The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Shane Lucas complains that he was "assaulted, harassed, threatened and arrested by the bullying tactics" of Metropolitan Police Department ("MPD") Officers Carlton B. Wicker, Timothy Ford, and Jeffery Clay. See Compl. ¶ 11. He sues these officers and also names John Does, other unnamed officers of the MPD, Mayor Adrian Fenty, former Chief of Police Charles Ramsey, Chief of Police Cathy Lanier, and the District of Columbia as Defendants. Defendants move to dismiss Officers Wicker, Clay, and Ford for lack of service and to dismiss the Mayor and Police Chiefs for failure to state a claim. Defendants further ask the Court to dismiss Mr. Lucas's claims of negligence and malicious prosecution. Mr. Lucas opposes the motion.
Service of process upon "individuals within a judicial district of the United States" is governed by rule 4(e) of the Federal Rules of Civil Procedure. Rule (4)(e)(2) states that service upon an individual may be effected by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
See Fed. R. Civ. P. 4(e)(2). Federal Rule of Civil Procedure 4(e)(1) also permits service to be effected according to the "law of the state in which the district court is located, or in which service is effected." Fed. R. Civ. P. 4(e)(1). The Civil Rules of the Superior Court of the District of Columbia establish, in pertinent part, service requirements parallel to those contained in Rule 4(e)(2) of the Federal Rules of Civil Procedure. See D.C. Super. Ct. Civ. R. 4(e)(2). Rule 4(c) of the D.C. Superior Court Civil Rules also permits service to be effected upon an individual by certified or registered mail. See D.C. Super. Ct. Civ. R. 4(c)(3). Rule 4(m) of the Federal Rules of Civil Procedure places a time limit on service of process. It states that:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
See Fed. R. Civ. P. 4(m).
B. Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "While a complaint attacked by a rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' for 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise the right of relief above a speculative level." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The Court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). But the Court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242.In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
A. Service on the Police Officers
Mr. Lucas appended affidavits to his Complaint signed by Henri J. Dingle and swearing that Mr. Dingle personally served Officer Wicker, Officer Ford and Officer Clay at the Third District Police Station, 1624 V Street N.W., Washington, D.C., on May 23, 2007, at 9:30 a.m. See Compl., Affidavits attached. Each officer has submitted a sworn declaration denying that he was at the Third District Police Station at 9:30 a.m. on that date and asserting that he has not been served in this case. See Defs.' Partial Mot. to Dismiss ("Defs.' Mot."), Exs. 4, 5, & 6.
An evidentiary hearing is necessary to resolve this issue. One will be scheduled by the ...