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Davis v. Transportation Security Administration

United States District Court, District of Columbia

August 28, 2017

TRACY DAVIS, Plaintiff,
TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants. Re Document Nos. 30, 31


          RUDOLPH CONTRERAS United States District Judge.


         Plaintiff Tracy Davis sued the Washington D.C. transit authority and the United States Transportation Security Administration seeking recovery for injuries her daughter sustained from an explosive-detecting canine. Defendants timely moved to dismiss on various grounds. Well after the deadline for doing so-and without seeking leave from the Court-Plaintiff filed an opposition to the motions. The opposition amounted to little more than two conclusory sentences asking the Court to deny the motions.

         Because Plaintiff filed her opposition late and never sought leave from the Court for doing so, the Court disregards it. And because Plaintiff did not even attempt to remedy her late-filing by responding to the arguments made in Defendants' motions to dismiss, the Court deems the arguments as conceded, grants the motions, and dismisses the case.


         On Inauguration Day, 2013, Ms. Davis and her daughter A.D. walked to the Metro Center subway station after attending the presidential parade. Am. Compl. ¶¶ 11-12, ECF No. 26. As a security measure-and at the request of the U.S. Transportation Security Administration (“TSA”) and the Washington Metropolitan Area Transit Administration (“WMATA”)-a Monroe County, New York K-9 officer was stationed at the entrance of the Metro station with an explosive detection dog, which Plaintiff alleges was owned and trained by the TSA. Am. Compl. ¶ 13, 16. According to Ms. Davis, as she and A.D. were entering the Metro Center station, “the TSA owned and trained dog suddenly and ferociously attacked . . . A.D., biting her hand and causing her injuries.” Am. Compl. ¶ 17. Ms. Davis now sues WMATA and the TSA for negligence. Am. Compl. ¶¶ 18-25.


         The Court previously granted the United States's motion to dismiss the complaint, but granted Plaintiff leave to amend her complaint to name WMATA as a defendant and otherwise refine her factual allegations. See Mem. Op., ECF No. 23, Davis v. United States, 196 F.Supp.3d 106 (D.D.C. 2016). The Court also allowed for limited jurisdictional discovery on the question of whether a mandatory directive governed the training of the TSA canine, and if one did exist, whether TSA employees followed its command. See Davis, 196 F.Supp.3d at 121- 22. Jurisdictional discovery closed in January 2017. See Min. Order of Aug. 10, 2016. On February 13, 2017, WMATA moved to dismiss. See Def. WMATA's Mot. Dismiss (“WMATA's Mot. Dismiss”), ECF No. 30. Three days later, the TSA moved to dismiss. See Def. TSA's Mot. Dismiss (“TSA's Mot. Dismiss”), ECF No. 31. Without ever moving for an extension of time, Plaintiff filed an opposition to both motions on March 23, 2017. See Pl.'s Opp'n Defs.' Respective Mots. Dismiss (“Pl.'s Opp'n”), ECF No. 32.

         Subtracting the case caption, signature block, and certificate of service, Plaintiff's opposition is just over a half of a page in length. See Pl.'s Opp'n. Of that half-page, only two sentences could be classified as anything but formalities or background. See Pl.'s Opp'n ¶¶ 2-3. Those paragraphs read as follows:

2. The TSA supplied a canine to the sheriff's office that eventually bit the minor plaintiff without cause or provocation.
3. Plaintiffs should be permitted to proceed with their case against Defendants to prove that whether [sic] the TSA knew or should have known that the canine was a danger to the public.

Pl.'s Opp'n ¶¶ 2-3. The TSA filed a reply to this opposition, arguing that the Court should treat its motion as conceded both because Plaintiff filed the opposition over 20 days late, and because she did not meaningfully respond to its motion. See Def. TSA's Reply Supp. Mot. Dismiss, ECF No. 33. Presumably because Plaintiff's opposition did not address WMATA or the arguments it raised in its motion to dismiss, WMATA did not file a reply.

         IV. ANALYSIS

         Among other reasons, WMATA moved to dismiss on the grounds that it has sovereign immunity in cases involving “an exercise of a governmental function, ” which includes “the exercise of its police functions.” WMATA's Mot. Dismiss at 5-7. The TSA moved to dismiss on the grounds that it is entitled to sovereign immunity under the “discretionary function exception” to the Federal Tort Claims Act (“FTCA”), because TSA's canine training decisions are “grounded in ...

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