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On-Site Screening, Inc. v. United States

July 30, 2010


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiffs On-Site Screening, Inc. and Ronald L. Lealos (collectively "On-Site") filed a complaint seeking to hold the United States liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, for the loss of property allegedly seized by the Food and Drug Administration ("FDA"). The United States moved to dismiss OnSite's complaint because the FTCA's waiver of sovereign immunity does not extend to tort actions that arise from the detention of goods by a law enforcement officer. 28 U.S.C. § 2680(c).


During an October 15, 2004 inspection of a facility in Bedford Park, Illinois, inspectors for the Village of Bedford Park discovered blood and saliva samples marked as HIV positive. (Compl. ¶ 7.) According to its complaint, On-Site was storing the samples at the facility, and the samples were related to On-Site's business of developing a method for detecting the HIV virus in saliva. (Id.) The Village inspectors allegedly "contacted the FDA who immediately or very shortly thereafter took possession of" the samples and related documentation. (Id. ¶ 8) On-Site further alleges that it was "notified of the above described seizure by the FDA," and, on October 29, 2004, it wrote to the FDA demanding the return of its property and requesting that, in the meantime, the specimens be kept frozen. (Id. ¶ 8.) On-Site attached to its complaint the October 29 letter from Lealos. (Id. Ex. C.) The FDA allegedly "continued to maintain control over" the samples for four years, and On-Site employees communicated with FDA Special Agent Jocelyn Ellis regarding proper storage of the samples during that time period. (Id. ¶ 9.)

Upon receiving notification that the FDA had completed its investigation, On-Site alleges that it contacted Special Agent Ellis numerous times and wrote her a letter to inform her that it sought to pick up the frozen samples and other materials. (Id. ¶¶ 10-11.) On-Site attaches to its complaint a February 12, 2009 letter from Special Agent Daniel Henson of the FDA Office of Criminal Investigations ("OCI") to Lealos. (Id. Ex. D.) The letter states:

The investigation involving Know HIV (1) Pro-Pack testing kits has been concluded, and the Food and Drug Administration, Office of Criminal Investigations (FDA/OCI) has items that require disposition. If you desire return of the items, please contact Special Agent Jocelyn Ellis... within twelve (12) days of receipt of this letter, to make arrangements to pick up the items. If you do not make arrangements to pick up the items and wish that the FDA/OCI destroy the items at its expense, you do not need to respond to this letter. If no response to this letter is received from you within the allotted twelve (12) days, then the FDA/OCI will destroy the items.

(Id. Ex. E.) On-Site also attaches a letter dated March 15, 2009 from Lealos to Ellis noting that Gary Richard Campbell has permission to pick up "documents and frozen specimens." (Id.) According to the complaint, Special Agent Ellis called an On-Site employee shortly after receiving the letter "to inform him, in substance, that 'the motor in the freezer in the lab where the specimens were sorted had recently broken down and the specimens had spoiled and were disposed of.'" (Id. ¶ 12.)

On-Site submitted an administrative claim to the Department of Health and Human Services on June 19, 2009 seeking close to $2 million for the destruction of its property. (Id. ¶ 5, Ex. A.) The government rejected the claim in a letter dated July 27, 2009 which stated, in part: "The evidence fails to establish that the alleged injuries were due to the negligent or wrongful act or omission of a federal employee acting within the scope of employment." (Id. Ex. B.) The letter provided no further explanation for the disposition of On-Site's claim. On-Site filed a complaint in this court on September 29, 2009. The government has moved to dismiss.


The federal government is immune from suits for damages unless it explicitly consents to be sued. Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). In the FTCA, Congress waived the United States' immunity for claims arising out of torts committed by employees of the federal government. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). Specifically, the government's immunity is waived when there are "claims against the United States, for money damages... for injury or loss of property... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). This waiver, however, is subject to certain exemptions. See 28 U.S.C. § 2680. Section 2680(c) exempts from the waiver "any claim arising in respect of... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." The United States argues that this exemption applies here and moves to dismiss On-Site's tort claim pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1

On-Site responds with a number of arguments. It contends that its property was never "detained;" that it has never alleged that the government official responsible was a "law enforcement officer;" that an exception to § 2680(c) applies to this case; and that the government has waived any argument that immunity applies. Above all, On-Site contends that discovery is necessary to determine whether the § 2680(c) exemption applies, and, thus, dismissal is not proper at this point.

A. Legal Standard

In considering a motion to dismiss, the court must "construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the plaintiff's] favor." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A plaintiff generally need not plead particularized facts; Federal Rule of Civil Procedure 8(a)(2) requires that the complaint set forth only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) ("Our system operates on a notice pleading standard; Twombly and its ...

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