United States District Court, D. Columbia.
ELGHANNAM, Plaintiff, Pro se, Washington, DC.
NATIONAL ASSOCIATION OF BOARDS OF PHARMACY, Defendant: Teresa
L. Jakubowski, LEAD ATTORNEY, BARNES & THORNBURG LLP,
OPINION AND ORDER
R. COOPER, United States District Judge.
Elghannam, an Egyptian immigrant and native Arabic speaker,
aspires to practice pharmacy in the United States. Before he
may do so, however, he must obtain a certificate from the
Foreign Pharmacy Graduate Examination Committee ("
FPGEC" ) of the National Association of Boards of
Pharmacy (" NABP" ), one requirement of which is
the successful completion of the Test of English as a Foreign
Language (" TOEFL" ). Elghannam sat for this
examination on April 10, 2015 and was informed ten days later
by the Educational Testing Service (" ETS" ), the
non-profit organization that administers and scores the TOEFL
exam, that he had obtained high marks in all categories. To
Elghannam's dismay, ETS subsequently notified him that it
had canceled his score, explaining that it had identified
inconsistencies between the voice on the speaking portion of
Elghannam's April 10 test and the voice from earlier
tests that he had taken. Several months later, NABP informed
Elghannam that it could not award him his FPGEC certificate
due to his lack of a valid TOEFL score. Elghannam responded
with a pro se complaint in the Superior Court for
the District of Columbia seeking an order requiring NABP to
issue that certificate. NABP timely removed the case to this
Court and now moves to dismiss the complaint for failure to
state a claim. The Court will grant NABP's motion.
alleges wrongdoing only by ETS. The sole allegation he makes
against NABP is that it " agreed immediately" with
ETS's decision to cancel his TOEFL score. Pl.'s
Opp'n 1. Because this " naked assertion" is
completely " devoid of . . . 'factual
enhancement'" regarding any potential misconduct
by NABP, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Court will dismiss
Elghannam's complaint without prejudice and allow him an
opportunity to file an amended complaint.
Standard of Review
overcome a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), " a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Iqbal, 556 U.S. at 678 (quoting Bell A. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). Facial plausibility entails " factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. While the court " must take
all of the factual allegations in the complaint as
true," legal conclusions " couched as a factual
allegation" do not warrant the same deference.
Id. (citing Twombly, 550 U.S. at 555).
A document filed pro se is to be liberally construed
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)) (internal citation
and quotation marks omitted). A court cannot consider matters
outside the pleadings in deciding a Rule 12(b)(6) motion, but
it may consider " documents attached as exhibits or
incorporated by reference in the complaint." Ward v.
D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d
117, 119 (D.D.C. 2011) (citing Hinton v. Corr. Corp. of
Am., 624 F.Supp.2d 45, 46 (D.D.C. 2009)) (internal
citation omitted). Further, a pro se plaintiff's
pleadings must be " considered in toto "
to determine whether they " set out allegations
sufficient to survive dismissal." Brown v. Who le
Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir.
Elghannam's complaint does not meet " the threshold
requirement of [Federal] Rule [of Civil Procedure] 8(a)(2)
that" it contain allegations that " possess enough
heft to show that the [he] is entitled to relief"
against NABP, Twombly, 550 U.S. at 557 (internal quotation
marks omitted), it fails to state a claim upon which relief
can be granted and therefore warrants dismissal under Federal
Rule of Civil Procedure 12(b)(6). First, the complaint
itself, while replete with allegations of potential
wrongdoing by ETS, includes no claim at all against NABP. It
speaks only of " ETS' conduct" and "
ETS' actions." Compl. 5; see also Order on
Plaintiff's Motion to Remand, Oct. 23, 2015, ECF No. 10
(" Although Elghannam claims in his complaint that the
Educational Testing Service violated his 'due
process rights,' he does not make any such claim against
the defendant in this case: NABP." ). For instance,
Elghannam expresses his " belie[f]" that ETS
cancelled his test score in " retaliation for two
previous complaints that [he] made to ETS." Compl. 3. He
also alleges that " ETS['s] decision . . .
violat[ed] [his] due process rights as well as [constituted]
defamation." Finally, Elghannam contends that " ETS
breached its adhesion contract (A Slave Contract)." The
closest that Elghannam comes to alleging any form of
wrongdoing by NABP is in his opposition to
NABP's motion to dismiss, where he claims that NABP
" agreed immediately with a new Educational Testing
Services' [decision] to cancel [his] valid score."
P1.'s Opp'n 1. The Court understands Elghannam to
allege that ETS and NABP conspired to invalidate his test
score, thereby breaching a contract between himself and ETS
and potentially infringing on certain of his rights.
pleadings, however, even considered in toto, simply
do not contain " enough factual matter (taken as true)
to suggest that an agreement was made." Twombly, 550
U.S. at 556. Indeed, they contain no facts at all
that " raise a reasonable expectation that discovery
will reveal evidence of illegal agreement." Id.
Elghannam alleges merely that NABP made an "
agree[ment]" with ETS to cancel his score, Pl.'s
Opp'n 1, but this " bare assertion, much like the
pleading of conspiracy in Twombly, . . . [is] conclusory and
not entitled to be assumed true," Iqbal, 556 U.S. at
681. Other than this conclusory allegation, which the Court
cannot credit, Elghannam claims only that NABP is withholding
his FPGEC certificate and that NABP was made aware of
ETS's findings. Compl. 3, 5. These facts, however, taken
as true, do not allow the Court to draw " the reasonable
inference that the defendant is liable for the misconduct
alleged," Iqbal, 556 U.S. at 678, and therefore fail to
" show that the pleader is entitled to relief"
against NABP, Fed.R.Civ.P. 8(a)(2), particularly as all the
alleged misconduct solely involves the actions of ETS. The
Court accordingly will grant NABP's motion to dismiss the
complaint but allow Elghannam an opportunity to amend his
complaint consistent with the pleading standard articulated
in Twombly and Iqbal.
it is hereby
that  Defendant's Motion to Dismiss the Complaint ...