COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Jack's Canoes & Kayaks, LLC ("Plaintiff") filed suit against the National Park Service ("NPS"), the National Park Foundation ("NPF"), and the District of Columbia ("District") relating to purportedly illegal attempts by the NPS and NPF (together the "Park Defendants") to terminate a lease under which Plaintiff claims to have been a tenant since April 2007. See Compl., ECF No. [1]. Presently before the Court is the Park Defendants' [22] Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART the Park Defendants' motion to dismiss.
Specifically, the Court agrees that Plaintiff lacks constitutional standing to request a declaratory judgment that jurisdiction for administration and maintenance of the Georgetown Waterfront Park, including the lot in which Plaintiff asserts a leasehold interest, was never effectively transferred
Because the Court finds based on the present record that Plaintiff possesses standing to pursue the remainder of its claims against the Park Defendants, the Court shall DENY the Park Defendants' motion to dismiss those claims on standing grounds.
The Park Defendants' motion is also DENIED insofar as it seeks dismissal of Plaintiff's tort claims against NPF, as the Court finds that NPF, a 501(c)(3) non-governmental organization, is not entitled to sovereign immunity for those claims. Although the close relationship between NPS and NPF warrants like analysis of Plaintiff's claims against them for many purposes, the Park Defendants have improperly amalgamated the two entities for purposes of their sovereign immunity analysis.
Finally, in the course of considering the remainder of the arguments asserted in the Park Defendants' motion, the Court has found that the parties' pleadings are not in direct conversation in certain key respects. The Court has taken pains to determine the applicability of the Park Defendants' arguments to Plaintiff's Complaint but ultimately cannot do so due to Plaintiff's failure, both in its Complaint and briefing, to adequately articulate the legal and factual grounds for its claims. For this reason, the Court shall require Plaintiff to file a notice with the Court which shall clarify the precise contours of the claims Plaintiff intends to pursue in this action, in accordance with the specific instructions set forth in this Memorandum Opinion and accompanying Order. Accordingly, the Court shall DENY-WITHOUT-PREJUDICE the remainder of the Park Defendants' motion to dismiss, with leave to re-file after tailoring the motion to speak to the claims and arguments that Plaintiff actually intends to pursue in this action.
The Court shall restate the factual and procedural background of this case as set forth in its [29] March 28, 2013 Memorandum Opinion, 933 F.Supp.2d 58, 2013 WL 1245859 (D.D.C.2013), to the extent here relevant. Unless otherwise indicated, all facts set forth below are taken from Plaintiff's Complaint and are presumed true for purposes of the Court's consideration of the instant motion.
Since April 2007, when Plaintiff was incorporated as a limited liability corporation, Plaintiff has operated a boathouse business offering canoe and kayak rentals, tours, storage, and other related services at 3500 K St. N.W., Washington, D.C. Compl. ¶¶ 9, 17, 30. Plaintiff's operations occur on two adjacent parcels of land on the Georgetown Waterfront: Lot 806 (which Plaintiff owns) and Lot 805 (which is owned by the District but managed by NPS pursuant to a transfer of administrative jurisdiction over several acres of land that constitute the Georgetown Waterfront Park). See Compl. ¶¶ 9, 12, 23-28.
By way of background, Plaintiff succeeded an individual by the name of Frank Baxter in the ownership and operation of the business that was started by Frank Baxter's mother and father, John and Norma Baxter, in 1945. Id. ¶ 19. In 1973, as part of a compromise with the District, which wanted to take Lot 805 for the construction of Whitehurst Freeway, the District agreed to buy Lot 805 from John and Norma Baxter and to lease it back to
The Lease, the "express purpose" of which is described as "permitting a temporary lease of the hereinafter described premises" by the Baxters for boat rentals and related activities, states in pertinent part: "[T]he District does hereby grant unto the Lessee, use and occupancy of [Lot 805], commencing October 1, 1973 and continuing thereafter from month to month for sum of $275.00 ($275.00) per month[.]" Pl.'s Mem., Ex. 4 (Lease), at 1. Beginning April 1, 1982, the monthly payment amount increased to $356.00 pursuant to a letter amendment to the Lease sent by the District and countersigned by John and Norma Baxter. Id. at 5.
