United States District Court, District of Columbia
ROYCE C. LAMBERTH, District Judge.
Defendants JetSetDC, LLC ("JetSetDC"), Corey Lawrence Moxey ("Moxey"), and Mark Spain ("Spain") have brought before the Court this motion to dismiss  from a tort action filed by Plaintiff Anthony Lopes ("Plaintiff"). Defendants advance several arguments in support of their motion: (1) the Court does not have subject matter jurisdiction over the case; (2) the Court has not acquired personal jurisdiction over defendant Spain; (3) insufficient service of process; and (4) plaintiff's failure to state a claim upon which relief can be granted.
Upon consideration of defendants' motion , plaintiff's opposition thereto , the record herein, and applicable case law, the Court will DENY defendants' motion to dismiss.
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"). Sec. Am. Compl. ¶ 15. 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 ¶ 13. On or about December 27, 2012, plaintiff visited Lotus Lounge to conduct a service visit for the ATM placed there. After being admitted through the exit gate by security, defendant Jameka Ivy ("Ivy") confronted the plaintiff, asserting that plaintiff needed her permission to walk past, and demanding he pay an entrance fee. Sec. Am. Compl. ¶ 14. 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 ¶ 14. 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. Sec. Am. Comp. ¶ 15. 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. ¶ 15. 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. Sec. Am. Compl. at ¶ 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. Sec. Am. Compl. ¶ 17. 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. Sec. Am. Compl. ¶ 19-57.
On December 18, 2013, defendants JetSetDC, Moxey, and Spain moved to dismiss. On January 6, 2014, plaintiff filed timely opposition to the motion to dismiss. Defendants did not file a reply to plaintiff's opposition.
II. LEGAL STANDARD
A. 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. 2003). The Court should "draw all reasonable inferences in the nonmovant's favor, " but "need not accept as true legal conclusions cast as factual allegations." Id. at 7.
The "District Courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of the different States." 28 U.S.C. § 1332(a)(1). "Citizenship is an essential element of federal diversity jurisdiction; failing to establish citizenship is not a mere technicality. The party seeking the exercise of diversity jurisdiction bears the burden of pleading the citizenship of each and every party to the action." Novak v. Capital Management and Development Corp., 452 F.3d 902, 906 (D.C. Cir. 2006); see also Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 (D.C. Cir. 1983). Further, "diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff. Thus the presence of just one nondiverse plaintiff... destroys diversity jurisdiction under § 1332." In re Lorazepam & Clorazepate Antitrust Litig. v. Mylan Labs., 631 F.3d 537, 541 (D.C. Cir. 2011).
B. Motion to Dismiss for Lack of Personal Jurisdiction
Fed. R. Civ. P. 12(b)(2) provides that a party may assert the defense that the court lacks personal jurisdiction over the party in question. When a defendant makes a timely objection to the Court's exercise of jurisdiction over his person, "the general rule is that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts." First Chicago Int'l v. United Exch. Co., 836 F.2d ...