, specifically directed the Army as to how to act. They argue that the
plaintiffs’ allegations of misconduct are solely premised upon the government’s failure to report
suspected (not necessarily known) child abuse, specifically sexual abuse, to the proper
authorities, which ultimately led to EC being victimized again by JMC in December 2008. The
plaintiffs identify 42 U.S.C. § 13031, a federal statute titled “Child abuse reporting,” as a federal
statute specifically prescribing a course of action that the Army should have followed upon
suspicion of JMC’s abuse of EC.4 The government failed to file a Reply to the plaintiffs’
Response in opposition to the pending motion. Consequently, the government did not respond to
the plaintiffs’ invocation of Section 13031 and has failed to offer any reason why Section 13031
would not remove the plaintiffs’ claims from the scope of the discretionary function exception.
Section 13031 states:
(a) In general
A person who, while engaged in a professional capacity or activity described in
subsection (b) of this section on Federal land or in a federally operated (or
contracted) facility learns of facts that give reasons to suspect that a child has
suffered an incident of child abuse, shall as soon as possible make a report of the
suspected abuse to the agency designated under subsection (d) of this section.
42 U.S.C. § 13031. Subsection (b) of the statute identifies “covered professionals” subject to the
statute, including, inter alia, (1) physicians; (2) social workers; (3) teachers; (4) child care
workers; and (5) law enforcement personnel, probation officers, and criminal prosecutors. Id.

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The plaintiffs need not have pled Section 13031 in their Amended Complaint in order for it to
be considered at stage one of the Gaubert test. Kohl, 699 F.3d at 941-43.
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(emphasis added). The statute defines “child abuse” as “physical or mental injury, sexual abuse
or exploitation, or negligent treatment of a child.” The statute further states that, “[f]or all
Federal lands and all federally operated (or contracted facilities) in which children are cared for
or reside, the Attorney general shall designate an agency to receive and investigate the reports
described in subsection (a).” Id. The plaintiffs argue that, according to 28 C.F.R. § 81.2, in the
case of EC, the Army was obligated to report the abuse to an appropriate authority in Tennessee
with jurisdiction over the matter, for instance, DCS or the Clarksville Police Department.
The court agrees with the plaintiffs that Section 13031 is a mandatory reporting statute
that, according to the allegations of the Amended Complaint, applies to the law enforcement
personnel who investigated JMC, both at an Army base in Iraq and at Fort Campbell in the
United States. The court makes no factual determination as to whether the government’s agents
did actually learn of facts that gave them reason to suspect that EC (or any child) had been
abused by JMC, but concludes that the allegations as to the government’s alleged misconduct—
its failure to warn, assuming that it did reasonably suspect that a child had been harmed—do not
fall within the discretionary function exception.5 Accordingly, the discretionary function
exception does not strip the court of its subject matter jurisdiction in this case.

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The plaintiffs appear to argue that, because the government (1) knew that JMC admitted to
possessing child pornography, (2) knew that JMC admitted to an attraction to children between
seven and ten years old, and (3) knew that JMC had a stepdaughter around that age at home, the
government had learned facts that gave them reason to suspect that a child had suffered abuse.
The court would hesitate to agree that, in all cases, because a government agent has knowledge
that a man possesses child pornography, is attracted to children, and that the man has a child of
similar age at home, the government possesses knowledge or suspicion of child abuse. However,
other allegations of the plaintiffs’ Amended Complaint give rise to inferences that, in this case in
particular, the government agents investigating JMC suspected that he had either harmed
children (or EC) in the past, or that he had the potential to harm EC. In particular, Paragraphs
33-35 of the Amended Complaint allege that, when asked by KC if the Army’s investigation was
in any way related to EC, government agents insisted that the investigation was unrelated to EC.
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2. Application of Tennessee Law to the Failure to Act of the Army Agents
The government further argues that the court lacks subject matter jurisdiction over the
plaintiffs’ claims because the Amended Complaint does not allege an applicable legal basis for
liability. The FTCA states that the United States can be held liable “for injury . . . 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) (emphasis added). The government argues that the
Amended Complaint pleads one legal basis for liability under the FTCA—Tennessee’s statutory
mandatory reporting requirements. The government contends that, because the acts or omissions
allegedly committed by the government occurred in Iraq and at Fort Campbell, Tennessee’s
statutes alone do not apply to this case, and the plaintiffs have failed to plead a “law of the place”
where the act or omission occurred. Consequently, the government contends, the plaintiffs’
FTCA claims fail, the government’s sovereign immunity is triggered, and the court lacks subject
matter jurisdiction.
The court agrees. As pled, the Amended Complaint does not allege an applicable legal
basis for liability as to negligence that appears to have occurred only on federal property in Iraq
and on a military base located within the United States. Instead, the Amended Complaint merely
alleges violations of Tennessee’s mandatory reporting statutes. In their response to the pending
motion, the plaintiffs, for the first time, cite to Section 13031 and argue that a federal statute can
be used to satisfy the “law of the place” requirement of the FTCA when considered in

