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RENDALL-SPERANZA v. NASSIM

March 18, 1996

MARGOT RENDALL-SPERANZA, Plaintiff,
v.
EDWARD A. NASSIM, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-entitled case are the defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, and the plaintiff's Opposition; the plaintiff's Motion for Leave to File an Amended Complaint and the defendant's Opposition; and a motion by amicus curiae the International Finance Corporation ("IFC") for Leave to File a Supplemental Brief. Upon careful consideration of the parties' pleadings and the law applicable thereto, and for the reasons expressed below, the Court shall grant the defendant's Motion to Dismiss with respect to the plaintiff's claim of assault and battery based on the incidents occurring before August 24, 1994, and shall otherwise deny the defendant's Motion to Dismiss. Also, the Court shall deny the defendant's Motion for Summary Judgment, grant the plaintiff's Motion for Leave to File an Amended Complaint and grant the IFC's Motion for Leave to file a Supplemental Brief.

 BACKGROUND

 The plaintiff in the above-entitled case is a Maryland resident. She began working for the World Bank in October 1992 as an investment officer in the IFC division. At that time, the defendant, a District of Columbia resident, was the Director of the Europe Department of the IFC and, in that capacity, he was the plaintiff's supervisor. Amend. Compl. PP 2-4. In her Amended Complaint, the plaintiff alleges that, from the inception of her employment with The World Bank/IFC, the defendant has subjected her to "pervasive unwelcomed [sic], harassing, demeaning and humiliating language and physical contacts . . . in order to pressure plaintiff emotionally into engaging in sexual activity with him." Id. P 5.

 More specifically, the plaintiff alleges that, on at least nine separate occasions on or between the dates of May 26, 1992 and August 25, 1994, the plaintiff touched her in an offensive manner, despite her clear indications that such contact was unwelcome. Id. PP 6-15. On one occasion, after the plaintiff had complained to her employer, the defendant allegedly shook his fist in the plaintiff's face. Id. P 14. Finally, on the evening of August 25, 1994, at the World Bank offices in Washington, D.C., the plaintiff alleges that the defendant grabbed her at the wrists, twisted her right arm behind her back, and kicked her with his foot in her left shin. Id. P 15. The defendant alleges that this latest incident occurred when he discovered the plaintiff trespassing in his office. Def. Mot. to Dismiss at 1.

 On August 24, 1995, the plaintiff filed suit against the defendant in the Superior Court of the District of Columbia. The plaintiff did not demand a jury trial. On September 28, 1995, the defendant notified the plaintiff that he had removed the suit to this Court pursuant to 28 U.S.C. § 1441. The plaintiff filed an Amended Complaint on December 11, 1995, requesting a trial by jury. Count I of the Amended Complaint alleges assault and battery; Count II alleges intentional infliction of emotional distress.

 On January 17, 1996, the defendant filed a Motion to Dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). *fn1" The defendant asserts that, with the exception of the incident that occurred on August 25, 1994, the plaintiff's claims of assault and battery and intentional infliction of emotional distress are time-barred under the applicable one-year statute of limitations; that any claim based on the August 25, 1994 incident is barred by the immunity applicable pursuant to the International Organizations Immunities Act, 22 U.S.C. § 288; that the acts alleged are insufficient as a matter of law to state a claim of intentional infliction of emotional distress; and that the plaintiff's jury demand is untimely. On January 26, 1996, the IFC sought leave to file an amicus curiae brief, which the Court granted. On February 12, 1996, the plaintiff filed an Opposition to the defendant's Motion to Dismiss and also a Motion for Leave to File an Amended Complaint, seeking to add the IFC as a defendant. On February 22, 1996, the defendant filed a Reply. On February 23, 1996, the IFC filed a Motion for Leave to File a Supplemental Amicus Curiae Brief, asserting that it is immune from suit in the above-entitled case.

 DISCUSSION

 Pursuant to Rule 12(b)(1), the Court must dismiss a claim if the Court lacks subject matter jurisdiction over that claim. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(6), a claim must be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In evaluating the plaintiff's complaint on a motion to dismiss, the Court must accept the factual allegations as true and draw all reasonable inferences therefrom in favor of the plaintiff. Maljack Productions, Inc. v. Motion Picture Ass'n of Am., Inc., 311 U.S. App. D.C. 224, 52 F.3d 373, 375 (D.C. Cir. 1996).

