     Case: 15-60285      Document: 00513350756         Page: 1    Date Filed: 01/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 15-60285                             January 21, 2016
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
ANTHONY WRIGHT, For and on Behalf of His Wife, Stacey Denise Scott
Wright, Deceased, and on Behalf of all Wrongful Death Beneficiaries,

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; RAND BEERS,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-637


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Anthony Wright filed suit against the United States
under the Federal Tort Claims Act, alleging that the United States is liable for
claims arising out of the murder of Stacey Wright by another government
employee, Ruben Benitez. The district court granted the United States’ motion




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                            No. 15-60285
to dismiss, and Wright appeals. We AFFIRM the judgment of the district
court.
                 I. FACTUAL AND PROCEDURAL BACKGROUND
         On Saturday, September 17, 2011, Ruben Benitez murdered Stacey
Denise Scott Wright in her apartment in D’Iberville, Mississippi, after Benitez
and Wright returned from dinner. At the time, Stacey Wright worked at the
Gulfport–Biloxi International Airport as an employee of the Transportation
Security Administration (TSA)—an agency within the United States
Department of Homeland Security (DHS)—and Benitez was her supervisor. 1
Stacey Wright and Benitez were also involved in an affair, which began when
both parties previously worked at the Jackson–Evers International Airport.
Benitez was convicted of Stacey Wright’s murder and sentenced to life in
prison. Benitez v. State, 139 So. 3d 134, 143 (Miss. Ct. App. 2014) (affirming
the conviction and sentence on appeal). 2
         Anthony Wright, Mrs. Wright’s husband, filed the present lawsuit
asserting claims for assault and battery, negligence, alienation of affection,
and wrongful death against the United States. The United States moved to
dismiss all of the claims or, in the alternative, for summary judgment. In
response, Wright moved for the court to permit limited discovery on whether
“Benitez was acting within the course and scope of his employment.”
         On November 18, 2014, the district court granted the United States’
motion. The district court found that the Federal Tort Claims Act (FTCA) did
not waive the United States’ immunity from assault and battery claims and,
in the alternative, that Benitez was not acting within the course and scope of



         1   Benitez’s official position was Assistant Federal Security Director, Screening, for the
TSA.
        Benitez’s criminal appeal provides a detailed background of the events before and
         2

after Mrs. Wright’s murder. See Benitez, 139 So. 3d at 136–38.
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                                  No. 15-60285
his employment when he attacked Mrs. Wright. The district court also found
that Wright’s negligence claim failed as a matter of law because Wright failed
to identify any duty that the United States owed to Mrs. Wright independent
of the employment relationship. Finally, the district court found that Wright
failed to state a claim against the United States for alienation of affection
because “knowledge [of the affair] would not suffice to support liability for
alienation of affection.” In the same order and opinion, the district court denied
Wright’s request for limited discovery because any benefit from discovery was
“entirely speculative.”
      Wright moved for entry of final judgment as to United States so that he
could appeal to this court. The district court entered final judgment and
dismissed the complaint with prejudice. Wright timely appealed.
                          II.   STANDARD OF REVIEW
      On appeal, Wright argues that the district court erred in dismissing the
assault and battery, negligence, and alienation of affection claims against the
United States and in denying limited discovery on whether Benitez was acting
within the course and scope of his employment at the time of the murder. We
review de novo a district court’s granting of a motion to dismiss for failure to
state a claim under Rule 12(b)(6). In re Katrina Canal Breaches Litigation,
495 F.3d 191, 205 (5th Cir. 2007). We accept all well-pleaded facts as true and
view those facts “in the light most favorable to the plaintiff.” Raj v. La. State
Univ., 714 F.3d 322, 330 (5th Cir. 2013). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible if the complaint “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. “Dismissal is appropriate when the plaintiff has not alleged enough
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                                   No. 15-60285
facts to state a claim to relief that is plausible on its face or has failed to raise
his right to relief above the speculative level.” Bass v. Stryker Corp., 669 F.3d
501, 506 (5th Cir. 2012).
                  III.    ASSAULT AND BATTERY CLAIM
      The district court did not err in dismissing Wright’s assault and battery
claim against the United States. The United States, its departments, and its
employees in their official capacities are generally “immune from suit except
as the United States has consented to be sued.” Williamson v. U.S. Dep’t of
Agric., 815 F.2d 368, 373 (5th Cir. 1987). The FTCA waives that immunity for
injuries
      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(b)(1); see also 28 U.S.C. § 2679(b)(1) (stating that the FTCA
provides the exclusive remedy for such injuries). “[W]e note that the limited
waiver of sovereign immunity contained in the FTCA should be narrowly-
construed in favor of the United States.” Leleux v. United States, 178 F.3d 750,
754 (5th Cir. 1999). Moreover, “the FTCA does not waive sovereign immunity
for certain enumerated torts.” Bodin v. Vagshenian, 462 F.3d 481, 484 (5th
Cir. 2006). In particular, the FTCA does not waive sovereign immunity for any
claim arising out of assault or battery unless committed by “investigative or
law enforcement officers of the United States Government.”               28 U.S.C.
§ 2680(h). The district court found that the assault and battery exception
applied and barred Wright’s claim in the present matter, and Wright does not
challenge this finding on appeal. We agree with the district court and hold
that Wright’s assault and battery claim against the United States is expressly

