United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge.
Kimberly McCain pleaded guilty to driving while intoxicated
based on evidence that the District of Columbia later
admitted was flawed. Three years after receiving notice of
the flawed evidence, she commenced this action against the
District of Columbia and Officers Kevin King and Richard
Moats (collectively “Defendants”), eventually
alleging claims for negligence, gross negligence, negligent
supervision, intentional infliction of emotional distress,
and violation of her constitutional rights pursuant to 42
U.S.C. § 1983. Judge Kessler of this Court has
previously dismissed McCain's three D.C.-law claims on
the ground that she failed to provide the Mayor of the
District of Columbia with timely notice of those claims, as
required by D.C. Code section 12-309. Dkt. 15 (Oct. 6, 2015
Order). Judge Kessler, however, denied Defendants' motion
to dismiss McCain's fourth claim, which alleged a federal
cause of action and was thus not subject to the
District's notification requirement. Id.
motions are presently before the Court. First, Defendants
move for summary judgment on the remainder of the action on
grounds of judicial estoppel. Dkt. 30. In particular, they
note that, prior to commencing this suit, McCain filed for
bankruptcy and received a discharge of her debts, yet she
failed to disclose the claims asserted in this action as
contingent assets, as she was required to do. Having
represented to the bankruptcy court that she did not possess
any “contingent and unliquidated claims of [any]
nature, ” Dkt. 30-6 at 10, the District asserts that
McCain is estopped from now taking a contrary position before
this Court. Second, McCain seeks reconsideration of Judge
Kessler's decision dismissing her D.C.-law claims,
arguing that the notice requirement contained in D.C. Code
section 12-309 was satisfied because the Metropolitan Police
Department prepared a report that provide sufficient notice
of McCain's claims. Dkt. 17.
reasons explained below, the Court concludes that it lacks
jurisdiction over this matter. It will accordingly dismiss
the amended complaint and deny both pending motions as moot.
was arrested on July 12, 2009, for drunk driving after
failing a series of field sobriety tests. See Dkt.
16 at 2. She was taken to a “police substation, ”
where she was twice tested for alcohol using a breathalyzer
machine called the Intoxilyzer 5000EN
(“Intoxilyzer”). Id. The first test
showed that McCain had 0.34 grams of alcohol per 210 liters
of breath; the second test indicated she had 0.37 grams.
Id. Both results were more than four times the legal
limit. Id. at 2-3. The District charged her with
three criminal offenses: driving while intoxicated
(“DWI”); driving under the influence
(“DUI”); and operating while impaired
(“OWI”). Id. at 3. Her attorney advised
her that she could not successfully challenge the results of
the Intoxilyzer test in court, and so McCain pleaded guilty
to the DWI charge-the most serious of the three charges-on
October 1, 2009. Id. at 4. She was sentenced a week
later to ten days in jail, twenty-eight days in a residential
alcohol treatment program, $400 in fees and fines, and one
year of supervised probation. Id. She was later
fired from her job with the D.C. Department of Fire and
Emergency Medical Services, allegedly as a direct result of
her guilty plea. Dkt. 1-2 at 15 (Amended Compl. ¶ 80).
around July 26, 2010, after McCain had served her sentence,
she and her attorney Charles Szlenker received a letter from
the District's Office of the Attorney General (“OAG
letter”) providing notice that the Intoxilyzer machine
used to test her breath alcohol level had not been properly
maintained or calibrated. See Dkt. 30-5 (letter);
see also Dkt. 7 at 11 (McCain Decl. ¶ 2)
(acknowledging receipt of letter). The letter explained that
the District discovered the problem in February 2010, and
that, once informed, the Office of the Attorney General
“immediately stopped relying upon the [the] Intoxilyzer
results until the scope and cause of the problem were
determined.” Dkt. 30-5 at 1. According to the letter, a
“calibration procedure” undertaken in September
2008 by Officer Kelvin King, the longtime head of the Alcohol
Enforcement Program for the District's Metropolitan
Police Department (“MPD”), had led to the
instrument's deficiencies. Id. The letter did
not admit any wrongdoing, asserting instead that Officer King
“worked closely with the manufacturer who provided
assistance and instructions as to how to calibrate the
instrument”; that he “received detailed
instructions from the manufacturer”; and that he
serviced the machine “with no malicious intent to
purposefully affect the instruments.” Id. The
letter also represented that the District maintained a log of
test results for the Intoxilyzer and that this
“documentation” has “always been made
available to defendants when requested.” Id.
at 2. The letter concluded by noting that the District had
decided to use a different device to assess impaired driving
going forward and that OAG had decided to stop relying on
results from MPD Intoxilyzers-even those obtained before the
calibration issue or after the instruments were re-certified.
Id. The OAG notice did not explain to McCain what
options she had in light of this revelation, but simply
stated that the notice was being provided to Szlenker so he
could “take whatever action [he] deemed
appropriate.” Id. at 1.
passed after McCain received this letter. In the meantime,
she filed a petition for voluntary Chapter 7 bankruptcy on
December 21, 2012, in the U.S. Bankruptcy Court for the
District of Maryland. See Dkt. 30-6. In the Summary
of Schedules, she recorded $161, 526.00 in total assets and
$176, 415.97 in total liabilities. Id. at 6.
