REGGIE B. WALTON, District Judge.
This case, in which the pro se plaintiff, Edith Budik, filed a complaint against the defendants, Dartmouth-Hitchcock Medical Center ("Dartmouth-Hitchcock") and retired Colonel ("Col.") Steven M. Princiotta, M.D., alleging violations of certain Army regulations, the Fifth and Fourteenth Amendments to the Constitution of the United States, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (2006), misrepresentation, fraud, and intentional infliction of emotional distress, is currently before the Court on Defendant Dartmouth-Hitchcock Medical Center's Motion To Dismiss for Lack of Personal Jurisdiction ("Dartmouth-Hitchcock Mot."), and Col. Princiotta's and the United States' Defendants' Motion to Substitute the United
The plaintiff asserts the following allegations in support of her claims against the defendants. This dispute arises out the plaintiff's application for employment as a neuroradiologist at Dartmouth-Hitchcock in New Hampshire. Compl. ¶¶ 1, 10. "On... [April 10, 2008], Lauren Krebs of American Medical Recruiters
On May 11, 2008, the plaintiff submitted her completed "[Dartmouth-Hitchcock] Pre-Employment Application." Id. ¶ 14. In completing the Pre-Employment Application, the "[p]laintiff was honest and truthful in answering all questions to the best of her knowledge and belief." Id. Thereafter, the "[p]laintiff received the New Hampshire Uniform Credentialing Application." Id. ¶ 15. The "instructions for [the] application for credentialing" read, in part, as follows:
Id. ¶ 25.
During the course of a "3-day site visit with [Dartmouth-Hitchcock], which the plaintiff attended "at the request of Dr. Cromwell," the plaintiff, "as specified in the credentialing application instructions[,]... took advantage of" the opportunity "to discuss two old incidents that [the p]laintiff was unsure of how to address on the Uniform Credentialing application with their credentialing specialist, [Michelle Scearbo]." Id. ¶¶ 16-17. According to the plaintiff, "[t]hese incidents involved two erroneous reports, namely incidents from 23... and 32 ... years in the past that appeared on the Federation Credentialing Verification Service report."
"At the completion of her interviews, Dr. Cromwell once again broached the topic of [the p]laintiff taking on a permanent position with [Dartmouth-Hitchcock], and it was at this time that [the p]laintiff decided to apply for a permanent license that could run in tandem [with] the locum tenens" license for which she had already applied. Id. ¶ 19. After the plaintiff agreed to apply for the permanent position, she subsequently "sent a letter to [the New Hampshire Board of Medicine] to apprise them of the erroneous information on the [Federation Credentialing Verification Service] report, as [the Board] would not be receiving the ... report until such time as [the p]laintiff [had] submit[ted] an application for a permanent position."
According to the plaintiff, she was required to provide more documents than other applicants during the credentialing process. Id. ¶ 21. Additionally, Ms. Scearbo "carefully scrutinized [the p]laintiff's Master Degree, a degree that was not relevant to the position being applied for, stating: `That seems like a long time for a master['s] program.'" Id.
During the course of the credentialing process, "[Col.] Princiotta, the then Deputy Commander for Clinical Services ..., and Chair of the Credentialing Committee at Landstuhl Regional Army Medical Center... [,] published a negative statement"
"Dartmouth-Hitchcock subsequently confirmed that [it] stopped the credentialing process on the same day [it] received the negative rating from [Col.] Princiotta," Id. ¶ 23, but also that "Dartmouth-Hitchcock did not use the negative rating from [Col.] Princiotta as a basis for the[ ] decision," id. ¶ 25. The "[p]laintiff called Lauren Krebs of the [American Medical Recruiters,] who informed her that [Dartmouth-Hitchcock] had stopped the credentialing process, that [Dartmouth-Hitchcock] told her that [the p]laintiff was not granted a locum tenens license ..., and that they were going to remain silent vis-à-vis [the p]laintiff." Id. ¶ 24. "By letter dated [July 23, 2008,] ... following [the p]laintiff's `repeated requests' for answers, [Dartmouth-Hitchcock] finally replied to [the p]laintiff ... [and] stated that [it] had based the[ ] decision on th[e] remote incidents that had taken place 23 and 32 years beforehand." Id. ¶ 25. According to the plaintiff, "[n]o other institution, before, during[,] or after [Dartmouth-Hitchcock], had ever considered these remote incidents important or relevant,... and [t]he basis of the[ ] decision failed to comply with the[ ] last 5-year-verification rule of relevancy for an in locum[] tenens position." Id. ¶ 25.
