TAIMANE JOHNSON, Plaintiff,
v.
BOARD OF
HIGHER EDUCATION, LAND GRANT PROGRAM,
DEPARTMENT
OF PUBLIC SAFETY, TRUDIE IULI,
ROBERT B.
COULTER, PAPALII DR. FAILAUTUSI AVEGALIO, SALA HUNKIN, and DOES 1 through 10,
inclusive, Defendants.
High Court of
Trial Division
CA No. 52-98
September 16, 1998
[2ASR3d174] [1]
Under T.C.R.C.P. 12(b)(6), review of a motion to dismiss is limited to whether
the claimant is entitled to offer evidence to support the claims regardless of
the likelihood of recovery, and in reviewing a motion to dismiss, the pleadings
should be construed in favor of the claimant, and the burden of demonstrating
that there is no claim is upon the party moving to dismiss.
[2] A complaint will be dismissed for failure to state a claim only
where it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.
[3] Under T.C.R.C.P. 12(b)(6), a defense of immunity is a proper basis
for granting a motion to dismiss, and a government entity is immune from suit
unless it consents to suit through legislation or by acting in a
non-governmental capacity.
[4] Under A.S.C.A. § 43.1201 (the Government Tort Liability Act
(GTLA)), the ASG is subject to a limited waiver of its immunity from suit for
actions based in tort.
[5] The ASG waives its immunity when it acts in a proprietary fashion, such as when it establishes and operates a bank or acts as a landlord, but immunity is specifically preserved under A.S.C.A. § 43.1203 for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.
[6] Under A.S.C.A. § 43.1211, a plaintiff may seek recourse against ASG
employees individually for false arrest, and a claim for tortious conduct may
be pursued against such employees who acted out of their own negligent conduct
while acting within the scope of their employment or who acted outside of the
scope of the employment.
[7] A.S.C.A. § 43.1203(b) does not exclude all
intentional torts from the Government Tort Liability Act (GTLA), and a claim
for intentional infliction of emotional distress is a proper claim against ASG
under the GTLA, and exclusion from the Government Tort Liability Act is limited
to the torts specifically enumerated.
[8] Under A.S.C.A. § 43.1211, an ASG employee may not
be sued when a plaintiff elects to pursue a claim under the Government Tort
Liability Act, but where a plaintiff chooses not proceed under the Government
Tort Liability Act, she is not precluded from suing the employee for
negligence. [2ASR3d175]
[9] Under A.S.C.A. §§
16.2002, 16.2003-.2004, and A.S.C.A. § 4.0301(a)(9), the American Samoa
Community College may sue and be sued, the Board of Higher Education is an
agency of the ASG that may not sue or be sued, the Land Grant Program is a
program and not an agency, and may not sue or be sued, and the Department of
Public Safety, as an agency of ASG established under and not being able to sue
or be sued, it is not a proper named party under the Government Tort Liability
Act..
[10] Police officers, as individual employees of ASG,
are not proper defendants while a party is pursuing a claim against ASG under
the Government Tort Liability Act.
Before
Counsel: For
Plaintiff, David P. Vargas
For Defendants American Samoa Government,
American Samoa Community College, Land Grant Program, and Department of Public
Safety, Gwen F. Tauiliili-Langkilde, Assistant Attorney General
For Defendants Board of Higher Education, Robert
B. Coulter, and Salu Hunkin, Brian N. Thompson
For
Defendant Trudie Iuli, Katopau T. Ainuu
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS FOURTH, FIFTH AND SIXTH CAUSES OF ACTION
Background
Plaintiff
Taimane Johnson (“Johnson”) filed a complaint on May 29, 1998 and an amended
complaint on June 9, 1998 against defendants American Samoa Government (“ASG”),
American Samoa Community College (“ASCC”), Board of Higher Education (“BOHE”),[1] Land
Grant Program (“LGP”), Department of Public Safety (“DPS”), Trudie Iuli
(“Iuli”), as the acting president of BOHE, Robert B. Coulter (“Coulter”), as
the chairman of BOHE, Salu Hunkin (“Hunkin”), as the President of ASCC, Papalii
Dr. Failautusi Avegalio (“Avegalio”), as the former President of ASCC, and Does
1 through 10 alleging six causes of action. The first three causes of action in
this complaint are breach of contract claims arising from an agreement
concerning the use of Johnson’s land [2ASR3d176]
under the LGP and from two settlement agreements entered into after conflicts
arose under the original contract. The fourth cause of action is a claim of
false arrest, and the fifth and sixth causes of action are claims of
intentional and negligent infliction of emotional distress.
