The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Before the Court is defendant's second motion to dismiss, plaintiff's opposition and cross-motion for attorney's fees, and defendant's reply. At this stage of the proceedings, plaintiff's complaint has been reduced to only three state law tort claims. Defendant moves under Fed. R. Civ. P. 12(b)(6), to dismiss these remaining claims for failure to exhaust administrative remedies as required under the Federal Tort Claims Act ("FTCA"), or alternatively, for failure to state a claim upon which relief may be granted. Plaintiff responds that the FTCA does not apply in this case and that his tort claims are viable under applicable state tort law. Plaintiff has also cross-moved for attorney's fees, arguing that he is a "prevailing party" under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, as to the issue of Westfall certification. Because the complaint fails to state any viable tort claim under Ohio law, the Court will grant defendant's motion to dismiss. Since tort suits are exempted from coverage under the EAJA, and plaintiff is not a prevailing party, plaintiff's cross-motion is denied.
Plaintiff's First Amended Complaint, filed on June 8, 1999, alleged nine federal and state law claims against former United States Representative Martin Hoke; Bernice Ferencz, who is plaintiff's former neighbor; and unnamed John Does, arising from the alleged wiretapping of plaintiff's telephones and subsequent cover-up. On August 17, 1999, the Honorable Henry Kennedy dismissed the first six counts, all of which asserted federal causes of action. Nix v. Hoke, 62 F. Supp.2d 110 (D.D.C. 1999). *fn1 Thereafter, the United States intervened by certifying defendant, a former United States Representative, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), 28 U.S.C. § 2679. This Court has retained supplemental jurisdiction over plaintiff's pending state law claims against defendant Hoke.
For the purposes of the present motion, the Court will assume, as it must, that plaintiff's account of the facts is true. Both plaintiff and defendant are residents of Ohio. Defendant served as the United States Representative for the Tenth Ohio Congressional District at all times pertinent to this case. In the summer of 1993, plaintiff moved into the Brookside Drive neighborhood, and lived in the home of John Master, a business associate, friend and longtime resident of the neighborhood. Plaintiff assisted Master with personal and business affairs, including the development of a tract of undeveloped land adjacent to Master's property. Plaintiff alleges that certain Brookside Drive residents, who were also defendant's constituents, opposed the development of the property and "banded together to block the property's development." (Compl. ¶ 22.) In December 1993, the Brookside Drive residents, including the Cleveland councilman for the ward, Patrick J. O'Malley, allegedly held a meeting to discuss the Master-Nix project and how to "get rid of John Nix." (Compl. ¶ 23.) In late 1993 or early 1994, O'Malley and one or more other residents told defendant about the Master-Nix development plans and told him that they opposed the development and wanted to "get rid of" plaintiff in order to stop the development. (Compl. ¶ 25.)
In late 1993, plaintiff and Master filed a complaint against certain residents of Brookside Drive alleging defamation, invasion of privacy, and intentional infliction of emotional distress. Plaintiff alleges that O'Malley and a friend, Robert Roche, then conspired to wiretap plaintiff's telephones in order to find incriminating information about him, and pursuant to this conspiracy, they wiretapped his telephones in early February 1994. Plaintiff asserts that various residents of Brookside Drive and others were aware of the wiretapping and were given copies of wiretap tapes and/or transcripts of those tapes. He contends that the wiretapping continued until March 29, 1994, when he became aware of the wiretaps. *fn2 Plaintiff alleges that O'Malley disclosed his plan to wiretap plaintiff's phones to defendant. While plaintiff contends that defendant knew of the wiretapping while it was taking place, he does not claim that defendant played any role in the wiretapping; that defendant ever possessed, heard, or read the alleged tapes and transcripts; or that defendant ever gave copies of the tapes and transcripts to anyone else.
