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Duane J. Johnson v. Stephen J. Mccool et al

September 9, 2011

DUANE J. JOHNSON, PLAINTIFF,
v.
STEPHEN J. MCCOOL ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In this civil action removed from the Superior Court of the District of Columbia, plaintiff Duane J. Johnson, proceeding pro se, sues Superior Court Magistrate Judge Frederick J. Sullivan, former Assistant United States Attorney ("AUSA") Steven J. McCool, and Attorney Joseph J. Bernard for trover, conversion, and breach of contract stemming from their alleged refusal to return his legal property. On January 18, 2011, AUSA Rudolph Contreras, Chief of the Civil Division of the United States Attorney's Office for the District of Columbia, certified pursuant to 28 U.S.C. § 2679(d) that Mr. McCool was acting within the scope of his employment at the time of the alleged misconduct. Mr. Johnson has moved to strike the certification, but he has not stated any facts suggesting that Mr. McCool was acting outside the scope of his employment. Therefore, the Court, finding that the United States is properly substituted, will deny Mr. Johnson's motion to strike the certification.*fn1

The United States moves to dismiss the complaint under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure [Dkt. # 13]. Mr. Johnson has opposed the motion and has moved to remand the case to Superior Court [Dkt. # 4]. Upon consideration of the parties' submissions and the entire record, the Court will grant in part and deny in part the United States' motion to dismiss and will deny Mr. Johnson's motion to remand.

I. BACKGROUND

In his one-page complaint filed in Superior Court, Mr. Johnson alleges the following. From December 2009 to July 2010, "each" of the Defendants "received valuable legal property from Plaintiff." Compl. [ECF Dkt. # 1 at 4]. Each defendant was "instructed to return Plaintiff's valuable legal property within fifteen . . . day[s] of receipt," but has "refused to do so."

Id. As a result, Mr. Johnson claims that he has lost revenue and, thus, seeks $250,000 in monetary damages for the loss of his "motions, pleadings, [and] transcripts." Id.

Mr. Johnson further alleges that Mr. McCool "requested" that he "send him motions, pleadings, and transcripts because he was interested in how plaintiff constructed his documents;" that he sent [Mr. McCool] his "only versions of his work product;" that he "requested defendant McCool to return [his legal papers] within fifteen . . . days of receipt because it was all that Plaintiff had;" and that Mr. McCool agreed to return the papers but did not do so. Pl. Duane Joseph Johnson's Opp'n to Mot. to Dismiss and Opp'n to Mot. to Show Cause & Mot. to Remand ("Pl.'s Opp'n") [Dkt. # 23] ¶¶ 1-6.

II. DISCUSSION

The United States seeks dismissal of the complaint under Rule 8(a) for failure to satisfy the minimal pleading requirements and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. It is clear from the United States' response that the complaint provides adequate notice of a claim; thus, its motion to dismiss under Rule 8(a) will be denied. See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) ("Rule 8's liberal pleading standard requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' . . . and courts are charged with construing the complaint 'so . . . as to do substantial justice . . . .' ") (citations omitted).

At this pleading stage, a complaint may be dismissed under Rule 12(b)(6) for failure to state a claim upon a determination that the plaintiff cannot establish "any set of facts consistent with the allegations in the complaint" to support the alleged violation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). In ruling on a motion to dismiss, a court must treat the complaint's factual allegations as true, "even if doubtful in fact." Id. But it need not accept legal conclusions cast as factual allegations, Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004), or "inferences drawn by [the plaintiff] if such inferences are unsupported by the facts set out in the complaint," Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition, a court must construe pro se filings liberally and, absent any indication of prejudice to the defendant, should read "all of the plaintiff's filings together[.]" Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).

The United States contends that Mr. Johnson has stated neither a breach of contract claim nor a conversion claim.*fn2

1. The Breach of Contract Claim

The Court agrees that Mr. Johnson has not stated a breach of contract claim, see Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 5, but even if he had, this Court would lack jurisdiction over Mr. Johnson's claim for $250,000 because a claim of that amount based on an express or implied contract with the United States must be brought in the U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a); § 1346(a)(2) (vesting concurrent jurisdiction in the district court over ...


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