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barred by 28 U.S.C. § 2680. 3 See Martinez v. Lueva, 174 F. App’x 235, 237 (5th
Cir. 2006) (per curiam) (unpublished) (noting that claims are abandoned when
an appellant fails to address the alternative grounds of dismissal).
       Moreover, the district court did not err in dismissing the claim on the
alternative basis that Benitez was not within the course and scope of his
employment as a matter of law. The FTCA’s waiver of sovereign immunity
“only applies when the tortfeasor acts within the scope of his employment.”
Bodin, 462 F.3d at 484. “The issue of whether an employee is acting within
the scope of his employment for purposes of the FTCA is governed by the law
of the state in which the wrongful act occurred.” Id. An employee acts “within
the scope of employment” under Mississippi law—the state where the act
occurred—only if the act was “committed in the course of and as a means to
accomplishing the purposes of the employment and therefore in furtherance of
the master’s business.” Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159
(Miss. 2002). However, we have previously explained that “[a]n intentional
violent assault on a co-worker is quite obviously neither committed as a means
of accomplishing the purposes of the employment nor of the same general
nature as authorized conduct.” Tanks v. Lockheed Martin Corp., 417 F.3d 456,
464 (5th Cir. 2005).
       Wright contends that the United States may be held liable because the
employee “was aided in accomplishing the tort by the existence of the agency
relation.” Jones v. B.L. Dev. Corp., 940 So. 2d 961, 967 (Miss. Ct. App. 2006)
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998)).                  In
particular, Wright argues that the United States aided Benitez by requiring


       3 Wright has never argued that he falls under the “law enforcement officer” proviso
contained in 28 U.S.C. § 2680 and has not contended that Benitez was designated as a “law
enforcement officer” by the TSA. See Corbett v. TSA, 568 F. App’x 690, 701 (11th Cir. 2014)
(per curiam) (unpublished) (concluding that a TSA employee, such as a screener, is not a law
enforcement officer unless affirmatively designated as such by the TSA).
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                                   No. 15-60285
Benitez to travel to the Gulfport–Biloxi International Airport as part of his
mandatory duties and responsibilities. This argument is unpersuasive. The
Jones court expressly recognized that liability based on the aided-in-the-
agency-relation standard constitutes “liability for the torts the [master’s]
servant committed outside the scope of employment.” Id. at 966 (emphasis
added); see also Ellerth, 524 U.S. at 758 (“In limited circumstances, agency
principles impose liability on employers even where employees commit torts
outside the scope of employment.”). However, the FTCA only waives immunity
for injuries caused by an employee “acting within the scope of his office or
employment,” 28 U.S.C. § 1346(b)(1) (emphasis added), and such immunity
waivers “should be narrowly-construed in favor of the United States,” Leleux,
178 F.3d at 754. Jones thus speaks to a ground for liability that is not available
under the provisions of the FTCA. The district court did not err in dismissing
the assault and battery claim against the United States on either of its
proffered grounds.
                             IV.    NEGLIGENCE
      The district court also did not err in dismissing Wright’s negligence claim
against the United States. Wright challenges the district court’s dismissal of
his negligence claim based on the United States’ alleged failure “to prevent the
attack and death of Stacey Wright.”         As previously discussed, the FTCA
generally bars claims for assault and battery. 28 U.S.C. § 2680(h). However,
relying on Supreme Court precedent, we have recognized “that negligence
claims related to a Government employee’s § 2680(h) intentional tort may
proceed where the negligence arises out of an independent, antecedent duty
unrelated to the employment relationship between the tortfeasor and the
United States.” Leleux, 178 F.3d at 757 (emphasis added) (citing Sheridan v.
United States, 487 U.S. 392 (1988)). “Only negligent conduct, undertaken
within the scope of employment and unrelated to an excluded tort under
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                                   No. 15-60285
[28 U.S.C.] § 2680(h), may form the basis of a cause of action.” Id. “The actual
assault ‘thus serves only to establish the extent of the plaintiff's injury, not to
establish the . . . breach of duty.’” Bodin, 46 F.3d at 489 (quoting Thigpen v.
United States, 800 F. 2d 393, 399 n.10 (4th Cir. 1986)). “In other words,
[Wright] can recover only if the United States breached a duty independent of
its employment relationship with [Benitez].” Id. at 489.
      “Whether the United States owed an independent duty to the plaintiffs
is a question of . . . state law.” Id. (citing 28 U.S.C. § 1346(b)(1)). Even though
the district court extensively analyzed the independent duty requirement,
Wright ex el. Wright v. United States, 69 F. Supp. 3d 606, 613–15 (S.D. Miss.
2014), Wright has failed to adequately address this requirement on appeal.
Wright has provided no authority regarding the United States’ potential duties
under state law. See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir.
2010) (stating that a party waives an argument on appeal if it fails to identify
relevant legal standards or Fifth Circuit precedent). And insofar as potential
duties of the United States can be inferred from Wright’s arguments, Wright
has failed to cite any authority showing that those duties are “unrelated to the
employment relationship between [Benitez] and the United States.” Leleux,
178 F.3d at 757. The district court therefore correctly held that Wright has
failed to state a claim for negligence against the United States.
                     V.     ALIENATION OF AFFECTION
      Wright has failed to state a claim for alienation of affection as a matter
of law.   There are three elements to an alienation of affection claim: “(1)
wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a
causal connection between the conduct and the loss.” Children’s Med. Grp.,
P.A. v. Phillips, 940 So. 2d 931, 934 (Miss. 2006) (en banc). The “‘wrongful’
conduct necessary to maintain an action for alienation of affections is the direct
and intentional interference with the marriage relationship by the defendant.”
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Id. However, the Mississippi Supreme Court has repeatedly recognized that
an employer cannot be vicariously liable for its employees’ affairs because such
affairs are “so clearly beyond an employee’s course and scope of employment
that [it] cannot form the basis for a claim of vicarious liability, as a matter of
law.” Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d
474, 488 (Miss. 2010) (quoting Children’s Med. Grp., 940 So. 2d at 935). Thus,
Wright’s claim fails insofar as it is based on Benitez’s involvement in the affair.
See 14 Charles Alan Wright et al., Federal Practice & Procedure § 3658 (“[The
FTCA’s] waiver of liability, however, is limited to the torts and wrongful acts
of federal employees acting within the scope of official duties.”).
       Here, the only “wrongful conduct” Wright points to is that the United
States allegedly knew of the affair and failed to fulfill its “duty to take
corrective action to stop the affair.” Even assuming, arguendo, that the United
States had knowledge of the affair, Wright provides no authority supporting
his contention that an employer has an affirmative duty to stop its employees’
trysts or that a defendant’s failure to act on that “duty” constitutes wrongful
conduct under Mississippi law. See Scroggins, 599 F.3d at 447 (noting that an
argument is waived if it fails to identify relevant legal standards). Wright does
not point to any Mississippi court that has held that an employer’s inaction in
stopping an affair is sufficient, in of itself, to state a facially plausible claim
that would survive a motion to dismiss. 4 See Iqbal, 556 U.S. at 678 (holding



