United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
DRANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Lemma, proceeding pro se, commenced this suit on
November 28, 2017, alleging that his former employer, the
Hispanic National Bar Association (“HNBA”),
discriminated against him “based on [his]
disability.” See Dkt. 1 at 1. The HNBA moves
to dismiss under Federal Rule of Civil Procedure 12(b)(5) for
insufficient service of process, and, in the alternative,
moves to dismiss or for summary judgment on the grounds that
the Americans with Disabilities Act (“ADA”) does
not apply to employers, like the HNBA, with fewer than 15
employees and that Lemma elected to pursue administrative, as
opposed to judicial, remedies under the D.C. Human Rights Act
(“DCHRA”). Dkt. 4-1 at 2. Because the Court
concludes that Lemma has failed to effect service of process,
the Court will dismiss the case without prejudice.
December 2015, Lemma was hired as a bookkeeper and accountant
for the HNBA. Dkt. 1 at 1, 4. According to Lemma, several
months after he started work, he was asked to perform a
number of ministerial tasks, including moving and unloading
boxes, in connection with an HNBA conference in Las Vegas.
Id. at 2. Lemma alleges that this posed a problem
for him because he has a heart condition, which did not
interfere with his ability “to perform [his]
professional duties, ” but did prevent him from
performing tasks requiring “heavy lifting.”
Id. at 3. Lemma says that he told HNBA's
Executive Director about his heart condition in the hope that
the association would accommodate his disability.
Id. According to Lemma, however, the Executive
Director was unsympathetic: she simply responded by noting
that Lemma “did not tell [her about his heart
condition] before” and otherwise declined to discuss
the issue. Id. Lemma alleges that the next day, he
was called to the Executive Director's office, and,
without explanation, he was fired. Id.
2016, Lemma filed an administrative complaint against the
HNBA with the U.S. Equal Employment Opportunity Commission
(“EEOC”), alleging a violation of the Americans
with Disabilities Act. See Dkt. 4-4 at 2. In
response, the HNBA argued that it was not a “covered
entity” under the ADA because it did not have 15 or
more employees on its payroll. See Dkt. 4-5 at 2.
The EEOC agreed and informed Lemma that the “EEOC does
not have jurisdiction over Respondents with less than 15
employees” and that it had, therefore, transferred
Lemma's complaint to “the D.C. Office of Human
Rights for processing.” Dkt. 4-6 at 2. On July 18,
2017, the D.C. Office of Human Rights (“OHR”)
completed its investigation and found that there was not
“probable cause” to believe that Lemma was
terminated, discriminated against, or retaliated against on
the basis of his disability. See Dkt. 4-7 at 21.
Lemma requested that the OHR reconsider its decision, and the
OHR denied that request. Dkt. 4-8 at 4. In its letter denying
Lemma's request for reconsideration, the OHR informed
Lemma of his right to file a petition for review of its
decision in D.C. Superior Court. Id. at 5.
November 28, 2017, Lemma filed this action, alleging that the
HNBA “terminated [him] based on [his] heart condition,
” thereby “subject[ing] [him] to
discrimination” and “breach[ing]” his
“human rights.” Dkt. 1 at 1, 4. Lemma requests
“over $125, 000” in damages. Id. at 4.
In response to the complaint, the HNBA has moved to dismiss
for lack of jurisdiction, for insufficient process, and for
failure to state a claim, or, in the alternative, for summary
judgment. See Dkt. 4.
HNBA argues that Lemma's claims cannot proceed for a host
of different reasons, both substantive and procedural.
federal courts “generally may not rule on the merits of
a case without first determining that [they] have . . .
subject matter jurisdiction, ” Sinochem Int'l
Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S.
422, 431 (2007) (citing Steel Co. v. Citizens for Better
Env't, 523 U.S. 83, 93-112 (1998)), the Court must
first consider the HNBA's contention that the Court lacks
subject-matter jurisdiction because it is not a
“covered entity” within the meaning of the ADA.
The ADA provides that “[n]o covered entity shall
discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). A
“covered entity” is “an employer,
employment agency, labor organization, or joint
labor-management committee.” 42 U.S.C. § 12111(2).