 I. THE PLAINTIFF'S CLAIM OF ASSAULT AND BATTERY BASED ON THE INCIDENTS OCCURRING BEFORE AUGUST 24, 1994 IS TIME-BARRED UNDER THE APPLICABLE ONE-YEAR STATUTE OF LIMITATIONS; THE PLAINTIFF'S CLAIM OF ASSAULT AND BATTERY BASED ON THE AUGUST 25, 1994 INCIDENT IS NOT TIME-BARRED; AND THE PLAINTIFF'S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT TIME-BARRED BY VIRTUE OF THE "CONTINUING TORT DOCTRINE."

 The defendant asserts that, with the exception of the incident occurring on August 25, 1994, the plaintiff's claims for assault and battery and intentional infliction of emotional distress are time-barred by the District of Columbia's one-year statute of limitations, as set forth in the D.C. Code § 12-301(4). The plaintiff counters that the actions complained of comprise a series of similar events that constitute a "continuing pattern," which allegedly tolls the running of the statutory period. The plaintiff also argues that the statute of limitations for a claim of intentional infliction of emotional distress is three years rather than one year. Under applicable District of Columbia law, the Court concludes that a one-year statute of limitations applies for both the plaintiff's claim of assault and battery and for her claim of intentional infliction of emotional distress; however, pursuant to the "continuing tort doctrine," the time period for the plaintiff's emotional distress claim did not begin to run until August 25, 1994; thus, that claim is timely.

 The statute of limitations governing common law tort claims is determined by the applicable law of the forum. See Gilson v. Republic of Ireland, 221 U.S. App. D.C. 73, 682 F.2d 1022, 1024-25 n.7 (D.C. Cir. 1982). Under the D.C. Code, an action for assault or battery may not be brought after the expiration of a one-year period from the time the right to maintain the action accrues. D.C. Code § 12-301(4); Hunter v. District of Columbia, 291 U.S. App. D.C. 355, 943 F.2d 69, 72 (D.C. Cir. 1991). Since the plaintiff filed her Complaint in the D.C. Superior Court on August 24, 1995, any assault and battery claims based upon incidents that occurred before August 24, 1994 are time-barred and will therefore be dismissed. This leaves the one alleged incident that occurred on August 25, 1994, upon which the plaintiff may base her claim of assault and battery.

 Under the D.C. Code, absent a specifically prescribed statute of limitations for a claim, the time period by which that claim must be brought is three years. D.C. Code § 12-301(8). While this three-year limitation applies to an emotional distress claim when the claim is intertwined with claims that also fall within the three-year limitation, Burda v. National Ass'n of Postal Suprvrs., 592 F. Supp. 273, 281 (D.D.C. 1984), aff'd, 248 U.S. App. D.C. 415, 771 F.2d 1555 (D.C. Cir. 1985), when the plaintiff has alleged the same acts to support both a claim for assault and battery and a claim for intentional infliction of emotional distress, as the plaintiff does in the case at bar, the statute of limitations for both claims is the one-year time period applicable to her assault and battery claim. Scales v. George Washington Univ., 1991 U.S. Dist. LEXIS 16765, Civ. No. 89-0796, 1991 WL 257975, *4-5 (D.D.C. Nov. 18, 1991), aff'd, 44 F.3d 1031 (D.C. Cir. 1994) (per curiam), cert. denied, 132 L. Ed. 2d 257, U.S. , 115 S. Ct. 2249 (1995).

 When a tort involves a continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases. Page v. United States, 729 F.2d 818, 821 (D.C. Cir. 1984). The continuing tort doctrine, "although . . . most commonly applied when the acts are 'by nature of a repetitive character and [when] . . . no single act can be identified as the case of significant harm,' . . . is not limited to such circumstances." Rochon v. Federal Bureau of Investigation, 691 F. Supp. 1548, 1563 (D.D.C. 1988) (quoting Pope v. Bond, 641 F. Supp. 489, 496 (D.D.C. 1986); see Page, 729 F.2d at 818 (and cases cited therein). Rather, the doctrine can apply when the harms alleged flow not from the defendant's individual actions, but from the "cumulative and synergistic" effect of the defendant's allegedly wrongful conduct. Id. (recognizing continuing torts of intentional infliction of emotional distress, invasion of privacy, and negligence).

 Here, although each individual instance of alleged assault and battery gave rise to a separate claim of assault and battery and, perhaps, to a separate claim of intentional infliction of emotional distress, the cumulative and synergistic effect of the alleged actions also gives rise to a claim of a continuing tort of intentional infliction of emotional distress. Under the continuing tort doctrine, the date that the limitations period began to run in the present case is August 25, 1994, the date of the last alleged tortious act. Accordingly, the ...


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