The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
This matter is before the Court on (i) defendants' motion to dismiss the complaint or for partial summary judgment, and (ii) defendants' motion to strike certain materials plaintiff attached to her opposition to the motion to dismiss or for partial summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and for the reasons set forth below, the motion to dismiss or for summary judgment will be GRANTED IN PART and DENIED IN PART. The motion to strike will be DENIED as moot.
This case arises from the death of Arnell Robinson, a 20 year old District of Columbia resident who was allegedly struck and killed by Metropolitan Police Department ("MPD") officer Michael Pepperman ("Officer Pepperman") on March 6, 2009. According to plaintiff's allegations, Mr. Robinson was riding his yellow motorcycle in the 400 block of O Street, Northwest at approximately 3:00 p.m. Mr. Robinson was unarmed and riding properly in his lane of traffic. Compl. ¶¶ 14, 22. Officer Pepperman, accompanied by MPD officer Gina Leveque, was driving an unmarked police car traveling in the opposite direction. Compl. ¶ 15. Without warning, honking, or turning on his lights or sirens, Officer Pepperman swerved his car to the left, crossed the center of the road, and intentionally drove into Mr. Robinson's path. Compl. ¶ 16. The car and the motorcycle collided head on; Mr. Robinson was thrown from the bike. He was rushed to Howard University Hospital, where he was pronounced dead shortly thereafter. Compl. ¶ 20.
Plaintiff Caroline Robinson, the decedent's mother, has filed a 24-count complaint against Officer Pepperman and the District of Columbia (the "District") both individually and as personal representative and administrator of Arnell Robinson's estate. Eight counts of the complaint contain constitutional claims. Counts I and II allege Fourth Amendment violations of unreasonable seizure, false arrest, and excessive force against Officer Pepperman. Count III alleges Fifth and Fourteenth amendment violations of substantive due process against Officer Pepperman. Count IV is a 42 U.S.C. § 1983 claim against the District on the theory of municipal liability. Counts XIII, XIV, XV, and XVI repeat the allegations set forth in Counts I - IV, but as survivorship counts as opposed to wrongful death counts.
The remaining counts allege a variety of common law claims against both defendants, including negligence, assault, battery, infliction of emotional distress, and negligent failure to hire, retain, train and supervise. Plaintiff seeks compensatory and punitive damages plus costs and attorney's fees.
Defendants move for dismissal, or in the alternative for partial summary judgment on the constitutional claims against both defendants.*fn1 Plaintiff responds that she has alleged sufficient facts in her complaint to sustain her claims at the motion to dismiss stage of the proceedings, or, alternatively, that she has set forth genuine issues of material fact to survive defendants' motion for summary judgment.
Defendants attached a declaration from Officer Pepperman to their motion. Plaintiff attached numerous exhibits to her opposition, including several declarations and a collision assessment from a forensic consultant. In their reply, defendants moved to strike some of the material plaintiff provided pursuant to Federal Rules of Civil Procedure 12(f) and 56(e). The parties conducted limited additional briefing on the motion to strike. Both motions are now ripe for determination by the Court.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citations omitted). "'[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint[,]'" Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A court must not, however, "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." Id. In addition, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. A complaint must therefore plead "'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S.Ct. at 1949). This, in turn, "asks for more than a sheer possibility that a defendant has acted unlawfully"; a complaint alleging facts that are "'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). To be material, the factual assertion must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable fact finder could find for the non-moving party. Id. at 248; see also Lanningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine, material issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986).
A. Fourth Amendment Claims
Defendants move for summary judgment on plaintiff's Fourth Amendment claims, arguing that Officer Pepperman did not "seize" Mr. Robinson and therefore that no Fourth Amendment violation occurred. Plaintiff responds that she has presented a genuine issue of material fact sufficient to overcome summary judgment. For the reasons that follow, the Court agrees that a genuine issue of material fact exists as to whether Officer ...