Relevant here, “Schedule B” of the petition
instructed McCain to list “contingent and unliquidated
claims of every nature” not already disclosed, and
McCain indicated, under the penalty of perjury, that she had
none. Id. at 10, 34. On June 3, 2013, the bankruptcy
court issued an Order Granting Discharge of Debtor.
See Dkt. 30-7. Three days later, the bankruptcy
court issued its final decree that the estate had been
“fully administered” and closed the case.
See Dkt. 30-8.
24, 2013-less than two months after the bankruptcy case
closed-McCain filed suit in D.C. Superior Court against the
District of Columbia, Officer King, and Officer Richard Moats
(the officer who administered her breath alcohol test),
seeking damages for harm related to her arrest and conviction
for drinking and driving. See Dkt. 1-2 at 19-30
(Compl.). The decision to file had been made entirely by
McCain's current attorney, Frederic Schwartz, Jr., whom
McCain had retained to pursue litigation relating to the loss
of her job. Dkt. 39-3 at 1 (McCain Decl. ¶¶ 6, 8);
Dkt. 39-4 at 1-2 (Schwartz Decl. ¶¶ 1, 9).
Strikingly, Schwartz did not consult with McCain prior to
filing on her behalf, and McCain remained ignorant of this
case until November 14, 2013, some four months after filing.
Dkt. 39-3 at 1 (McCain Decl. ¶ 8); Dkt. 39-4 at 1-2
(Schwartz Decl. ¶¶ 9, 10). Schwartz explains that,
although he had known about the OAG letter to McCain, he
postponed investigating the case until the week before the
statute of limitations was set to expire. Dkt. 39-4 at 1
(Schwartz Decl. ¶¶ 3-5). Only then did he review
the complaints filed by “similarly situated
plaintiffs” and realize “the enormity of the
error and the culpability of the defendants in relation to
[McCain]'s conviction, ” which convinced him to
bring the case. Id. at 1-2 (Schwartz Decl.
¶¶ 3-6). Schwartz further explains that he was
unaware of McCain's bankruptcy proceedings “until
[he was] advised by counsel for the defendants on the day
their motion for summary judgment was filed.”
Id. (Schwartz Decl. ¶ 2).
September 20, 2013, Schwartz filed an amended complaint on
McCain's behalf. Dkt. 1 at 2; see Dkt. 1-2 at
4-18 (Am. Compl.). The amended complaint contained four
counts. First, it alleged that both the District and the two
officer defendants negligently “fail[ed] to ensure, as
required by statute, that the breath test equipment used by
the MPD to generate evidence for use in DWI prosecutions was
properly calibrated and tested.” Dkt. 1-2 at 13 (Am.
Compl. ¶ 63). Second, it alleged that the District was
liable for negligent supervision because it “fail[ed]
to properly train and/or supervise Officer King and Officer
Moats in the calibration, testing and use of the
District's breath test machines.” Id. at
14 (Am. Compl. ¶ 75). Third, it alleged that the two
officers intentionally inflicted emotional distress upon
McCain by providing District prosecutors with false
information that the officers knew or should have known would
lead to a DWI conviction. Id. at 15-16 (Am. Compl.
¶¶ 81-84). Fourth, it alleged that all three
Defendants infringed McCain's rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution, in violation of 42 U.S.C. § 1983.
Id. at 16-17 (Am. Compl. ¶¶ 85-95).
Defendants removed the case to this Court on October 17,
2013, see Dkt. 1, and filed a timely motion to
dismiss, see Dkt. 4.
December 6, 2015, while the motion to dismiss was pending,
McCain filed a motion in the Superior Court to withdraw her
guilty plea to DWI and to set aside the conviction.
See Dkt. 16 at 5. The Superior Court granted that
motion, and reinstated all three original charges against
her. Id. After a bench trial, the prosecution
dropped the DWI and OUI charges, and a magistrate judge found
McCain guilty of DUI on July 24, 2014. Id. at 5-6.
October 6, 2014, Judge Kessler granted in part and denied in
part Defendants' motion to dismiss. Id. at 17.
With respect to the first three counts of the complaint, each
of which alleged a common law tort, she concluded that McCain
had failed to comply with D.C. Code section 12-309, which
requires plaintiffs, as a prerequisite to suit, to provide
notice to the Mayor's office within six months of an
alleged injury. Id. at 8. Of particular relevance
here, Judge Kessler rejected McCain's argument that her
case fell within the statute's carve-out, which provides
that “[a] report in writing by the [MPD], in the
regular course of duty is a sufficient notice under this
section, ” D.C. Code § 12-309; see Dkt.
16 at 9-13. It is that aspect of Judge Kessler's decision
that McCain now asks the Court to reconsider. See
Dkt. 17. As to the fourth count, alleging an action under
§ 1983, Judge Kessler denied the District's motion
to dismiss. See Id. Dkt. 16 at 13-17. All parties
agreed that the D.C. Code's notice provision does not
apply to actions under § 1983, and Judge Kessler
rejected Defendants' argument that the claim was barred
by the Supreme Court's decision in Heck v.
Humphrey, 512 U.S. 477 (1994). See Dkt. 16 at
case was reassigned to the undersigned Judge on November 18,
2014. In the midst of discovery, Defendants learned of
McCain's bankruptcy case, and now move for summary
judgment on that basis. In particular, they argue that
McCain's claims are barred by the doctrine of judicial
estoppel because she failed to disclose in her bankruptcy
petition or during those proceedings, as she was required to
do, that she had a potential civil action.