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Wilburn v. United States

United States District Court, W.D. Kentucky

May 19, 2014


Decided May 16, 2014

Page 692

For David J. Wilburn, Jr., On behalf of Eion M. Burke and Raegan A. Burke, David J. Wilburn, Jr., As the duly appointed representative of The Estate of Tracy Burke, Michael D. Pete, Jr., On behalf of Matthew T. Pete, Kurt Comer, As the duly appointed representative of The Estate of Karen Comer, Plaintiffs: Carey H. Aldridge, Jeremy S. Aldridge, LEAD ATTORNEYS, Aldridge & Aldridge, PSC, Elizabethtown, KY; Daniel Tysen Smith, II, Tyler S. Thompson, LEAD ATTORNEYS, Dolt, Thompson, Shepherd & Kinney PSC, Louisville, KY; Benjamin Redmond Hunter, Jon K. Parsons, Ross A. Dooley, Roedel Parsons Koch Blache Balhoff & McCollister, A L.C, Baton Rouge, LA.

For United States of America, Defendant: Benjamin Seth Schecter, Michael D. Ekman, LEAD ATTORNEYS, U.S. Attorney Office - Louisville, Louisville, KY.

Page 693


Charles R. Simpson III, Senior United States District Judge.

This matter is before the court on the motion of the defendant, the United States of America, to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). (DN 23). Plaintiffs [1] filed a response to the motion (DN 28), to which the United States replied (DN 29). For the reasons set forth herein, we will grant the United States' motion to dismiss (DN 23).[2]


This matter arises from a tragic incident that occurred on September 11, 2007, when United States Army Sgt. Brent Burke (" Burke" ) fatally shot his estranged wife, Tracy Burke (" Tracy" ), and her former mother-in-law, Karen Comer (" Comer" ), in Comer's Rineyville, Kentucky home. Present in the home at the time of the shooting were Burke and Tracy's two minor children, Eion M. Burke and Raegan A. Burke, as well as Matthew T. Pete, Tracy's minor son from a prior marriage. At the time of the incident, Burke was stationed at Fort Campbell, where he served as a Military Police Officer for the United States Army.

On May 8, 2012, a seven-person military tribunal found Burke guilty of the murders of Tracy and Comer. Plaintiffs have now filed suit in this court as representatives of Tracy's minor children and administrators of the estates of Tracy and Comer. They seek to recover damages from the United States under the Federal Tort Claims Act, 28 U.S.C. § § 1346(b), 2671-2680 (" FTCA" ).

Page 694

In the Amended Complaint, Plaintiffs provide the following description of the events that led up to the September 11, 2007 shooting of Tracy and Comer. Plaintiffs contend--and the United States does not appear to dispute--that Burke had a history of engaging in violent outbursts in both his personal and professional lives. In 2005, while deployed to Egypt, Burke received mental health treatment and was prescribed medication after he attempted to run down an Egyptian guard and threatened to kill his platoon leader. (Am. Compl., DN 22, ¶ ¶ 10, 15-18). At this time, Burke and Tracy were also having marital problems, and Burke allegedly expressed an intent to kill either himself or Tracy if she " left him." ( Id. ¶ ¶ 11-13).

On May 26, 2007, after Burke returned from tour of duty in Afghanistan, local law enforcement was called in response to an off-base domestic violence episode between Burke and Tracy. ( Id. ¶ 22). Plaintiffs claim that Burke attempted to physically prevent Tracy from leaving him and moving in with Comer at her Rineyville, Kentucky home. ( Id. ). The incident was reported to Burke's chain of command at Fort Campbell and, as a result of the Army's investigation, Burke was ordered to take a 72-hour " cooling off" period in the barracks and attend counseling and social services. ( Id. ¶ ¶ 23, 30). Plaintiffs allege that even though the investigating officer indicated in his report that Burke's weapons were confiscated, no weapons were actually confiscated, in violation of certain Army regulations. ( Id. ¶ ¶ 32-34).

Following the May 26, 2007 incident, Burke and Tracy separated and Tracy filed for divorce. ( Id. ¶ 35). Burke moved into the barracks at Fort Campbell. ( Id. ). Plaintiffs allege that in June 2007, Burke told a fellow soldier that he was " going to shoot the bitch [Tracy]" and " take her [Tracy] into the woods and shoot her." ( Id. ¶ 40). The statements were reported to Burke's supervisor, who dismissed them as merely " blowing off steam." ( Id. ¶ 41).

Local law enforcement was again called in on August 11, 2007 in response to a second domestic violence incident between Burke and Tracy. ( Id. ¶ 43). The Army was notified of this incident, but it did not conduct an independent investigation. ( Id. ¶ 44). Following this incident, Burke allegedly told a fellow serviceman that " he would be better off if his wife [Tracy] was dead." ( Id. ¶ 46). Upon hearing of this statement, Staff Sgt. Jonathan W. Dean allegedly confiscated the 9mm pistol that was privately owned by Burke. ( Id. ¶ 47). On August 31, 2007 Burke requested that his pistol be returned to him for recreational use, and Sgt. Dean thereafter arranged for the weapon to be returned to Burke. ( Id. ¶ 48). Plaintiffs allege that on September 11, 2007, Burke used that weapon to shoot Tracy and Comer. ( Id. ¶ 50).


The United States seeks to dismiss all of the claims against it on the grounds that the court lacks subject matter jurisdiction over the case and that Plaintiffs failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6).

" Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may either attack the complaint on its face or go beyond the complaint ...

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