The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Third-Party Plaintiffs Castle Management Corporation ("Castle")
and Vista Ridge Limited Partnership ("Vista Ridge") (collectively
"Third-Party Plaintiffs") bring suit against Third-Party
Defendants Gregory Mize, Jody Smith, and Charmaine Koo for
negligence, against Third-Party Defendants Gregory Mize and the
District of Columbia under the theory of respondeat superior, and against Third-Party Defendants the
District of Columbia, Gregory Mize, Jody Smith, and Charmaine Koo
for indemnification and contribution. These claims arise out of
an eviction proceeding in the District of Columbia Superior
Court. Before this Court is a 12(b)(6) motion to dismiss Counts
III-VIII of Third-Party Complaint for failure to state a claim
filed by Third-Party Defendants the District of Columbia, Gregory
Mize, Jody Smith, and Charmaine Koo. The United State Marshals
Service is also a party to the Third-Party Complaint, but is not
a party to this Motion to Dismiss.
This case arises from a landlord-tenant dispute. Third-Party
Plaintiff Castle is a corporation employed by Third-Party
Plaintiff Vista Ridge to operate the property at 2514 Pomeroy
Road, S.E., Washington, D.C. Plaintiffs' Complaint (Compl.) ¶ 6;
Third-Party Complaint ("Third-Party Compl.") ¶ 4. Vista owns the
property at 2514 Pomeroy Road, S.E. Compl. ¶ 8; Third-Party
Compl. ¶ 4. In December 1996, Plaintiff Marquetta Jordan entered
into a lease for an apartment at 2514 Pomeroy Road, S.E.
Third-Party Compl. ¶ 16. In June 2001, Third-Party Plaintiffs
filed a Complaint in the District of Columbia Superior Court
("Superior Court") for Possession of Real Estate against Ms.
Jordan for failure to pay rent for the months of March, April,
May, and June, 2001. Third-Party Compl. ¶¶ 16-17. Third-Party
Defendant Judge Gregory Mize presided over the subsequent
proceeding. Third-Party Compl. ¶ 7. A summons was issued ordering
Ms. Jordan to appear in Landlord Tenant Court on July 10, 2001.
Third-Party Compl. ¶ 18. Third-Party Plaintiffs allege that both
the summons and the complaint were served on Ms. Jordan by a
Special Process Server by posting a copy of them to the door of
2514 Pomeroy Road, S.E., and than a copy of each was mailed to
Ms. Jordan on July 2, 2001. Third-Party Compl. ¶ 19. Ms. Jordan failed to appear at the July 10, 2001
hearing, at which a default judgment was entered against her.
Third-Party Compl. ¶ 20. Consequently, on July 27, 2001 a Write
of Restitution was entered by the Landlord Tenant Court against
Ms. Jordan. Third-Party Compl. ¶ 21. The writ ordered the U.S.
Marshals Service to enable Third-Party Plaintiffs to take
possession of 2514 Pomeroy Road, S.E. between August 2, 2001 and
September 10, 2001. Id.
On August 1, 2001, Ms. Jordan requested a stay be granted
against the execution of the writ, claiming she had not received
service of the Complaint for Possession of Real Estate and that
she had no notice of the eviction proceedings until August 1,
2001. Third-Party Compl. ¶ 23. On August 1, 2001 Third-Party
Defendant Jody Smith, a clerk in the Landlord Tenant Branch of
the Superior Court, called Third-Party Plaintiffs to inform them
of Ms. Jordan's request for stay of execution; Third-Party
Plaintiffs indicated they opposed the stay. Third-Party Compl. ¶¶
8, 24. That same day Third-Party Defendant Judge Mize, a judge in
the Landlord Tenant Branch of the Superior Court, granted the
stay, effective through August 7, 2001, and ordered a hearing for
August 7, 2001. Third-Party Compl. ¶¶ 6, 25. Notice of the stay
allegedly was not conveyed to either the Third-Party Plaintiffs
or to the U.S. Marshals Service, despite an order by Judge Mize
that they be informed of the stay. Third-Party Compl. ¶¶ 25, 26.
Third-Party Plaintiffs allege that it was Ms. Smith's and/or Ms.
