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FLAX v. UNITED STATES

April 13, 1992

MARILYN FLAX, Administratrix Ad Prosequendum of the Estate of Irving Flax, and MARILYN FLAX, individually, plaintiff,
v.
UNITED STATES OF AMERICA, defendant.


CHESLER


The opinion of the court was delivered by: STANLEY R. CHESLER

STANLEY R. CHESLER, U.S. Magistrate Judge

 I. INTRODUCTION

 This matter comes before the Court on the motion of defendant United States of America for summary judgment and/or to dismiss the complaint. In accordance with the provisions of section 636(c) of Title 28 of the United States Code, the parties have consented to have this motion tried before the undersigned. By Order dated December 20, 1991, all proceedings with regard to this matter were referred to the undersigned for disposition. Oral argument was heard on March 23, 1992.

 II. BACKGROUND

 In this action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., plaintiff Marilyn Flax ("plaintiff") seeks damages incurred as a result of the death of plaintiff's husband on or about January 24, 1989 from defendant United States of America ("defendant").

 On the morning of January 23, 1989, at approximately 9:30 a.m., Irving Flax, the deceased husband of plaintiff (hereinafter referred to as "the decedent"), left his home with the intention of going to work. Affidavit of Marilyn Flax ("Flax Aff.") P 2. Prior to entering his vehicle, the decedent was abducted by John Martini, Sr. ("Martini") and his accomplice, Theresa Afdahl ("Afdahl"). Complaint, First Count P 1. Later that morning, at approximately 10:30 a.m., plaintiff received a telephone call from a man later identified as Martini. Flax Aff. P 3. Martini informed plaintiff that he had kidnapped the decedent and demanded $ 100,000.00 for the decedent's release. Id.

 Plaintiff then contacted the Fair Lawn Police Department. Flax Aff. P 7. The Fair Lawn Police Department, in turn, contacted the Bergen County Prosecutor's Office and the Federal Bureau of Investigation ("FBI"). Id. P 8.

 Plaintiff received a second call from Martini at approximately 11:30 a.m. Flax Aff. P 9. Martini inquired as to whether plaintiff had obtained the ransom money. Id. When plaintiff advised Martini that she could not obtain the $ 100,000.00 ransom, Martini asked if she could raise $ 25,000.00. Id. Martini told plaintiff that he would telephone again later that day. Id.

 At approximately 2:30 p.m. that afternoon, FBI special agents arrived in Fair Lawn and assumed command of the kidnapping investigation and surveillance. Flax Aff. P 10.

 At approximately 5:00 p.m., Martini telephoned plaintiff a third time and asked plaintiff if she had secured the ransom money. Id. P 14. Plaintiff advised Martini that she had raised the $ 25,000.00. Id. Martini then instructed plaintiff when and where to leave it. Id.

 At approximately 7:30 p.m. that evening, plaintiff proceeded to the designated location to make the ransom payment. Flax Aff. P 18. When plaintiff observed Martini, plaintiff deposited the ransom money and drove off. Id.

 The decedent's body was discovered on the morning of January 24, 1989. Flax Aff. P 19. The decedent had been shot to death. Id. On January 25, 1989, Martini and Afdahl were apprehended; they were charged with, and later convicted of, the ...


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