The term “employer, ” in turn, is defined as
“a person engaged in an industry affecting commerce who
has 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar
year.” 42 U.S.C. § 12111(5)(A). As a result, the
ADA “is inapplicable to very small businesses.”
Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440, 441-42 (2003) (quoting 42 U.S.C. §
to the HNBA, it employed fewer than 15 individuals at the
relevant time, and thus the Court lacks jurisdiction to
entertain Lemma's ADA claim. The D.C. Circuit, however,
has held that “coverage under the ADA forms an element
of the plaintiff's cause of action rather than a
prerequisite to the district court's jurisdiction.”
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 622 (D.C. Cir. 1997). In other words, although the HNBA
may have a substantial defense on the merits, that defense
does not go to the Court's jurisdiction.
HNBA's second jurisdictional defense does not question
the Court's subject-matter jurisdiction, but rather
posits that Lemma has failed to effect service of process in
the manner required by Federal Rule of Civil Procedure 4. As
the Supreme Court has recognized, “the procedural
requirement of service of summons must be satisfied”
“before a federal court may exercise personal
jurisdiction over a defendant.” Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484
U.S. 97, 104 (1987). Because insufficient service of process
is, therefore, a jurisdictional defense, the Court must
consider whether it is required to resolve that threshold
defense before reaching the HNBA's contention that it is
too small to be subject to suit under the ADA.
turns out that the question whether the Court may reach the
merits of a dispute before resolving a personal-jurisdiction
defense is not well settled. The D.C. Circuit has held-albeit
in an unpublished opinion-that district courts are “not
required to resolve the issue of personal jurisdiction prior
to ruling on [a] motion to dismiss for failure to state claim
because personal jurisdiction exists to protect the liberty
interests of defendants, unlike subject-matter jurisdiction,
which serves as a limitation on judicial competence.”
Pace v. Bureau of Prisons, No. 98-5025, 1998 WL
545414, at *1 (D.C. Cir. July 17, 1998). In contrast, the
Supreme Court has observed-albeit in dicta-that “a
federal court generally may not rule on the merits of a case
without first determining that it has . . . personal
jurisdiction.” Sinochem Int'l Co. Ltd.,
549 U.S. at 430-31. A separate line of cases, moreover,
recognizes an exception to the rule requiring that Courts
resolve jurisdictional issues first in cases that present
“difficult and perhaps close jurisdictional
arguments” and that raise “plainly
insubstantial” issues, controlled by established
precedent, on the merits. Sherrod v. Breitbart, 720
F.3d 932, 936-37 (D.C. Cir. 2013) (quoting Norton v.
Mathews, 427 U.S. 524, 530, 532 (1976)).
it is likely that the present case can be easily resolved on
the merits based on established precedent, the Court cannot
conclude that the HNBA's service of process defense
presents a “difficult” or “close”
question. Moreover, although reaching the merits of
Lemma's claim might serve the interests of judicial
economy by achieving greater finality in the disposition of
the case, the economy of doing so is diminished by the
uncertainty that exists regarding the Court's authority
to resolve even a straightforward motion to dismiss for
failure to state a claim before resolving a personal
jurisdiction defense. The Court will, accordingly, decide
whether Lemma has effected service of process before
addressing the HNBA's defenses on the merits. Because the
Court concludes that Lemma has failed to do so, it will not
reach the HNBA's merits defenses. See Arora v.
Buckhead Family Dentistry, Inc., 263 F.Supp.3d 121, 133
defendant moves to dismiss for insufficient service of
process, “[t]he plaintiff bears the burden of proving
that he has effected proper service.” Jouanny v.
Embassy of Fr. in the U.S., 220 F.Supp.3d 34, 37 (D.D.C.
2016). “[T]o do so, [he] must demonstrate that the
procedure employed satisfied the requirements of the relevant
portions of Rule 4 [governing summonses] and any other
applicable provision of law.” Light v. Wolf,
816 F.2d 746, 751 (D.C. Cir. 1987) (quoting 4A Charles Alan
Wright & Arthur R. Miller, Federal Practice &
Procedure § 1083 (4th ed.)). “[U]nless the
procedural requirements for effective service of process are
satisfied, a court lacks authority to exercise personal
jurisdiction over the defendant.” Candido v.
District of Columbia, ...