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Jograj v. Enterprise Services, LLC

United States District Court, District of Columbia

September 1, 2017

DOTLYN JOGRAJ, Plaintiff,
v.
ENTERPRISE SERVICES, LLC et al., Defendants. ROSALIND PARKER, Plaintiff,
v.
ENTERPRISE SERVICES, LLC et al., Defendants. LORI LEE STULTZ, Plaintiffs,
v.
ENTERPRISE SERVICES, LLC et al., Defendants. DOUGLAS LEVITAS, Plaintiffs,
v.
ENTERPRISE SERVICES, LLC et al., Defendants. JEROME BOYD, Plaintiff,
v.
THE EXPERTS, INC. et al., Defendants. SHERRIE T. LAWSON, Plaintiff,
v.
THE EXPERTS, INC. et al., Defendants.

          OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         On September 16, 2013, Aaron Alexis, a civilian contractor working as a computer technician at Washington, D.C.'s Navy Yard, used a valid temporary access card to enter Building 197 of the facility and then opened fire on its occupants, killing and wounding several people. In the wake of that tragedy, several related lawsuits have been filed against Defendants The Experts, Inc., the subcontractor that employed Mr. Alexis; Enterprise Services, LLC, [1] the contractor that retained The Experts; and the Hana Group, Inc. and HBC Management Services, Inc. (collectively HBC), which provided security services to Building 197.[2] The Court has previously ruled on motions to dismiss in several of these cases in an Opinion issued September 15, 2016 (the Prior Opinion, or Prior Op.). See, e.g., Mem. and Op., Dkt. 132, Delorenzo v. Enterprise Servs., LLC, 15-cv-216.

         The six above-captioned cases are follow-on litigation[3] not before the Court at the time it issued its initial rulings. Four of these cases (Jograj; Parker; Stultz; and Levitas) were filed in this Court directly. The remaining two (Boyd and Lawson) were originally filed in filed in Superior Court for the District of Columbia and then removed here. Defendants have moved to dismiss these new complaints.[4] Plaintiffs have opposed those motions, [5] and Defendants have replied.[6] The motions are now ripe for the Court's review. The Court will dismiss all counts against all Defendants save those alleging negligent retention and supervision of Mr. Alexis by both The Experts and Enterprise Services. No claims survive against HBC, which will be dismissed as a Defendant.

         I. BACKGROUND

         Six Plaintiffs are workers at the Navy Yard who witnessed the shootings and allege both physical and psychological injuries as a result of Mr. Alexis's rampage. They are as follows:

(1) Dotlyn Jograj, Jograj v. Enterprise Servs., LLC, 16-cv-1846;
(2) Rosalind Parker, Parker v. Enterprise Servs., LLC, 16-cv-1847;
(3) Lori Lee Stultz, Stultz v. Enterprise Servs., LLC, 16-cv-1848;
(4) Douglas Levitas, Levitas v. Enterprise Servs., LLC, 16-cv-1849;
(5) Jerome Boyd, Boyd v. The Experts, Inc., 16-cv-2037
(6) Sherrie Lawson, Lawson v. The Experts, Inc., 16-cv-2038.
Two Plaintiffs allege loss of consortium through their partners' injuries:
(1) Gary Stultz, Stultz v. Enterprise Servs., LLC, 16-cv-1848;
(2) Jennifer Levitas, Levitas v. Enterprise Servs., LLC, 16-1849.

         Plaintiffs collectively assert numerous claims against the Defendants. All Plaintiffs bring common law negligence claims against Enterprise Services, The Experts, and HBC for failing to anticipate and prevent the shooting; similarly, all Plaintiffs allege that Enterprise Services and The Experts were negligent in their hiring, retention, and supervision of Mr. Alexis. All Plaintiffs further allege that Enterprise Services and The Experts were negligent per se for their failure to abide by certain federal statutes, regulations, and policy manuals.