On June 29, 1998, ASG, ASCC, BOHE, LGP, DPS, and
Coulter moved to dismiss the fourth, fifth, and sixth causes of action under
T.C.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be
granted. On July 21, 1998, Hunkin joined in the motion. The motion came for hearing on July 23, 1998.
Johnson, ASG, ASCC, BOHE, LGP, DPS, Coulter, Hunkin, and Iuli were represented
by counsel. Iuli also then joined in the
motion. Avegalio did not appear.
On July 24, 1998, pursuant to T.C.R.C.P. 41(a)(ii),
the parties stipulated to dismiss Coulter from the action. Thus, any references
below to defendants exclude Coulter.
Discussion
A. T.C.R.C.P. 12(b)(6)
[1] Our
review of the motion to dismiss under T.C.R.C.P. 12(b)(6) is limited. “The
issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims. Indeed it may
appear on the face of the pleadings that a recovery is unlikely but that is not
the test.” Scheuer v. Rhodes, 416
[2] “[A] complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Moeisogi
v. Faleafine, 5
A.S.R.2d 131, 134 (Land and Titles Div. 1987).
A defense of immunity is one example of a proper basis for granting a
motion to dismiss under T.C.R.C.P. 12(b)(6).
See, e.g., 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 355 (2d ed. 1990);
2A J. Moore, Moore’s Federal Practice,
¶ 12.07[2.–5] (2d ed. 1991) (“A motion under 12(b)(6) should also be granted if
an affirmative defense or other bar to relief is apparent from the face of the
complaint, such as the official immunity of a defendant, or the statute of
limitations.); Coplin and Assoc., Inc. v. U.S., 814 F. Supp. 643 (W.D. Mich. 1992) (upholding the trial
court’s grant of a Rule 12(b)(6) motion to dismiss where the United States had
sovereign immunity); Hinnen v. Kelly, 992 F.2d 140 [2ASR3d177]
(7th Cir. 1993) (upholding district court’s dismissal of a civil suit against a
special agent for the Drug Enforcement Administration who had qualified
immunity).
Additionally, it is
proper to use a Rule 12(b)(6) motion to challenge the sufficiency of part of a
complaint, such as a single cause of action. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1358,
at 422 (2d ed. 1990 & Supp. 1994).
B. Government Immunity
[3] At
common law, a sovereign was absolutely immune from suit. This doctrine of absolute immunity, although
criticized by some as “feudal and monarchist,” Savage v.
Gov’t of American Samoa, 1
A.S.R.2d 102, 106 (Trial Div. 1983), citing
William L. Prosser, Law of
Torts § 131 (4th ed. 1978), was adopted in the
[4] “[T]he
[5] Previous
decisions of this court have also established that ASG waives its immunity when
it acts in a proprietary fashion, such as when it establishes and operates a
bank or acts as a landlord. See, e.g.,
Fa`atiliga v. Lutali, 3
A.S.R.2d 139, 143 (Trial Div. 1986) (holding that a motion to dismiss claims
against ASG on the theory that the suit was not based in tort should not be
granted where AEG had created a bank, made loans, took mortgages, and engaged
in related business activities); Savage, 1 A.S.R.2d at 106 (holding that a landlord-tenant
relationship exists between ASG and the occupants of the Tafuna governmental
housing tract, and finding ASG responsible for the stray dog problem in the
housing area and liable for a dog bite to the child of a tenant). [2ASR3d178]
C. The Fourth Cause of Action
— False Arrest
In her
fourth cause of action, Johnson claims that she was falsely, maliciously, and
with no probable cause, accused of committing the crime of felony theft, and thus
charges all defendants with false arrest.
