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McIntosh v. United States

January 9, 2007

SARAH BURNS MCINTOSH; LOUIS CHARLES MCINTOSH, PLAINTIFF,
v.
CEDRIC LAMONT TATE, DEFENDANT.



The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT UNITED STATES' MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION FOR LEAVE THE UNITED STATES; TO AMEND

I. INTRODUCTION

Defendant United States has filed (1) a motion to dismiss, or in the alternative, for summary judgment as to Plaintiffs' contract claims, and (2) a motion to strike certain allegations in the Second Amended Complaint ("SAC"). Plaintiffs have filed a motion to amend the SAC by adding Mr. McIntosh as a party to Ms. McIntosh's pending tort claims. For the reasons discussed below, Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART,Defendant's motion for summary judgment is DENIED AS MOOT, Defendant's motion to strike is GRANTED, and Plaintiffs' motion for leave to amend is DENIED.

II. FACTUAL BACKGROUND

The following facts are taken from Plaintiffs' SAC. The Court makes no finding as to the truth of these allegations.

On August 4, 2001, Defendant Cedric Tate, a Navy Seaman Recruit stationed in Coronado, attacked Ms. McIntosh on the grounds of Fiddler's Cove Marina. (SAC ¶¶ 3, 4.) Tate assaulted and battered Ms. McIntosh, falsely imprisoned her, and attempted to rape her. (SAC ¶ 13.) Ms. McIntosh resisted Tate's attack and was ultimately assisted by other Marina residents before Tate fled. (Id.) After his escape, Tate attacked two other females in Coronado before he was finally apprehended. (Id.)

At the time of the attack, both Mr. and Ms. McIntosh, father and minor daughter, lived aboard a vessel moored in Fiddler's Cove Marina under a written lease agreement with the Navy. (SAC ¶ 11.) At all times, the Navy owned and operated the Marina. (SAC ¶¶ 3, 11.) Plaintiffs allege that the Navy possessed actual and constructive knowledge that criminal acts were taking place within and around the Marina, yet failed to maintain reasonable security. (SAC ¶ 12.) Plaintiffs further allege that the Navy was required to reasonably maintain the Marina property in a safe manner under the lease agreement. (SAC ¶ 11.)

Plaintiffs generally allege that each defendant was acting within the course, scope, and authority of his employment or agency and that the United States ratified the acts which damaged Plaintiffs. (SAC ¶¶ 5-8.)

III. PROCEDURAL HISTORY

On February 24, 2005, Plaintiffs commenced this action.

On December 19, 2005, Plaintiffs filed a First Amended Complaint ("FAC") against the U.S. Secretary of the Navy, U.S. Department of the Navy, and Cedric Lamont Tate, alleging causes of action for (1) negligent maintenance and security; (2) negligent infliction of emotional distress ("NIED"); (3) intentional infliction of emotional distress ("IIED"); (4) breach of written contract; (5) breach of implied covenant of good faith and fair dealing; and (6) premises liability.

In an order filed on July 11, 2006, the Court granted in part and denied in part the United States' motion to dismiss the FAC. Among other things, the Court dismissed Mr. McIntosh's claims for negligent maintenance and security, NIED, IIED, and premises liability on the ground that Mr. McIntosh had failed to exhaust his administrative remedies under the FTCA, thereby denying the Court of subject matter jurisdiction over his tort claims.

On August 7, 2006, Plaintiffs filed the SAC naming Tate and the United States as defendants. Ms. McIntosh individually asserts the following causes of action: (1) negligent maintenance and security against the United States; (2) NIED against all defendants; (3) IIED against Tate; and (4) premises liability against the United States. Additionally, both Plaintiffs assert claims for breach of written ...


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