United States District Court, District of Columbia
MICHELLE KOHLER, Plaintiff, represented by David Matthew
Schloss, KOONZ, MCKENNEY, JOHNSON, DEPAOLIS & LIGHTFOOT, LLP.
ENTERPRISE SERVICES, LLC, Defendant, represented by Jason C.
Raofield, COVINGTON & BURLING LLP & John Edward Hall,
COVINGTON & BURLING LLP.
EXPERTS, INC., Defendant, represented by Mark Edward Chopko,
STRADLEY, RONON, STEVENS, & YOUNG, LLP, Brian P. Seaman,
STRADLEY RONON STEVENS & YOUNG, LLP, pro hac vice & Jeffrey
Edward McFadden, STRADLEY RONON STEVENS & YOUNG, LLP.
ROSEMARY M. COLLYER, District Judge.
morning of September 16, 2013 started as a typical Monday in
the District of Columbia. So it was at the Washington Navy
Yard. While some headed to their offices or meetings, others
drank their morning coffee at their desks and chatted about
their respective weekends. This was the case for Frank
Kohler, John Johnson, Mary Delorenzo Knight, Sylvia Frasier,
Jennifer Jacobs, Jane McCullough, and Arthur Daniels, who
reported early to their respective workstations on the third
and fourth floors of Navy Yard's Building 197. It was
also the case for Richard Michael Ridgell, who welcomed
employees and visitors from his guard station on the first
floor, and for Kenneth Bernard Proctor, who entered Building
197 to get his breakfast as he regularly did during his
22-year-career at the Navy Yard. Then, what seemed to be a
typical Monday morning at the Navy Yard quickly became a dark
and tragic moment in our Nation's capital and the lives
of many families.
approximately 8:00 a.m., Aaron Alexis, a civilian contractor
working as a computer technician at the Navy Yard, entered
Building 197 using a valid temporary access card and headed
to his workstation in the fourth floor. Unknown to anyone,
Mr. Alexis had a concealed sawed-off shotgun and ammunition
in his backpack. He entered a restroom on the fourth floor,
pulled out the gun, and assembled it. As he came out, he
opened fire indiscriminately. Mr. Alexis continued his
carnage through various floors of the building until law
enforcement officers fatally shot him on the first floor at
9:25 a.m. The shooting resulted in twelve deaths and four
the Court are nine related lawsuits arising out of the Navy
Yard shooting. Plaintiffs are the personal representatives of
the estates (or surviving family members or heirs) of seven
decedents, a survivor seriously injured by Mr. Alexis, and a
survivor who was a witness to the shooting. Plaintiffs assert
a combination of negligence and intentional tort claims
against HP Enterprise Services, LLC (HPES), which provided
information technology services to the U.S. Navy as a
government contractor, and The Experts, Inc. (The Experts),
which was an HPES subcontractor and Mr. Alexis's
employer. In addition, three of the nine cases also include
claims against HBC Management Services, Inc. and The Hana
Group, Inc. (collectively HBC), which provided security
services at Building 197 of the Navy Yard.
question raised by these related lawsuits is whether these
companies can be held liable for money damages to the
families of the decedents and to the two survivors for the
criminal acts of Aaron Alexis. For the reasons that follow,
the Court will grant in part and deny in part the motions to
dismiss filed by HPES and The Experts. The Court will grant
HBC's motion to dismiss. Only Plaintiffs' claims of
negligent retention and supervision against HPES and The
Experts will remain and proceed to discovery.
seven of the nine cases, the complaints seek damages for the
deaths of those murdered by Mr. Alexis:
â¢ Delorenzo v. HP Enterprise Servs., LLC, Case No.
â¢ Frasier v. HP Enterprise Servs., LLC, Case No.
â¢ Proctor v. HP Enterprise Servs., LLC, Case No.
â¢ Halmon-Daniels v. The Experts, Inc., Case No.
â¢ Kohler v. HP Enterprise Servs., LLC, Case No.
â¢ Ridgell v. HP Enterprise Servs., LLC, Case No.
â¢ Zagami v. HP Enterprise Servs., LLC, Case No.
remaining two complaints seek damages for injuries (mental,
emotional, and physical) suffered during the shooting:
â¢ McCullough v. HP Enterprise Servs., LLC, Case No.
â¢ Jacobs v. The Experts, Inc., Case No.
assert common law negligence claims against both HPES and The
Experts for failing to anticipate and prevent the mass
shooting by Mr. Alexis, as well as claims of negligent
hiring, retention, supervision, undertaking, and
credentialing. Plaintiffs also rely on various statutes,
regulations, and policy manuals to assert negligence per
se and statutory duty claims against HPES and The
Experts. In addition, Mr. Proctor and Ms. McCullough allege
that HPES and The Experts are vicariously liable for Mr.
Alexis's intentional torts of assault and battery.
Finally, Ms. Kohler, Ms. Zagami, and Ms. Jacobs also aver
negligence claims against the security company, HBC. Richard
Ridgell worked for HBC and his estate does not sue his former
employer. None of the other Plaintiffs worked for any of the
nine Complaints include lengthy factual allegations regarding
Mr. Alexis's history and the sequence of events prior to
the mass shooting of September 16, 2013. Plaintiffs rely
extensively on government investigations, particularly by the
Navy, and adopt government determinations, in many instances
verbatim, as part of their own allegations.
