PAUL v. DIDIZIAN et al

Filing 33

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on October 19, 2011. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GHISLAINE PAUL,
Plaintiff,
v.

Civil Action No. 11-00684 (CKK)

NOUBAR A. DIDIZIAN, et al.,
Defendants.
MEMORANDUM OPINION
(October 19, 2011)
Plaintiff Ghislaine Paul (“Paul”) brings this state-law tort1 action against Defendants
Noubar A. Didizian, M.D. (“Didizian”) and the District of Columbia (the “District”). There are
currently three motions before the Court: Didizian’s [16] Motion to Dismiss; the District’s [19]
Motion to Dismiss; and Paul’s [24] Motion for Summary Judgment. Upon consideration of the
parties’ submissions, the relevant authorities, and the record as a whole, the Court shall DENY
Didizian’s [16] Motion to Dismiss, GRANT the District’s [19] Motion to Dismiss, DENY Paul’s
[24] Motion for Summary Judgment, and DISMISS this action in its entirety WITHOUT
PREJUDICE. Succinctly stated, the Court finds that Paul has failed to discharge her burden of
establishing that this Court has subject matter jurisdiction over the case.
I. BACKGROUND
Paul commenced this action in the United States District Court for the Eastern District of
Virginia on October 1, 2010. See Compl., ECF No. [1]. On March 16, 2011, United States

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A “tort” is “[a] civil wrong, other than a breach of contract, for which a remedy may be
obtained, [usually] in the form of damages.” BLACK’S LAW DICTIONARY 1626 (9th ed. 2009).

District Judge Gerald Bruce Lee transferred the action to this Court on his own motion. See
Order (Mar. 16, 2011), ECF No. [7]. Upon transfer, the Court directed Paul to effect service of
process on Defendants. See Rule 4(m) Order (Apr. 8, 2011), ECF No. [9]; Order (Apr. 18,
2011), ECF No. [13]. Once putative service was made, both Defendants appeared and the parties
proceeded to file and brief the motions now before the Court.
Didizian filed his Motion to Dismiss on May 20, 2011. See Def. Didizian’s Mem. of P.
& A. in Supp. of His Mot. to Dismiss, ECF No. [16-1]. That same day, recognizing that Paul is
proceeding in this action without legal representation, the Court issued an Order warning Paul
that her failure to respond to Didizian’s motion would result in the Court treating the motion as
conceded. See Order (May 20, 2011), ECF No. [17]. Paul filed her opposition on May 27, 2011.
See Pl.’s Opp’n to Def. Didizian’s Mot. to Dismiss (“Paul’s [18] Mem.”), ECF No. [18].
Didizian filed his reply on June 14, 2011. See Def. Didizian’s Reply to Pl.’s Opp’n to Mot. to
Dismiss (“Didizian’s [23] Mem.”), ECF No. [23].
The District filed its Motion to Dismiss on June 6, 2011. See Def. District’s Mem. of P.
& A. in Supp. of its Mot. to Dismiss (“District’s [19] Mem.”), ECF No. [19]. That same day, the
Court issued an Order warning Paul that her failure to respond to the District’s motion would
result in the Court treating the motion as conceded. See Order (June 6, 2011), ECF No. [22].
Paul filed her opposition on June 17, 2011. See Pl.’s Opp’n to Def. District’s Mot. to Dismiss
(“Paul’s [24] Mem.”), ECF No. [24]. The District filed its reply on June 28, 2011. See Def.
District’s Opp’n to Pl.’s Mot. for Summ. J. & Reply to Pl.’s Opp’n to its Mot. to Dismiss
(“District’s [27] Mem.”), ECF No. [27].
Paul’s opposition to the District’s Motion to Dismiss was also styled as a Motion for
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Summary Judgment. See Paul’s [24] Mem. The District filed its opposition on June 28, 2011.
See District’s [27] Mem. Didizian filed a separate opposition on June 29, 2011. See Def.
Didizian’s Opp’n to Pl.’s Mot. for Summ. J., ECF No. [28].
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases
entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). Rule 12(b)(1) provides a vehicle for parties to challenge the
district court’s “subject matter jurisdiction,” FED . R. CIV . P. 12(b)(1)—a term that refers to the
court’s authority to hear and decide the case. If the district court finds that it lacks subject matter
jurisdiction, it must dismiss the case, and without prejudice.
The district court should begin with the presumption that it does not have subject matter
jurisdiction. Kokkonen, 511 U.S. at 377. The plaintiff bears the burden of establishing that the
court has subject matter jurisdiction. Moms Against Mercury v. Food & Drug Admin., 483 F.3d
824, 828 (D.C. Cir. 2007). In most cases, the plaintiff attempts to establish subject matter
jurisdiction through one of two routes.
First, “diversity jurisdiction” arises when the parties are “citizens of different States” and
“the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.”
28 U.S.C. § 1332(a)(1). There must be “complete diversity” between the parties, meaning that
diversity jurisdiction is unavailable when any plaintiff is a citizen of the same state as any
defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
Second, “federal question” jurisdiction is available when the case “aris[es] under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. For federal question
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jurisdiction to arise, “a right or immunity created by the Constitution or the laws of the United
States” “must be disclosed upon the face of the complaint.” Phillips Petroleum Co. v. Texaco,
Inc., 415 U.S. 125, 127-28 (1974) (per curiam) (quoting Gully v. First Nat’l Bank in Meridian,
299 U.S. 109, 112 (1936)) (internal quotation marks omitted). “[I]t is not enough to allege that
questions of a federal character arise in the case, it must plainly appear that the averments
attempting to bring the case within federal jurisdiction are real and substantial.” Blumenstock
Bros. Adver. Agency v. Curtis Publ. Co., 252 U.S. 436, 441 (1920).
In determining whether it has subject matter jurisdiction, the district court may consider
the allegations in the complaint and undisputed facts and, in appropriate circumstances, resolve
disputed factual matters. Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003). In engaging in this task, the factual allegations in the complaint must be
construed in the light most favorable to the plaintiff, Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1106 (D.C. Cir. 2005), though a plaintiff’s factual allegations will “bear closer scrutiny”
when the district court is resolving a motion to dismiss for lack of subject matter jurisdiction as
opposed to a motion to dismiss for failure to sate a claim, Wright v. Foreign Serv. Grievance Bd.,
503 F. Supp. 2d 163, 170 (D.D.C. 2007), aff’d, No. 07-5328, 2008 WL 4068606 (D.C. Cir. July
30, 2008). Even though pleadings filed by a party proceeding without legal representation must
be construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), even
unrepresented parties must discharge their burden of showing that the district court has the
authority to hear and decide the case, Curran v. Holder, 626 F. Supp. 2d 30, 33 (D.D.C. 2009);
Jackson v. ASA Holdings, 751 F. Supp. 2d 91, 95 (D.D.C. 2010).

