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Mann v. Bahi

United States District Court, District of Columbia

March 17, 2017

DAVID E. MANN & VERA D. MANN, Plaintiffs,
v.
CONSTANT OTTRO BAHI, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge

         Drs. David Mann and Vera Mann are an elderly couple who claim they were swindled and robbed by the nurses they had trusted to provide needed nursing care in their home. They hired these health care professionals-Constant Ottro Bahi, Marie Poteman, and Mariatu Sesay- through a company that provides a listing of licensed nurses, Tri-Cities Nurse Registry and Helpmates. The Manns bring multiple intentional and unintentional tort claims against the nurses and the company, and bring a Consumer Protection Procedures Act claim against the company. One of the nurses, Bahi, moves to dismiss Count V, intentional infliction of emotional distress, against him because he argues that the Manns have failed to state facts sufficient to support that claim. As explained below, the Court will deny Bahi's motion to dismiss Count V.

         BACKGROUND

         The following are the facts according to the plaintiffs' amended complaint. Drs. David E. Mann and Vera D. Mann “are an elderly married couple” who have lived in the District of Columbia for 30 years. Amend. Compl. [ECF No. 1-2] ¶ 1. Each plaintiff is referred to by his or her first name to avoid confusion. As of May 2016, they were both 91 years old. Id. ¶ 14. In February 2015, David underwent emergency surgery and spent several weeks in intensive care. Id. ¶ 15. Vera was unable to provide the nursing care that David would need upon returning home, so they sought to hire qualified medical professionals to provide that care at their home. Id.

         Tri-Cities Nurse Registry and Helpmates, Inc., doing business as Capital City Nurses, provides two options for nursing care. See id. ¶ 18. Customers may directly hire Licensed Practical Nurses who are employed by the company. Id. ¶ 19. This service is known as “Capital City Nurses Healthcare Services.” Id. Alternatively, customers may hire “qualified, independent caregiver[s]” through its referral service, known as Capital City Nurses Registry. Id. ¶ 20 (internal quotations omitted).

         Ultimately, the Manns' son hired “two primary caregivers” for Vera and David through the referral service, Capital City Nurses Registry: Constant Ottro Bahi and Marie Poteman. Id. ¶ 21. Beginning in “late March 2015, ” Bahi worked as plaintiffs' daytime caregiver, from approximately 7 a.m. to 7 p.m., and Poteman worked as the nighttime caregiver, from approximately 7 p.m. to 7 a.m. Id. When Bahi or Poteman were unavailable, Capital City Nurses Registry provided substitute caregivers, one of whom was Mariatu Sesay. Id. ¶ 22. Generally, the Manns were alone in their home with Bahi, Poteman, or Sesay; occasionally, the Manns' housekeeper was there as well.

         Over the next several months, the Manns noticed that several items had gone missing from their home, and observed Bahi, Poteman, and Sesay engaged in a variety of suspicious behaviors. There is no need to recount all of the allegations here, but a few will set the scene. For example, Vera noticed that “small kitchen items” had gone missing, but thought they were merely displaced until she observed Poteman carrying some place settings upstairs, after which the items were not seen again. Id. ¶¶ 26, 28. Vera also noticed Poteman carrying packages to her car at a time when there was no reason to be doing so. Id. ¶ 29. At one time, once the Manns suspected the thefts, David “nailed boards across some of the kitchen cupboards” and in response, Poteman ceased speaking to David, and then ceased coming to work entirely a few days later. Id. ¶ 30. Vera also noticed Bahi wandering through portions of the house that were behind locked doors and that Bahi was not meant to enter. Id. ¶ 31. She also encountered Bahi in David's office (which was locked) standing in front of open files. Id. ¶ 33. And around the same time that she noticed that items from her house were missing, she observed Bahi carrying large briefcases to his car with no explanation. Id. ¶ 34. Vera also believed that on August 23, 2015, Sesay stole a silver platter. Id. ¶ 35. Vera and Sesay had been sitting in the room where the platter was displayed, Vera stepped out for a moment, and then when she returned, the platter was gone. Id. Vera reported the theft to Capital City Nurses Registry, but the company took no further action. Id. ¶ 36. When Sesay was later assigned to cover a shift at the Manns' residence, the plaintiffs refused to admit her to their house. Id. ¶ 37.

         More relevant to the immediate issues raised in this motion, at one point Vera “became so concerned” with Bahi's “roaming” through locked portions of the house, that “she packed her most valuable possessions in boxes and cartons and moved them to her third-floor bedroom, which she thought was secure behind the second floor locked passageway and her own locked bedroom entrance door.” Id. ¶ 38. Some days later, on September 7 or 8, she awoke at approximately 2 a.m. to find Bahi in her bedroom, visible in the low light that Vera always kept on. Id. ¶ 39. Vera “recognized him” from the back “immediately” and “stayed in bed silently watching him from under her blanket.” Id. “She saw his face plainly when he turned. Knowing that [David] was sleeping on another floor, she remained quiet and motionless.” Id. She observed Bahi “rummaging through the cartons of her belongings” and ultimately removing “some boxes” and “extracting valuables, ” such as jewelry, from others. Id.

         After this incident, Vera confronted Bahi. Id. ¶ 40. While he neither admitted nor denied taking the items, he allegedly responded by talking “at length about his faith in God” and telling Vera “how she would have a revelation and be rewarded in the Kingdom of Heaven for the good that her property would do in the hands of others.” Id.

         Approximately 10 days after this strange encounter, the Manns discovered that a locked closet had been forced open, and “the contents of the closets [sic] ransacked.” Id. ¶ 41. Multiple valuable fur coats were missing, as were sterling silver objects. Id. ¶ 45, 48. At this point, the Manns phoned the police. Bahi did not show up to work that day, nor did he return anytime afterwards. Id. ¶¶ 41-42. Vera and David then filed this lawsuit in D.C. Superior Court in April 2016, and filed an Amended Complaint in May 2016. Defendants removed the suit to federal court on the basis of diversity jurisdiction. See Notice of Removal [ECF No. 1] at 1; 28 U.S.C. §§ 1441, 1446, 1332.[1] The complaint alleges twelve counts, five of which are against Bahi: (i) conversion, (ii) trespass to chattels, (iii) trespass, (iv) intrusion upon seclusion, and (v) intentional infliction of emotional distress (IIED). Bahi now brings this motion to dismiss regarding Count Five, arguing that even if the facts as alleged are true, his conduct does not amount to intentional infliction of emotional distress.

         LEGAL STANDARD

         At the motion to dismiss stage, all of a plaintiff's factual allegations are taken as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to survive a Rule 12(b)(6) motion to dismiss, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. (internal citation omitted). The complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         DISCUSSION

         Because this case comes to the Court through diversity jurisdiction, the District of Columbia's choice of law rules apply. See Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006). The parties here agree that D.C. law applies. Under D.C. law, “[t]o succeed on a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189 (D.C. 2013) (internal quotation marks omitted). Generally, “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” that are simply “inconsiderate or unkind” are not sufficiently outrageous to support this claim. King v. Kidd, 640 A.2d 656, 668 (D.C. 1993) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Nor is it enough “that the defendant has acted with an intent which is tortious or even criminal.” Armstrong, 80 A.3d at 189 (internal quotation marks and alterations omitted). Rather, “[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Id. (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1312 n.10 (D.C. 1994) (quoting Restatement (Second) of Torts § 46 cmt. d (1965))). In the classic (if cartoonish) formulation, “[t]he ultimate question is whether the recitation of the facts to an average ...


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