WILLIAM S. DUFFEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant the United States of America's ("United States") Motion to Dismiss [22].
Plaintiff Amanda Sue Smith ("Plaintiff") brings this negligence action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
Plaintiff was advised by Sciullara that Chulpayev was in the business of "leasing" new or used vehicles. She was told that this "leasing" arrangement involved Chulpayev using a company called US Asset Protection, LLC ("USAP") to "take over the payments" due on a promissory note or retail installment contract by which the purchaser of the vehicle acquired the vehicle. Chulpayev then leased the vehicles to his customers. (Compl. ¶ 12). In return for "leasing" the vehicles to Chulpayev, purchasers were promised a fixed amount advance payment and, thereafter, monthly payments that exceeded the vehicle insurance costs and the applicable promissory note or retail installment contract payments due. (Compl. ¶ 12). Plaintiff alleges that Chulpayev and Sciullara told her that these transactions were legal, and that "all she had to do was to go to the automobile dealership(s) that Chulpayev selected in Georgia and Florida, purchase a vehicle selected by Chulpayev and sign the loan documents." (Compl. ¶ 12). Plaintiff was promised by Chlupayev that he would pay her a sufficient amount to cover her note payments and insurance on the automobile she purchased. (Compl. ¶ 12). In July 2011, Plaintiff purchased three (3) automobiles from Carmax, and "subleased" them to USAP. (Compl. ¶¶ 14-17).
Plaintiff received payments from Chulpayev for the vehicles for about four (4) months, after which the payments discontinued. (Compl. ¶ 20). Plaintiff continued to pay her promissory note and insurance payments, and did so for approximately two (2) years. Unable to make further payments, on or about August 1, 2013, Plaintiff defaulted on her loans. She claims the default "destroy[ed] her previously stellar credit." (Compl. ¶ 20).
Plaintiff alleges that the United States knew Chulpayev did not intend to make additional payments, and that he failed to make payment on similar lease arrangements. (Compl. ¶ 21). Plaintiff claims that, in July 2012, she learned of Chulpayev's alleged role as a FBI confidential informant. (Compl. 44). Plaintiff alleges that SA Jackson and the FBI had a close, personal relationship with Chulpayev, and that Chulpyaev had been used by the FBI as a confidential informant. (Compl. ¶¶ 23-30, 34-35). Plaintiff claims SA Jackon allegedly received, from Chulpayev, sporting event tickets and the use of expensive automobiles, and SA Jackson promised Chulpayev that he would intervene to adjust Chulpayev's immigration status. (Compl. ¶¶ 25-27). She alleges further that FBI supervisory personnel were aware of the use of Chulpayev as a confidential informant, and that use of him as a confidential informant violated FBI and Department of Justice ("DOJ") confidential informant policies and a court order. (Compl. ¶¶ 31-32, 38-42, 68-71; Exs. 3, 6).
Plaintiff claims her attorney contacted the FBI in 2012 and reported her car transactions and Chulpayev's conduct to Federal Bureau of Investigation ("FBI") Special Agent Dante Jackson ("SA Jackson"). She alleges further that her attorney also contacted (i) the Special Agent in Charge of the FBI's Atlanta office in or about August 2014, (ii) the FBI's Atlanta Legal Unit in 2013, and (iii) the USAO in or about September 2013. (Compl. ¶¶ 44-46, 50-51).
Based on this relationship, Plaintiff thus alleges the United States knew of Chulpayev's modus operandi in his dealings with numerous individuals, and that the FBI and the United States Attorney's Office ("USAO") knew of Chulpayev's propensity to engage in criminal activity. (Compl. ¶¶ 21, 43). She claims the United States is liable for Plaintiff's damages apparently because she claims the government should have prohibited Chulpayev from engaging in the conduct or warned Plaintiff about it. Plaintiff asserts claims of negligence (Count 1), "deliberate indifference" (Count 2), and, under O.C.G.A. § 51-20-1, injury to personalty (Count 3). Plaintiff seeks compensatory damages and costs.
On July 1, 2016, the United States filed its Motion to Dismiss. It argues that Plaintiff fails to state a cognizable FTCA claim, including because Plaintiff fails to identify a duty owed to her by the United States, a breach of that duty, or a causal connection between the breach and Plaintiff's alleged injuries. The United States also seeks to dismiss Plaintiff's deliberate indifference claim, arguing that it fails to state a claim and is barred by sovereign immunity. The United States next seeks to dismiss Plaintiff's injury to personalty claim, arguing that Plaintiff fails to allege facts to show that the United States converted her automobiles or had actual possession of them.
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must "assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences."
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
Under the Federal Tort Claims Act, the United States has waived its sovereign immunity in limited circumstances and can be liable for negligent or wrongful acts or omissions of government employees only "under circumstances where the United States, 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).
Plaintiff claims that the United States is liable for negligence in Plaintiff's transaction with Chulpayev. In Georgia, a plaintiff in a negligence action must prove (i) that the defendant had a legal duty to conform to some standard of conduct, (ii) a breach of that duty, (iii) a causal connection between the conduct and the resulting injuries, and (iv) damages as a result of the alleged breach.
Under Georgia law, there is no general duty to stop third persons from causing harm to others.
The control required to support that a special relationship exists is high.
As an initial matter, Plaintiff does not provide any authority to support that the special relationship exception set forth in
Even if the special relationship exception applied to claims of negligence resulting in economic loss, Plaintiff fails to allege facts to demonstrate the degree of control required to create a special relationship under Georgia law. In
Here, Plaintiff purports to allege a special relationship based on SA Jackson "promis[ing] Chupayev that he would intervene for him to adjust his immigration status as Chulpayev specifically made such an inquiry of SA Jackson regarding said adjustment in status." (Compl. ¶ 25). Plaintiff claims that "SA Jackson received expensive jewelry[,]" "sporting event tickets[,]" and "the use of expensive automobiles from Chulpayev." (Compl. ¶¶ 26-28). SA Jackson allegedly provided protection for Chulpayev "from any investigations into Chulpayev's activities, illegal or otherwise. . . ." (Compl. ¶ 29). "[A]s an example of SA Jackson's control over Chulpayev," Plaintiff alleges that SA Jackson told Chulpayev not to speak with the Sandy Springs Police Department regarding Chulpayev's alleged role in the murder of Mr. Vernell. (Compl. ¶ 37). Plaintiff also offers conclusory allegations that the United States exercised "a degree of control over Chulpayev and his activities." (
These allegations do not demonstrate the degree of control required to create a special relationship under Georgia law. The allegations appear to show, at most, an arrangement, mutually beneficial to SA Jackson and Chulpayev, which included various gifts to SA Jackson, and for which Chulpayev allegedly received cover for his allegedly illegal activity and the promise of work to adjust his immigration status. "Such allegations indicate that Chulpayev was acting of his own free will without control from the [United States]."
The United States next seeks dismissal of Plaintiff's "deliberate indifference" claim, which Plaintiff purports to bring under the FTCA. In FTCA cases, state law determines the extent of the United States's liability.
Finally, the United States seeks to dismiss Plaintiff's claim for "injury to personalty" under O.C.G.A. § 51-10-1. Section 51-10-1, which codifies the common-law action of conversion, provides that "[t]he owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies." O.C.G.A. § 51-10-1. Georgia courts have construed Section 51-10-1 as authorizing "recovery of damages when a government official, without lawful authority, deprives an individual of his or her property on even a temporary basis."
Plaintiff fails to allege any facts to show the United States ever had "actual possession" of the automobiles. To the contrary, Plaintiff consistently alleges that Chulpayev, not the United States, possessed the automobiles. (
For the foregoing reasons,