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III. DISCUSSION
There are currently three motions before the Court: Didizian’s [16] Motion to Dismiss;
the District’s [19] Motion to Dismiss, in which Didizian also joins, see Didizian’s [23] Mem. at
3 n.1; and Paul’s [24] Motion for Summary Judgment. Whereas Didizian’s Motion to Dismiss
and Paul’s Motion for Summary Judgment go to the merits of the case, the District’s Motion to
Dismiss arises under Rule 12(b)(1) of the Federal Rules of Civil Procedure and challenges this
Court’s subject matter jurisdiction to hear and decide the case.2 Upon consideration of the
parties’ submissions, the relevant authorities, and the record as a whole, the Court finds that Paul
has failed to discharge her burden of establishing that this Court has the authority to hear and
decide the case. The Court shall therefore GRANT the District’s [19] Motion to Dismiss, in
which Didizian joins, and DISMISS this action in its entirety WITHOUT PREJUDICE. In light
of this decision, the Court shall DENY Didizian’s [16] Motion to Dismiss and Paul’s [24]
Motion for Summary Judgment as moot.
A.

Paul Has Failed to Establish Diversity Jurisdiction

When Paul first filed this action in the United States District Court for the Eastern
District of Virginia, she invoked only the court’s diversity jurisdiction. See Compl. at 2 (“This is
a diversity [of] citizenship case . . . .”); Paul’s [24] Mem. at 2 (“On 1 October 2010, Plaintiff
filed this case in the state of Virginia because of diversity of citizenship.”). She appears to
maintain that this Court has jurisdiction based on the diversity of citizenship between the parties.