Despite insisting that the investigation was unrelated to EC, however, the plaintiffs allege that
the government agents warned (perhaps multiple times) KC to limit JMC’s interaction with EC.
Given that the Army agents specifically instructed KC to limit JMC’s interactions with EC, the
pleading suggests that the government agents must have possessed at least some suspicion that
JMC had harmed EC or another child in the past or that EC was at risk.
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conjunction with the law of the state where the act or omission occurred.6 As explained by the
court in its previous opinion in this case, in evaluating a motion to dismiss pursuant to Rule
12(b), the court is limited to the allegations of the operative pleading. Here, the Amended
Complaint asserts merely that the government breached its purported duty under Tennessee law
(alone) to report its suspicions to authorities. The plaintiffs have failed to provide any
explanation for why Tennessee law, standing alone (without the federal statute7), should reach
the government agents here.
Because the plaintiffs’ Amended Complaint fails to allege an applicable legal basis for a
claim of liability arising under the FTCA, the court concludes that it lacks subject matter
jurisdiction over the plaintiffs’ claims.8 Accordingly, the government’s Motion to Dismiss on

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This is the second time that the plaintiffs have argued that a legal basis for liability exists
without including relevant allegations in their pleading. Going forward, the court will not
overlook such errors.
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It is well settled that, in cases brought under the FTCA, the “law of the place” requirement is
sufficiently satisfied when allegations of federal statutory breach are made, so long as the federal
statute has a state analogue. As the plaintiffs note, at least one federal court has held that Section
13031, when taken in conjunction with a state analogue (here, the Tennessee mandatory
reporting statutes), may serve as the basis for an FTCA claim. See Zimmerman ex rel.
Zimmerman v. United States, 171 F. Supp. 2d 281 (S.D.N.Y. 2001); see also Schindler v. United
States, 661 F.2d 552, 560-61 (6th Cir. 1981) (“It is clear that usually the federal regulatory
statute is not the source of a private cause of action. State law is the source of the cause of
action, the United States’ customary immunity thereto being waived by the FTCA. The federal
statute or regulation may well be related to the analysis of the state cause of action, however. . . .
In determining the first element, the existence of a duty from the plaintiff to the defendant, the
federal regulatory statute may be relevant in defining the scope of the undertaking of the United
States and the plaintiff’s right to rely thereon, if the action is based on an alleged failure of the
United States to observe its own regulations. The federal regulation or statute may also be
relevant in assessing the second element of the cause of action, if, under state law criteria, it may
be considered the kind of statute or regulation violation of which is negligence per se.”).
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Because the court concludes that it lacks subject matter jurisdiction over the plaintiffs’ claims
as pled, it need not reach the additional grounds for dismissal asserted by the government.
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this ground will be granted and the plaintiffs’ claims will be dismissed. However, the dismissal
of the plaintiffs’ claims will be without prejudice. Given the gravity of the plaintiffs’ allegations
and, if true, the reprehensibility of the government’s omissions, the court will give the plaintiffs
one more chance to amend their pleading. The plaintiffs should not expect any further leniency
from the court with respect to clarifying their claims.
CONCLUSION
For the reasons stated herein, the government’s motion to dismiss is GRANTED
WITHOUT PREJUDICE. It is further ORDERED that the plaintiffs shall have a period of 14
days to amend the Complaint.
It is so ORDERED.
Enter this 18th day of September 2014.

_______________________________
ALETA A. TRAUGER
United States District Judge

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