United States District Court, D. Massachusetts
CHRISTINE SHANAFELT and STAFF SERGEANT DAMON SHANAFELT, Plaintiffs,
DEPARTMENT OF VETERAN AFFAIRS and UNITED STATES OF AMERICA, Defendants.
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' COMPLAINT (DOCKET ENTRY #
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
before this court is a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) and
Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”) filed by
defendants Department of Veteran Affairs of the United States
of America (“the VA”) and the United States of
America (“the United States”) (collectively
“defendants”). (Docket Entry # 17). Plaintiffs
Christine Shanafelt (“Shanafelt”) and United
States Army Reserve Staff Sergeant Damon Shanafelt
(“Sgt. Shanafelt”) oppose the motion. (Docket
Entry # 20). After conducting a hearing, this court took the
motion (Docket Entry # 17) under advisement.
parties' dispute arises out of a Servicemember's
Group Life Insurance Policy (“SGLI”) on the life
of Shanafelt's husband, Sgt. Shanafelt, that named
Shanafelt as the sole beneficiary. (Docket Entry # 1). The
two-count complaint sets out a claim against defendants for
negligence under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346 (“section
1346”) (Count I); and a claim for breach of contract
(Count II). (Docket Entry # 1).
aptly point out (Docket Entry # 18, n.2) that the United
States is the only proper party under the FTCA. See Roman
v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000)
(“FTCA requires that the named defendant in an FTCA
action be the United States and only the United
States”) (citing 28 U.S.C. §§ 1346(b), 2674,
2679(a)). Although the argument only absolves the VA of
liability, it provides an alternative ground to dismiss the
claims against the VA.
neither party addresses whether Sgt. Shanafelt, as opposed to
the representative of his estate, is a proper party. The
complaint simply describes plaintiff as Sgt. Shanafelt's
widow. In addition, neither party addresses or explains why
Sgt. Shanafelt has a cause of action for negligence that
allegedly took place after his death. “A person who
dies prior to filing suit is not a legal entity.”
Adelsberger v. United States, 58 Fed.Cl. 616, 618
(2003) (collecting cases); see also Chorney v.
Callahan, 135 F.Supp. 35, 36 (D. Mass. 1955) (Fed. R.
Civ. P. 25 did not apply because “action was brought
against a named defendant who was already dead” and
“a dead man obviously cannot be named [a] party
defendant in an action”). The “majority of
federal and state” courts considering “the issue
agree that an action filed in the name of a pre-deceased
plaintiff is not viable.” In re Asbestos Product
Liability Litigation, (No. VI), 311 F.R.D. 152, 154
(E.D. Pa. 2015). Accordingly, Sgt. Shanafelt is not a legal
entity. Because he is not a legal entity and cannot file this
action as a plaintiff, he is dismissed as a party. Even
assuming for purposes of argument that he could proceed as a
plaintiff, the complaint is subject to dismissal for reasons
reviewing the sufficiency of a complaint under Rule 12(b)(6),
the complaint must contain enough facts that, if presumed
true, “state a claim to relief that is plausible on its
face.” Bell Atlantic v. Twombly, 550 U.S. 544,
570 (2007); Miller v. Town of Wenham, 833 F.3d 46,
51 (1st Cir. 2016). The “standard is ‘not akin to
a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted
unlawfully.'” Saldivar v. Racine, 818 F.3d
14, 18 (1st Cir. 2016) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)); Feliciano-Hernández v.
Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011).
Factual allegations in the complaint are taken as true and
reasonable inferences are drawn in favor of the plaintiff.
Ashcroft, 556 U.S. at 678; Sanders v. Phoenix
Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). Exhibits A
through D attached to the complaint (Docket Entry # 1-2, Ex.