History of Mr. Alexis Prior to his Employment with The
allege that Mr. Alexis had an arrest record long before he
was hired by The Experts and assigned to work at the
Washington Navy Yard. On June 3, 2004, the Seattle Police
Department arrested Mr. Alexis for allegedly shooting out the
rear tires of a construction worker's vehicle. Mr. Alexis
told the police that the construction worker had disrespected
him and that he had a blackout fueled by anger. Mr. Alexis
was charged, but never prosecuted or convicted, with
malicious mischief. Plaintiffs also allege that, in 2006, Mr.
Alexis was investigated because the tires of five vehicles in
Mr. Alexis's apartment complex were slashed. Mr. Alexis
was not arrested or charged on this occasion. In 2007, the
Office of Personnel Management ran a records check on Mr.
Alexis, who was serving in the Navy. The records check
revealed the 2004 arrest in Seattle. Mr. Alexis provided a
written account of the 2004 incident to the Naval Recruiting
District, which also conducted an inquiry into relevant court
August 10, 2008, Mr. Alexis was removed from a nightclub in
DeKalb County, Georgia. Mr. Alexis was screaming profanities
and acting in a hostile manner. He was arrested for
disorderly conduct, but never prosecuted or convicted. On
July 12, 2009, in Fort Worth, Texas, Mr. Alexis received a
non-judicial punishment by the Navy and was reduced one pay
grade after he jumped from a staircase while reportedly
intoxicated and fractured his right ankle. "There was no
police involvement in this incident." Frasier Compl.,
Case No. 15-1492 [Dkt. 1] Â¶ 21. On September 5, 2010, he was
again arrested in Fort Worth for discharging a firearm in his
residence. The bullet went through the ceiling of Mr.
Alexis's apartment into a neighbor's apartment. Mr.
Alexis told the police that it was an accident and that he
was cleaning his firearm. Mr. Alexis was never charged or
convicted for discharging the firearm. His Navy Commanding
Officer initiated administrative proceedings against Mr.
Alexis to separate him from the Navy, but the proceedings did
not continue once it became clear that Mr. Alexis was not
going to be charged with a crime.
December 2, 2010, Mr. Alexis requested separation from the
Navy under the Enlisted Early Transition Program. On December
9, 2010, the Bureau of Naval Personnel approved Mr.
Alexis's request. Mr. Alexis was honorably discharged
from the Navy and received a re-entry code of RE-1, which
made Mr. Alexis eligible to reenlist in the Navy or another
armed service. In addition, Mr. Alexis received a Navy
Reserve Identification and Privilege Card.
Employment History of Mr. Alexis with The Experts
September 2012, Mr. Alexis applied for employment as a
computer technician with The Experts, a subcontractor of
HPES, which performed work for the Navy under the Navy-Marine
Corps Intranet Continuity of Service Contract
(Contract). The Contract invoked the National
Industrial Security Program Operating Manual (NISPOM), which
defined the security requirements for cleared defense
contractors, and required HPES and The Experts "to
develop and maintain a program that ensures all pertinent
derogatory information regarding cleared personnel is
forwarded for consideration in the personnel security
clearance determination process." Proctor Compl., Case
No. 15-1494 [Dkt. 1] Â¶ 18. Specifically, NISPOM required
cleared contractors to convey any derogatory information
about Contract personnel to the Department of Defense's
(DoD) Central Adjudication Facility via "incident
reports" through the Joint Personnel Adjudication
System, "which is the DoD system of record for personnel
security clearance adjudication and management."
Id. Â¶ 19.
NISPOM's terms, Mr. Alexis already had a valid security
clearance when he was hired because he had not been separated
from the Navy for more than 24 months. In addition to
NISPOM's security requirements, HPES required The Experts
to conduct a pre-employment eligibility background check,
"which involved a drug test, a motor vehicle driving
record check, and criminal convictions checks."
Id. Â¶ 24. Mr. Alexis was found to be suitable and
given his honorable discharge, re-entry code of RE-1, and
security clearance, The Experts hired Mr. Alexis as a
computer technician assigned to work on the Contract.
Plaintiffs allege that Mr. Alexis should not have been found
eligible for the position because the pre-employment
background check should have revealed Mr. Alexis's
Alexis worked for The Experts from September to December 2012
on various projects in Texas, California, and Japan. On
December 27, 2012, Mr. Alexis resigned. Plaintiffs make no
allegations concerning Mr. Alexis's conduct or behavior
during this short stint. On June 27, 2013, Mr. Alexis
re-applied for the same position. Since Mr. Alexis still had
a valid security clearance, The Experts merely conducted the
tests required by its contract with HPES - namely a drug
test, a motor vehicle driving record check, and a criminal
convictions check. Once again, Mr. Alexis was found to be
suitable for the job and was rehired on July 2013 and
assigned to work in Norfolk, Virginia. Once again, Plaintiffs
allege that "The Experts['] background check failed
to uncover Alexis's prior arrest record and w[as]
insufficient." Id. Â¶ 27.
Events of August 2013
August 2013, Mr. Alexis was reassigned to a project at the
Naval Undersea Warfare Center in Newport, Rhode Island. On
August 4, Mr. Alexis was at the Norfolk airport awaiting his
flight to Providence, Rhode Island, when he called his
project coordinator at The Experts to report that he was
angry at a male who was seated across the aisle and was
making fun of him. The project coordinator was able to calm
Mr. Alexis down and persuaded him to get away from the
individual and seek help from airport security. On August 5,
2013, the project coordinator reported the call to the
company's Contract team. Later that day, Mr. Alexis
contacted the company's travel coordinator to complain
about noise in his hotel, the Residence Inn in Middletown,
Rhode Island. Mr. Alexis wanted to move to the Navy Gateway
Inns & Suites in Newport, which was approved.
days later, on August 6, 2013, at 6:00 p.m., Mr. Alexis
called the travel coordinator for The Experts to complain
that three individuals, two men and one female, had followed
him from the Residence Inn to the Navy Gateway Inns & Suites.