Upon learning of the alleged wiretaps, plaintiff made a criminal complaint to the Federal Bureau of Investigations ("FBI"). The case was assigned to Special Agent ("SA") Richard Hoke, an alleged relative of defendant and a friend of O'Malley. Plaintiff alleges that defendant told SA Hoke that O'Malley had intercepted certain of plaintiff's cordless telephone conversations, that plaintiff was causing problems in the neighborhood, and that defendant had reason to believe that O'Malley was working in conjunction with the Cleveland Police Department in investigating plaintiff. Plaintiff alleges that defendant dissuaded SA Hoke from pursuing the investigation, and that if the FBI had conducted a "legitimate investigation," the "fact that violations of federal law had occurred would have been discovered," leading to federal prosecutions of O'Malley, Roche, and others. (Compl. ¶ 60.)
Plaintiff and other alleged victims of the alleged wiretapping filed a lawsuit based on the wiretapping, Master, et al. v. Sword, et al., No. 1:94cv0849, in the United States District Court for the Northern District of Ohio. Plaintiff claims that defendant assured the Brookside Drive residents that "he would see to it that the wiretapping would not cause any problems for them" and that they would be "protected." (Compl. ¶¶ 67-68.) Plaintiff also claims that the Sword defendants were told that defendant was providing them assistance to make sure they would not have to testify, or that if they did testify, that no harm would befall them if they denied knowledge of the wiretapping. In June 1994, John Master filed another suit in the Cuyahoga County Court of Common Pleas styled Master, et al. v. Chalko, et al., Case No. 272373, asserting a legal malpractice claim against his former attorney.
Plaintiff alleges that defendant conspired with the Brookside Drive residents to cover-up the alleged wiretapping and to conceal who did the wiretapping and how it was done. This included allegedly giving assistance to Bernice Ferencz, a Brookside Drive resident who had been called to testify in the Chalko and Sword cases. Plaintiff alleges that defendant contacted an attorney to aid Ferencz in quashing the subpoena for her to testify in the Chalko case, as well as "counsel[ing] her in furtherance of their cover-up." (Compl. ¶ 101.) Plaintiff alleges that defendant filed a false affidavit in the Sword matter, wherein defendant asserted that he did not know about the alleged wiretapping until he read about it in the newspaper in March 1995.
Finally, plaintiff contends that defendant engaged in various efforts to tamper with witnesses in the Sword and Chalko cases. Plaintiff claims that defendant conspired with O'Malley and Michael Dobronos, another Brookside Drive resident, to "get Dobronos out of town" so that he could not give a deposition in the pending Sword and Chalko cases. (Compl. ¶ 108.) Plaintiff alleges that the three men "plotted to have Dobronos take a trip to Hawaii on the date of his deposition" in order to avoid the deposition and continue the cover-up. (Compl. ¶ 110.) Plaintiff claims that defendant and O'Malley did in fact "cause Dobronos to take these actions on the morning of April 4, 1995." (Compl. ¶ 112.) Plaintiff alleges further that defendant advised and assisted Ferencz and one or more other Brookside Drive residents to give false testimony in the Chalko and Sword matters.
Based on these allegations, plaintiff brings claims of 1) prima facie tort, 2) invasion of privacy, and 3) obstruction of/interference with legal remedies. This Court finds that even assuming the foregoing allegations to be true, plaintiff has failed to state any viable state tort claim.
I. Standard of Review and Applicable Law
In considering a motion to dismiss for failure to state a claim, this Court proceeds as though all allegations in plaintiff's complaint are true and construes them in the light most favorable to plaintiff. Nix, 62 F. Supp.2d at 113-14 (citations omitted). "Dismissal under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted, and construing them in plaintiff's favor, the court finds that the plaintiff has failed to allege all the material elements of his cause of action." Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001) (internal citations omitted). Defendant moves to dismiss plaintiff's remaining claims arguing that 1) because Westfall certification is proper and the suit is covered by the Federal Tort Claims Act, plaintiff's claims should be dismissed for failure to exhaust administrative remedies, and 2) even if Westfall certification is improper, plaintiff has failed to state any viable state tort law claims, and in addition, his tort claims are barred by ...