United States District Court, D. Massachusetts
MARY MCGONAGLE, PAUL MCGONAGLE, JR., and SEAN MCGONAGLE, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
F. Dennis Saylor IV, United States District Judge
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.
A. Factual Background
The following facts are taken from the complaint unless otherwise noted.
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).
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 ...