Mr. Alexis claimed that they "were talking about him
through the walls of an adjacent room" and were using an
"ultrasonic device that was physically pinning him to
the bed" and keeping him awake. Kohler Compl., Case No.
15-1636 [Dkt. 1-1] Â¶ 37; Ridgell Compl., Case No. 15-1637
[Dkt. 1-1] Â¶ 35; Zagami Compl., Case No. 15-1638 [Dkt. 1-1] Â¶
37; Jacobs Compl., Case No. 15-2242 [Dkt. 1-1] Â¶ 47. Mr.
Alexis made a similar report to the Contract's program
manager for The Experts. At 8:45 p.m., the travel coordinator
conveyed the information to the desk clerk at the Navy
Gateway Inns & Suites and expressed her concern that Mr.
Alexis could harm someone. Shortly thereafter, the travel
coordinator contacted the Contract's program manager to
report the information concerning Mr. Alexis.
response, the desk clerk at the hotel contacted the Naval
Station Newport Police to relay the information and ask that
a police officer be assigned close to the hotel in case Mr.
Alexis attempted to hurt someone. When the police officers
responded to the call and arrived at the hotel, they
discovered that Mr. Alexis had dismantled his bed because he
believed that someone was hiding under it. In addition, Mr.
Alexis had taped a microphone to the room's ceiling to
record the voices of the individuals that followed him to the
hotel and were talking about him. Mr. Alexis was not arrested
or placed in protective custody. At 9:18 p.m., Mr. Alexis
told other police officers that someone had implanted a chip
in his head and was using microwave signals to restrict his
movements and keep him awake.
that evening, the Contract's program manager, her
immediate manager, and the Facility Security Officer
(FSO) for The Experts, held a conference
call to discuss the situation with Mr. Alexis. The Experts
management team decided that Mr. Alexis should leave Newport
and return to Fort Worth so he could rest. The program
manager contacted Mr. Alexis to inform him of the decision,
although Mr. Alexis wanted to stay. At 11:35 p.m., the FSO
accessed the Joint Personnel Adjudication System to cancel
"the visit notification for [Mr.] Alexis that the FSO
previously established for access to [Newport's Naval
Undersea Warfare Center]." Proctor Compl. Â¶ 43.
August 7, 2013, at 1:12 a.m., the program manager emailed
HPES representatives and the rest of the Contract's
management team for The Experts to report that Mr. Alexis
would not complete his Newport assignment because he was not
feeling well and that she had booked return airfare for Mr.
Alexis. Around 3:00 a.m., Mr. Alexis called the HPES second
shift supervisor stating that he was being followed and
needed to move out of his room. Mr. Alexis asked the HPES
supervisor if he could stay in her room at the Marriott hotel
in Newport. The supervisor, who knew Mr. Alexis from
previously working together on the project in Japan, agreed
to let him stay in her room. When Mr. Alexis arrived at the
Marriott hotel, he told the supervisor that three individuals
who traveled on the same plane from Norfolk followed him to
the Residence Inn and then to the Navy Gateway Inns & Suites
and were threatening him and keeping him awake.
Alexis also told the HPES supervisor that the same people had
followed him to the Marriott hotel and checked into the room
below. Mr. Alexis asked the supervisor if she could hear
their voices, to which she replied that she could not. The
supervisor dismissed Mr. Alexis's story and went to
sleep. Mr. Alexis called the City of Newport Police to report
that people were following him. The police responded to his
call at 6:20 a.m. and Mr. Alexis explained that he had had a
verbal altercation with an unknown individual at the Norfolk
airport and that this individual sent three people to follow
him and keep him awake by making noises, talking to him, and
sending vibrations through his body with a microwave device.
The City of Newport Police made a report of Mr. Alexis's
allegations. At 9:30 a.m., the Newport Police
Officer-in-Charge contacted the Naval Station Police Sergeant
to relay the information concerning Mr. Alexis and faxed him
a copy of the report with a note saying, "FYI on this.
Just thought to pass it on to you in the event this person
escalates." Proctor Compl. Â¶ 52.
10:00 and 10:30 a.m., the HPES supervisor contacted her lead
supervisor at HPES to report Mr. Alexis's behavior and
claims, to which the lead supervisor responded that The
Experts had decided that Mr. Alexis would be withdrawn from
his Newport assignment. When the HPES second shift supervisor
returned to her room, Mr. Alexis told her that the three
individuals were now in the room above them. Mr. Alexis
wanted to acquire a radar gun to hear what they were saying.
The HPES second shift supervisor called the lead supervisor
again after lunch to report her conversation with Mr. Alexis.
She also later told a co-worker at HPES about Mr.
