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Elghannam v. National Association of Boards of Pharmacy

United States District Court, District of Columbia

July 15, 2016

ALI ELGHANNAM, Plaintiff,
v.
NATIONAL ASSOCIATION OF BOARDS OF PHARMACY, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, United States District Judge

         Ali Elghannam, an Egyptian immigrant and native Arabic speaker, filed a pro se complaint against the National Association of Boards of Pharmacy (“NABP”) for denying his application for a certificate to practice pharmacy in the United States. NABP withheld the certificate after the Educational Testing Service (“ETS”), which is not affiliated with NABP, cancelled Elghannam’s score on the Test of English as a Foreign Language (“TOEFL”). A passing TOEFL score is a licensing requirement for foreign-pharmacy-school graduates like Elghannam. The Court dismissed Elghannam’s initial complaint because it alleged wrongdoing only by ETS, but permitted him to amend the complaint to supplement his allegations against NABP. After two amendments, Elghannam still has not stated a plausible claim against NABP. The Court will therefore dismiss Elghannam’s second amended complaint with prejudice.

         I. Background

         A. Factual Background

         The key facts underlying this case are not in serious dispute. As explained in the Court’s prior opinion dismissing the initial complaint, see Elghannam v. Nat’l Ass’n of Bds. of Pharmacy, No. 15-CV-01554 (CRC), 2015 WL 8751097, at *1 (D.D.C. Dec. 14, 2015), Elghannam sat for the TOEFL on April 10, 2015, and ETS-the non-profit organization that administers the exam-informed him 10 days later that he had passed. However, ETS subsequently notified Elghannam that it had cancelled his score due to purported inconsistencies between the voice on the speaking portion of Elghannam’s April 10 test and that from previous tests he had taken. ETS also prohibited him from taking the TOEFL again for one year.[1] After learning of ETS’s cancellation of the TOEFL score, NABP informed Elghannam that it could not issue him a pharmacist certificate.

         B. Procedural History

         Elghannam brought a pro se complaint in the Superior Court of the District of Columbia seeking an order requiring NABP to issue him a certificate. NABP timely removed the case to this Court, Not. Removal, ECF No. 1, and then moved to dismiss the complaint for failure to state a claim. Mot. Dismiss, ECF No. 5. Elghannam’s original complaint alleged no wrongdoing by NABP. See generally Compl.; see also Elghannam, 2015 WL 8751097, at *1. In his opposition to NABP’s motion to dismiss, which raised this point, Elghannam sought to implicate NABP in ETS’s purported wrongful conduct by alleging that it “agreed immediately” with ETS’s decision to cancel his test score.[2] Pl.’s Opp’n Def.’s Mot. Dismiss, ECF No. 13, at 1; see also Elghannam, 2015 WL 8751097, at *1.

         On December 14, 2015, the Court granted NABP’s motion because it found Elghannam’s pleadings to be “completely ‘devoid of . . . factual enhancement’ regarding potential misconduct by NABP.” Elghannam, 2015 WL 8751097, at *1 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court then allowed Elghannam the opportunity to file an amended complaint in conformance with the pleading standard set forth in Iqbal and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Id. at *2. Following this order, Elghannam timely filed a first amended complaint on December 22, 2015. First Am. Compl., ECF No. 18. NABP again moved to dismiss, observing that the new complaint was similarly devoid of facts or plausible allegations of wrongdoing. See Def.’s Mot. Dismiss First Am. Compl., ECF No. 20. Elghannam responded to the motion, reasserting the allegations included in the first amended complaint and also claiming that the letter he received from ETS cancelling his score was “forged.” Pl.’s Opp’n Def.’s Mot. Dismiss First Am. Compl., ECF No. 21, at 8-9.

         Following a status conference in early February, the Court sua sponte granted Elghannam the opportunity to supplement his opposition to NABP’s motion to dismiss his first amended complaint. Instead of supplementing his opposition, however, Elghannam filed a second amended complaint. In this latest version of his complaint, Elghannam again incorporates the additional allegation raised in the first amended complaint (that NABP conspired with ETS to cancel his TOEFL test score), but removed the forgery claim and added the allegation that NABP took this action against him specifically because he is Muslim. See Second Am. Compl. 1, ECF No. 24. Presently before the Court is NABP’s motion to dismiss the second amended complaint, Elghannam’s opposition, NABP’s reply, and Elghannam’s motion for leave to file a surreply in support of his opposition to that motion.[3]

         II. Standard of Review

         To 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 Twombly, 550 U.S. at 570). 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 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citation and quotation marks omitted). A court generally 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. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir. 2015).

         “The standard for dismissing a complaint with prejudice is high, ” Belizan v. Herson, 434 F.3d 579, 583 (D.C. Cir. 2006), and courts must “freely give leave when justice so requires, ” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). However, dismissal with prejudice may be appropriate “when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012) (quoting Firestone, 76 F.3d at 1209). That is particularly true when the plaintiff has had repeated opportunities to amend his complaint. See, e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (quoting In re Read-Rite Corp., 335 F.3d 843, 845 (9th Cir. 2003)) (“[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, ‘[t]he district court’s discretion to deny leave to amend is particularly broad.’”).

         III. ...


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