United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Nathaniel Vincent has filed a motion to dismiss one of the
two counts in Plaintiff Emma Sandberg's Complaint. Upon
consideration of the briefing,  the relevant legal authorities,
and the record as a whole, the Court finds that Ms. Sandberg
has failed to state a claim of negligence or gross
negligence. Accordingly, the Court shall
GRANT Mr. Vincent's  Motion to
Dismiss, in Part, Plaintiff's Complaint and shall
DISMISS Count II of that Complaint.
Sandberg's pertinent factual allegations are relatively
straightforward, and the Court accepts them as true for
purposes of this motion. See Erickson v. Pardus, 551
U.S. 89, 93 (2007) (per curiam); see also Mem. Op.,
Sandberg v. Vincent, 319 F.Supp.3d 422, 425 (D.D.C.
2018), ECF No. 15 (summarizing those allegations previously).
to the Complaint, Plaintiff and Defendant met on the evening
of July 22, 2017, during a gathering initiated by Ms.
Sandberg's roommates at their D.C. apartment. Compl., ECF
No. 1, ¶¶ 11, 14. Both Ms. Sandberg and Mr. Vincent
were from other states; each was living in the nation's
capital only for the summer. Id. ¶¶ 4-6,
9, 10. The evening's agenda included a
“pregame” for drinking purposes before the
ostensible main event of heading to the club. Id.
¶¶ 11-13, 15. Both Ms. Sandberg and Mr. Vincent
drank alcohol during the pregame, to the point that Ms.
Sandberg “became increasingly-and very
visibly-intoxicated.” Id. ¶¶ 13, 15,
17-year-old, Ms. Sandberg planned to skip the clubbing, which
she understood was off limits to her, but evidently she
thought Mr. Vincent, a rising college sophomore, would be
among the partygoers departing for that venue. Id.
¶¶ 12, 18, 19. Although Ms. Sandberg had divulged
her phone number to Mr. Vincent, at his request, earlier in
the evening, id. ¶ 16, there is no indication
that she made a reciprocal request for his number or invited
him to linger. To her surprise, however, she discovered that
Mr. Vincent was in the restroom until after the others had
left. Id. ¶¶ 19, 20.
Ms. Sandberg's repeated exhortations that Mr. Vincent
then hasten to join the group, he stayed and repeatedly
insisted that she drink more alcohol, namely the remainder of
a tequila bottle. Id. ¶¶ 21-24.
“Hoping that it would make him leave her alone, ”
she reluctantly complied. Id. ¶¶ 24-27.
“As [Ms. Sandberg thereafter] slipped in and out of
consciousness, [Mr. Vincent] carried her to the bedroom,
where he proceeded to force sexual intercourse upon her
without her consent.” Id. ¶¶ 28, 29.
Only upon her slow realization and yell “in pain and
fear, at the top of her lungs” did Mr. Vincent
discontinue, after some time. Id. ¶¶ 30,
Sandberg's behalf, her father brought this action against
Mr. Vincent, seeking $3, 000, 000 in compensatory and
punitive damages, in addition to interest and costs, for
allegations of sexual assault and battery (Count I), and
negligence and gross negligence (Count II). Id.
¶¶ 33-41. Mr. Vincent has moved to dismiss only
this motion was pending, Ms. Sandberg attained the age of
majority and was substituted for her father as the real party
in interest in this case. See Min. Order of Aug. 9,
2018.The Court also denied Mr. Vincent's
motion to proceed in this case under pseudonym.
Sandberg, 319 F.Supp.3d 422. Briefing having
concluded, Mr. Vincent's motion is now ripe for
Federal Rules of Civil Procedure require that a complaint
contain “‘a short and plain statement of the
claim showing that the pleader is entitled to relief,' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson, 551 U.S. at 93. Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion to dismiss, to provide
the “grounds” of “entitle[ment] to relief,
” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555 (citing, e.g., Papasan v. Allain, 478
U.S. 265, 286 (1986)). Instead, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 556, 570; Erickson,
551 U.S. at 93. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). The complaint must
establish “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'- ‘that the
pleader is entitled to relief.'” Id. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
is no dispute that Ms. Sandberg properly invokes the
Court's diversity jurisdiction over her common law
claims. See 28 U.S.C. § 1332(a)(1); Compl.
¶¶ 1, 3-5, 33-41 (alleging diverse citizenship and
a sufficient amount in controversy). Both parties cite D.C.
standards for Ms. Sandberg's common law claims. See,
e.g., Def.'s Mem. at 3 n.1; Pl.'s Opp'n at
3. Accordingly, the Court finds that Ms. Sandberg has waived
any available choice-of-law objection to applying the tort
law standards of the District of Columbia. See,
e.g., CSX Transp., Inc. v. Commercial Union Ins.
Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996) (suggesting
that choice-of-law argument can be waived); Plesha v.
Ferguson, 725 F.Supp.2d 106, 111 n.2 (D.D.C. 2010)
(Kollar-Kotelly, J.) (citing Davis v. Grant Park Nursing
Home LP, 639 F.Supp.2d 60, 65 (D.D.C. 2009)) (finding
waiver). In any case, the District of Columbia is not only
the forum jurisdiction but also where all of the alleged
activity occurred. See Felder v. WMATA, 174
F.Supp.3d 524, 528 (D.D.C. 2016) (citing, e.g., In re APA
Assessment Fee Litig., 766 F.3d 39, 51, 53 (D.C. Cir.
2014); Restatement (Second) of Conflict of Laws § 145
(Am. Law Inst. 1971)).
Vincent challenges Count II on two primary grounds. First, he
argues that there is no gross negligence claim under D.C. law
in this context, where no statute specifically provides for
such a claim. Def.'s Mem. at 4-6. Second, Ms. Sandberg
purportedly fails to sufficiently plead the elements of a
negligence claim, which would be fatal to both the negligence
and gross negligence claims. See Id. at 4, 6-15.
Court shall address these arguments in reverse order, for the
second argument may be sufficient to dispose of Ms.
Sandberg's Count II in entirety. Even if the pleading
deficiencies in Ms. Sandberg's negligence claim are not
likewise dispositive of her gross negligence claim, however,
the Court agrees that Ms. Sandberg has failed to show that a
gross negligence claim is available to her.
convenience, the Court shall refer to Ms. Sandberg's
negligence and gross negligence allegations as attempting to
plead separate claims. Because the Court shall find that both
the negligence and gross negligence allegations in Ms.
Sandberg's Complaint independently warrant dismissal, the
Court need not reach the issue of whether consolidating them
in a single count was procedurally proper. See
Pl.'s Opp'n at 6-7; Def.'s Reply at 7-8. Any of
Ms. Sandberg's other arguments that the Court does not
expressly address below are unavailing.
jurisdiction, “a claim alleging the tort of negligence
must show: (1) that the defendant owed a duty to the
plaintiff, (2) breach of that duty, and (3) injury to the
plaintiff that was proximately caused by the breach.”
Poola v. Howard Univ., 147 A.3d 267, 289 (D.C. 2016)
(quoting Hedgepeth v. Whitman Walker Clinic, 22 A.3d
789, 793 (D.C. 2011)) (alteration and internal quotation
marks omitted). In Count II, Ms. Sandberg pleads that Mr.
Vincent “owed [her] a duty of ordinary care”;
that “[t]hrough his actions on the night of July 22,
2017, [he] breached this duty”; and “[a]s a
direct and proximate result of [his] negligent and/or grossly
negligent unconsented physical ...