A-D) are “properly considered part of the pleading for
all purposes, ” including Rule 12(b)(6). Trans-Spec
Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315,
321 (1st Cir. 2008); Fed.R.Civ.P. 10(c). The court may also
consider a limited category of documents outside the
complaint without converting the motion into one for summary
judgment. Such documents include public records,
“‘facts susceptible to judicial notice,
'” and documents sufficiently referred to in the
complaint. Butler v. Balolia, 736 F.3d 609, 611 (1st
Cir. 2013) (supplementing facts in complaint “by
examining ‘documents incorporated by reference into the
complaint, matters of public record, and facts susceptible to
judicial notice'”). Legal conclusions in a
complaint are not part of the Rule 12(b)(6) record. See
In re Ariad Pharmacy, Inc. Securities Litigation, 842
F.3d 744, 750 (1st Cir. 2016) (refusing to credit legal
conclusions in reviewing motion to dismiss).
considering a Rule 12(b)(1) motion, this court must credit
the plaintiff's well-pled factual allegations and draw
all reasonable inferences in the plaintiff's favor.
Merlonghi v. United States, 620 F.3d 50, 54 (1st
Cir. 2010) (citing Valentin v. Hospital Bella Vista,
254 F.3d 358, 363 (1st Cir. 2001)); Sánchez ex
rel. D.R.-S. v. U.S., 671 F.3d 86, 92 (1st Cir. 2012)
(“credit[ing] the plaintiff's well-pled factual
allegations and draw[ing] all reasonable inferences in the
plaintiff's favor” under Rule 12(b)(1)). “The
district court may also ‘consider whatever evidence has
been submitted, such as the depositions and exhibits
submitted.'” Merlonghi v. United States,
620 F.3d at 54 (quoting Aversa v. United States, 99
F.3d 1200, 1210 (1st Cir. 1996)). Where, as here, a defendant
challenges subject matter jurisdiction, the plaintiff bears
the burden of proving jurisdiction. Johansen v. United
States, 506 F.3d 65, 68 (1st Cir. 2007). Dismissal is
only appropriate when the facts alleged in the complaint,
taken as true, do not support a finding of federal subject
matter jurisdiction. Fothergill v. United States,
566 F.3d 248, 251 (1st Cir. 2009). Finally,
“‘Federal courts are courts of limited
jurisdiction'” and “[t]he existence of
subject-matter jurisdiction” is therefore
“‘never presumed.'” Fafel v.
Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting
Kokkonen v. Guardian Life Insurance Co. of America,
511 U.S. 375, 377 (1994), and Viqueira v. First
Bank, 140 F.3d 12, 16 (1st Cir. 1998)).
provides certain benefits to servicemen, including life
insurance in the form of SGLI policies. (Docket Entry # 1-2);
see also Servicemens' Group Life Insurance Act
of 1965, as amended, 38 U.S.C. §§ 1965 et seq.
(“SGLIA”). Prudential Insurance Company of
America (“Prudential”), the administrator of Sgt.
Shanafelt's policy, administers these SGLI policies
through its Office of Servicemembers' Group Life
Insurance (“OSGLI”). (Docket Entry # 1-2). On
July 31, 2015, six days after returning home from his annual
Army Reserve Training, Sgt. Shanafelt committed suicide.
(Docket Entry # 1). At the time of his death, Sgt. Shanafelt
was married to Shanafelt, the named beneficiary under his
$400, 000 SGLI policy. (Docket Entry # 1).
August 2, 2015, two Certified Casualty Officers
(“CCOs”) from Sgt. Shanafelt's unit, Sergeant
Walker and Lieutenant Goslin, visited Shanafelt at her
home. (Docket Entry # 1). Sergeant Walker and
Lieutenant Goslin presented Shanafelt with a file containing
information concerning Sgt. Shanafelt's payable benefits,
including information about the SGLI policy. (Docket Entry #
1). During their visit and without Shanafelt's consent,
Sergeant Walker and Lieutenant Goslin “divulged to a
room full of people, sensitive benefit information, ”
