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Lorenzo v. United States

February 2, 2010


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


Pending before the Court is Defendant's motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). The matter came on for hearing on January 29, 2010. Theresa Bowen appeared on behalf of Plaintiffs, and Cindy Cipriani appeared on behalf of Defendant. For the reasons set forth below, the motion is granted in part and denied in part.


On March 26, 2007, Plaintiff Arturo Lorenzo, a Border Patrol agent, was involved in an altercation at the United States border near Calexico, California. During the altercation, an illegal immigrant smuggler picked up a large rock and prepared to throw it at Lorenzo. Lorenzo discharged his rifle, struck the smuggler in the chest and killed him. (FAC, ¶ 14.)

Plaintiffs allege the incident was captured on video by a Remote Video Surveillance System camera. (Id. at ¶ 15.) Plaintiffs allege that unknown employees of the Customs and Border Protection Agency ("CBP") altered the video to add Lorenzo's name and rank and seal of the Department of Homeland Security, "enhanced" the incident, and then released the video outside the CBP. (Id. at ¶¶ 17-18.) The video was widely-circulated on the internet and aired on television during several news programs. (Id. at ¶ 19.) As a result of this publicity, Lorenzo and his wife, Plaintiff Fabiola Lorenzo, allege they suffered death threats, contempt, ridicule, financial and emotional distress and harm to their reputations. (Id. at ¶ 20.) Plaintiffs and their children were forced to relocate to Florida for safety reasons, causing Fabiola Lorenzo to give up a thriving insurance business. (Id. at ¶¶ 20, 25.)

On November 14, 2008, Plaintiffs served on Defendant a Claim for Damage, Injury, or Death, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2617 et seq. (Id. at ¶ 12.) Defendant denied the claim. (Id. at ¶ 12.) Plaintiffs filed their original complaint in this Court on August 19, 2009, and their FAC on November 3, 2009. Plaintiffs assert six claims against the United States: 1) Violation of the Privacy Act, 5 U.S.C. § 552a; 2) Invasion of Privacy - Public Disclosure of Private Facts; 3) Invasion of Privacy - False Light; 4) Invasion of Privacy - Intrusion into Private Affairs; 5) Negligent Supervision; and 6) Negligent Infliction of Emotional Distress.

Defendant filed the instant motion on November 24, 2009. Plaintiff filed an opposition (Doc. 14), and Defendant filed a reply (Doc. 15).


Defendant moves to dismiss Plaintiffs' claims under Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), dismissal is appropriate where there is no subject matter jurisdiction over the claim. A Rule 12(b)(1) motion "may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Plaintiffs bear the burden of proving subject matter jurisdiction. Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995).

In two recent opinions, the Supreme Court established a more stringent standard of review for 12(b)(6) motions. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). The reviewing court must therefore "identify the allegations in the complaint that are not entitled to the assumption of truth" and evaluate "the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.


Defendant raises several arguments in its motion to dismiss: 1) that all of Plaintiffs' tort claims are barred by the "intentional tort" exception to the waiver of sovereign immunity; 2) the negligent supervision claim is barred by the discretionary function exception to the waiver of sovereign immunity; 3) the FAC fails to state a claim for invasion of privacy; 4) Fabiola Lorenzo lacks standing to pursue a statutory privacy claim; and 5) the Doe defendants are not proper party defendants to the statutory privacy claim.

A. Sovereign Immunity - Intentional Tort Exception

Pursuant to the FTCA, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. This waiver of sovereign immunity, however, is subject to numerous exceptions. In this case, Defendant first relies on the exception set out in 28 U.S.C. § 2680(h), which maintains sovereign immunity for "[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..." 28 U.S.C. § ...

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