On September 10, 1985, the District of Columbia Council passed Resolution 6-284 (the "1985 Resolution"), which was intended to initiate a transfer of administrative jurisdiction over a number of land parcels on the Georgetown Waterfront, including Lot 805, to the NPS for the purpose of establishing and maintaining the Georgetown Waterfront Park. Compl. ¶ 24 & Pl.'s Mem., Ex. 7 (D.C. Council Resolution 6-284 (Sept. 10, 1985)). The 1985 Resolution states, in relevant part, that "Jurisdiction over ... Lot ... 805 ... shall be transferred to the National Park Service 5 years after the effective date of this resolution unless ... suitable sites and facilities have not been obtained for the relocation of those public works facilities now located on the parcels of land that are part of the Georgetown Waterfront Park." Pl.'s Mem., Ex. 7 (D.C. Council Resolution 6-284 (Sept. 10, 1985)), at 2. The 1985 Resolution further states that it is "contingent upon an exchange of letters" between the District of Columbia Mayor and the Regional Director of NPS, which were to memorialize the agreement on several matters—including, inter alia, that the transferred land be used only for public park and related purposes; that the District assign its existing leases on the land to the NPS and the NPS dedicate all revenues from those leases to park development; and that NPS assume responsibility to repair and maintain all wharves, piers, bulkheads, and similar structures located on the transferred land. Id. at 3-4. The letters were also to include "conditions, including a reversion of jurisdiction to the District ... which fully protect the District ... in the event ... of ... an [a]mendment or cancellation of [a] January 7, 1985 deed [of easements] between Washington Harbour Associates [a District of Columbia partnership], Georgetown Potomac Company, Mount Clare Properties (D.C.) Inc., and the United States of America[.]" Id. at 3.
A letter agreement from the NPS dated May 18, 1987 and countersigned by the District of Columbia Mayor on July 2, 1987 (the "1987 Letter") set forth the parties' agreements to the conditions of transfer stated in the 1985 Resolution. See Pl.'s Mem. Ex. 8 (Letter from Manus J. Fish, NPS Regional Director to Hon. Marion S. Barry, Mayor of the District of Columbia (May 18, 1987)). According to both the District and the Park Defendants, the actual transfer of administrative jurisdiction was properly executed in 1999. See Park Defs' Opp'n at 3-4. For reasons described more fully infra Part III.A.2, Plaintiff contends that the transfer process was "procedurally flawed." See Pl.'s Mem. at 6.
Although both the 1985 Resolution and the 1987 Letter indicate an agreement by
Id.
The Assignment Agreement cites as authority the District of Columbia Council Act No. 13-252, titled the "Transfer of Jurisdiction over Georgetown Waterfront Park for Public Park and Recreational Purposes, S.O. 84-230, Emergency Act of 1999," effective January 27, 2000, which the Agreement describes as having amended the Resolution to authorize the District to assign the leases to NPF. Id. Earlier correspondence between NPS and NPF indicates that NPS directed NPF to accept the District's assignment of the Lease and that NPS also "accept[ed] appointment as [NPF's] agent for purposes of fulfilling all obligations, and pursuing all rights and remedies to the terms and provisions of the Lease[ ], in accordance with [its] terms[.]" See Park Defs' Reply, Ex. 1 (Letter from Terry R. Carlstrom, Regional Director, NPS to James D. Maddy, NPF President (Sept. 24, 1999)), ECF No. [26-1].