Charmaine Koo's duty to inform the U.S. Marshals and the
Third-Party Plaintiffs that the stay was granted. Third-Party
Compl. ¶¶ 25, 26. Ms. Koo is also a law clerk at the Superior
Court. Third-Party Compl. ¶ 9
On August 3, 2001 the U.S. Marshals Service carried out the
eviction of Ms. Jordan, and her minor children. Third-Party
Compl. ¶ 28. Ms. Jordan filed a complaint in Superior Court in
September, 2003, suing Third-Party Plaintiff Castle for damages
sustained as a result of the eviction. Third-Party Compl. ¶ 30. She requested leave to amend
her complaint to add Third-Party Plaintiff Vista Ridge in June,
2004, which was granted and became effective on August 6, 2004.
Third-Party Compl. ¶¶ 31-33.
Third-Party Plaintiffs filed the Third-Party Complaint on
September 3, 2004 in Superior Court, Civil Division. Third-Party
Compl. at 18 (Certificate of Service). On October 13, 2004 the
U.S. Marshals Service removed the case to this Court, pursuant to
28 U.S.C. §§ 1441, 1442(a), 1446, and 2679 because Counts I and
II of the Third-Party Complaint allege negligence against the
Marshals Service and request indemnification and contribution
against the Marshals Service. Notice of Removal ¶ 3. The U.S.
Marshals Service is not a party to this Motion to Dismiss.
The subject of this Motion to Dismiss are Counts III-V,
alleging one count of negligence each against Judge Mize, Ms.
Smith, and Ms. Koo for failing to notify Third-Party Plaintiffs
that Ms. Jordan's stay of execution was granted; Counts VI and
VII alleging liability under the theory of respondeat superior
against Judge Mize for the actions of his clerks Ms. Smith and
Ms. Koo, and the District of Columbia for the actions of its
employees Judge Mize, Ms. Smith, and Ms. Koo; and Count
VIII,*fn1 requesting indemnification and contribution from
the District of Columbia, Judge Mize, Ms. Smith and Ms. Koo for
any damages Plaintiffs may be awarded. Third-Party Plaintiffs
seek to recover from Third-Party Defendants an amount equal to
that awarded to Ms. Jordan and her minor children and costs and
attorneys fees accumulated in defending the action against Ms.
Jordan. Third-Party Compl. at 12-16. In their defense, Judge Mize, Ms. Smith, and Ms. Koo claim that judicial immunity
protects them from the negligence, indemnification, and
contribution claims. Memorandum of Points and Authorities in
Support of Third-Party Defendants District of Columbia, Gregory
Mize, Charmaine Koo, and Jody Smith's Motion to Dismiss
("Third-Party Defs.' Memo") at 4-8. The District of Columbia and
Judge Mize claim that judicial immunity protects them from suit
under respondeat superior, Third-Party Defs.' Memo at 8-9, and
the District claims protection from indemnification under the
theory that protection from liability under respondeat superior
also protects it from indemnification and contribution claims.
Third-Party Defs.' Memo at 9. For the reasons set forth below,
Third-Party Defendants' Motion to Dismiss is granted.
Under Rule 12(b)(6), a motion to dismiss should be granted only
if the "plaintiff? can prove no set of facts in support of [its]
claim which would entitle [it] to relief." Kowal v. MCI Commc'n
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Shuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When
considering a motion to dismiss, the Court must resolve all
factual doubts in favor of the plaintiff and allow the plaintiff
the benefit of all inferences. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Notwithstanding this liberal construction, "the court need not
accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations." Kowal, 16 F.3d at 1276; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). III: DISCUSSION
A. Counts III-V: Negligence
Third-Party Defendants Judge Mize, Ms. Smith, and Ms. Koo all
claim the defense of absolute judicial immunity to protect them
from the negligence claims alleged by Third-Party Plaintiffs.
Because the application of the judicial immunity doctrine is
slightly different when applied to clerks rather than judges,
this Court will examine first Judge Mize's, and then Ms. Smith's
and Ms. Koo's, entitlement to the defense.
1. Judge Mize Count III
Judges are absolutely immune from lawsuits claiming damages
arising from acts taken in their judicial capacity. Mireles v.
Waco, 502 U.S. 9, 11-12 (1991) (establishing that judicial
immunity is a bar to all suits except when the actions are not
taken in the judges judicial capacity, or when the actions are
"taken in the complete absence of all jurisdiction"); Sindram v.
Suda, 986 F.2d 1459, 1460 (D.C. Cir. 1993) ("Judges enjoy
absolute judicial immunity from suits for money damages for all
action taken in the judge's judicial capacity, unless these
actions are taken in the complete absence of all
jurisdiction.") (emphasis added). An act is judicial if "it is a