1. Agency and Program Defendants
Although ASG’s immunity from suit is
waived for some torts under the GTLA, it is specifically preserved for others.
The GTLA states that:
(b) The
provisions of this chapter do not apply to: . . . (5) any claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit or interference
with contract rights.
A.S.C.A.
§ 43.1203. A claim of false arrest is
therefore not a viable claim under the GTLA.
See also, Rakhshan
v. American Samoa Gov’t, 20
A.S.R.2d 1, 10 (Trial Div. 1991) (“In terms of an action based on the notion of
false arrest or false imprisonment, the government remains immune from
suit.”)[.]
Because ASG’s
immunity remains intact for claims of false imprisonment, Johnson’s fourth
cause of action fails to state a claim upon which relief can be granted. The motion to dismiss the fourth cause of
action under T.C.R.C.P. 12(b)(6) will therefore be granted as to all agency and
program defendants.
2. Individual Defendants
[6] Although Johnson may not proceed against the agency and program
defendants, Johnson may still seek recourse against ASG’s employees
individually for false arrest. A.S.C.A. § 43.1211 does not bar suits against
individual ASG employees. Rather,
dismissal of the fourth cause of action as to the agency and program defendants
enables the suit to be maintained against the individual defendants. A.S.C.A. § 43.1211 states that a suit against
ASG under the GTLA “shall hereafter be exclusive of any other civil action or
proceeding by reason of the same subject matter against the employee whose act
or omission gave rise to the claim, or his estate.”
Because the fourth cause of action will be dismissed
as to the agency and program defendants, a claim for tortious conduct may now
be pursued against the individual defendants who are ASG employees. See Moana v. American Samoa Gov’t, CA No. 133-85, Decision and
Order at 5 (Trial Div. Nov. 12, 1986) (plaintiff may sue employee for
negligence if [2ASR3d179] plaintiff
elects or fails to pursue a claim under the GTLA); Henderson v. Bluemark, 511 F.2d 399, 404 (D.C. Ct.
App. 1974) (Although a few exceptions exist, “there is no statutory protection
for federal employees from personal liability arising out of their own
negligent conduct while acting within the scope of their employment.”). Furthermore, even if an employee acts tortiously
outside the scope of employment, the employee may still be sued
individually. Tevaseu v.
American Samoa Gov’t, 5
A.S.R.2d 10, 12 (Trial Div. 1987) (“[S]uit against the individual government
employees before the Court is available if it is the case that the said
employees’ acts or omissions complained of were made outside of the scope of
the employment.”). Because the agency
and program defendants will be dismissed from this fourth cause of action, the
action may still be maintained against the individual defendants who are ASG
employees. See Aga v.
U.S. Secretary of Interior,
3 A.S.R.2d 130, 132 (Trial Div. 1986).
D. The Fifth Cause of Action — Intentional Infliction of Emotional
Distress
In her fifth cause of action, Johnson claims that the defendants,
except DPS and Does 5 through 9, intentionally and maliciously harassed her,
publicly ridiculed her, and defamed her without legal excuse or reason.
1. The Claim of Intentional
Infliction of Emotional Distress
[7] A.S.C.A. § 43.1203(b), quoted above, lists a number
of torts for which ASG remains immune. Although often referred to as the
intentional torts exception to the GTLA, this section of the act does not
exclude all intentional torts from the GTLA’s waiver of immunity. Exclusion
from the GTLA’s waiver of immunity, or more simply, preservation of immunity,
is instead limited to the torts specifically enumerated in A.S.C.A. §
43.1203(b).