Alexis's behavior and the surrounding events.
that day, on August 7, the Human Resources (HR) Director and
the Legal Counsel for The Experts initiated an investigation
into Mr. Alexis's claims. The HR Director contacted the
HPES second shift supervisor, as well as the Middletown
Police Department. The HR Director believed that "the
Middletown Police Department provided police coverage for all
of the hotel in which Alexis resided while in Newport, Rhode
Island." Proctor Compl. Â¶ 60. However, no reports were
obtained from Middletown because it was the wrong police
department. At 11:39 p.m., the FSO for The Experts
accessed the Joint Personnel Adjudication System and entered
a "Debrief" action, thereby formally indicating
that Mr. Alexis no longer required access to classified
information or to the Naval Undersea Warfare Center. Because
Mr. Alexis was removed from his Newport assignment, he left
Newport and checked in that night at the Best Western hotel
at the Providence airport. On August 8, 2013, Mr. Alexis
traveled to Fort Worth, Texas.
August 9, 2013, the HR Director for The Experts contacted Mr.
Alexis's mother, who indicated that Mr. Alexis "had
been suffering from paranoia for a long time, that this was
not the first episode he had experienced, and that he
required mental health treatment." Kohler Compl. Â¶ 52;
Ridgell Compl. Â¶ 50; Zagami Compl. Â¶ 52; Jacobs Compl. Â¶ 63.
Later that day, the HR Director met with the FSO and the rest
of The Experts' management team on the Contract; that
group concluded that Mr. Alexis should rest before his next
assignment. The Experts, particularly the FSO, decided not to
file an adverse information report with DoD's Central
Adjudication Facility because "the information collected
about [Mr.] Alexis was based on rumor and innuendo, and
therefore a report to the government should not be made,
since doing so may infringe on [Mr.] Alexis's privacy
rights." Proctor Compl. Â¶ 65.
p.m., on August 9, 2013, the FSO entered an
"indoctrination" action, indicating that Mr. Alexis
"was an individual [with] authorized access to
classified information under the cognizance of The
Experts." Id. Â¶ 66. Thereafter, Mr. Alexis was
assigned to four projects at different locations -
specifically, (1) Williamsburg, Virginia from August 12-16,
2013; (2) Newport, Rhode Island from August 19-23, 2013; (3)
Carderock, Maryland from August 26-30, 2013; and (4) Crystal
City, Virginia from September 3-6, 2013. Plaintiffs allege
that Mr. Alexis was allowed to return to work without any
proof of counseling or mental health treatment. There are no
allegations of unusual behavior during Mr. Alexis's
deployments to Williamsburg, Newport, Carderock, and Crystal
Events of September 2013
September 9, 2013, The Experts assigned Mr. Alexis to the
Washington Navy Yard. This was his fifth assignment since the
events of August 4-7, 2013. Plaintiffs allege that "HPES
and The Experts provided Mr. Alexis access to the Navy Yard
facility and Building 197 on the basis of his SECRET'
security clearance" and without conducting "any
additional background checks or fitness for duty checks or
examinations" or requesting proof of mental health
treatment. Kohler Compl. Â¶ 58; Ridgell Compl. Â¶ 56; Zagami
Compl. Â¶ 58; Jacobs Compl. Â¶ 69. "During the week of
September 9, 2013, other than leaving a disk in a classified
computer, no performance issues were noted." Proctor
Compl. Â¶ 69.
September 14, 2013, Mr. Alexis purchased a Remington 870
12-gauge shotgun and ammunition in Lorton, Virginia. He then
purchased a hacksaw and other items at a home improvement
store. Mr. Alexis sawed off the shotgun so that he would be
able to carry it in his bag and conceal it. He also carved
the words "my ELF [extremely-low frequency] weapon,
" "better of [ sic ] this way, "
"not what y'all say, " and "end to the
torment" into the shotgun. Frasier Compl. Â¶ 47. No
Plaintiff, victim, or Defendant knew these facts until the
later government investigation. On September 16, 2013, at
7:44 a.m., Mr. Alexis arrived in a rental car at the 6th
Street gate of the Navy Yard and used his valid common access
card to enter. After parking his car, at approximately 8:00
a.m., he used his valid temporary building pass to enter the
lobby of Building 197, passing by the HBC guard station. Mr.
Alexis did not pass through any metal detectors and the HBC
guards did not search his belongings. He was carrying a
backpack to conceal the gun and ammunition.
Alexis headed to the restroom on the fourth floor. At 8:15
a.m., Mr. Alexis exited the restroom and began shooting
people indiscriminately. Using the shotgun and a Beretta
handgun that he took from Officer Ridgell, one of the
decedents and an employee of HBC, Mr. Alexis killed twelve
individuals and injured four others. After over an hour of
carnage, Mr. Alexis was shot and killed by a police officer
at 9:25 a.m. A note was found in Mr. Alexis's computer
stating, "ultra low frequency attack is what I've
been subject to for the last three months, and to be
perfectly honest that is what has driven me to this."
Frasier Compl. Â¶ 47.
the events of September 16, 2013, the Navy and DoD conducted
separate extensive investigations and issued lengthy reports
on Mr. Alexis and the shooting. Plaintiffs rely on these
reports in their pleadings and cite, in many instances
verbatim, the reports' determinations. The nine
related cases came before the Court in diverse ways. One of
the complaints (Delorenzo) was originally filed in a Florida
state court. It was then removed to the U.S. District Court
for the Middle District of Florida, and eventually
transferred to this Court. Three of the complaints (Frasier,
Proctor, and Halmon-Daniels) were directly filed in this
Court, and the remaining five (Kohler, Ridgell, Zagami,
McCullough, and Jacobs) were originally filed in Superior
Court for the District of Columbia and then removed here.