The plaintiff subsequently filed complaints with the New Hampshire Human Rights Commission, alleging "discrimination based on race (African-American), color (black), age, and gender (female)." Id. ¶ 30. The Commission found that there was "no probable cause in [the] face of unverified and inaccurate information." Id. ¶ 34. The plaintiff then appealed the decision to the Equal Employment Opportunity Commission, which "without investigating the facts, ... closed the file and adopted the findings of the agency." Id. ¶ 36.
The plaintiff then filed the present lawsuit asserting against Dartmouth-Hitchcock a claim of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and against Col. Princiotta violations of certain Army regulations, the Fifth and Fourteenth Amendments to the Constitution of the United States, misrepresentation, fraud, and intentional infliction of emotional distress. Defendant Dartmouth-Hitchcock has moved to dismiss the plaintiff's complaint for lack of personal jurisdiction, and Col. Princiotta and the United States have moved for substitution of the United States in Col. Princiotta's place as the appropriate defendant for two of the plaintiff's
The pleadings of pro se parties are to be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal citations and quotation marks omitted). However, even though a pro se complaint must be construed liberally, the complaint must still "present a claim on which the Court can grant relief." Chandler v. Roche, 215 F.Supp.2d 166, 168 (D.D.C.2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981)).
When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must "assume the truth of all material factual allegations in the complaint and `construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005)). However, "the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)).
When a defendant moves to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), "the plaintiff must make a prima facie showing of the pertinent jurisdictional facts." First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C.Cir. 1988) (citations omitted). "[S]pecific acts connecting [the] defendant with the forum" must be alleged by the plaintiff, Id. (citation and internal quotation marks omitted) (alteration in original), and mere "[c]onclusory statements `[do] not constitute the prima facie showing necessary to carry the burden of establishing personal jurisdiction,'" GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C.Cir.2000) (quoting First Chicago, 836 F.2d at 1378-79). In considering a Rule 12(b)(2) motion, "the Court is not required to assume the truth of the plaintiffs' allegations and instead `may receive and weigh affidavits and other relevant matter to assist in determining jurisdictional facts.'" Orellana v. CropLife Int'l, 740 F.Supp.2d 33, 37 (D.D.C.2010) (quoting United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C.2000)). However, "factual discrepancies appearing in the record must be resolved in favor of the plaintiff." Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990) (citation omitted).
A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint "state[s] a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While the Court must "assume [the] veracity" of any "well-pleaded factual allegations" in the complaint, conclusory allegations "are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937.
Defendant Dartmouth-Hitchcock argues that it "does not conduct any business in the District of Columbia, nor does the [p]laintiff's claim arise out of any contract between [Dartmouth-Hitchcock] and the District [of Columbia]," and that this Court thus cannot exercise personal jurisdiction over Dartmouth-Hitchcock. Dartmouth-Hitchcock Mem. at 2. The plaintiff responds that her own presence in the District of Columbia at the time that she applied for employment with Dartmouth-Hitchcock is enough to connect Dartmouth-Hitchcock to the District of Columbia and to allow this Court to exercise personal jurisdiction over the medical center. Pl.'s Dartmouth-Hitchcock Opp'n at 1.
For this Court to exercise personal jurisdiction over Dartmouth-Hitchcock, "the plaintiff must plead facts sufficient to satisfy (1) the District of Columbia's long-arm statute, and (2) the constitutional requirements of due process." Cannon v. Wells Fargo Bank, N.A., 926 F.Supp.2d 152, 166, 2013 WL 764964, at *9 (D.D.C. 2013) (citing GTE New Media Servs., Inc., 199 F.3d at 1347; Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.Cir.1991) ("Even though subject-matter jurisdiction is here predicated upon a federal question, [plaintiffs] must rely on D.C. law to sue nonresident defendants, since no federal longarm statute applies.") (alteration in original)). Under the District of Columbia's long-arm statute,
D.C.Code § 13-423(a) (2001).