In Gross v. United
States, 676 F.2d 295
(8th Cir. 1982),[2] the
plaintiff was a farmer whose intentional infliction of emotional distress was
based on the conduct of a county agricultural stabilization and conservation
service committee in denying the plaintiff participation in a feed grain
program. The court held that “courts
should not read exceptions into the Federal Tort Claims Act beyond those
provided by Congress” and that a claim of intentional infliction of emotional
distress is a viable action under the Federal Tort Claims Act.
We find this reasoning
persuasive. We decline to read into the
GTLA exceptions beyond those specifically listed by the Legislature. Johnson’s claim for intentional infliction of
emotional distress, then, is a proper claim against ASG under the GTLA. Intentional infliction of emotional distress
is a claim upon which relief can be granted and thus the intentional nature of
the claim does not provide a basis for granting the motion to dismiss.
We next examine whether a
claim of intentional infliction of emotional distress may be maintained against
the defendants Johnson has named.
2. The
Individual Defendants
Iuli, Hunkin, and
Avegalio, the named individual defendants, are or were ASG’s employees. The
GTLA addresses the propriety of suits against individual ASG employees.
[8] A.S.C.A. § 43.1211, quoted above, states an ASG employee may not be
sued when a plaintiff elects to pursue a claim under the GTLA. Aga v. U.S. Secretary of Interior, 3 A.S.R.2d at 131-32 (“. . .
so long as Plaintiff is proceeding under the [Government Tort Liability] Act,
she can only sue A.S.G.”); Moana v. American Samoa Gov’t, CA No. 133-85, Decision and
Order at 5 (holding that a suit can only be maintained against ASG and not the
individual defendants when a plaintiff proceeds under the GTLA).
However, a plaintiff is
not entirely without recourse against an individual ASG employee. A plaintiff can, for example, choose to not
proceed under the GTLA. “It would seem that when a tort victim either by
election or ignorance fails to pursue a claim under the Government Tort
Liability Act, there is no prospect for a judgment against the government as
contemplated by 43.1207[.] He is not
therefore precluded from suing the employee for negligence.”
Because Johnson has
chosen to proceed under the GTLA, she has no valid claim against the individual
employees. They are immune from suit while the claim against ASG proceeds. The fifth cause of action against Iuli,
Hunkin, and Avegalio, therefore, fails to state a claim upon which relief can
be granted and will be dismissed as to these defendants.
3. The
Agency and Program Defendants [2ASR3d181]
In addition to the
individual defendants, Johnson has also named ASG, ASCC, BORE, and LGP as
defendants for the fifth cause of action.
It is proper for Johnson
to maintain a claim against ASG because, as explained above, ASG has waived its
sovereign immunity for certain claims by enacting the GTLA.
[9-10] The
Legislature may also establish governmental entities, within ASG’s
organizational structure, and give those entities the power to sue and be sued.
ASCC is one such entity. A.S.C.A. §
16.2002 establishes ASCC’s powers and duties and clearly states that ASCC “may
sue and be sued.” See also, Deleeuw
v. Internal Revenue Service, 681
F. Supp. 402, 403 (E.D. Mich. 1987) (“An executive department of the United States
or one of its agencies may only be sued in its own name if the authority to be
sued has been expressly been [sic] conferred by Congress.”); Koziokowski v.
Delaware River Port Authority, 397
F. Supp. 1115, 1120 (D.N.J. 1975) (holding that the “sue and be sued” clause in
a congressionally approved bistate compact operated as a waiver of any claim of
immunity from suit in a negligence action against the agency for design,
construction, maintenance and control of a bridge). Johnson, then, may maintain
a claim against ASCC under the GLTA.
BOHE and LGP, on the
other hand, are not parties against whom a claim can be maintained. Although established under the same chapter
of the A.S.C.A. as ASCC, BORE is an agency of ASG that has not been given the
power to sue and be sued. A.S.C.A. § 16.2003-.2004. The LGP is also recognized
in statute, primarily for the purpose of complying with federal laws. A.S.C.A.