In 2007, upon Plaintiff's incorporation, Frank Baxter—successor in interest to John and Norma Baxter and an owner of the business until his death in 2009— transferred all of his right, title and interest in the corporation, including the lease over Lot 805, to Plaintiff. See Pl.'s Mem. at 4 & Ex. 1 (Operating Agreement of Jack's Canoes & Kayaks, LLC). Mr. Baxter also deeded Lot 806 to Plaintiff on April 15, 2009, prior to his death later that year. Compl. ¶ 22. According to Plaintiff, since its incorporation in 2007, Plaintiff has been paying rent to NPF on time and on a monthly basis (in the amount of $356.00 per month pursuant to the Lease as amended by the 1982 letter agreement between the District and the Baxters). Compl. ¶ 30. See also Park Defs' Mem. at 3. While NPF regularly cashed Plaintiff's rent checks between 2007 and August 2012, NPF stopped cashing Plaintiff's rent checks from August 2012 through January 2013, the month Plaintiff filed its Complaint. Id. ¶ 31.
According to the Park Defendants, sometime prior to August 2012, NPS had determined that, in keeping with its Congressional mandate, the non-motorized
By letter dated December 18, 2012, the Regional Director of NPS provided Plaintiff "notice ... to terminate its occupancy of the leased premises .... [and to] vacate the property on or before 11:59 p.m. on January 31, 2013, and remove all personal property from the premises." Compl. ¶ 34 & Pl.'s Mem., Ex. 11 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Dec. 18, 2012)). An NPF representative signed the letter in concurrence, in its capacity as the successor lessor under the Lease. See Pl.'s Mem., Ex. 11 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Dec. 18, 2012)). One week later, in a December 24, 2012 email, the NPS Director notified Plaintiff that, due to public concern about the future of the boathouse, NPS had decided to withhold further action on the termination of the Lease until NPS could conduct a more thorough review and determine the best course of action. Compl. ¶ 35.
On January 18, 2013, NPS issued a letter to Plaintiff, withdrawing its December 18, 2012 letter and informing Plaintiff that the NPS intended to terminate the Lease upon execution of a concessions contract by the end of February 2013. Id. ¶ 36 & Pl.'s Mem., Ex. 13 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Jan. 18, 2013)). The letter again indicated NPF's concurrence with this decision. Pl.'s Mem., Ex. 13 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Jan. 18, 2013)). The letter further notified Plaintiff that on that same date, January 18, 2013, NPS was releasing a Request for Qualifications (RFQ) for non-motorized boat rental and storage services at or near the location of Plaintiff's present operation. Id. The letter indicated that NPS would evaluate all responsive proposals, including Plaintiff's should it wish to submit one, in a fair and consistent fashion. Id. The deadline to respond to the RFQ was February 6, 2013. Id. As the parties later represented to the Court during a February 19, 2013 on-the-record telephone conference, Plaintiff chose not to submit a response to the RFQ.
On January 31, 2013—thirteen days after the Park Defendants issued the lease termination letter—Plaintiff filed its Complaint in this matter. See Compl. The Complaint asserts the following five counts:
See Compl. at 11-23.
On February 18, 2013—seventeen days after Plaintiff filed its Complaint and exactly one month after the Park Defendants issued the lease termination letter—Plaintiff filed a[12] Motion for Temporary Restraining Order and Preliminary Injunction, which sought an order barring the Park Defendants from taking any actions that interfere with the continuing operation of Plaintiff's boathouse business, including seeking or threatening to terminate the Lease or evicting Plaintiff without a Court Order following a final judgment on whether the NPF and/or the NPS have the power and jurisdiction to do so. The Court held a telephonic status conference with the parties on February 19, 2013, during which the Park Defendants indicated their agreement not to take any action against Plaintiff in connection with its asserted leasehold interest until after March 31, 2013. See Min. Order (Feb. 19, 2013). During the telephone conference, both the Park Defendants and the District also indicated their intent to move to dismiss Plaintiff's Complaint against them. The Court ordered the parties to jointly propose a briefing schedule for Plaintiff's motion for a temporary restraining order and preliminary injunction and the Defendants' respective motions to dismiss and subsequently granted the schedule requested.
