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Shallal v. Gates


July 23, 2008


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge


Now before the Court comes Secretary of Defense Robert Gates and Secretary of the Army Pete Geren's*fn1 ("Federal Defendants") motion [13] to dismiss. Also before the Court are plaintiff Mark Shallal's motion [9] for enlargement of time to file a motion for class certification and defendant L-3 Communications' ("L-3") unopposed motion [6] for a more definite statement. Upon full consideration of the parties' pleadings, the entire record herein, and applicable law, the Court finds, for the reasons set forth below, that the motions to dismiss and for a more definite statement will be GRANTED and that the motion for enlargement of time will be DENIED.


Plaintiff is a former L-3 employee who worked in Iraq as a translator pursuant to a contract between the U.S. Government and L-3.*fn2 (See Compl. ¶ 1.) On November 29, 2007, plaintiff filed suit against L-3 and Federal Defendants asserting several causes of action arising out of his tenure with L-3. In short, plaintiff submitted a seven-count complaint seeking relief based on factual allegations that (1) L-3 had a practice of both forcing employees to "guess at the information" required for their clearance paperwork and delaying submission of security clearance data so as to hold its employees in a "state of servitude," (see id. ¶¶ 7--8); (2) L-3 overcharged the government for plaintiff and other employees' services, (see id. ¶ 12); (3) L-3 deceived plaintiff into working in Iraq, (see id. ¶ 13); and, (4) Federal Defendants deprived plaintiff of a security clearance without due process, (see id. ¶¶ 17, 86).


A. Federal Defendants' Motion to Dismiss

1. Legal Standard

Federal Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a party files a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). A court considering a motion to dismiss for lack of jurisdiction must construe plaintiffs' complaint in plaintiffs' favor, accepting all inferences that can be derived from the facts alleged. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court will dismiss a claim if the plaintiff fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

2. Mootness as to Due Process Claim

Federal courts may decide only "actual, ongoing controversies." Clarke v. United States, 915 F.2d 699, 700--01 (D.C. Cir. 1990) (en banc) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). "Even where litigation poses a live controversy when filed, the doctrine [of mootness] requires a federal court to refrain from deciding it if 'events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.'" Id. at 701 (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990)). Article III confines a court's power to "resolving real and substantive controversies admitting of specific relief through a decree of a conclusive character . . . ." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) (citation omitted).

In this case, plaintiff's Count VII alleges that he was deprived of due process when the "government did not provide Shallal any notice or any opportunity to be heard [prior] to taking away his ability to seek gainful employment." (Compl. ¶ 86.) Specifically, plaintiff contends that the government deprived him of a security clearance-a virtual prerequisite for plaintiff's job as an "Iraqi dialect translator"-without due process. (See id. ¶¶ 80, 84). However, Federal Defendants' reply brief establishes that plaintiff's eligibility for a security clearance was granted on April 15, 2008.*fn3 (See Reply at 1--2; Chrisman Decl., Ex. 1 to Reply, ¶ 6.) Thus, this claim is now moot and must be dismissed for want of jurisdiction.

3. Plaintiff Concedes Dismissal of Any Other Federal Defendant Claim

Upon service of a dispositive motion, this District requires that opposing parties serve and file a memorandum of points and authorities in opposition to the motion within eleven days. See LCvR 7(b). "If such a memorandum is not filed . . . , the court may treat the motion as conceded." Id. Further, "when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (citations omitted). The discretion to enforce this rule lies wholly within the district court.

See FDIC v. Bender, 127 F.3d 58, 67--68 (D.C. Cir. 1997); see also Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (indicating that "[w]here the district court relies on the absence of a response as a basis for treating the motion as conceded, [this Circuit] honor[s] its enforcement" of LCvR 7(b)).

Here, plaintiff's complaint explicitly sets forth only one cause of action against Federal Defendants: Count VII, the previously discussed due process claim.*fn4 (See Compl. ¶¶ 25, 79--86.) However, in Federal Defendants' view, plaintiff also appears to seek relief against the government in four additional counts.*fn5 (See Mot. to Dismiss at 2--4.) Thus, Federal Defendants' motion to dismiss sets forth legal arguments as to why they should be dismissed from this matter as to the additional claims. (See id. at 6--11.) Plaintiff's opposition brief fails to respond in any meaningful manner stating why Federal Defendants should not be dismissed as to these claims.*fn6

Consequently, to the extent that plaintiff's complaint asserts causes of action-other than Count VII-against Federal Defendants, those counts will be dismissed. See Ray v. FBI, 2007 WL 1404445, at *3 (D.D.C. May 10, 2007) (Lamberth, J.) (holding that "[a]bsent a meaningful opposition, . . . the Court treats defendant's motion as conceded").

B. Plaintiff's Motion for Enlargement of Time to Seek Class Certification

Plaintiff requests that the Court permit him until August 29, 2008 to file a motion for class certification. (See Mot. [9] at 1.) District courts have discretion in determining whether to grant a motion for extension of the ninety day deadline for filing a motion for certification. See LCvR 23.1(b); see also Howard v. Gutierrez, 474 F. Supp. 2d 41, 53 (D.D.C. 2007) (explaining that "Local Rule 23.1(b) and its predecessors have been strictly applied in this Circuit") (citations omitted).

In this case, the Court, in its discretion, finds that plaintiff's motion should be denied. Plaintiff neglected to follow the specific requirements established by this District for filing complaints containing class action allegations. See LCvR 23.1(a). Such complaints must include a separate heading titled "Class Action Allegations" and contain a reference to the provisions of Federal Rule of Civil Procedure 23 that would support maintenance of a class action.*fn7 See LcvR 23.1(a)(1). While plaintiff's complaint at times makes passing reference to "the class of employees he represents," (see Compl. ¶ 42), and mentions that he brings suit on behalf of a similarly situated class of employees, (see id. ¶ 79), plaintiff ignores the requirements of Local Rule 23.1(a). In light of plaintiff's non-compliance with this District's Local Rules for making class action allegations, the motion for enlargement of time will be denied.

C. L-3 Communications' Motion for a More Definite Statement

Defendant L-3, alleging that the complaint's lack of specificity deprives L-3 of fair notice of the allegations against it, requests a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). Under Rule 12(e), a court will order a more definite statement where the pleading is "so vague or ambiguous that the party cannot reasonably prepare a response." FED. R. CIV. P. 12(e); see Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 110 (D.D.C. 2003) (noting that a Rule 12(e) motion should not be granted for "mere lack of detail," but rather for "unintelligibility"). Additionally, to the extent that plaintiff pursues a fraud claim against L-3, plaintiff's claim must state with particularity the circumstances constituting the fraud. See FED. R. CIV. P. 9(b).

Having reviewed plaintiff's complaint, this Court finds that L-3 would be unfairly prejudiced if it were asked to prepare a meaningful response at this time.*fn8 Thus, L-3's unopposed motion for a more definite statement will be granted and plaintiff will be given leave to cure his pleading's deficiencies.


For the reasons discussed in this Opinion, the Court will GRANT both Federal Defendants' motion to dismiss and L-3's motion for a more definite statement. Plaintiff's motion for enlargement of time to file a motion for class certification will be DENIED.

A separate order shall issue this date.

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