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FLAX v. UNITED STATES

July 12, 1994

MARILYN FLAX, Administratrix Ad Prosequendum of the Estate of Irving Flax, and MARILYN FLAX, Individually, Plaintiffs
v.
UNITED STATES OF AMERICA, Defendant


CHESLER, Ackerman


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

STANLEY R. CHESLER, U.S. Magistrate

 I. INTRODUCTION

 This matter comes before the Court on the motion of defendant, the United States of America, to dismiss the above-captioned action for lack of subject matter jurisdiction or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. In accordance with the provisions of § 636(c) of Title 28 of the United States Code, the parties consented to have this motion tried before the undersigned and, by Order dated December 20, 1991, all proceedings with regard to this matter were referred to the undersigned for disposition.

 After plaintiff filed her complaint and defendant filed its answer, defendant moved for dismissal or, in the alternative, for summary judgment. This Court found that plaintiff's claims against the Federal Bureau of Investigation ("FBI") fell within the discretionary function exception to the Federal Torts Claims Act, *fn1" and granted defendant's motion for summary judgment. Plaintiff then appealed the decision to the United States Court of Appeals for the Third Circuit. The Third Circuit determined that plaintiff was entitled to further discovery of the FBI's rules and regulations before the Court could find that defendant had a right to summary judgment as a matter of law. Accordingly, the Court of Appeals vacated this Court's Order and remanded the action for further proceedings consistent with its opinion.

 After plaintiff completed her examination of the FBI's regulations, defendant renewed its motion for dismissal or, alternatively, for summary judgment. Oral argument was reheard on October 12, 1993.

 II. BACKGROUND

 A. Facts

 The facts significant to the resolution of this motion are not in dispute, and have been set forth in both this Court's earlier opinion and again in the opinion issued by the Third Circuit. On the morning of January 23, 1989, at approximately 9:30 a.m., Irving Flax, plaintiff's deceased ("decedent"), left his home intending to go to work. Affidavit of Marilyn Flax ("Flax Aff.") at P 2. Before he could enter his vehicle, the decedent was abducted by John Martini Sr. and his accomplice, Theresa Afdahl. Complaint, First Count at P 1. Later that morning, at approximately 10:30 a.m., plaintiff Marilyn Flax received a telephone call from Martini. Flax Aff. at P 3. Martini informed plaintiff that he had kidnapped the decedent and demanded $ 100,000 for his release. Id.

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

 Plaintiff received a second call from Martini at approximately 11:30 a.m. Id. at P 9. Martini asked plaintiff if she had obtained the ransom money. Id. When plaintiff advised Martini that she could not obtain the entire $ 100,000 ransom, Martini asked if she could raise $ 25,000. Id. Martini told plaintiff that he would telephone again later that day to see whether plaintiff had raised $ 25,000. 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. Id. at P 10. The agents installed a tap on plaintiff's phone, although it was of no avail when Martini subsequently contacted plaintiff.

 At approximately 5:00 p.m., Martini telephoned plaintiff a third time and asked plaintiff if she had secured the ransom money. Id. at P 14. Plaintiff advised Martini that she had raised the $ 25,000. Id. Martini then instructed plaintiff regarding when and where plaintiff was to leave the money. Id. After plaintiff withdrew the ransom money from a bank, the FBI recorded the serial numbers and arranged for plaintiff to drop off the money in accordance with Martini's instructions.

 At approximately 7:30 p.m. that evening, plaintiff proceeded to the designated location, a local diner, to make the ransom payment. Id. at P 18. Upon observing Martini, plaintiff deposited the ransom money and drove off. Id. Because at this point the agents had not yet ascertained the location of Irving Flax, and suspected that another kidnapper was involved, they did not immediately apprehend Martini. Instead, the agents observed the kidnapper and attempted to follow him until they could determine the location of Irving Flax. At some point, however, the agents lost track of Martini. After unsuccessfully searching for him in New York and New Jersey, the agents terminated the search.

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


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