The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Plaintiffs Maureen Saint-Guillen, individually and as Administratrix of the Estate of Imette Saint-Guillen, and the Estate of Imette Saint-Guillen have brought this action against the United States under the Federal Tort Claims Act ("FTCA" or the "Act"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, for the kidnapping, rape, and murder of Imette Saint-Guillen at the hands of federal probationer, Darryl Littlejohn. Plaintiffs allege that the United States Probation and Pre-trial Services System failed to supervise and control Littlejohn, as required by his sentence and federal statute. Additionally, plaintiffs claim that defendant negligently hired, trained, supervised, and retained its employees, thus resulting in its failure to supervise Littlejohn. According to plaintiff, these failures were the proximate causes of Imette Saint-Guillen's assault and murder. Defendant has moved to dismiss the entire action under Fed. R. Civ. P. 12(b)(1) and (6), arguing that: (1) quasi-judicial absolute immunity bars the claims; and (2) it did not owe a duty of care to plaintiffs under New York law. Additionally, defendant contends that the Discretionary Function Exception of the FTCA precludes the claims against its hiring, training, retention, and supervising practices. For the reasons set forth below, the motion is granted, in part, and denied, in part. The claims for negligent hiring, training, supervision, and retention are dismissed pursuant to the Discretionary Function Exception. The remaining claims may proceed.
On March 26, 1999, Littlejohn pled guilty before United States District Judge Jacob Mishler, formerly of this court, to Bank Robbery by Force of Violence. (Compl. at ¶ 11.) The court sentenced him to a 41-month term of imprisonment to run concurrently with a previously imposed state sentence followed by three years of probation under defendant's supervision. (Compl. at ¶¶ 12, 13.) Littlejohn was released in 2004. (Compl. at ¶ 16.) Upon his release, he was declared a "menace to society." (Compl. at ¶ 17.) Littlejohn has a history of parole violations and violent felonies. (Compl. at ¶ 18.)
Contrary to the court's sentencing order, defendant completely failed to supervise Littlejohn. (Compl. at ¶¶ 21-23.) Apparently, defendant was unaware of Littlejohn's release date, and, therefore, failed to place him on active supervision. (Compl. at ¶¶ 20, 24.) The Chief of the United States Probation Department for the Eastern District of New York, Tony Garoppolo, admitted that the Probation Service for the Eastern District of New York should have known the release date.
(Tacopina Decl. Ex. C; Pl.'s Compl. at ¶¶ 23-25). Garoppolo explained that Littlejohn "fell between the cracks," because of "human error," and the support worker responsible for the error had been laid off. (Tacopina Decl. Exs. C, E, F.)
As a result of defendant's failure, Littlejohn worked as a bouncer at the "Falls" bar in violation of his conditions of probation. (Compl. at ¶ 26.) On February 25, 2006, while working at the bar, Littlejohn met Imette Saint-Guillen. (Compl. at ¶ 28.) Either that evening or during the early hours of the next day, he kidnapped, raped, and murdered Imette Saint-Guillen. (Id .) On June 3, 2009, a Kings County state court jury found Littlejohn guilty of rape and murder in the first degree for the killing of Imette Saint-Guillen, and, on July 8, 2009, he was sentenced to life without parole.
In evaluating a motion to dismiss under Rule 12(b)(1), the court accepts as true all factual allegations in the complaint; however, it should not draw inferences favorable to the party asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted). "A case is properly dismissed for lack of subject matter [sic ] jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "The plaintiff bears the burden of proving subject matter [sic ] jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In determining the existence of subject-matter jurisdiction, a district court may consider evidence outside the pleadings. Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (citing Makarova, 201 F.3d at 113). Subject-matter jurisdiction is a threshold issue, and thus, where a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the court must address the 12(b)(1) motion first. Sherman v. Black, 510 F. Supp. 2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)).
"[T]he terms of [the United States's] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). "The FTCA, 28 U.S.C. §§ 1346(b), 2401(b), and 2671-2680, constitutes a limited waiver by the United States of its sovereign immunity" and allows for a tort suit against the United States under specified circumstances. Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (citation omitted). For there to be a waiver, the claim must be  against the United States,  for money damages, . . .  for injury or loss of property, or personal injury or death  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,  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 (emphasis added); see also F.D.I.C. v. Meyer , 510 U.S. 471, 475-76 (1994) (citation omitted). Given that defendant's motion is based entirely upon assertions of quasi-judicial and sovereign immunity, the court considers this motion under Rule 12(b)(1) and not 12(b)(6). See Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996) (explaining that if there is no waiver of sovereign immunity, a claim must be dismissed under Fed. R. Civ. P. 12(b)(1) and not Fed. R. Civ. P. 12(b)(6) for failure to state a claim).
b. Absolute Immunity Does Not Apply
Defendant contends that it is immune from the instant claims under the doctrine of quasi-judicial immunity, which is a form of absolute immunity that applies to non-judicial officers when they perform judicial functions. In order to qualify, "[t]he proponent of a claim of absolute immunity bears the burden of establishing the justification of such immunity." Antoine v. Byers & Anderson, Inc. , 508 U.S. 429, 432 (1993). "The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Id . at 432 n.4 (citation and internal quotation marks omitted). To determine whether a defendant is ...