On March 29, 2013, Plaintiff filed a[30] Notice of Appeal, appealing the Court's March 28, 2013 Order denying its motion for a temporary restraining order and preliminary injunction. Because an appeal under 28 U.S.C. § 1292(a)(1) from an interlocutory order involving a preliminary injunction does not divest the district court with jurisdiction to proceed with a decision on the merits, absent a stay order issued by the Court of Appeals, the Court may proceed with the merits of the Park Defendants' motion to dismiss. See Ex parte National Enameling & Stamping Co., 201 U.S. 156, 162, 26 S.Ct. 404, 50 L.Ed. 707 (1906); cf. United States v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997) ("The filing of a notice of appeal, including an interlocutory appeal, `confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.'") (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam)).
A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C.Cir.2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction."). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C.Cir.2005). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the complaint "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted). Further, in spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss on the grounds that the complaint "fail[s] to state a claim upon which relief can be granted." A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. (8)(a), "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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (citation omitted). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "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." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.
In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or "documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by [the parties]." Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). The court must view the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) ("The complaint must be `liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While the court must construe the complaint in the plaintiff's favor, it "need not accept inferences drawn by the plaintiff if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); accord Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir. 1997).
The Park Defendants make several arguments in support of their motion to dismiss. The Court shall first address their argument that Plaintiff lacks standing to bring this action against them. See Park Defs' Mem. at 13-16. The Court shall then turn to their argument that because Plaintiff has failed to exhaust its administrative remedies under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), it has failed to plead an adequate waiver of sovereign
Article III of the Constitution limits the authority of federal courts to the resolution of "Cases" and "Controversies." U.S. Const. art. III, § 2. "This limitation is no mere formality: it `defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C.Cir. 2012) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). "The Court begins with the presumption that it does not have subject matter jurisdiction over a case." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
To establish the jurisdictional prerequisite of constitutional standing, Plaintiff must first show that it has suffered an "injury in fact," that is, the violation of a legally protected interest that is "(a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotations omitted). Second, "there must be a causal connection between the injury and the conduct complained of." Id. Stated differently, the injury must be "fairly traceable to the defendant's allegedly unlawful conduct." Allen, 468 U.S. at 751, 104 S.Ct. 3315. Third, it must be "likely" that the injury would be "redressed by a favorable decision." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
Here, the Park Defendants argue that Plaintiff lacks standing to bring any action based upon the terms of the Lease because Plaintiff was not a party to any express lease between the District and its former business partner's parents. Park Defs' Mem. at 14-15. The Park Defendants also argue that Plaintiff lacks standing to bring any claims challenging the transfer of administrative jurisdiction from the District to NPS. Id. at 13-14. See also id. at 13, n. 3 (expressing intent to also join in the District's arguments related to Plaintiff's inability to satisfy constitutional standing). The Court shall address both arguments in turn.
The Park Defendants argue that because Plaintiff was not a party to any express lease between the District and Plaintiff's former business partner's parents, it cannot bring any action based upon the terms of the Lease. Park Defs' Mem. at 14-15. This argument need not detain
The Park Defendants also argue that Plaintiff lacks standing to assert a challenge to the transfer of administrative jurisdiction of various Georgetown waterfront parcels of land, including Lot 805, between the District and NPS. For the same reasons stated in the Court's [29] March 28, 2013 Memorandum Opinion dismissing Plaintiff's declaratory judgment claims against the District, the Court agrees that Plaintiff does not have constitutional standing to seek a declaration that jurisdiction for administration and maintenance of Lot 805 was never effectively transferred by the District to NPS, or, alternatively, if it was, that such jurisdiction has since reverted to the District. For ease of reference, and because the rationale articulated in the Court's prior Memorandum Opinion applies with equal force to both the District and the Park Defendants, the Court shall restate below the relevant excerpts from that Memorandum Opinion. As background, the Court first explained:
Mem. Op. (Mar. 28, 2013), ECF No. [29], 933 F.Supp.2d at 67.
Specifically, Plaintiff takes issue with the following actions:
Mem. Op. (Mar. 28, 2013), ECF No. [29], 933 F.Supp.2d at 70-73.
For all of these same reasons, the Court finds that Plaintiff lacks constitutional standing to seek a declaratory judgment against the Park Defendants that the District never effectively transferred administrative jurisdiction over Lot 805 to NPS, or if it did, that such jurisdiction has since reverted to the District. See Compl. at 21, ¶ 1(c).