         II. JURISDICTION

         It is incumbent on the Court on its own initiative to verify its jurisdiction. In five of the cases-Jograj; Parker; Stultz; Levitas; and Lawson-Plaintiffs all reside in states different from all Defendants, [7] and the amount in controversy for all five is greater than $75, 000. Accordingly, the Court has diversity jurisdiction over these cases pursuant to 28 U.S.C. § 1332(a)(1) (2012). However, Plaintiff Jerome Boyd and Defendant The Experts are both residents of Florida, precluding diversity jurisdiction in Mr. Boyd's case. The question remains, then, whether jurisdiction over Mr. Boyd's Complaint lies under 28 U.S.C. § 1331, which provides jurisdiction for federal questions.

         “[T]he vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Mr. Boyd brings only claims under state law, which would typically preclude consideration of such claims in this Court. However, there are certain exceptions to this general rule.

         Congress has constitutional power to “exercise exclusive Legislation in all Cases whatsoever . . . over all Places purchased . . . for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings.” U.S. Const. art. I, s. 8, cl. 17. While the issue is not entirely settled, courts have generally read the “Enclave Clause” to establish federal subject matter jurisdiction over tort claims occurring on federal enclaves, and have allowed such claims to proceed even when applying state law. See Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir.1998) (finding that “personal injury actions which arise from incidents occurring in federal enclaves may be removed to federal district court as part of federal question jurisdiction”); Federico v. Lincoln Military Hous., 901 F.Supp.2d 654, 656 (E.D. Va. 2012) (finding federal subject matter jurisdiction where Plaintiff brought tort claim against government contractor operating on federal enclave).

         The Navy Yard is the Navy's oldest shore establishment, originating in 1799. Building 197, where the shooting occurred, houses the Navy Sea Systems Command, responsible for engineering, building, and supporting the Navy's fleet of ships. The Navy Yard therefore qualifies as a federal enclave. Further, this incident, which has already generated a thorough investigation by the Navy, and which involves several issues of Navy contracting and operating procedures, implicates federal interests. Because the tort claims in Mr. Boyd's Complaint arise from activities in a federal enclave, and because the Court must directly interpret federal law in order to resolve these claims, federal question jurisdiction is appropriate under § 1331.

         III. FACTS

         The Complaints contain lengthy factual allegations regarding the sequence of events. Plaintiffs rely heavily on government investigations after the incident, and adopt several government determinations as part of their own allegations. The Court has already described the factual circumstances underlying these cases in detail in its Prior Opinion, and while it has considered all facts presented, provides a shorter summary here.[8]

         In the years leading up to his employment with The Experts and Enterprise Services, [9] Mr. Alexis had a history of violent outbursts and arrests-although no convictions- including some that occurred while Mr. Alexis served in the Navy. Despite these incidents, Mr. Alexis was honorably discharged in December 2010, retaining his security clearance.

         In September 2012, Mr. Alexis applied to work as a computer technician with The Experts, which operated as a subcontractor for Enterprise Services on the latter's contract to supply certain information technology (IT) services to the Navy. The contract between Enterprise Services and the Navy referenced the National Industrial Security Program Operating Manual (NISPOM), which defined security requirements for security-cleared contractors and required contracting parties to report negative personnel incidents to the personnel security clearance management system in the Department of Defense, known as the Joint Personnel Adjudication System.

         Under NISPOM, Mr. Alexis's security clearance was still valid in September 2012, because he had been discharged from the Navy within the prior 24 months. Enterprise Services also required The Experts to run a background check on new employees, which consisted of a drug test, a driving record check, and a criminal conviction check. Mr. Alexis cleared all these background checks and was hired by The Experts.

         Mr. Alexis worked for The Experts until December 2012, when he voluntarily resigned. He reapplied in June 2013, and, after once again passing background drug, driving, and convictions checks, was rehired in July 2013.

         A. Events of August 2013

         In August 2013 Mr. Alexis was assigned to a project at the Naval Undersea Warfare Center in Newport, Rhode Island. On August 4, while awaiting a flight to Rhode Island, Mr. Alexis called his project coordinator to complain volubly that a man was making fun of him in the airport. The coordinator calmed Mr. Alexis and on August 5 reported the call to the company's contract team. Mr. Alexis also called the company's travel coordinator later, complaining of the noise level in his hotel and asking to move to another hotel, which he did.

