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Lopez v. Council on American-Islamic Relations Action Network

September 30, 2010

RENE ARTURO LOPEZ, ET AL., PLAINTIFFS,
v.
COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on motions by the defendant to dismiss the plaintiffs' complaint or, in the alternative, to consolidate this case with a related civil action and reassign the consolidated cases to Judge Urbina. After careful consideration of the parties' arguments, the relevant legal authorities, and the entire record in this case and in related cases, the Court will grant the defendant's motion to dismiss with regard to the plaintiffs' claim alleging violations of the District of Columbia Consumer Protection Act, but will deny the defendant's motion to dismiss the remainder of the plaintiffs' claims. The Court will grant the defendant's motion to consolidate this case with a related matter, but deny the motion to reassign the consolidated cases to Judge Urbina.*fn1

I. BACKGROUND

A. Plaintiffs' Claims

According to the plaintiffs' first amended complaint, defendant Council on American-Islamic Relations Action Network, Inc. ("CAIR") operates as a public interest law firm formed to protect the civil liberties of Muslims in the United States. Compl. ¶ 15. CAIR has a main office in the District of Columbia and a variety of branch offices located throughout the country. Id. Until recently, one of those branch offices ("CAIR-VA") was located in Herndon, Virginia. Id. ¶ 3.

Beginning in 2006, CAIR-VA employed as a staff attorney an individual named Morris J. Days III. Compl. ¶ 4. Mr. Days was tasked with "provid[ing] legal representation to Muslims complaining of various civil rights abuses," id., and CAIR-VA referred to him as its "resident attorney" in promotional materials. Id. ¶ 17. Mr. Days, however, was not a licensed attorney, and the plaintiffs contend that CAIR-VA "knew or should have known" that he was not. Id. ¶ 5. In February of 2008, after receiving complaints about Mr. Days from his clients, CAIRVA terminated his employment. Id. ¶¶ 33-35.

At various points during 2007 and 2008, plaintiffs Rene Lopez, Aquilla Turner, Mohammed Abdussalaam, and Bayenah Nur each sought legal services from Mr. Days. See Compl. ¶¶ 55, 83, 100. Mr. Abdussalaam came to Mr. Days in February of 2007 claiming that he had been the victim of employment discrimination and seeking legal representation from CAIR. Id. ¶ 55.*fn2 Although Mr. Days promised that he would file a complaint in federal district court on Mr. Abdussalaam's behalf and accepted $250 from Mr. Abdussalaam as a payment towards the cost of filing fees, no complaint was ever filed. Id. ¶¶ 60, 67-68. Mr. Abdussalaam did not learn that Mr. Days was not actually a licensed attorney until after the statute of limitations applicable to his claims had already run. Id. ¶¶ 68, 75.

In June of 2007, plaintiffs Rene Lopez and Aquilla Turner approached Mr. Days at CAIR-VA and requested help with an immigration matter and a divorce, respectively. Compl. ¶ 83. Mr. Days asked for $1,100 in legal fees, id. ¶ 84, which Mr. Lopez and Ms. Turner paid partly in cash and partly by performing "some chores at Days' home." Id. ¶¶ 85-86. In February of 2008, Ms. Turner learned that Mr. Days was no longer employed by CAIR-VA. Id. ¶ 89. She and Mr. Lopez continued to communicate with Mr. Days by phone until Mr. Days' phone line was disconnected and he could no longer be reached. Id. ¶ 90. Although Ms. Turner spoke to multiple CAIR-VA employees after the termination of Mr. Days' employment, none of those employees informed her that Mr. Days had never been a licensed attorney. Id. ¶¶ 92-94. Whether Mr. Days ever performed any significant legal services related to Mr. Lopez's or Ms. Turner's case is unclear from the complaint.

Plaintiff Bayenah Nur called CAIR-VA in November of 2007 regarding her belief that her employer was illegally discriminating against her. Compl. ¶ 100. Mr. Days told Ms. Nur that he, acting on behalf of CAIR, would represent her. Id. ¶ 101. He then contacted Ms. Nur's employer, Star Tek, Inc., and informed a "senior company official" that Ms. Nur had retained him to represent her in connection with a discrimination claim against the company. Id. ¶ 102. Soon afterward, Star Tek offered to address Ms. Nur's claims of discriminatory harassment by transferring her to another division of the company. Id. ¶ 105. Acting on Mr. Days' advice, Ms. Nur rejected that offer. Id. ¶¶ 107-08. Star Tek responded by placing Ms. Nur on unpaid leave in November of 2007. Id. ¶ 108.

In December of 2007, a CAIR-VA employee helped Ms. Nur file state and federal administrative claims alleging employment discrimination. Compl. ¶ 109. The federal claim was rejected by the EEOC in January 2008. Id. ¶ 111. Mr. Days and another CAIR-VA employee told Ms. Nur in the following months that they were preparing an appeal of the EEOC's decision and a complaint to be filed in federal court, but in reality, neither Mr. Days nor any other CAIR employee initiated an administrative appeal or a case in federal court. Id. ¶ 118.

In May of 2008, Ms. Nur, still on unpaid leave from Star Tek, moved from Virginia to North Carolina "in order to find employment." Compl. ¶ 116. When she phoned CAIR-VA to check on the status of her case, she was told by a CAIR-VA staff member that Mr. Days no longer worked with CAIR, but that other CAIR staffers would continue to handle her legal claims. Id. ¶¶ 116-18. After July of 2008, however, Ms. Nur received no further communications from CAIR or CAIR-VA. The period in which she could have timely filed an administrative appeal or a complaint based on her EEOC claim expired in 2008. Id. ¶ 120.