While the foregoing holding requires dismissal of one of Plaintiff's five separate requests for declaratory relief pursuant to Count One, the Court must separately consider Plaintiff's standing with respect to the remaining four requests for declaratory judgments, as well as Counts Two through Five. See Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145
The Court shall first address Plaintiff's four remaining requests for declaratory judgments, which are asserted against both Park Defendants and which, contrary to Plaintiff's request for a declaration invalidating the broader transfer of jurisdiction, more directly relate to the Lease at issue. These requested declarations include declarations that: (1) Plaintiff is a lessee under the Lease; (2) the Lease was never effectively assigned to NPF and NPS is not a party to the Lease; (3) the Park Defendants' decision to terminate the Lease is not permitted by any District of Columbia assignment, resolution, act, letter, or authority; and (4) neither of the Park Defendants have the power or authority to terminate the Lease.
Because ultimately neither NPF nor NPS (acting on behalf of NPF) would possess the legal authority to take action against Plaintiff if each of these four requested declarations are true, the Court finds that Plaintiff has met its burden in showing injury, causation, and redressability. In contrast to Plaintiff's request for a declaration invalidating the broader transfer of jurisdiction, the practical and indeed automatic effect of a declaration that the Lease was never effectively assigned, that termination of the lease is not permitted, or that for some other reason, the NPF has no power to terminate the Lease would be to divest the NPF from its purported authority to take the actions against Plaintiff that are alleged in the Complaint.
Likewise, Plaintiff's tort claims against NPF and Plaintiff's request for a permanent injunction against the Park Defendants from interfering with the business operations of or evicting Plaintiff relate directly to the Park Defendants recent efforts to terminate the Lease. To the extent that Plaintiff is correct that the Park Defendants' conduct is not legally authorized, the Court may redress those injuries by ordering compensation to Plaintiff and by enjoining the Park Defendants from taking further action against it.
In summary, and for all of the foregoing reasons, the Court finds that Plaintiff lacks constitutional standing to seek a declaratory judgment against the Park Defendants that the District never effectively transferred administrative jurisdiction over Lot 805 to NPS, or if it did, that such jurisdiction has since reverted to the District. See Compl. at 21, ¶ 1(c). However, because all other claims asserted against NPS and/or NPF bear a sufficiently close causal nexus (and would theoretically remedy) the alleged injury to Plaintiff's business interests stemming from the recent conflict with the Park Defendants over Plaintiff's alleged leasehold interest, Plaintiff has established constitutional standing to bring those claims. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("irreducible constitutional minimum of standing" requires "injury in fact" that is "fairly traceable" to the defendant's challenged conduct and "likely" to be "redressed by a favorable decision").
Counts Three, Four, and Five assert the following three tort claims against NPF: intentional interference with business relations; conspiracy to carry out an unlawful eviction and interfere with Plaintiff's
While the Park Defendants' articulation of these legal principles is accurate, the Park Defendants have failed to explain why the FTCA should apply to Plaintiff's tort claims against NPF—a 501(c)(3) organization which, although congressionally chartered, is not itself a federal entity entitled to sovereign immunity. Indeed, the authorities Plaintiff has provided suggest otherwise. See Pl.'s Opp'n at 4 (citing YRT Servs. v. United States, 28 Fed.Cl. 366, 373 (Fed.Cl. 1993) ("The merger agreement was negotiated by the NPF, a non-profit, non-governmental entity, with the current concessioner ...")); Matter of National Park Foundation Lease, 1983 U.S. Comp. Gen. LEXIS 1863 at *5 (1983) ("[T]he Foundation is neither a state nor another Federal agency ...").
