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May 16, 2005.

R, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: RICHARD ROBERTS, District Judge


Plaintiff Jacqueline R. brought this lawsuit individually, and as guardian of her minor son, Ronnie, alleging common law and federal civil rights claims against defendant District of Columbia (the "District") and others, which stem from an alleged sexual assault against Ronnie at an overnight camp owned and operated by the District. The District has moved for leave to file a motion for judgment on the pleadings*fn1 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asserting that plaintiff's common law claims, Counts One and Two of the complaint, are barred because plaintiff failed to comply with the notice requirement of D.C. Code § 12-309. Because the parties have submitted documents outside the pleadings that will not be excluded, defendant's Rule 12(c) motion will be treated as one for partial summary judgment, pursuant to Rule 12(c) and Rule 56. Because the notice requirement of § 12-309 has been met by a police report, defendant's motion for partial summary judgment will be denied.*fn2


  On August 14, 2003, plaintiff filed a complaint against a number of defendants, including the District of Columbia. The complaint alleges four counts against the District, two of which are the common law counts that are the subject of defendant's motion for judgment. Count One alleges a common law claim of negligence against the District,*fn3 specifically, that the District directly and/or by the acts of its agents and/or employees breached its duty of care to plaintiffs by, among other things, failing to properly staff and supervise the camp and cabins; failing to properly discipline and expel Mark, the alleged perpetrator, from the camp; tolerating an abusive environment at the camp and failing to intervene following reports of Mark's attempted sexual assault on Ronnie and other campers; failing to prevent the alleged assault on Ronnie despite knowledge of Mark's inappropriate and violent behavior; failing to provide safe sleeping cabins or have adult supervision within the vicinity; failing to establish an atmosphere at camp such that victims could have disclosed the incidents of assault and prevented abuse of Ronnie; and failing to properly discharge parental duties to supervise, care and protect Ronnie. (See Compl. at 13-15.)

  Count Two alleges a common law claim of false imprisonment against the District, alleging that the District is responsible for the conduct of Mark through the doctrine of respondeat superior. (See Compl. at 16.) The complaint alleges that Mark detained Ronnie against his will and deprived Ronnie of his freedom of movement during the course of the sexual assault. (See id.)

  The District now moves for leave to file a motion for partial judgment on plaintiff's common law claims, based on lack of subject matter jurisdiction, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.*fn4 Plaintiff opposes, arguing that the motion is untimely and that plaintiffs would be prejudiced if leave is granted.

  In its underlying motion for partial judgment on the pleadings, the District argues that plaintiff failed to meet the mandatory notice requirement of D.C. Code § 12-309, and as such, its common law claims against the District are barred. The District further argues that this failure is jurisdictional. In support of its motion, the District attached a one-page police report, which it contends is insufficient to meet the notice requirement of § 12-309. (See Def.'s Mot. for Leave Ex. 2.) Plaintiff opposes, arguing that § 12-309 is not a jurisdictional bar to suit, that defendant has waived it as a defense, and that the Metropolitan Police Department report does meet the notice requirement of § 12-309. Plaintiff attaches a twenty-one page version of the police report, which is inclusive of the version submitted by the District. (See Pl.'s Opp'n Ex. 6.)


  "If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).

  Here, defendant submitted a one-page Metropolitan Police Department report as an attachment to its motion. Plaintiff submitted a multiple-page Metropolitan Police Department report, which includes the one-page version submitted by defendant, as an attachment to its opposition. Defendant, in its reply, does not contest the fuller version of the police report submitted by plaintiff. The police report is not attached to any pleading, and is key to the resolution of whether plaintiff met the notice requirement of § 12-309. Defendant's motion for judgment on the pleadings, then, must be treated as a motion for summary judgment on Counts One and Two.

  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). The record must be viewed in the light most favorable to the nonmoving party. See Aka, 156 F.3d at 1288.


  The District of Columbia Official Code, § 12-309, provides that:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.
D.C. Code § 12-309 (2001). Defendant argues that because § 12-309 operates as a waiver of the District of Columbia's sovereign immunity, compliance with the statute is what confers subject matter jurisdiction upon the court. (Def.'s Mem. in Supp. Leave to File ¶ 4.) Plaintiff argues that failure to comply with § 12-309 is not a jurisdictional bar to suit, and that defendant has waived the § 12-309 defense by its active litigation of the case for nearly two years without raising the § 12-309 defense in a dispositive motion until well after the dispositive motions deadline.*fn5 (See Pl.'s Opp'n at 24-25.)

  Compliance with the § 12-309 notice requirement is "mandatory as a prerequisite to filing suit against the District." Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C. 1992). However, the § 12-309 notice requirement is not jurisdictional. See Dellums v. Powell, 566 F.2d 216, 229 (D.C. Cir. 1977) ("Nor is failure to give Section 309 notice a jurisdictional bar to suit [sic] if such failure is not asserted as an affirmative defense it is waived."); see also Lerner v. District of Columbia, 362 F. Supp. 2d 149, 166 (D.D.C. 2005) ("The defense of failure to comply with D.C. Code § 12-309 is, like qualified immunity and the statute of limitations, an affirmative defense."). Defendant adequately raised the § 12-309 defense in its Answer to the Complaint and did not waive it. See Answer at 7; Daingerfield Island Protective Soc'y v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994) (holding that the government did not abandon a statute of limitations defense by failing to assert it before first appeal; government adequately raised limitations defense in its answer and was not required to reassert the defense in its subsequent successful summary judgment motion). While plaintiff argues that defendant's subsequent failure to assert the defense or file a dispositive motion while actually litigating the case for two years should bar defendant from raising the defense now, cf. Lerner, 362 F. ...

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