United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
E. BOASBERG United States District Judge.
prior unsuccessful efforts to set forth his causes of action,
pro se Plaintiff James Chelmowski again moves to
file a Second Amended Complaint, which contains a farrago of
claims against the Government under, inter alia, the
Federal Tort Claims Act, the Freedom of Information Act, and
the Privacy Act. The Government opposes in fairly cursory
fashion, believing that such an effort is futile inasmuch as
no claim could survive a motion to dismiss. Construing his
proposed pleading generously, the Court finds that certain
claims may proceed and will thus grant his Motion in part.
filing an initial Complaint asserting FTCA claims,
see ECF No. 1, Plaintiff amended two months later,
filing a pleading that invoked the Privacy Act, FOIA, and the
FTCA and contained over 300 pages of exhibits. See
ECF No. 6. The Government responded with a motion to dismiss,
see ECF No. 12, leading Chelmowski to seek leave to
file a Second Amended Complaint. See ECF Nos. 15,
18. Because that proposed pleading numbered 95 pages and
failed to clearly set out his claims, the Court ordered that
he file a renewed motion for leave to file a second amended
complaint and required that such complaint not exceed 30
pages and separately enumerate each cause of action.
See ECF No. 24 (Order). Chelmowski has now complied
with the page limitations, although his newest proposed
Second Amended Complaint still contains a lengthy and
superfluous legal analysis with case citations and never
separately sets out each claim. See ECF No. 27-1
the Court can discern, he seeks documents from several
federal agencies under both FOIA and the Privacy Act, the
retraction of certain personal identifying information about
him that the Government has published, and damages under the
FTCA. The Government now opposes the Motion, principally
arguing that amendment would be futile. See ECF No.
plaintiff may amend his complaint once as a matter of course
within 21 days of serving it or within 21 days of the filing
of a responsive pleading. See Fed.R.Civ.P. 15(a)(1).
Otherwise, he must seek consent from the defendant or leave
from the Court. The latter “should [be] freely give[n]
. . . when justice so requires.” Fed.R.Civ.P. 15(a)(2).
In deciding whether to grant leave to file an amended
complaint, courts may consider “undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182
(1962). In this Circuit, “it is an abuse of discretion
to deny leave to amend unless there is sufficient
reason.” Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the
non-movant generally carries the burden in persuading the
court to deny leave to amend.” Nwachukwu v.
Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
clear, however, that amendment should not be permitted if it
would be futile. In other words, if the new causes of action
would still be deficient notwithstanding the proposed
amendment, courts need not grant leave. See In re
Interbank Funding Corp. Securities Litigation, 629 F.3d
213, 218 (D.C. Cir. 2010) (“[A] district court may
properly deny a motion to amend if the amended pleading would
not survive a motion to dismiss.”) (citing
Foman, 371 U.S. at 182, for proposition that
“‘futility of amendment' is permissible
justification for denying Rule 15(a) motion”);
James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099
(D.C. Cir. 1996) (“Courts may deny a motion to amend a
complaint as futile . . . if the proposed claim would not
survive a motion to dismiss.”) (citations omitted).
opposing amendment here, the Government first contends that
Plaintiff's latest Complaint still does not satisfy
Fed.R.Civ.P. 8(a)(2)'s requirement that such a pleading
contain “a short and plain statement of the
claim.” Opp. at 4. While the proposed Second Amended
Complaint is hardly a paragon of pleading clarity, the Court
will not reject it on this basis.
next maintains that any FTCA claim cannot proceed. The Court
agrees. Chelmowski's failure to set out any particular
facts underlying such proposed count would alone doom it. To
the extent he explains that it is somehow connected to
fraudulent misrepresentation or concealment, such claims are
barred by sovereign immunity. See United States v.
Neustadt, 366 U.S. 696, 701-02 (1961). And his
allegations that FOIA non-disclosures are somehow actionable
under the FTCA are also non-starters.
Government, however, offers no reason why Plaintiff's
separate claims under FOIA and the Privacy Act cannot
proceed. Chelmowski, for example, alleges that he has
submitted numerous FOIA requests to the Federal
Communications Commission, the National Archives and Records
Administration, and the Environmental Protection
Administration, and he lists the request numbers.
See Proposed SAC, ¶ 37. Similarly, he
identifies Privacy Act requests submitted to the same three
agencies. Id., ¶ 43. Claims for withheld
documents in those requests may proceed. To the extent
Plaintiff believes that the agencies have engaged in a
policy of withholding, id., ¶ 25, he
has not adequately alleged such a claim. See Judicial
Watch v. Dep't of Homeland Security, 895 F.3d 770,
774 (D.C. Cir. 2018). Finally, Plaintiff alleges that the FCC
has disclosed his personally protected information in
violation of the Privacy Act. Id., ¶ 35. As the
Government does not address that either, the Court will
permit it to go forward for the time being.