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As the Court advised Paul before she filed her opposition, “[w]hile the District claims
to bring its motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it is properly
analyzed under Rule 12(b)(1) because the motion is based on the contention that this Court lacks
subject-matter jurisdiction.” Order (June 6, 2011), ECF No. [22], at 1 n.1.
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See Paul’s [18] Mem. at 3 (“[T]he case is filed in the District of Columbia because of diversity
[of] citizenship . . . .”). However, it is undisputed that both Paul and Didizian are citizens of the
Commonwealth of Pennsylvania. See Compl. at 2 (“The Plaintiff Ghislaine Paul and Defendant
Noubar A. Didizian are residents of the state of Pennsylvania.”) (capitalization omitted). The
commonality of citizenship between Paul and Didizian makes it impossible for this Court to hear
the case under its diversity jurisdiction. Owen Equip., 437 U.S. at 373. Significantly, the Court
cannot cure this defect by dismissing Paul’s claims against Didizian from this case and allowing
Paul to proceed against the District under the Court’s diversity jurisdiction because “the District,
like the fifty states, is not subject to diversity jurisdiction.” Long v. District of Columbia, 820
F.2d 409, 414 (D.C. Cir. 1987). Accordingly, the Court cannot hear and decide this case under
its diversity jurisdiction.
B.

Paul Has Conceded the Absence of Federal Question Jurisdiction

Paul’s Complaint identifies a single basis for this Court’s subject matter jurisdiction—
namely, diversity jurisdiction. See Compl. at 2 (“This is a diversity [of] citizenship case seeking
jurisdiction in the state of Virginia.”). Nowhere in her Complaint or in her opposition to the
District’s Motion to Dismiss has Paul claimed that this Court might exercise jurisdiction over the
case based on its federal question jurisdiction. She has failed to do so even though the District
expressly argued in its opening memorandum that this Court cannot exercise federal question
jurisdiction over the case because “both defendants are being sued for medical malpractice, a
state law tort.” District’s [19] Mem. at 4. Paul offers no rejoinder to the District’s argument, nor
does she contest the District’s characterization of her claim. In this Circuit, “it is well understood
. . . that when a plaintiff files an opposition to a dispositive motion and addresses only certain
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arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003) (citation omitted), aff’d, 98 F. App’x 8 (D.C. Cir. 2004); accord Lewis v.
District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011). This
principle applies even to parties proceeding without legal representation, like Paul. Laukus v.
United States, 691 F. Supp. 2d 119, 127 (D.D.C. 2010); Fletcher v. District of Columbia, Civil
Action No. 01-297 (RMU), 2005 WL 670676, at *6 n.9 (D.D.C. Mar. 22, 2005). Based on
Paul’s failure to respond to the District’s argument, the Court shall, in an exercise of its
discretion, treat the District’s argument as conceded.
Even if the Court were inclined to rule on the issue, it would nonetheless conclude that
Paul has failed to carry her burden of establishing that the Court has federal question jurisdiction
over this case. In opposition to the District’s Motion to Dismiss, Paul consistently characterizes
this case as one for “medical malpractice” or “gross negligence,” both state-law torts. See Paul’s
[24] Mem. at 2-3, 8-9; see also Paul’s [18] Mem. at 2 (claiming that Didizian committed
“medical negligence,” “negligence,” and “fraud”). The Complaint itself spans twenty-nine
single-spaced pages and includes several exhibits. It is rambling and often difficult to
understand, but its allegations are consistent with Paul’s characterization of her case as one for
“medical malpractice,” “gross negligence,” or other state-law torts. For example, Paul asserts in
her Complaint that “[b]oth Defendants are being sued for Medical Malpractice” and describes her
case as a “Medical Malpractice Suit.”3 Compl. at 2, 30.

