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Kelly v. Richard Wright Public Charter School

United States District Court, District of Columbia

July 9, 2018

TORRAIN KELLY, Plaintiff,
v.
RICHARD WRIGHT PUBLIC CHARTER SCHOOL et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

         Defendant Richard Wright Public Charter School is a charter school operating in the District of Columbia, Defendant Marco Clark is the school's CEO, and Plaintiff Torrain Kelly is a former teacher at the school. Both Defendants answered Plaintiffs complaint and moved for summary judgment without asserting as a defense the statutory immunity that is conferred on charter schools and their employees under District of Columbia law. Six months after filing their motion for summary judgment, Defendants moved to dismiss on the basis of this statutory immunity. See ECF No. 40 (“Mot.”). For the reasons explained below, Defendants' Motion to Dismiss will be denied. The statutory immunity they cite is an affirmative defense that they failed to plead in their answers, and therefore is forfeited. This immunity does not, as Defendants argue, divest this Court of subject-matter jurisdiction.

         I. Background

         On September 16, 2016, Plaintiff filed suit against Defendants. ECF No. 1 (“Compl.”). He asserts claims under the federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; the District of Columbia Family and Medical Leave Act (“DCFMLA”), D.C. Code §§ 32-503, 32- 507; and the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401.01 et seq. Compl. ¶¶ 56-62.

         On October 13, 2016, both Defendants filed answers to Plaintiff's complaint. ECF Nos. 5-6. Neither answer asserted an affirmative defense based on any kind of immunity. ECF No. 5 at 8-10; ECF No. 6 at 8-10. After the close of discovery, on June 9, 2017, Defendants moved for summary judgment. ECF No. 20.

         Then, on December 12, 2017, more than six months later, Defendants moved to dismiss on the ground that they are statutorily immune from civil liability. See Mot.; ECF No. 45 (“Opp.”); ECF No. 54 (“Reply”). In their Motion, Defendants argue that the District of Columbia School Reform Act of 1995 (“School Reform Act”), Pub. L. No. 104-134, § 101(b) tit. II, 110 Stat. 1321, 1321-107 to 1321-156 (1996) (codified as amended at D.C. Code § 38-1800.02 et seq.) immunizes them from Plaintiff's DCFMLA and DCHRA claims. Reply at 2-3. One of its provisions, D.C. Code. § 38-1802.04(c)(17), provides as follows:

         (17) Immunity from civil liability. -

(A) In general. - A public charter school, and its incorporators, Board of Trustees, officers, employees, and volunteers, shall be immune from civil liability, both personally and professionally, for any act or omission within the scope of their official duties unless the act or omission:
(i) Constitutes gross negligence;
(ii) Constitutes an intentional tort; or
(iii) Is criminal in nature.
(B) Common law immunity preserved. - Subparagraph (A) of this paragraph shall not be construed to abrogate any immunity under common law of a person described in such subparagraph.

         Plaintiff does not appear to dispute that this provision applies to his claims arising under District of Columbia law. Instead, he contends that Defendants forfeited this defense because they did not assert it in a responsive pleading. Opp. at 5-6 (citing Fed.R.Civ.P. 12(h)(1)). Defendants counter that the immunity afforded them under the statute goes to the Court's subject-matter jurisdiction, which means it cannot be forfeited. Reply at 3-4 (citing Fed.R.Civ.P. 12(h)(3)).

         II. ...


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