United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Grant, a deckhand on a local cruise ship who suffered
injuries during a docking incident, now brings these
consolidated pro se actions against the cruise line
and its parent. While difficult to decipher, the Amended
Complaints appear to invoke the District of Columbia's
Occupational Safety and Health Act, the District's
Industrial Safety Act, and the federal Jones Act. Defendants
now move to dismiss, contending that the first statute
provides no private right of action and that claims asserted
under the latter two are insufficiently pled. Agreeing with
the first argument but only some of the second, the Court
will grant the Motion in part and deny it in part.
two Amended Complaints (one in No. 17-1159 and one in No.
17-1410) are virtually identical - save for a few exceptions
addressed shortly - the Court will principally cite the more
recent one, which was filed in No. 17-1159 on August 29,
2017. See ECF No. 23. The Court presumes the
allegations therein true at this stage and sets forth the
following facts accordingly. This is no easy task as much of
the factual recitation is jumbled, and what actually happened
on board the ship is not easily discerned.
who served in the U.S. Navy for 20 years, was employed as a
deckhand on vessels operated by Entertainment Cruises in the
District of Columbia's harbor. See Am. Compl.,
¶¶ 13, 16. On April 25, 2015, an injury to a member
of the dining staff left the boat's captain “in a
bad mood.” Id., ¶¶ 17-18. In the
casting-off process shortly thereafter, Grant assisted the
Captain, who “yanked the gangway . . . [and] began
slamming it back and forth in the walkway.”
Id., ¶ 19. Another officer was concerned that
she had been injured, but Plaintiff informed him that she had
“moved [her] hand.” Id. There was then a
second incident when the boat was preparing to dock after the
outing, in which the Captain, “upset with the many
negative events that day, ” attempted to dislodge a
stuck rope or line, but ended up “whipp[ing] the line
over Ms. Grant['s] head” and “smack[ing]
[her] on the fore head.” Id., ¶ 22. She
“became dazed and began to faint, ” but he only
smiled. Id., ¶ 23. These incidents caused
“severe headaches, ringing in her ears, memory loss,
visual disturbances, searing pain in elbow joint, and
inability to straighten arm diagnosed as golfer's
elbow.” Id., ¶ 30.
Amended Complaint, which invokes this Court's diversity
jurisdiction, lists four causes of action, one each under
D.C. Code § 32-1117(e), § 32-808(a), §
32-1103(a), and § 12-301(8). Id. at ECF pp.
9-13. The Amended Complaint in No. 17-1410, conversely, adds
to the fourth count a reference to 46 U.S.C. § 30104 and
“federal maritime law.” See ECF No. 16
at 13. Defendants have successfully moved to consolidate the
two cases, given their identical nature, see Minute
Order of Aug. 29, 2017, in No. 17-1410, and now seek
dismissal of all claims.
Rule of Civil Procedure 12(b)(6) permits a Court to dismiss
any count of a complaint that fails “to state a claim
upon which relief can be granted.” In evaluating a
motion to dismiss, the Court “must treat the
complaint's factual allegations as true and must grant
plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.'” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (quoting Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1979)) (citation omitted). The Court need
not accept as true, however, “a legal conclusion
couched as a factual allegation” or an inference
unsupported by the facts set forth in the Complaint.
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). The Court will also consider the facts set forth in
Plaintiffs' Opposition to the Motion to Dismiss. See
Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152
(D.C. Cir. 2015).
12(b)(6)'s pleading standard is “not meant to
impose a great burden upon a plaintiff, ” Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), as a
count will survive so long as there is a
“‘reasonably founded hope that the [discovery]
process will reveal relevant evidence' to support the
claim.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 563 n.8 (2007) (quoting Dura Pharm., 544 U.S.
at 347). While “detailed factual allegations” are
not necessary to withstand a dismissal motion, id.
at 555, a complaint still “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) (quoting
Twombly, 550 U.S. at 570). In other words, a
plaintiff must put forth “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. A
complaint may survive even if “‘recovery is very
remote and unlikely'” or the veracity of the claims
are “doubtful in fact” if the factual matter
alleged in the complaint is “enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)).
seeking dismissal here, Defendants argue that each of
Plaintiff's causes of action is facially defective. The
Court largely treats them in turn.
D.C. Code §§ 32-1117(e), -1103(a)(1) (Counts I
first and third causes of action, Grant asserts that
Defendants violated provisions of the D.C. Occupational
Safety and Health Act, found at D.C. Code § 32-1101
et seq. More specifically, by denying Grant medical
assistance, she alleges in the former count that the
vessel's captain somehowviolated D.C. Code §
32-1117(e), which “makes it an unlawful practice to
‘discipline an employee for refusal to perform work
that the employee believes creates a dangerous situation that
could cause harm to the physical health or threatens the
safety of the employee.'” Am. Compl. at ECF p. 9
& ¶ 28 (quoting § 32-1117(e)). Count III posits
a violation of § 32-1103(a)(1), apparently on the ground
that the ship's employees were not “properly
trained in basic medical first aid, trauma, and life saving
techniques.” Id. at ECF p. 12 & ¶ 40.
it is not clear from the Amended Complaint how Defendants
purportedly violated these provisions, a more fundamental
obstacle blocks Grant's path forward - viz., the
statute does not provide a private right of action. As to the
former count, only the D.C. Occupational Safety and Health
Commission may determine whether a violation has occurred and
order appropriate relief. See § 32-1117
(detailing procedure for filing complaint with Commission,
after which can appeal to D.C. Court of Appeals); cf.
also Johnson v. Interstate Mgmt. Co., 849 F.3d 1093,
1096-97 (D.C. Cir. 2017) (holding no private cause of action
in 29 U.S.C. § 660(c)(2), federal analog to D.C. Code
§ 32-1117(b)). Similarly, the latter count is also only