         Two days later, on August 6, Mr. Alexis again called the travel coordinator and complained that three individuals had followed him from the first hotel to his new hotel, and were using an “ultrasonic device that was physically pinning him to the bed.” See Prior Op. at 7. Mr. Alexis made a similar report to his program manager. That evening the travel coordinator spoke to the desk clerk at Mr. Alexis's hotel and expressed concern that Mr. Alexis could harm someone. The travel coordinator also contacted the contract program manager to report the situation.

         The hotel desk clerk contacted the Naval Station Newport police to report the information from the travel coordinator and request that an officer be present near the hotel in case Mr. Alexis tried to hurt someone. The police who responded to the call found that Mr. Alexis had dismantled his bed and taped a microphone to the ceiling to record the voices of the individuals who had allegedly followed him. The police saw no reason to arrest Mr. Alexis or place him in protective custody.

         That evening, the contract's program manager, her immediate supervisor, and The Experts' Facility Security Officer spoke by conference call. They decided that Mr. Alexis should leave Newport and return to Fort Worth to rest. A little after 11:30 p.m., the Security Officer canceled Mr. Alexis's visit notification to the Undersea Warfare Center by an entry in the Joint Personnel Adjudication System. At 1:12 a.m. on August 7, 2013, the program manager emailed Enterprise Services representatives and the rest of The Experts' contract management team and informed them that Mr. Alexis was not feeling well and would be returning to Fort Worth.

         At 3:00 a.m. that night, Mr. Alexis called the Enterprise Services second shift supervisor in Newport and told her that he was being followed. He asked to stay in her room at her hotel, to which she agreed. When he arrived, he told her that he was hearing voices. The shift supervisor dismissed Mr. Alexis's story and went to sleep. Mr. Alexis called the City of Newport Police, who responded to his call at 6:20 a.m. and took a statement. Later that morning, the City of Newport Police Officer-in-Charge contacted the Naval Station Police Sergeant and faxed him a copy of the police report, with a note saying “FYI on this. Just thought to pass it on to you in the event this person escalates.” Between 10:00 and 10:30 a.m., the Enterprise Services' second shift supervisor contacted her lead supervisor and learned that Mr. Alexis was being withdrawn from the Newport assignment. When the Enterprise Services' second shift supervisor returned to her room, Mr. Alexis reported that the three individuals who had been following him were now in the room above and that he wanted to find a radar gun in order to hear what they were saying. The shift supervisor also reported this interaction to her supervisor.

         The Experts' HR Director and Legal Counsel instigated an investigation into Mr. Alexis's behavior. After interviewing several people with knowledge of Mr. Alexis and the incident, The Experts management concluded that there was insufficient evidence to file any adverse information report with the government, and that Mr. Alexis could return to work after some rest. The Experts assigned Mr. Alexis to four projects between August 12 and September 6, 2013, during which time there are no allegations of unusual behavior.

         B. Events of September 2013

         On September 9, 2013, The Experts assigned Mr. Alexis to the Washington Navy Yard. On September 14, Mr. Alexis purchased a shotgun and sawed off the barrel. He carved the words “my ELF [extremely-low frequency] weapon, ” “better of [sic] this way, ” “not what y'all say, ” and “end to the torment” onto the gun.

         On September 16, Mr. Alexis used his valid access pass to drive a rental car into the Navy Yard, and, carrying the shotgun in a backpack, used his valid temporary building pass to enter the Navy Yard's Building 197 without passing through any metal detectors. Although HBC was providing security services for Building 197 at the time, Mr. Alexis was not stopped or searched by any HBC employee. Traveling to the fourth floor, Mr. Alexis proceeded to fire indiscriminately, traveling throughout the building, until the police shot and killed him after approximately an hour.

         IV. LEGAL STANDARDS

         A. Lack of Subject Matter Jurisdiction ...


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