The grand-daughter of a man who filmed the November 22, 1963 Kennedy assassination from the reverse perspective of the infamous Zapruder film is facing a motion to dismiss filed by the U.S. government in response to her lawsuit for replevin and “taking” of the so-called Nix film.
We covered the lawsuit when it was filed in November 2015, here.
At that time, we questioned, “…whether the grand-daughter has failed to meet various statutes of limitation. It will be interesting to see if the government seizes upon the detail of the Complaint’s narrative to point out any failure to timely seek relief. Likewise unclear is how the grand-daughter has standing.”
The filing of the lawsuit (timed with the anniversary of the assassination) received some news coverage, as is typical with anything JFK-related which occurs in November. There has been little to no coverage since (nor has the grand-daughter posted anything on her site).
We decided to check in…
On May 17, 2016, the Government filed a Motion to Dismiss raising inter alia the same issues which we anticipated: statute of limitation, the narrative of the verified complaint, and standing. The Motion is here.
The Government questioned the Plaintiff’s standing since she did not plead that she had a “legally protected interest” in the film. While she alleged that she is the grand-daughter, the Government noted the same issue that we detected — on her website, she noted she is one of three grandchildren. These issues, presumably, could be overcome with an amended complaint.
That said, the Government noted that the Plaintiff’s claims for replevin and taking are controlled, respectively, by the Federal Tort Claim Act and Tucker Act, with which the Plaintiff has not complied. To that end, because of the detailed and verified nature of the grand-daughter’s Complaint, she may have boxed herself in by quantifying that the “taking commenced on or about 1978,” her efforts in 1991, and what she has done “from 1998 to the present.” The Government concludes, “on these facts, plaintiff cannot claim to have only learned about the government’s alleged taking in 2009.” As we hinted at back in November 2015, the Plaintiff’s strategy of verifying the pleadings (which is not an obligation) and the extensiveness of detail (well beyond the “ultimate facts” required) may have handed to the Government its grounds for dismissal under the statutes of limitation.
Finally, the Government concludes that the National Archives “has told plaintiff that it does not have the film” and that, even if it did, the 1992 JFK Act does not permit the Archives to release actual assassination records (the latter of which appears to be an issue of first impression). In short, even if the Plaintiff could establish timely Tort Claim and Tucker Act claims, the JFK Act may preempt and bar the Plaintiff’s claim.
Of interest, the Government’s lawyers picked through the allegations and strongly suggested that there is no substantive case here because the Plaintiff has little to no evidence that the Government possessed or possesses the film. They quote the allegations that Nix transferred the film to a news agency, UPI, in 1963. UPI was supposed to return the original film in 1998. Plaintiff contends that, in the mid-1970’s, the House Select Committee (HSCA) obtained the film but “Plaintiff fails to allege how or from whom the HSCA obtained the film…” When 1998 came around, it appears UPI did not return the film. It is unclear whether or why the Plaintiff did not pursue a claim against UPI for breach of contract at that time; instead, it appears, she “appeared on several national and local talk and magazine TV shows, … where she pleaded for the return of the… film” apparently believing the HSCA had it but not having much evidence. If the Court grants the Government’s motion, which is substantive more than procedural, she may never be able to use discovery in this suit to gather more information.
According to a June 9, 2016 Order, the Plaintiff shall file a Response on or before July 12 and the Government shall Reply by July 22, 2016.