Court has jurisdiction over the nine complaints pursuant to
28 U.S.C. Â§ 1332 because the parties in each case are
citizens of different states and the amount in controversy
exceeds the sum of $75, 000 exclusive of interest and costs.
Moreover, the parties agree that the venue properly lies in
this Court. D.C. tort law controls this diversity action. The
Experts moves to dismiss the nine complaints for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and, in the alternative, for failure to
state a claim upon which relief may be granted under Federal
Rule of Civil Procedure 12(b)(6). HPES and HBC move to
dismiss the complaints against them under Federal Rule of
Civil Procedure 12(b)(6). Plaintiffs filed their respective
oppositions, to which Defendants replied. In addition, at the
Court's request, HBC and Plaintiffs Kohler, Zagami, and
Jacobs filed supplemental briefs concerning the relevance of
HBC's security contract with Naval Facilities Engineering
Command to the negligence claims against HBC. Finally, on
August 16, 2016, the Court held oral argument in open court
and gave the parties ample time to expand on their arguments
and discuss the various grounds for dismissal.
Defendants' motions to dismiss are fully briefed and ripe
Motion to Dismiss Under Rule 12(b)(1)
to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint, or any portion thereof, for lack
of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No
action of the parties can confer subject matter jurisdiction
on a federal court because subject matter jurisdiction is
both a statutory and an Article III requirement. Akinseye
v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir.
2003). The party claiming subject matter jurisdiction bears
the burden of demonstrating that such jurisdiction exists.
Khadr v. United States, 529 F.3d 1112, 1115 (D.C.
Cir. 2008); see Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994) (noting that
federal courts are courts of limited jurisdiction and
"[i]t 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")
(internal citations omitted).
on the basis that Plaintiffs' claims present
non-justiciable political questions constitutes a dismissal
for lack of subject matter jurisdiction under Rule 12(b)(1)
and "not an adjudication on the merits."
Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262
(D.C. Cir. 2006). When reviewing a motion to dismiss for lack
of jurisdiction under Rule 12(b)(1), a court should
"assume the truth of all material factual allegations in
the complaint and construe the complaint liberally, granting
the plaintiff the benefit of all inferences that can be
derived from the facts alleged.'" Am. Nat'l
Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.
Cir. 2005)). Nevertheless, "the court need not accept
factual inferences drawn by plaintiffs if those inferences
are not supported by facts alleged in the complaint, nor must
the Court accept plaintiff's legal conclusions."
Speelman v. United States, 461 F.Supp.2d 71, 73
(D.D.C. 2006). A court may consider materials outside the
pleadings to determine its jurisdiction. Settles v. U.S.
Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003). A court has "broad discretion
to consider relevant and competent evidence" to resolve
factual issues raised by a Rule 12(b)(1) motion. Finca
Santa Elena, Inc. v. U.S. Army Corps of Engineers, 873
F.Supp.2d 363, 368 (D.D.C. 2012) (citing 5B Charles Wright &
Arthur Miller, Fed. Prac. & Pro., Civil Â§ 1350 (3d ed.
2004)); see also Macharia v. United States,
238 F.Supp.2d 13, 20 (D.D.C. 2002), aff'd, 334
F.3d 61 (2003) (in reviewing a factual challenge to the
truthfulness of the allegations in a complaint, a court may
examine testimony and affidavits). In these circumstances,
consideration of documents outside the pleadings does not
convert the motion to dismiss into one for summary judgment.
Al-Owhali v. Ashcroft, 279 F.Supp.2d 13, 21 (D.D.C.
Motion to Dismiss Under Rule 12(b)(6)
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A
complaint must be sufficient "to give a defendant fair
notice of what the... claim is and the grounds upon which it
rests." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). Although a
complaint does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief "requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. A court must
treat the complaint's factual allegations as true,
"even if doubtful in fact, " id., but a
court need not accept as true legal conclusions set forth in
a complaint, see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is "plausible on
its face." Twombly, 550 U.S. at 570. A
complaint must allege sufficient facts that would allow the
court "to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678-79. In deciding a motion
under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as
exhibits or incorporated by reference, and matters about
which the court may take judicial notice. Abhe & Svoboda,
Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
Subject Matter Jurisdiction - Political Question Doctrine
Experts argues that the claims against it should be dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1)
because they raise non-justiciable political questions.
"The political question doctrine excludes from judicial
review those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the confines of
the Executive Branch." Japan Whaling Ass'n v.
Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986). The
underlying rationale is that "courts are fundamentally
underequipped to formulate national policies or develop
standards for matters not legal in nature." United
States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379
(D.C. Cir. 1981).
political question doctrine is primarily a function of the
separation of powers.'" Schneider v.
Kissinger, 310 F.Supp.2d 251, 258 (D.D.C. 2004),
aff'd, 412 F.3d 190 (D.C. Cir. 2005) (quoting
Baker v. Carr, 369 U.S. 186, 210 (1962)). In
Baker, the Supreme Court enumerated six factors that
could render a case non-justiciable:
Prominent on the surface of any case held to involve a
political question is found (1) a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or (2) a lack of judicially
discoverable and manageable standards for resolving it; or
(3) the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or (4) the impossibility of a court's undertaking
independent resolution without expressing lack of respect due
coordinate branches of government; or (5) an unusual need for
unquestioning adherence to a political decision already made;
or (6) the potentiality of embarrassment of multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217 (numbers not in original);
see also Ralls Corp. v. Comm. on Foreign
Inv., 758 F.3d 296, 313 (D.C. Cir. 2014). "Unless
one of these formulations is inextricable from the case at
bar, there should be no dismissal for non-justiciability on
the ground of a political question's presence."