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Elsewhere in the Complaint, Paul suggests that Defendants may have committed
“fraud” and “libel,” Compl. at 28-30, but these are also state-law torts.
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On occasion in her Complaint, Paul describes her state-law tort claims as violations of her
“civil” and “human” rights, without further elaboration. Such vague and unexplained references
to “civil” and “human” rights are insufficient to establish federal question jurisdiction. See
Bonham v. Bell, Civil Action No. 90-1672, 1990 WL 117297, at *1 (D.D.C. Aug. 3, 1990)
(concluding that the pro se plaintiff’s broad assertion of a “civil rights” violation failed to
provide a basis for the exercise of federal question jurisdiction); Cordova v. Blockbuster Video
Corp., 315 F. App’x 729, 730 (10th Cir. 2009) (affirming district court’s dismissal for lack of
subject matter jurisdiction where pro se plaintiff’s complaint merely alleged a “civil-rights
violation” and did not present a substantial federal question). The only “civil right” the Court
can glean from Paul’s allegations is what she describes as “her right to health care,” id. at 29, but
there is no such right under the Constitution, cf. Diaz v. Brewer, __ F.3d __, 2011 WL 3890755,
at *4 (9th Cir. Sept. 6, 2011). Simply put, Paul has pointed to no allegations “plainly” presenting
a “real and substantial” federal question. Blumenstock Bros., 252 U.S. at 441. Even affording
her Complaint an exceedingly liberal construction, no “right or immunity created by the
Constitution or the laws of the United States is apparent from “the face of the complaint,”
Phillips Petroleum, 415 U.S. at 127-28. In the end, it is Paul’s burden to establish that this
Court has subject matter jurisdiction, and she has failed to discharge that burden here.
In sum, the Court finds that Paul has conceded that federal question jurisdiction is
unavailable in this case. Furthermore, even if the Court were inclined to reach the merits of the
issue, the Court would conclude that Paul has failed to carry her burden of establishing the
presence of federal question jurisdiction.

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C.

Paul’s Other Arguments in Support of Jurisdiction Lack Merit

With the two most common avenues of establishing subject matter jurisdiction
foreclosed, the Court turns to Paul’s remaining arguments in support of jurisdiction. Those
arguments can be divided into two categories. The Court addresses each category in turn.
First, according to Paul, her case was “triggered” by Lightfoot v. District of Columbia,
Civil Action No. 01-1484 (CKK), a separate action brought by former employees of the District
in this Court challenging the polices and procedures that the District applied to terminate
disability compensation benefits. While it is unclear from Paul’s opposition what relevance she
believes that case has to this one, Paul cannot bootstrap jurisdiction in this case on the basis that
the Court had jurisdiction in a separate action; the Court must have jurisdiction in each action. In
any event, despite Paul’s claim that she is “a party to the class-action suit,” she was not a named
plaintiff and the class in the Lightfoot action was decertified nine months ago, see Lightfoot v.
District of Columbia, 273 F.R.D. 314 (D.D.C. 2011), and, more importantly, the entire action
was dismissed five months ago, see Order, Lightfoot v. District of Columbia, Civil Action No.
01-1484 (D.D.C. May 20, 2011), ECF No. [550]. The Lightfoot action simply does not provide a
basis for the Court to hear and decide this case.
Second, Paul tenders a series of arguments concerning not subject matter jurisdiction, but
rather the connection between the District of Columbia, on the one hand, and the parties and the
events underlying the dispute, on the other hand. For example, Paul offers the following: (1)
“the underlying cause originated in the District of Columbia”; (2) this forum was “duly chosen”
by the United States District Court for the Eastern District of Virginia when it transferred the
action to this Court; (3) Didizian’s employer has its “headquarters and place of buisiness [sic] in

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the District of Columbia”; (4) her place of employment is in the District of Columbia; (5) she is
“an injured worker in the District of Columbia;” and (6) “[t]he District of Columbia’s place of
operations is in the District of Columbia.” Paul’s [24] Mem. at 1-2. These arguments, to the
extent they have any bearing on this case, relate either to the question of whether this Court has
personal jurisdiction over the parties, which neither the District nor Didizian has disputed, or the
appropriate venue, which “relates to the convenience of the litigants” and not “the power of a
court.” Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 793 n.30 (1985) (internal quotation
marks omitted). They do not supply a basis for this Court to exercise subject matter jurisdiction.
IV. CONCLUSION
Paul, as the plaintiff, bears the burden of establishing this Court’s authority to hear and
decide her case. Because she has failed to discharge that burden, the Court shall GRANT the
District’s [19] Motion to Dismiss, in which Didizian joins, and DISMISS this action in its
entirety WITHOUT PREJUDICE. In light of this decision, the Court shall DENY Didizian’s
[16] Motion to Dismiss and Paul’s [24] Motion for Summary Judgment, both of which address
the merits of Paul’s claims, as moot. An appropriate Order accompanies this Memorandum
Opinion.
Date: October 19, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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