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Lopes v. JetSetDC, LLC

United States District Court, District of Columbia

February 19, 2014

JETSETDC, LLC, et al. Defendants.


Royce C. Lamberth, U.S. District Judge

Two motions have been brought before the Court. Defendants Inner Circle 1420, LLC (“Inner Circle”) and David McLeod (“McLeod”) have filed a motion to dismiss [16] pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiff has failed to show that complete diversity exists among the parties under 28 U.S.C. § 1332(a). In response to defendants’ motion to dismiss, plaintiff Anthony Lopes filed a motion for leave to amend his complaint [17] pursuant to Fed.R.Civ.P. 15(a) and 28 U.S.C. § 1653.

Upon consideration of plaintiff’s motion [17], defendants’ opposition [25], the reply thereto [28], and the record herein, the Court will GRANT plaintiff’s Motion For Leave to File Second Amended Complaint. Further, upon consideration of the defendants’ motion to dismiss [16], plaintiff’s opposition [18], and the record herein, the Court will DENY defendants’ motion to dismiss for lack of subject matter jurisdiction.


Plaintiff Anthony Lopes (“Plaintiff”) filed this suit against defendant JetSetDC, LLC, et al., after an alleged assault and battery occurred on the premises of defendant Lotus Lounge DC (“Lotus Lounge”). Am. Compl. ¶ 13. Plaintiff is the owner and operator of an automated teller machine (“ATM”) business and has had an ATM placed at Lotus Lounge since 2009. Id. at ¶ 11. On or about December 27, 2012, plaintiff was conducting a service visit at Lotus Lounge to service the ATM placed on the premises. After being admitted through the exit gate by security, defendant Jameka Ivy (“Ivy”) confronted the plaintiff, asserting plaintiff needed her permission to walk past, and demanded that he pay an entrance fee. Am. Compl. ¶ 12. After the plaintiff involved the manager on duty, defendant Ivy yelled at the manager regarding dissatisfaction with the situation, and plaintiff was permitted to proceed to service the ATM. Id. at ¶ 12. After servicing the ATM, plaintiff once again needed to pass by defendant Ivy in order to leave the premises. When plaintiff attempted to pass defendant Ivy a second time she allegedly cursed at the plaintiff, hurled racially-charged insults, and demanded that she be paid the entrance fee. Am. Compl. ¶ 13. At this time, plaintiff removed his phone in order to take defendant Ivy’s picture. In response, defendant Ivy slapped the phone from the plaintiff’s hands, and began to punch the plaintiff with a closed fist numerous times in the face, head, and left eye, before security personnel pulled the two individuals apart. Id. at ¶ 13. Immediately following the physical altercation, plaintiff felt significant pain and swelling about his head, face, and left eye. Plaintiff went to retrieve his phone as defendant Ivy was deleting her picture from the phone, and he left defendant Lotus Lounge’s premises. Am. Compl. ¶ 14.

Plaintiff alleges a number of negative physical and emotional effects from the incident and has sought treatment from ophthalmologists, a dentist, neurologist, and a mental health professional. Am. Compl. ¶ 15. Plaintiff now brings a number of claims against defendant Ivy in her personal capacity and against her various employers: assault; battery; negligence; negligent hiring and retention; negligent supervision; respondeat superior/agency; and defamation. Am. Compl. ¶ 17 – 55.

On November 27, 2013, defendant Inner Circle and defendant McLeod moved to dismiss [16] pursuant to Fed.R.Civ.P. 12(b)(1), for failure to plead complete diversity of citizenship. In response to this motion to dismiss, plaintiff now moves for leave to amend his pleadings a second time, in an attempt to cure a jurisdictional deficiency, and plead that defendant McLeod is a resident and citizen of the state of Maryland.


A. Motion for Leave to Amend a Complaint

Federal Rule of Civil Procedure 15(a)(2) provides that the Court should freely grant a party leave to amend its pleading “when justice so requires.” Rule 15(a)(2) is to be interpreted liberally, as “Congress intended to permit amendment broadly to avoid dismissal of suits on technical grounds.” Swan v, Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996). Indeed, “a district court should grant a motion to amend unless there is a clear and solid justification for denying it.” Monroe v. Williams, 705 F.Supp. 621, 623 (D.D.C. 1988). Denying leave to amend without sufficient justification, such as undue delay, bad faith, or dilatory motive constitutes an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182 (1962); Caribbean Broad. Sys. v. Cable & Wireless PLC, 148 F.3d 1080, 1084 (D.C. Cir. 1998). The District of Columbia Circuit has also declined leave to amend where there have been repeated failures to cure pleading deficiencies by previous amendments or where permitting the amendment proposed would be futile to the proposing party’s objective, such as pleading a valid claim. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).

28 U.S.C. § 1653 provides that “defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” District of Columbia ex rel. American Combustion, Inc. v. Transamerica, 797 F.2d at 1044 (D.C. Cir. 1986). This statutory provision is to be interpreted liberally, permitting a “party who has not proved, or even alleged, that diversity exists to amend his pleadings even as late as on appeal.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 906 (D.C. Cir. 2006); Loughlin v. United States, 393 F.3d 155, 171 (D.C. Cir. 2004); Harrison v. Norton, 2004 U.S. App. LEXIS 9404, at *1 (D.C. Cir. 2004). The purpose of 28 U.S.C. § 1653 is to “permit amendment of incorrect statements about jurisdiction that actually exists, and not defects in the jurisdictional facts themselves.” Brown v. United States, 2004 U.S. App. LEXIS 3338, at *2 (D.C. Cir. 2004). To properly establish diversity from an individual defendant, “it has been held repeatedly that an allegation of residence alone is insufficient to establish the citizenship necessary for diversity jurisdiction.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n.3 (D.C. Cir. 1983).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A defendant may move to dismiss a complaint or a claim therein, for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, (1936); Bernard v. U.S. Dept. of Def., 362 F.Supp.2d 272, 277 (D.D.C. 2005).

A Rule 12(b)(1) motion “imposes on the Court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority” and “[f]or this reason, the plaintiff’s factual allegations in the complaint will bear closer scrutiny [than] in resolving a Fed.R.Civ.P. 12(b)(6) motion.” Grand Lodge of the FOP v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). The Court “should accept as true all of the factual allegations contained in the complaint, ” but the Court “is not limited to the allegations contained in the complaint … to determine whether it has jurisdiction over the case, the Court may consider materials outside the pleadings.” Lipsman v. Sec’y of the Army, 257 F.Supp.2d 3, 6 (D.D.C. ...

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