       4  Indeed, the Mississippi Supreme Court has only held that a complaint alleging that
an employer knew of and allowed an illicit relationship involving its employees satisfied the
lower pleading standard under Mississippi procedural rules at the time. See Children’s Med.
Grp., 940 So. 2d at 934–35 (noting that the plaintiff “is required only to place [the employer]
on reasonable notice of the claims against it and demonstrate that [the plaintiff] has alleged
a recognized cause of action upon which, under some set of facts, [the plaintiff] might
prevail.”). The court expressly recognized, however, that this allegation alone “fails to specify
[the employer’s wrongful] conduct that directly and intentionally interfered with [the
plaintiff’s] marriage.” Id. at 934.
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that “a complaint must contain sufficient factual matter” to state a facially
plausible claim). Moreover, cases addressing the alienation of affection tort
have consistently couched their description of that tort in language focusing on
actions by, not the inaction of, the defendant. See, e.g., Fitch v. Valentine, 959
So. 2d 1012, 1020 (Miss. 2007) (en banc) (concluding that the alienation of
affection tort provides redress “against the third party who, through
persuasion, enticement, or inducement, caused or contributed” to an injury of
the marital relationship (emphasis added)); Children’s Med. Grp., 940 So. 2d
at 934 (“The ‘wrongful’ conduct necessary to maintain an action for alienation
of affections is the direct and intentional interference with the marriage
relationship by the defendant.” (emphasis added)). Because the Mississippi
Supreme Court has not previously held that allegations of the employer’s
inaction alone constitute wrongful conduct, we decline to hold that merely
pleading inaction on the part of the United States is sufficient to plausibly
plead alienation of affection and thereby waive the United States’ sovereign
immunity. See Leleux, 178 F.3d at 754 (“[W]e note that the limited waiver of
sovereign immunity contained in the FTCA should be narrowly-construed in
favor of the United States.”).    The district court therefore did not err in
dismissing Wright’s alienation of affection claim.
                 VI.   LIMITED IMMUNITY DISCOVERY
      Finally, the district court did not abuse its discretion in denying Wright’s
request for limited discovery. “We review a district court’s denial of a discovery
request for abuse of discretion.” Pustejovsky v. Pliva, Inc., 623 F.3d 271, 278
(5th Cir. 2010). Any benefit of additional discovery on whether Benitez acted
within the scope of employment and whether the United States knew of
Benitez’s affair with Stacey Wright is “wholly speculative.” See Robbins v.
Amoco Production Co., 952 F.2d 901, 907 (5th Cir. 1992) (quoting Paul Kadair,
Inc. v. Sony Corp., 694 F.2d 1017, 1029 (5th Cir. 1983)). Moreover, Wright has
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                                   No. 15-60285
not shown how discovery as to those two issues “reasonably could be expected
to offer an escape from the legal deficiencies” in Wright’s claims. Id. The
district court therefore did not abuse its discretion in denying Wright’s request
for limited discovery.
                               VII. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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