B. Prior Lawsuit

The plaintiffs first attempted to pursue claims against CAIR in federal court by filing a complaint in this Court on November 18, 2008, initiating a case that the Court will call Lopez I. See Lopez v. Council on American-Islamic Relations Action Network, Inc., Civil Action No. 08-1989, Complaint at 1 (D.D.C. Nov. 18, 2009). The Lopez I complaint named as defendants CAIR, Morris Days, numerous CAIR/CAIR-VA employees, and an assortment of individuals and companies alleged to be connected to CAIR in some capacity. It set out the same core set of facts contained in the complaint currently before the Court and framed those facts as the basis for a claim brought under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), which deems unlawful, among other things, the formation of a conspiracy "to participate . . . in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c)-(d). According to the Lopez I complaint, Morris Days and CAIR violated RICO by conspiring to defraud Mr. Days' clients and then to conceal that fraud. See Lopez I, 657 F. Supp. 2d 104, 111 (D.D.C. 2009). In addition to their RICO claim, the plaintiffs alleged that the defendants were liable for violations of the consumer protection statutes of Virginia and the District of Columbia and for common law fraud, breach of fiduciary duty, infliction of emotional distress, conversion, and unjust enrichment. See id. at 108.

The plaintiffs claimed in Lopez I that a federal court could exercise subject matter jurisdiction over their complaint because it alleged a RICO violation and thus presented a question of federal law. See Lopez I, Civil Action No. 08-1989, Complaint ¶ 9 (D.D.C. Nov. 18, 2008). Judge Urbina, however, determined that the complaint failed to state a viable claim under RICO. See Lopez I, 657 F. Supp. 2d at 114-15. He ruled that the plaintiffs' allegations did not "indicate that the RICO Defendants engaged in a 'pattern of racketeering activity'" or state facts showing the existence of a conspiracy, id., and that the plaintiffs lacked standing to bring a RICO claim because, while they alleged that they had been injured by Days, they had failed to assert facts from which it could be inferred that they had been injured by any joint action of Days and CAIR. Id. at 111-12. Plaintiffs' RICO claim therefore was dismissed. See id. at 116. In the absence of the RICO claim, the asserted basis for federal question jurisdiction no longer existed. Id. at 115-16. Lacking jurisdiction over the plaintiffs' case, Judge Urbina also dismissed the plaintiffs' state law claims. Id. That ruling was affirmed on appeal. See Lopez I, No. 09-7129, 2010 WL 2689367 (D.C. Cir. June 8, 2010).

On January 6, 2010, the plaintiffs initiated the instant litigation by filing a new incarnation of the Lopez I complaint. They filed an amended complaint on January 13, 2010. The complaint currently before the Court alleges the same core set of facts that were presented in Lopez I. Unlike the complaint in Lopez I, however, it names a single defendant, CAIR, and invokes the Court's jurisdiction pursuant to 28 U.S.C. § 1332, alleging that the parties are diverse and that the amount in controversy is greater than $75,000. See Compl. ¶ 10. All references to RICO have been eliminated from the pending complaint, which asserts claims for fraud, breach of fiduciary duty, intentional infliction of emotional distress, and violations of D.C. Code § 28-3901 and Va. Code § 59.1-204 - all state law causes of action.

Also on January 6, 2010, counsel for plaintiffs in this case filed a second case, Saiyed v. Council on American-Islamic Relations Action Network, Inc., Civil Action No. 10-0022 ("Saiyed"). The complaint filed in that case named a single plaintiff, Iftikhar Saiyed, and contained precisely the same allegations against CAIR made in the instant case, except that allegations concerning Mr. Saiyed's interactions with Mr. Days replaced those regarding Mr. Lopez, Ms. Turner, Mr. Abdussalaam, and Ms. Nur. Mr. Saiyed's complaint also enumerated the same claims as the complaint in the instant case: fraud, breach of fiduciary duty, intentional infliction of emotional distress, and violations of D.C. Code § 28-3901 and Va. Code § 59.1-204.

On February 24, 2010, CAIR moved to consolidate the instant case with Saiyed and to reassign both cases to Judge Urbina for adjudication, since Judge Urbina had presided over Lopez I. See Trans. Mot. at 1. The next day, CAIR filed the pending motion to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and 12(b)(7) of the Federal Rules of Civil Procedure. See MTD at 2-3. In the alternative, CAIR seeks the dismissal of each count of the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules.

II. SUBJECT MATTER JURISDICTION

The plaintiffs have invoked the Court's jurisdiction in this case under 28 U.S.C. § 1332, claiming that complete diversity of citizenship exists among opposing parties and that the amount in controversy exceeds $75,000. CAIR argues that in fact, neither the requisite diversity of citizenship nor a sufficient amount in controversy is present in this case. See MTD at 2. The Court disagrees.

A. Standard of Review

Federal courts are courts of limited jurisdiction, with the ability to hear only cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Hunter v. District of Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiffs bear the burden of establishing that the Court has jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). In determining whether to grant a motion to dismiss for lack of subject matter jurisdiction, the Court must construe the complaint in the plaintiffs' favor and treat all well-pled allegations of fact as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). The Court need not accept unsupported inferences or legal conclusions cast as factual allegations. See Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003). Under Rule 12(b)(1), the Court may dispose of ...


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