Baker, 369 U.S. at 217. The Experts contends that
the first, second, and fourth of the six Baker
factors are implicated in the Complaints - namely, textual
constitutional commitment to a political branch, lack of
manageable standards, and the potential lack of respect to a
coordinate branch of government. It calls the Navy "the
elephant in the room (but not in the caption)" and
argues that given its "substantial and inescapable
role" in these cases, the claims raise a political
question. Experts MTD, Case No. 15-216 [Dkt. 121] at
1. The Court disagrees.
respect to the first factor, The Experts argue that
Plaintiffs' claims invoke issues that are
constitutionally committed to the Navy and the Executive
Branch. The Experts point out Navy's investigation of Mr.
Alexis's background, the decision to grant him a
Secret-level security clearance, the decision to honorably
discharge him, and the decision not to report Mr.
Alexis's arrests. None of this is relevant, let alone
" inextricable from the case at bar."
Baker, 369 U.S. at 217 (emphasis added). Plaintiffs
do not challenge these actions. Navy's choices and
actions are not at issue because The Experts was not required
to hire or retain Mr. Alexis, or to assign him to work at the
Navy Yard following the events of August 2013. In the event
that civil liability is imposed, it would be based on what
The Experts knew or should have known about Mr. Alexis prior
to the shooting, regardless of what the Navy knew or should
some of the Plaintiffs' theories of liability would
implicate matters that are within the sole purview of the
Executive, such as the issuance and revocation of a security
clearance. See Delorenzo Compl., Case No. 15-216
[Dkt. 1] Â¶Â¶ 280-82 (alleging that had The Experts made an
adverse incident report under NISPOM, Mr. Alexis's
security clearance may have been revoked, and his access to
the Navy Yard denied). These theories are unnecessary to
advance a negligence claim.
respect to the second and fourth factors, Plaintiffs'
claims do not require the Court to pass judgment on any of
the Navy's actions. There is no need to speculate as to
what the Navy should or could have done with respect to Mr.
Alexis's security clearance or arrest record. Instead,
the Court must analyze the allegations against The Experts
under the analytical framework applicable to negligence
claims. This is what courts applying D.C. law do on a daily
basis and, thus, it cannot be said that the legal standards
governing these tort claims are not judicially manageable.
Finally, while the actions and judgments of the Navy are
inevitably lurking background facts, they are not implicated
in any of the claims against Defendants. There is no
potential risk that the Court's analysis of the merits in
these cases will disrespect the Navy or the Executive. Even
if the Navy were to hold part of the blame for the damages
sustained in these cases, it does not render the claims
against The Experts non-justiciable on the basis of a
political question. See Hill v. McDonald,
442 A.2d 133, 137 (D.C. 1982) (stating that "one cannot
escape liability for one's own negligence merely because
another person... may have contributed to the injury by his
wrongful or negligent act").
the Court holds that Plaintiffs' claims present a
justiciable question and that it has jurisdiction to address
the merits of these Complaints.
Motions to Dismiss by HPES and The Experts
allege tort claims against HPES and The Experts. The common
thread across the nine complaints are the common law
negligence claims ( i.e., negligent hiring,
retention, supervision, undertaking, and credentialing)
against both defendants for failure to anticipate and prevent
the criminal acts of Mr. Alexis on September 16, 2013. The
nine complaints are premised on the basic allegation that Mr.
Alexis's behavior prior to September 16, 2013 raised
serious concerns about possible violent tendencies that
should have alerted HPES and The Experts. There are also
various counts alleging claims of statutory duty in tort
and/or negligence per se against both defendants, as
well as three counts of assault and battery based on a theory
of vicarious liability. HPES and The Experts argue that
Plaintiffs' theories of liability are legally deficient
and that the Complaints against them must be dismissed as a
matter of law. The main point of contention revolves around
the applicable legal standard for those claims rooted in D.C.
Theories of Negligence under D.C. Common Law
state a claim on which relief can be granted, Plaintiffs must
allege sufficient facts to make a plausible showing that: (1)
HPES and The Experts owed a duty of care to the Plaintiffs;
(2) HPES and The Experts breached this duty of care; and (3)
the breach of that duty proximately caused each
Plaintiff's injuries. See District of
Columbia v. Harris, 770 A.2d 82, 87 (D.C. 2001). These
three elements must be met to render HPES and The Experts
liable on any negligence theory for damages arising from the
Navy Yard shooting.
District of Columbia, there is a "general rule of
nonliability at common law for harm resulting from the
criminal acts of third parties." Romero v. Nat'l
Rifle Ass'n of Am., Inc., 749 F.2d 77, 81 (D.C. Cir.
1984) (Scalia, J.) (citing Kline v. 1500 Massachusetts
Ave. Apartment Corp., 439 F.2d 477, 481 (D.C. Cir.