§ 16.2011. It also has not been given
the capacity to sue and be sued. The LGP is not even an agency; it is a
program. BOHE and LGP, therefore, are not proper named parties for claims
brought under the GTLA. See, e.g.,
Scheimer v. National Capital Region, National Park Service, 737 F. Supp. 3, 4 (D.D.C.
1990) (for actions under the Federal Tort Claims Act, “[a] government agency
may not be sued in its own name.”); Calderon v. United States Dept. of
Agriculture, 756 F.
Supp. 181, 183-84 (D.N.J. 1990) (holding that the United States itself is the
only party which may be sued under the Federal Tort Claims Act); Carib Gas
Corp. of St. Thomas v. Delaware Valley Industrial Gases, Inc., 660 F. Supp. 419, 420-21
(D.V.I. 1987) (dismissing a cause of action against the Department of
Transportation and holding that only the United States could be a named
defendant under the Federal Tort Claims Act); Hagebush v. United States, 657 F. Supp. 675, 678 (D.
Neb. 1986) (“The claims of the plaintiffs in this action based upon the alleged
tort actions of the named agencies may be brought only against the United
States and not against the agencies in their name.”). [2ASR3d182]
Of the governmental
defendants, then, only ASG and ASCC are proper named parties for claims under
the GTLA. The fifth cause of action therefore fails to state a claim upon which
relief can be granted as to BORE and LGP, and the motion to dismiss as to these
defendants will be granted. The fifth
cause of action remains as a claim only against ASG and ASCC, and Does 1
through 4, provided that they are not ASG employees.
E. The Sixth Cause of Action — Negligent Infliction of Emotional
Distress
In her sixth cause of action, Johnson charges DPS and
Does 5 through 9, designated as police officers, with negligent infliction of
emotional distress by failing to perform their duties in a prudent and
professional manner.
1. The Claim of Negligent Infliction of Emotional
Distress
On its face, negligent infliction of emotional
distress is a viable claim under the GTLA.
Therefore, we again turn to whether such a claim is viable against the
named defendants.
2. The Individual
Defendants
Johnson indicates that Does 5 through 9 are police
officers whose names are yet to be ascertained.
According to our previous analysis, individual employees of ASG are not
proper defendants while a party is pursuing a claim against ASG under the GTLA.
A.S.C.A. § 43.1211. The sixth cause of action as to Does 5 through 9 will
therefore be dismissed.
3. The Agency Defendant
DPS is an agency of ASG established under A.S.C.A. §
4.0301(a)(9). It has not been given the
power to sue and be sued. As analyzed
above, ASG’s agencies of this nature are not proper named parties under the
GTLA. The sixth cause of action as to
DPS will therefore be dismissed. It remains only against ASG.
Order
1. The motion to dismiss the fourth cause of action,
the claim of false imprisonment, is granted in part and denied in part. The fourth cause of action is dismissed as to
ASG, ASCC, BOHE, LGP, and DPS. The
fourth cause of action remains as to Iuli, Hunkin, and Avegalio. [2ASR3d183]
2. The motion to dismiss the fifth cause of action,
the claim of intentional infliction of emotional distress, is granted in part
and denied in part. The fifth cause of
action is dismissed as to Iuli, Hunkin, and Avegalio and as to BOHE and
LGP. The fifth cause of action remains
as to ASG and ASCC, and Does 1 through 4, provided that they are not ASG
employees.
3. The motion to dismiss the sixth cause of action,
the claim of negligent infliction of emotional distress, is granted in part and
denied in part. The sixth cause of
action is dismissed as to DPS and Does 5 through 9. The sixth cause of action remains as to ASG.
It is so Ordered.
**********
[1] The caption on the amended complaint identifies BORE
as the Department of Higher Education. The court, on its own motion, has
amended the caption to reflect that BOHE is the entity identified in the body
of the complaint.
[2] Federal cases interpreting the Federal Tort Claims Act
can aid in the interpretation of a state or territorial tort claims act with
similar provisions. Hoctel v. State, 343 N.W.2d 832, 833 (