moves for dismissal pursuant to Rule 12(b)(1), the plaintiff must support its allegations

with competent proof of jurisdictional facts. See Thomson v. Gaskillwsa, 315 U.S. 442,

446 (1942). With these principles in mind, we turn to the instant motion.

DISCUSSION

The Kings’ complaint alleges a list of factual grievances but fails to identify any

legal theories of liability. The factual grievances are the following:

1.

VA agents told Mrs. King’s day care center employees and DCFS
personnel that the Kings engaged in illegal acts concerning the operation
of the day care center. Compl. { 6.

VA agents entered the Kings’ home without their consent. Compl. { 7.
VA agents engaged in improper electronic and other surveillance of the
Kings without their consent or appropriate court order. Compl. { 8.
The Kings’s Freedom of Information Act (“FOIA”) request for
information regarding the VA’s investigation of the Kings was denied.
Compl. J 9-10.

VA agents withheld or denied its personnel files regarding Mr. King.

Compl. { 11-12.

In its motion to dismiss, the United States was forced to decipher what causes of action

were being asserted. The United States concluded that the Kings were asserting

-4-


Kings; (2) As a result of the investigation, three parents removed their children from
the day care center; (3) Mrs. King was forced to explain to the DCFS that she was not
engaged in fraud; and (4) Mrs. King and her children were placed under surveillance
by the government. The letter claimed the Kings had sustained at least $50,000 in
damages in the form of lost business opportunities and emotional distress. In January
1989 the VA denied the Kings’ claims, stating that they were not actionable under the
Federal Tort Claims Act (the “FTCA”). The VA further informed them of their right
to file suit in federal district court in accordance with the FTCA.

The Kings filed this lawsuit under the FTCA on June 28, 2002. The United
States moves to dismiss the action for lack of subject matter jurisdiction, arguing that
the Kings’ claims are barred by the intentional tort exception to the FTCA’s waiver of
sovereign immunity.

LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to dismiss
claims over which a federal court lacks subject matter jurisdiction. Jurisdiction is the
“power to decide” and must be conferred upon a federal court. In re Chicago, Rock
Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The plaintiff bears the
burden of establishing that the jurisdictional requirements have been met. See Kontos

v. United States Dep’t of Labor, 826 F.2d 573, 576 (7th Cir. 1987). When a defendant

-3-

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intentional tort claims for libel, slander, and interference with contract rights, and
moved to dismiss them pursuant to 28 U.S.C. § 2680(h). That statute bars actions
against the United States for “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights . . ..” Id (emphasis
added). The Kings concede that, to the extent that the complaint asserts claims for
libel, slander, and interference with contract rights, itis barred by 28 U.S.C. § 2680(h).
See Pl. Opp. at 3. The Kings, however, maintain that they have asserted other causes
of action that are actionable against the government under the FTCA. It is unclear to
us, from either the complaint or the Kings’ opposition brief, what other legal causes of
action the Kings are asserting. Therefore, we are unable to determine whether or not
they are authorized by the FTCA.
CONCLUSION

Based on the foregoing analysis, we grant the motion to dismiss without
prejudice. The Kings have thirty days to file an amended complaint, specifically
identifying any and all legal causes of action.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: _ November 13. 2002



. «

‘Minute Order Form (06/97)

«put States District Court, Northern District of Illinois

()

Name of Ast Jue Charles P. Kocoras Stora Asahted Sedge
CASE NUMBER 02 C 4640 DATE 11/13/2002

CASE King et al vs. United States of America

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.)
(2) o Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer briefdue__.
(4) a Ruling/Hearingon____setfor__at
(5) oO Status hearing[held/continued to] [set for/re-set for]on__——ssetfor___—_at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—s—sat__—
?) Qa Trial[set for/re-set for]on__——_at
(8) oO [Bench/Jury trial] [Hearing] held/continuedto_—_at
(9) ia} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) Mi [Otherdocketentry] Ruling held. ENTER MEMORANDUM OPINION: We grant defendant’s

motion (Doc 3-1) to dismiss without prejudice. The Kings have thirty days to file an amended complaint,
specifically identifying any and all legal causes of action.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required,

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. ‘ef
yolN1sia sft
Nod rene

Copy to judge/magistrate judge.

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SCT

courtroom ba siiny €1 NONZO
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OT Wantatean in

central Clerk's Office



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOYCE KING and FRANK KING, ) D
)
Plaintiffs, ) A EMETED
) Vig a
002
vs. ) 024640
)
UNITED STATES OF AMERICA, )
)
Defendant. )

MEMORANDUM OPINION
CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the Court on a motion to dismiss for lack of subject
matter jurisdiction brought by Defendant United States. For the reasons set forth
below, the motion is granted.

BACKGROUND

Because this is a motion to dismiss, we accept all well pleaded facts and
allegations in the complaint as true and draw all reasonable inferences in a light most
favorable to Plaintiffs Joyce and Frank King. See Bontkowski v. First Nat'l Bank of
Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Mr. King is an employee of the U.S.
Department of Veterans Affairs (the “VA”). During the relevant time period, Mr. King

apparently was disabled, not actively working for the VA, and receiving disability

7

QO), LL


benefits. This action arises from a VA investigation of the Kings with respect to Mr.
King’s disability. Between January 1996 and November 1998 the VA investigated
whether or not Mr. King was working for his wife at her day care business at the same
time that he was receiving disability benefits from the government. During this
investigation VA agents interviewed employees of Mrs. King’s day care business and
certain Illinois Department of Children and Family Services (“DCFS”) personnel. The
VA agents allegedly told those parties that one or both of the Kings had engaged in
illegal acts concerning the operation of the day care center. The VA agents allegedly
entered the Kings’ home and engaged in improper electronic and other surveillance of
the Kings without their consent or a court order. Mr. King unsuccessfully tried to
retrieve information about the investigation: First, he submitted a Freedom of
Information Act (“FOIA”) request on the VA’s activities, but was denied access to
portions of the information. Second, he requested that the VA provide him with his
personnel files but those files were either withheld or destroyed.

In November 1988 counsel for the Kings sent a letter to Richard J. Griffin,
Inspector General of the VA, informing him that the Kings were making a claim for
wrongful actions taken against them during the alleged investigation. The letter
contained the following claims: (1) Government employees contacted friends and

employees of Mrs. King’s day care center and made disparaging remarks about the