The plaintiff does not allege that defendant Dartmouth-Hitchcock (1) was "contracting to supply services in the District of Columbia," § 13-423(a)(2); (2) has "an interest in ... real property in the District of Columbia," § 13-423(a)(5); (3) was acting as a surety, § 13-423(a)(6); or (7) has a familial relationship with the plaintiff, § 13-423(a)(7). Accordingly, the Court treats any jurisdictional arguments premised on these sections of the District of Columbia's long-arm statute as conceded. See Lewis v. Dist. of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.Cir. Feb. 2, 2011) (per curiam) ("`It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.'") (quoting Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003), aff'd 98 Fed.Appx. 8 (D.C.Cir.2004)).
As to § 13-423(a)(1), the plaintiff appears to contend that defendant Dartmouth-Hitchcock transacted business in the District of Columbia by virtue of its communication with her while it was considering her application for employment. Pl.'s Dartmouth-Hitchcock Opp'n at 1-2. However, because even a "defendant's `regular' phone calls into the District of Columbia from elsewhere do not constitute `transacting business' in the District of Columbia," FC Inv. Grp. LC v. IFX Mkts., Ltd., 479 F.Supp.2d 30, 39-40 (D.D.C.2007) (collecting cases), aff'd, 529 F.3d 1087 (D.C.Cir.2008), the Court finds the telephone calls and paperwork referenced in the plaintiff's pleadings insufficient to satisfy § 13-423(a)(1).
As to § 13-423(a)(3), jurisdiction must be based on "tortious injury" that is the result of the defendant's "act or omission in the District of Columbia." See § 13-423(a)(3). Here, even if the plaintiff's Title VII claims against defendant Dartmouth-Hitchcock constitute the requisite "tortious injury," she has failed to assert that defendant Dartmouth-Hitchcock committed an "act or omission in the District of Columbia," and thus this Court would not have personal jurisdiction under § 13-423(a)(3). See Margoles v. Johns, 483 F.2d 1212, 1218 (D.C.Cir.1973) ("The `act,' of course, is the act of the alleged tortfeasor—here that act, uttering ... statements, occurred in [in another state]. Nothing can change that fact. The additional fact[ ] ... that the injury itself took place within the District[ ] cannot under our reading of the [District's long-arm statute] grant jurisdiction that is otherwise lacking. Unless we wish to delve into a magical mystery tour of `projecting presences,' we must find that no jurisdiction can be afforded by virtue of section (a)(3).").
And finally, as to § 13-423(a)(4), the plaintiff has failed to show that defendant Dartmouth-Hitchcock "regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia" as required by this section. See § 13-423(a)(4). Defendant Dartmouth-Hitchcock submitted with its motion an affidavit of Neil F. Castaldo, the Chief Legal Officer of Dartmouth-Hitchcock, in which he states that while Dartmouth-Hitchcock potentially has contact
Because the plaintiff's allegations fail to satisfy any of the seven requirements of the District of Columbia's long-arm statute, this Court does not have personal jurisdiction over Dartmouth-Hitchcock. The Court must therefore grant defendant Dartmouth-Hitchcock's motion to dismiss the plaintiff's complaint against it.
Col. Princiotta and the United States argue that the United States should replace Col. Princiotta as a defendant in this matter with respect to the plaintiff's second and third claims, both of which sound in tort. Princiotta Mem. at 6. Under the Westfall Act, 28 U.S.C. § 2679(d)(2) (2006), which is a part of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 (2006), and governs certain tort claims procedures where such claims are made against the United States or agencies or officers thereof,
28 U.S.C. § 2679(d)(2). By regulation, the authority to make such certifications has been delegated to "[t]he United States Attorney for the district where the civil action or proceeding is brought." 28 C.F.R. § 15.4 (2012). While the Attorney General's or United States Attorney's
Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C.Cir.2006) (citations and internal quotation marks omitted) (some alterations in original).