What is more, it is well-established that the capacity of a federally chartered organization to be sued is determined by the federal statute or charter under which it is created. See Loeffler v. Frank, 486 U.S. 549, 554-557, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) ("sue and be sued" clause waives sovereign immunity); cf. Am. National Red Cross v. S.G., 505 U.S. 247, 256-57, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992) (holding that the American Red Cross's charter's "sue and be sued" provision confers original federal court jurisdiction over all cases to which the Red Cross is a party); Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust ex rel. Federal Nat. Mortg. Ass'n v. Raines, 534 F.3d 779, 784 (D.C.Cir.2008) (holding "sue and be sued" clause of statute enacting federal corporate charter of Fannie Mae confers federal subject matter jurisdiction over cases in which Fannie Mae is a party). See also Fed.R.Civ.P. 17(b) (The capacity of a corporation to "sue or be sued is determined ... by the law
The Park Defendants argue that Plaintiff cannot salvage its tort claims from dismissal by claiming that NPF is the alleged tortfeasor when in fact Plaintiff's Complaint has made no plausible allegations against NPF, but rather alleges only that NPF acted "in concert" with NPS and is liable "through actions taken on its behalf by the NPS." Park Defs' Mem. at 12-13 (citing Compl. ¶¶ 69, 78-80, 84). The Park Defendants further argue that Plaintiff has painted NPF as the principal and NPS as its agent, when in reality no such agency relationship exists and that, to the contrary, the assignment of the Lease to NPF was merely administrative in nature and NPS as a practical matter maintained control over the property and was "calling the shots" on all dealings related to the Lease. Park Defs' Reply at 10-11.
The Court finds these arguments unavailing. Preliminarily, the Park Defendants' assertion that NPS was, "in reality" "calling the shots" is not properly considered by the Court on a motion to dismiss. The Complaint clearly alleges that NPS took action against Plaintiff on behalf of the NPF, and the Court must "grant[ ][P]laintiff the benefit of all inferences that can be derived from the facts alleged and upon such facts determine jurisdictional questions," such as a question of sovereign immunity. Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir. 2011) (internal citations and quotation marks omitted).
The Park Defendants argue that because Plaintiff's opposition memorandum challenges the underlying facts of their legal argument that the Court lacks subject matter jurisdiction over Plaintiff's tort claims, the Court may choose to look to matters outside of the pleadings—specifically, certain correspondence between the NPS, NPF, and the District attached as exhibits to the Park Defendants' reply memorandum. Park Defs' Reply at 11 (citing Jerome Stevens Pharm., 402 F.3d at 1253). But even if the Court were to consider this correspondence, although it appears plausible and indeed likely that the NPS was "calling the shots" on the Lease, it is nevertheless also clear that, as a strictly legal matter, NPS was acting as NPF's agent in connection therewith. See Park Defs' Reply, Ex. 1 (Letter from Terry R. Carlstrom, Regional Director, NPS to James D. Maddy, NPF President (Sept. 24, 1999)), ECF No. [26-1] ("The National Park Service hereby accepts appointment as National Park Foundation's agent for purposes of fulfilling all obligations, and pursuing all rights and remedies to the terms and provisions of the Lease[ ], in accordance with the terms of such Lease[ ]."). This conclusion is consistent with other evidence in the record clearly indicating that NPF expressly indicated its concurrence with every notice sent by NPS to Plaintiff relating to the Lease. See Pl.'s Mem., Ex. 11 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Dec. 18, 2012)); Pl.'s Mem., Ex. 13 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Jan. 18, 2013)); Pl.'s Emerg. Mot. and Mem. for Contempt, ECF No.
Accordingly, because the Park Defendants have failed to demonstrate that a waiver of sovereign immunity is a necessary prerequisite to the Court's proper assertion of jurisdiction over the NPF, the Court declines to dismiss Plaintiff's tort claims as barred by the FTCA.
Finally, the Court shall explain why it is unable on the record presently before it to address the remainder of the Park Defendants' arguments for dismissal—specifically, that Plaintiff's Complaint must be dismissed as time-barred, see id. at 16; that Plaintiff has waived any challenge it may have had to the assignment of the Lease, see id. at 15; Park Defs' Reply at 5-6; and that Plaintiff's Complaint fails to state a claim upon which relief can be granted, see Park Defs' Mem. at at 17-19. In brief, despite its best efforts, the Court is unable to determine the applicability of these defenses due to the extremely imprecise nature of Plaintiff's Complaint—especially Plaintiff's requests for declaratory judgment.
