United States District Court, District of Columbia
DAVID E. MANN & VERA D. MANN, Plaintiffs,
CONSTANT OTTRO BAHI, et al., Defendants.
D. BATES United States District Judge
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.
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.
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).
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
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.
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
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
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. 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.
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).
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 ...