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RENDALL-SPERANZA v. NASSIM

July 3, 1996

MARGOT RENDALL-SPERANZA, Plaintiff,
v.
EDWARD A. NASSIM and the INTERNATIONAL FINANCE CORP., Defendants.



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 Before the Court in the above-entitled case are the defendant International Finance Corporation's ("IFC's") Motion to Dismiss and to Strike and the plaintiff's Opposition thereto. Upon consideration of the parties' pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court shall deny the IFC's Motion to Dismiss and shall grant the IFC's Motion to Strike.

 BACKGROUND

 The plaintiff in this case began working for the World Bank in October 1992 as an investment officer in the IFC division. Am. Compl. *fn1" P 5. The plaintiff alleges that, from the inception of her employment with the World Bank/IFC, her supervisor, Edward A. Nassim, 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 6. The plaintiff alleges that Nassim's behavior culminated in an assault and battery on the evening of August 25, 1994, at the World Bank offices in Washington, DC, when Nassim grabbed her at the wrists, twisted her right arm behind her back, and kicked her with his foot in her left shin. Id. P 16. The defendant Nassim alleges that this incident occurred when he discovered the plaintiff trespassing in his office. Def. Nassim's Mot. to Dismiss at 1.

 On August 24, 1995, the plaintiff filed suit in the Superior Court of the District of Columbia, naming Nassim, but not the IFC, as a defendant. Nassim removed the action to this Court pursuant to 28 U.S.C. § 1441 and moved for a more definite statement. In response to the Court's Order of November 2, 1995, the plaintiff filed a first amended complaint on December 11, 1995, again naming Nassim, but not the IFC.

 On January 17, 1996, the defendant moved to dismiss the first amended complaint asserting, among other things, that any claim based on the August 25, 1994 incident is barred by the immunity afforded him pursuant to the International Organizations Immunities Act, 22 U.S.C. § 288. On January 26, 1996, the IFC filed an amicus curiae brief, in which it alleged that Nassim was acting in his official capacity as an IFC employee on August 25, 1994 by "protecting IFC offices from unauthorized entry and potential theft of documents." IFC's amicus brief at 2. On February 12, 1996, the plaintiff filed a Motion for Leave to File an Amended Complaint, seeking to add the IFC as a defendant on a theory of respondeat superior. On February 23, 1996, the IFC filed a supplemental amicus curiae brief, asserting that it, too, is immune from suit in the above-entitled case and that the World Bank's Workers' Compensation system is the only remedy for the plaintiff's alleged injuries.

 On March 18, 1996, the Court filed a Memorandum Opinion and Order in the above-captioned case, denying Nassim's Motion to Dismiss and granting the plaintiff's Motion for Leave to File an Amended Complaint in order to name the IFC as defendant. The defendant Nassim has appealed the Court's March 18, 1996 Order. On March 22, 1996, the plaintiff filed an amended complaint, adding a claim for assault and battery against the IFC based on the August 25, 1994 incident.

 The defendant IFC has now moved to dismiss the claim against it on four independent grounds: (1) the plaintiff's claim is barred by the applicable one-year statute of limitations; (2) the IFC's Articles of Agreement, not the Foreign Sovereign Immunities Act, is the pertinent source of law regarding waivers of the IFC's immunity, and its Articles do not waive immunity for employee suits such as the present suit; (3) even if the FSIA further limited the IFC's immunities, the present suit would be barred because it is grounded in "discretionary functions"; and (4) the plaintiff's exclusive remedy for her alleged injury is the World Bank's Workers' Compensation system. The IFC further moves to strike the plaintiff's jury demand and claim for punitive damages.

 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. 1995).

 The plaintiff filed her second amended complaint in this action on March 22, 1996, adding the IFC as a defendant to her assault and battery count relating to the incident that occurred August 25, 1994. Under the District of Columbia law, the limitations period for filing a complaint for assault and battery is one year. D.C. Code § 12-301(4). Thus, unless the second amended complaint relates back to her original complaint filed August 24, 1995, the plaintiff's claim against the IFC is time-barred.

 Rule 15(c)(3) of the Federal Rules of Civil Procedure provides, in pertinent part, that an amendment will relate back when: (1) the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the party has received notice of the institution of the action such that the party will not be prejudiced in maintaining a defense on the merits; and (3) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been ...


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