including Shanafelt's entitlement to the $400, 000 of
SGLI proceeds. (Docket Entry # 1). Shanafelt believes that it
was from this exchange that Sgt. Shanafelt's ex-spouse,
G. Fillipone (“Fillipone”), learned about Sgt.
Shanafelt's death and the SGLI policy. (Docket Entry #
August 3, 2015, Fillipone submitted a formal claim to
Prudential for $250, 000 under the SGLI policy on the basis
that “her children were the rightful
beneficiaries.” (Docket Entry # 1). In a letter dated
September 9, 2015, Prudential notified Shanafelt that she was
unable to receive any SGLI benefits at that time due to an
adverse claim on Sgt. Shanafelt's policy. (Docket Entry
## 1, 1-2).
receiving Fillipone's claim, Prudential undertook a
36-day review and, at the conclusion of the review, issued a
decision granting Fillipone the right to bring a claim for
the proceeds in court. (Docket Entry # 1). During the review
process, the VA indicated to Shanafelt that the matter of the
insurance proceeds was “under investigation.”
(Docket Entry # 1). According to the complaint, it also
“became apparent” during the 36-day investigative
review that “the VA” was involved in the
investigation and subsequent decision to allow Fillipone the
right to sue in court. (Docket Entry # 1).
30th day of the investigation, Shanafelt was served with a
restraining order and thereafter a complaint filed by
Fillipone in Middlesex County Probate and Family Court
(“the probate court”). (Docket Entry # 1).
Fillipone filed the probate court action against Prudential
as well as Shanafelt. (Docket Entry # 1). Prudential
thereafter removed the action to the United States District
Court for the District of Massachusetts. See Fillipone v.
Shanafelt et. al, Civil Action No.
15-13680-LTS. As a result of the lawsuit, Shanafelt
hired an attorney “on a contingency fee basis”
and incurred a total cost of $128, 000 in defending the
lawsuit. (Docket Entry # 1).
about May 31, 2016, Shanafelt, through her attorney,
“sent via certified mail” a “Notification
of Incident and Claim for Damages under the Federal Tort
Claim[s] Act & Military Act” (“the
notification”) to the VA. (Docket Entry ## 1, 1-2). By
letter dated August 5, 2016, the VA advised Shanafelt that an
investigator, staff attorney Lisa Wolfe, Esq.
(“Attorney Wolfe”), was assigned to investigate
the claims outlined in the notification. (Docket Entry # 1).
Shanafelt's attorney attempted several times without
success “to obtain a status update” concerning
the claims in the notification. More than six months after
sending the notification, Shanafelt filed the complaint in
this action. (Docket Entry # 1).
Count I, Shanafelt asserts that the actions of VA employees
constitute negligence under both federal and Massachusetts
law. (Docket Entry # 1). Specifically, she alleges that,
“Federal and Massachusetts state law imposes a duty of
care upon the VA” and that the VA breached this duty
with respect to “the handling, maintenance, and care of
Sgt. Shanafelt's SGLI policy, ” its disbursement of
benefits, and by allowing Fillipone to initiate a claim for
the benefits in the probate court. (Docket Entry # 1). In
Count II, Shanafelt contends that defendants breached the
SGLI policy agreement by failing to disburse the $400, 000 in
payable benefits to Shanafelt. (Docket Entry # 1). She
asserts both claims against both defendants.
move to dismiss the claims under Rule 12(b)(1) and Rule
12(b)(6). More narrowly, defendants initially seek to dismiss
the complaint for lack of subject matter jurisdiction on the
basis of sovereign immunity. (Docket Entry # 18). While
defendants argue that the SGLIA preserves sovereign immunity
in this action, Shanafelt contends that section 1346(b)(1) of
the FTCA waived defendants' sovereign immunity for both
counts. Defendants maintain that to the extent that their
sovereign immunity is waived, if at all, “the
discretionary function exception to the [FTCA]”
applies. (Docket Entry # 18). Defendants ...