It cannot be disputed that the entirety of Plaintiff's Complaint is premised on a claim that neither NPS nor NPF has the authority to terminate its alleged leasehold interest. Plaintiff's requests for declaratory and injunctive relief hinge on this claim, and its tort counts would presumably be rendered meritless if the Park Defendants did in fact have the right to take the complained of actions. The problem, however, is that Plaintiff's Complaint fails to sufficiently articulate the legal and factual grounds for this central claim. See generally Compl.
Plaintiff's circular and inconsistent briefing only further confuses matters. As for its legal basis, Plaintiff appears on the one hand to be asserting an APA-style procedural attack on the assignment of the Lease to NPF in 2000. See, e.g., Compl. ¶¶ 39-57; Pl.'s Opp'n to District's Mot. to Dismiss, ECF No. [23], at 4-7 (citing to cases discussing an "aggrieved party's" entitlement to challenge agency action pursuant to the APA). On the other hand, Plaintiff appears to ground its claims in contract. See, e.g., Pl.'s Opp'n to District's Mot. to Dismiss, ECF No. [23], at 9-11 (citing to cases discussing contract principles and referring to the Defendants' continued reliance on the transfer of jurisdiction and the Lease assignment as ongoing "breaches"). Because the Court lacks clarity as to the legal bases for Plaintiff's claims, the Court cannot determine the applicable statute(s) of limitations or,
The factual grounding for Plaintiff's principal contention regarding the Park Defendants' lack of authority to act in connection with the Lease is equally unclear. Based upon the Court's painstaking attempt to decipher Plaintiff's Complaint, it appears that Plaintiff has asserted that NPF (through actions taken on its behalf by NPS) cannot lawfully terminate its alleged leasehold interest for the below reasons:
However, for reasons stated above, supra Part III.A.2, Plaintiff lacks constitutional standing to challenge the validity of the transfer of administrative jurisdiction.
For reasons explained in this Court's ruling on the Plaintiff's motion for preliminary injunctive relief, the Court doubts the merits of this claim. Plaintiff alleges that, although the 1985 Resolution specifically required the District to assign the Lease to NPS, the District instead assigned the Lease to the NPF. Compl. ¶¶ 48-55. While Plaintiff acknowledges the passing by the District of Columbia Council of two Emergency Resolutions amending the 1985 Resolution to permit NPF to "accept the assignment of leases [including the Lease] for the [NPS] under the transfer of jurisdiction authorized by [the 1985 Resolution]," Plaintiff alleges that the Assignment Agreement concerning its Lease was executed at a time after one of the resolutions had expired, and before the other resolution became effective. See Compl. ¶¶ 52-55 & Ex. 17 (Emergency Resolution (April 4, 2000)); Ex. 18 (Emergency Resolution (December 21, 1999)). Accordingly, Plaintiff argues that because the District failed to provide for the assignment of its Lease to NPF legislatively at the time the assignment was executed, the assignment was invalid. See Pl.'s Mem. at 14-15.
However, the record before the Court belies Plaintiff's argument. The Assignment Agreement itself provides as follows:
Pl.'s Mem., Ex. 19 (Assignment Agreement).
