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Paul v. Didizian

United States District Court, District Circuit

July 31, 2013

NOUBAR A. DIDIZIAN, et al., Defendants


COLLEEN KOLLAR-KOTELLY, United States District Judge.

Plaintiff, Ghislaine Paul (“Plaintiff”), who is proceeding pro se, brings this action against the District of Columbia[1] (the “District”) and Dr. Noubar A. Didizian (“Didizian”) (together “Defendants”), alleging that Defendants committed medical malpractice and violated various federal statutes in connection with the District’s termination of Plaintiff’s worker’s compensation benefits. Presently before the Court are the following motions: the District’s [9] motion to dismiss or in the alternative for summary judgment; Didizian’s [10] motion to dismiss; and Plaintiff’s [17] motion to reopen and consolidate. Upon consideration of the parties’ submissions, the relevant authorities, and the record as a whole, the Court shall GRANT the District’s [9] motion to dismiss insofar as it seeks dismissal, without prejudice, of Plaintiff’s claims against it due to Plaintiff’s insufficient service of process upon the District. The Court shall also GRANT Didizian’s [10] motion to dismiss insofar as it seeks dismissal of Plaintiff’s claims against Didizian, with prejudice, due to Plaintiff’s failure to timely file those claims in accordance with the applicable statute of limitations. Further, Plaintiff’s motion [17] to reopen and consolidate is DENIED.


The following facts are taken from the Complaint and must be accepted as true for purposes of a motion to dismiss. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, 559 U.S. 1039 (2010). On May 3, 2002, Plaintiff injured her neck and back while working as a Spanish teacher for the District of Columbia Public Schools at Francis Junior High School. See Compl., ECF No. [1], at 8. As a result of this injury, Plaintiff filed a claim with the Disability Compensation Program, which was granted on August 20, 2002. Id. Sometime before August 2004, Plaintiff’s disability benefits were terminated because of Plaintiff’s failure to attend “Job Club.” Id. at 9. Accordingly, Plaintiff returned to work in August 2004. Id. After a series of legal procedures, Plaintiff’s benefits were restored on November 29, 2006, although Plaintiff appears to contend that the benefits to which she was entitled were never restored in full. Id. at 10. Subsequently, on May 16, 2007, Plaintiff underwent a one-time independent medical examination by Didizian, whom Plaintiff describes as a “hand surgeon specialist.” Id. On October 15, 2007, Plaintiff’s disability benefits were once again terminated, this time allegedly due to a report produced by Didizian following that May 16, 2007 examination, which Plaintiff contends was “incomplete” and “fraudulent.” Id. at 10, 14. For this, and other reasons, Plaintiff disputes the validity of the termination of her workman’s compensation benefits. See generally Compl.

On February 6, 2008, Administrative Law Judge Teri Thompson reviewed and affirmed the termination of benefits. Id. at 14. Further, Plaintiff’s application for reinstatement of disability benefits was denied by the Disability Compensation Program on December 29, 2008, and again on February 2, 2009. Id. Having failed on her administrative claims, on October 1, 2010, Plaintiff filed a suit in the Eastern District of Virginia, against the District and Didizian, alleging that Didizian’s evaluation of her medical condition (on which the District relied in terminating her benefits) constituted medical malpractice. The suit was then transferred to this Court, where the undersigned dismissed it without prejudice for want of subject matter jurisdiction, as Plaintiff had not raised any federal questions; nor was there complete diversity, given that both Plaintiff and Didizian were residents of Pennsylvania. See Paul v. Didizian, Civ. A. No. 11-684, 819 F.Supp.2d 31, 33 (D.D.C. 2011). Plaintiff appealed the Court’s ruling, and on April 11, 2012, the D.C. Circuit summarily affirmed this Court’s decision. Id., ECF No. [36].

On July 20, 2012, Plaintiff filed the instant action pro se. Plaintiff’s Complaint is far from a model of clarity, as it is sweeping in scope and replete with conclusory assertions devoid of factual content, as well as extraneous allegations with no clear link to the parties or causes of action upon which Plaintiff purports to rely. Based upon the Court’s best efforts to decipher the Complaint, Plaintiff appears to be asserting claims of malpractice similar to those raised in her prior suit, along with claims alleging violations of the Constitution and a plethora of federal statutes including, inexplicably, several federal criminal statutes (which, of course, do not give rise to any causes of action in this civil case). See generally Compl. at 2, 5, 8-11.

On September 7, 2012, the District, filed its [9] motion to dismiss or in the alternative for summary judgment (“District’s Mot.”). Therein, the District argues that Plaintiff has not effectuated proper service, that her claims are barred by res judicata, and that she has failed to state a claim. See District’s Mot. at 1. On September 11, 2012, Didizian filed his [10] motion to dismiss, with a supporting [10-1] memorandum (“Didizian Mem.”). Therein, Didizian argues that Plaintiff has not stated a claim, and even if she did her claims would be barred by the statute of limitations. See Didizian Mem.

Plaintiff filed her oppositions to both motions on September 20, 2012. See ECF Nos. [18], [19]. Also on September 20, 2012, Plaintiff moved to reopen the now dismissed case previously before this Court, Civil Action No. 11-684. See ECF No. [17]. Additionally, it appears that in response to the District’s assertion of lack of service, Plaintiff attempted to mail a copy of the complaint to the Executive Office of the Mayor. See Pl.’s Opp’n, at Ex.1 (a copy of a September 12, 2012, receipt for a certified mailing).

The District timely filed a [21] reply in further support of its motion; Didizian opted not to file a reply. Accordingly, all three motions pending in this matter are ripe for adjudication.


A. Federal Rule of Civil Procedure 12(b)(5)

A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a . . . court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444–45 (1946) (“[S]ervice of summons is the procedure by which a court . . . asserts jurisdiction over the person of the party served.”)). Pursuant to Federal Rule of Civil Procedure 12(b)(5), “if the plaintiff does not properly effect service on a defendant, then the defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C.2003); see also Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C.Cir.1997). “The party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of [Federal Rule of Civil Procedure 4] and any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 750 (D.C. Cir. 1987) (internal quotation omitted).

B. Federal Rule of Civil Procedure 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief, ” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 1964–65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. ...

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