1970); Hall v. Ford Enterprises Ltd., 445 A.2d 610,
611 (D.C. 1982)). One "limited exception to [this]
general rule of nonliability'" is the heightened
foreseeability principle, by which a defendant may be liable
for harm resulting from another's criminal act only if it
were particularly foreseeable to the defendant that a third
party would commit the crime. Workman v. United Methodist
Comm. on Relief, 320 F.3d 259, 263 (D.C. Cir. 2003)
(quoting Romero, 749 F.2d at 81). This heightened
showing of foreseeability has been described as
"exacting, ' demanding, ' precise, ' and
restrictive.'" Sigmund v. Starwood Urban
Inv., 475 F.Supp.2d 36, 42 (D.D.C. 2007) ( Sigmund
I) , aff'd sub nom. Sigmund v. Starwood
Urban Retail VI, LLC, 617 F.3d 512 (D.C. Cir. 2010) (
Sigmund II ) (citing Novak v. Capital Mgm't.
& Dev. Corp., 452 F.3d 902, 912 (D.C. Cir. 2006);
Bell v. Colonial Parking, Inc., 807 F.Supp. 796, 797
(D.D.C. 1992); Potts v. District of Columbia, 697
A.2d 1249, 1252 (D.C. 1997); Lacy v. District of
Columbia, 424 A.2d 317, 323 (D.C. 1980)).
D.C. Court of Appeals has considered "the requisite duty
of care required for negligence" to be "a function
of foreseeability, arising only when foreseeability is
alleged commensurate with the extraordinary nature of
[intervening] criminal conduct.'" District of
Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 641
(D.C. 2005) (quoting Potts, 697 A.2d at 1252);
see also Workman, 320 F.3d at 265 (noting
that "D.C. Courts have repeatedly spoken of the
heightened foreseeability requirement in terms of duty")
(citations omitted). In such circumstances, "the
plaintiff bears the burden of establishing that the criminal
act was so foreseeable that a duty arises to guard against
it." Potts, 697 A.2d at 1252.
cases involving third-party criminal conduct, D.C. courts
have "tended to leapfrog directly to the foreseeability
issue" to resolve questions of liability.
Workman, 320 F.3d at 265. This is precisely what the
parties have done by focusing on the foreseeability of Mr.
Alexis's criminal acts and arguing whether any of the
Complaints alleges sufficient facts to show that HPES and The
Experts owed a duty of care to Plaintiffs. HPES and The
Experts argue that a heightened showing of foreseeability is
required to render them liable because, absent such a
showing, the Court cannot find there was a duty to guard
against Mr. Alexis's criminal acts. Plaintiffs oppose.
and Foreseeability in Claims of Negligent Hiring, Retention,
and The Experts contend, the heightened foreseeability
requirement stems from the extraordinary nature of criminal
conduct. See McKethean v. WMATA, 588 A.2d
708, 717 (D.C. 1991) ("Because of the extraordinary
nature of criminal conduct, the law requires that the
foreseeability of the risk be more precisely
shown.'") (quoting Lacy, 424 A.2d at 323);
see also Romero, 749 F.2d at 83
("[C]ivil liability for the intervening, independent
criminal acts of third parties is extraordinary, and District
of Columbia courts, in their development of common-law tort
rules, have imposed especially stringent requirements to
support it.") (citation omitted). Criminal conduct is
said to be "extraordinary" because "under
ordinary circumstances it may reasonably be assumed that no
one will violate the criminal law." Morgan v.
District of Columbia, 468 A.2d 1306, 1318 (D.C. 1983)
(quoting Restatement (Second) of Torts Â§ 302B cmt. d (1965)).
However, contrary to what HPES and The Experts contend, the
third-party criminal conduct does not end the inquiry.
discussing intervening criminal acts and the applicable
foreseeability standard, D.C. courts consider the negligence
theory being advanced and the circumstances of each case.
"The question is not simply whether a criminal event is
foreseeable, but whether a duty exists to take
measures to guard against it... [, which] is ultimately a
question of fairness." Romero, 749 F.2d at 79
(internal quotation marks and citations omitted) (emphasis in
are two lines of cases in which a lesser degree of
specificity is required with respect to evidence of
foreseeability: those involving either (1) "a special
relationship between the parties to the suit" or (2)
"a relationship of control between the defendant and the
intervening criminal actor...." Romero, 749
F.2d at 81 (internal citations omitted) (recognizing these
two categories as "[t]he only District cases departing
from that [general] rule" of nonliability at common law
for intervening criminal acts); see also
Workman, 320 F.3d at 263 ("From our review of
the D.C. cases, we see that the requirement that the
defendant have been able to foresee that a third party would
likely commit a criminal act ordinarily has, and perhaps must
have, a relational component."). In the absence of such
relationships or when the circumstances of a particular case
do not suggest a duty of protection or a duty to control,
then "the evidentiary hurdle is higher" and the
risk of the criminal act must be precisely shown.
Workman, 320 F.3d at 264.
rationale for lessening the requirement of heightened
foreseeability in cases involving a special relationship
between the parties is that "the ability of one of the
parties to provide for his own protection has been limited in
some way by his submission to the control of the other,
" and, therefore, "a duty should be imposed upon
the one possessing control (and thus the power to act) to
take reasonable precautions to protect the other one from
assaults by third parties which, at least, could reasonably
have been anticipated." Kline, 439 F.2d at
483. This category is inapplicable here
since Plaintiffs did not submit in any way to the control of
HPES or The Experts and there is no special relationship
(contractual, at common law, or otherwise) between them.
focus of Plaintiffs' briefs revolves around the second
category of cases: those involving a special relationship of
control between defendants (HPES and The Experts) and the
intervening criminal actor (Mr. Alexis). The heightened
requirement of foreseeability is lessened in this category of
cases because the defendant knows the actor, has the ability
to control or supervise him, and can prevent his misconduct
so long as the necessity and opportunity to do so arises.