Curiously, neither Plaintiff nor the Park Defendants have directed the Court's attention to the referenced legislation, but the publicly available act corroborates this provision. See D.C. Act 13-252 (January 27, 2000) ("The phrase `National Park Service' in section 3(7) of [the 1985 Resolution] includes the `National Park Foundation for the benefit of the National Park Service.'") Unless the Plaintiff can point
Finally, Plaintiff appears to assert that, for some other unspecified reason, the NPF lacks the authority to terminate the Lease. Plaintiff cannot base this argument on the Lease itself, as the Lease expressly permits that "if no default occurs on the part of the Lessee, then he shall be entitled to thirty (30) days' notice to vacate the premises." Pl.'s Mem., Ex. 4 (Lease) at 3-4. Nor does there appear to be anything in the Assignment Agreement that precludes NPF, as the assignee, from terminating the Lease. See id., Ex. 19 (Assignment Agreement). Plaintiff cursorily alleges that the decision by the Park Defendants to terminate the Lease so that NPS could grant a concession to operate the boathouse is not authorized by the terms of the assignment because under the concession the NPS plans to issue, franchise fees would be payable to NPS (and in turn to the United States Treasury), rather than to NPF for the benefit of the Georgetown Waterfront Park. Compl. ¶¶ 4, 6, 56-57. But Plaintiff nowhere alleges that the Assignment Agreement itself precludes such action, and the Court is in any event highly dubious of Plaintiff's ability to show standing and ripeness for a claim as to what NPS will do with the land after Plaintiff's alleged leasehold interest is terminated. Unless Plaintiff can point the Court to other allegations or arguments which the Court has overlooked, Plaintiff's assertion that the NPF somehow lacks authority to terminate the Lease also appears to lack merit.
Upon a searching review of Plaintiff's submissions, the Court cannot decipher any additional grounds for Plaintiff's foundational assertion that the NPF's attempts to terminate its leasehold interest are unlawful. Due to the exceedingly amorphous nature of the Complaint, however, the Court deems it necessary to request that Plaintiff either confirm the Court's understanding of its claims, or expound upon any grounds asserted in its Complaint that Plaintiff believes the Court has overlooked. Only upon obtaining this clarification from Plaintiff will the Court and the Park Defendants alike be able to determine the applicability of any defenses available to the Park Defendants on a motion to dismiss.
Accordingly, by no later than
(1) Indicate the legal basis for each of its four surviving claims for declaratory judgment, Compl. at 2 1, ¶ 1(a), (b), (d), and (e) (i.e., APA, contract law, etc.)
(2) Indicate the accuracy of the Court's above description of the alleged factual basis for Plaintiff's foundational contention regarding the NPF's purported lack of authority to terminate Plaintiff's alleged leasehold interest. If the Court's description is inaccurate, Plaintiff shall specify which portions are inaccurate and why. Plaintiff shall also point the Court to any allegations contained within its Complaint which Plaintiff believes the instant Memorandum Opinion may have misinterpreted or overlooked, and explain why such allegations support its argument that the Park Defendants are not authorized to terminate its Lease.
(3) Indicate which statute of limitations Plaintiff believes to apply to each of Plaintiff's
Further, by no later than
The Court cautions both Plaintiff and the Park Defendants that they shall not view this as an opportunity to reassert arguments upon which this Court has previously ruled.
For the foregoing reasons, the Park Defendants' [22] Motion to Dismiss shall be GRANTED-IN-PART and DENIED-IN-PART.
Specifically, the motion is GRANTED insofar as it requests dismissal, due to Plaintiff's lack of constitutional standing, of Plaintiff's request for a declaratory judgment that jurisdiction for administration and maintenance of Lot 805 was never effectively transferred by the District to NPS, or if it was, such jurisdiction has since reverted to the District.
To the contrary, because the Court finds based on the present record that Plaintiff possesses standing to pursue the remainder of its claims against the Park Defendants, the Court DENIES the Park Defendants' motion to dismiss those claims on standing grounds.
The motion is also DENIED insofar as it seeks dismissal of Plaintiff's tort claims against NPF, as the Court concludes that NPF, a 501(c)(3) non-governmental organization, is not entitled to sovereign immunity for those claims.
Finally, the Court is unable to determine the applicability of the remaining arguments asserted in the Park Defendants' motion to dismiss due to Plaintiff's failure, both in its Complaint and briefing, to adequately articulate the legal and factual grounds for its claims. For this reason, the Court shall require Plaintiff to file a Notice of Claims which shall clarify the precise contours of the claims Plaintiff intends to pursue in this action, in accordance with the specific instructions set forth in this Memorandum Opinion and accompanying Order. Accordingly, the Court DENIES-WITHOUT-PREJUDICE the remainder of the Park Defendants' motion to dismiss, with leave to re-file after tailoring the motion to speak to Plaintiff's claims and arguments as clarified by Plaintiff in its Notice of Claims.