Col. Princiotta and the United States argue that the plaintiff's second and third claims, in which she alleges that Col. Princiotta exceeded the scope of his authority, violated various Army regulations, and inflicted emotional distress upon the plaintiff by "ma[king] a false claim" about her, Compl. ¶¶ 39-42, constitute FTCA claims, Princiotta Mem. at 9. They additionally argue that the plaintiff has failed to exhaust her administrative remedies under the FTCA, and that her failure to do so deprives the Court of subject matter jurisdiction to entertain these claims. Id. at 8-9.
"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The FTCA is an example of Congress' waiver of sovereign immunity. Under the FTCA, the United States consents to suit in federal district court for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The FTCA does not waive sovereign immunity for "[a]ny claim arising out of ... libel [or] slander." 28 U.S.C. § 2680(h). Because the plaintiff's second and third claims stem from the allegedly false statements made by Col. Princiotta, Compl. ¶¶ 22, 40, 42 (alleging that Col. Princiotta "published a negative statement to [Dartmouth-Hitchcock] with [the p]laintiff's knowledge," thus violating Army regulations, acting outside the scope of his authority, and inflicting emotional distress on the plaintiff), they are in essence claims asserting causes of action for libel or slander, torts over which this Court does not have subject matter jurisdiction. Accordingly, the Court must dismiss the plaintiff's second and third claims.
The plaintiff alternatively contends that "the merits of [her] case do not restrict [her] access [to the Court] to a[n] FTCA claim, as this case does not meet the three-part means test in order that an FTCA claim by plaintiff would be barred." Id. at 7 (citing United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954)). The plaintiff's reliance on Brown is misplaced. In that case, the Supreme Court considered whether a plaintiff, who had been honorably discharged from the United States Army, could pursue an FTCA negligence claim against the United States despite already having received compensation for his injury under the Veterans Act. Brown, 348 U.S. at 110-11, 75 S.Ct. 141. The plaintiff in Brown had suffered a knee injury resulting from negligence on the part of a Veterans Administration Hospital, id. at 110, 75 S.Ct. 141, an injury contemplated by the plain language of the FTCA, see 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims."); 28 U.S.C. § 1346(b)(1) (granting United States district courts "exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for... personal injury"). By contrast, and as explained above, the plaintiff here asserts claims against the United States that are explicitly barred by the FTCA. Accordingly, the issues addressed by the Court in Brown are irrelevant here.
Further, even if the FTCA did not bar the plaintiff's second and third claims, the Court would nonetheless lack subject matter jurisdiction over these claims. "The FTCA `require[s] the plaintiff[ ] to file an administrative claim with either the Department of Defense ... or the appropriate military department before bringing suit[ ]' ... [and] `[t]he failure to exhaust administrative remedies [is] jurisdictional.'" Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C.Cir.2011) (citations omitted). Here, Col. Princiotta and the United States submitted a declaration stating that "no administrative claim was filed by [the plaintiff] under [the FTCA]." Princiotta Mem., Ex. 2 (Declaration of Lorenzo Ferguson, Chief, Operations and Records Branch, United States Army Claims Service) ¶ 2. While the plaintiff lists several dates on which she filed various complaints, she provides no documentation, and it further appears that the complaints related to claims of discrimination and not to tort claims under the FTCA. See Pl.'s Princiotta Opp'n at 7 (listing claims and complaints filed with the Equal Employment Opportunity Commission).
In sum, because the FTCA explicitly bars the plaintiff's second and third claims, and additionally because the plaintiff failed to exhaust her administrative remedies with respect to her FTCA claims, the Court lacks subject matter jurisdiction to entertain these claims. The Court must therefore dismiss the second and third claims of the plaintiff's complaint.
Col. Princiotta and the United States argue that the plaintiff's constitutional claims must be dismissed because she "concedes that there is no causal connection between the federal [d]efendants' action and her claimed damage" and, in any event, she has failed to show that she had a property interest in either her reputation or alleged guarantee of employment at Dartmouth-Hitchcock. Princiotta Mem. at 16.
In order to state a cause of action for violation of procedural due process under the Fifth Amendment, the plaintiff must show "(1) a deprivation [by the government]; (2) of life, liberty, or property; (3) without due process of law." Lightfoot v. Dist. of Columbia, 273 F.R.D. 314, 319 (D.D.C.2011) (citing Propert v. Dist. of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991)).
For the foregoing reasons, the Court grants the defendants' motions to dismiss.