See, e.g., Restatement (Second) of Torts Â§ 316
(recognizing duty of parent to control conduct of child);
id. Â§ 317 (recognizing duty of master to control
conduct of servant); id. Â§ 318 (recognizing duty of
possessor of land or chattels to control conduct of
licensee); id. Â§ 319 (recognizing duty of those in
charge of person having dangerous propensities).
those circumstances, a duty to exercise reasonable care
"should be imposed upon the one possessing control (and
thus the power to act) to take reasonable precautions"
to prevent the person under its control from intentionally
harming others or from conducting himself as to create an
unreasonable risk of bodily harm to others. Kline,
439 F.2d at 483 (noting "there is no liability normally
imposed upon the one having the power to act if the violence
is sudden and unexpected provided that the source of the
violence is not an employee of the one in control
") (emphasis added); see also Phelan v.
City of Mount Rainier, 805 A.2d 930, 941 (D.C. 2002)
("Generally, one has no duty to prevent the criminal
acts of a third party who is not under the
defendant's supervision or control unless the
criminal conduct was the foreseeable result of the
person's negligence.") (internal quotation marks and
citation omitted) (emphasis added).
the one possessing control is not an insurer of public
safety. A duty of care is owed only to those persons
foreseeably exposed to the risk of harm resulting from the
actor's misconduct - specifically, those brought into
contact with a third person subject to the defendant's
control or supervision whom the defendant "knows or
should know to be peculiarly likely to commit intentional or
reckless misconduct." Restatement (First) of Torts Â§
302, cmt. n (1930); see also Fleming v.
Bronfin, 80 A.2d 915, 917 (D.C. 1951). Under these
circumstances, a defendant "is required to anticipate
and provide against all of these misconducts" regardless
of whether the "third person's misconduct is or is
not criminal at common law or under a statute."
Restatement (First) of Torts Â§ 302, cmt. n. Moreover, a
defendant "is subject to liability only for such harm as
is within the risk... caused by the quality of the employee
which the employer had reason to suppose would be likely to
cause harm." Restatement (Second) of Agency Â§ 213
(1958); see also Argonne House Co. v.
Garrison, 42 F.2d 605 (D.C. Cir. 1930) (holding that
employer's knowledge of employee's criminal
conviction for intoxication did not put employer on notice
that employee might be a thief).
prevail on a theory of negligent hiring, retention, or
supervision, "it is incumbent upon a party to show that
an employer knew or should have known its employee behaved in
a dangerous or otherwise incompetent manner, and that the
employer, armed with that actual or constructive knowledge,
failed to adequately supervise the employee." Giles
v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985)
(citing Murphy v. Army Distaff Found., Inc., 458
A.2d 61, 64 (D.C. 1983)). This standard may apply to
intentional conduct outside the scope of employment, even
when the conduct is criminal in nature. See
Int'l Distrib. Corp. v. Am. Dist. Tel. Co., 569
F.2d 136, 139 (D.C. Cir. 1977) (stating that "an
employer has a duty to supervise those of its employees who
are privileged because of their employment to enter
another's property" and noting that "[t]his
duty even extends to activities which, like theft, are
outside the scope of employment") (citing Restatement
(Second) of Torts Â§ 317 and accompanying comments). With
respect to how the interplay between duty and foreseeability
works in practice in the context of negligent hiring,
retention, or supervision claims, the Court is left to reason
by analogy from applicable D.C. cases.
Murphy v. Army Distaff Foundation, Inc.,
the D.C. Court of Appeals reversed the entry of summary
judgment in favor of a retirement home for wives of deceased
army officers after the home's gardener shot a trespasser
six times. 458 A.2d at 62. The trespasser sued the retirement
home for his injuries under a theory of negligent
supervision. See id. at 62 n.1, 63. The D.C. Court
of Appeals noted that, to prevail under this theory of
liability, the plaintiff needed to establish that the
retirement home "knew or should have known that its
employee regularly ejected trespassers while armed, and that
the employer failed to take reasonable precautionary measures
in supervising him." Id. at 63. Other than
evidence of prior altercations between the gardener and
trespassing youth, there was no evidence that the employer
knew or should have known that the gardener "carried a
gun or had a propensity to use one.'" Id.
at 64. Nonetheless, the D.C. Court of Appeals reversed the
trial court's entry of summary judgment and remanded the
case for trial on the basis that "[o]ne who engages in
an enterprise is under a duty to anticipate and to guard
against the human traits of his employees which unless
regulated are likely to harm others.'" Id.
(quoting Restatement (Second) of Agency Â§ 213, cmt. g)
Murphy is not a paradigm of clarity or
precision. What is clear is that
Murphy ultimately did not require specific evidence
of foreseeability when it reversed the trial court's
entry of summary judgment. Murphy demonstrates that
awareness of an employee's dangerous behavior or
attributes could be sufficient to establish foreseeability
under a theory of negligent supervision if that attribute
proximately caused the injury sustained by the plaintiff - an
outcome clearly inconsistent with the requirement of specific
foreseeability evidence. Compare Restatement
(Second) of Agency Â§ 213 and Restatement (Third) of Agency Â§
7.05(1) (2006) withSigmund I, 475
F.Supp.2d at 42 (noting that a heightened showing of
foreseeability "requires proof that the specific type of
crime, not just crime in general, be particularly foreseeable
at the relevant location") (citing Romero, ...