MANN et al v. CAPITAL HEALTH CARE ASSOCIATES, INC. et al

Filing 36

MEMORANDUM OPINION. Signed by Judge John D. Bates on 03/17/17. (lcjdb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DAVID E. MANN & VERA D. MANN,
Plaintiffs,
v.

Civil Action No. 16-949 (JDB)

CONSTANT OTTRO BAHI, et al.,
Defendants.

MEMORANDUM OPINION
Drs. David Mann and Vera Mann are an elderly couple who claim they were swindled and
robbed by the nurses they had trusted to provide needed nursing care in their home. They hired
these health care professionals—Constant Ottro Bahi, Marie Poteman, and Mariatu Sesay—
through a company that provides a listing of licensed nurses, Tri-Cities Nurse Registry and
Helpmates. The Manns bring multiple intentional and unintentional tort claims against the nurses
and the company, and bring a Consumer Protection Procedures Act claim against the company.
One of the nurses, Bahi, moves to dismiss Count V, intentional infliction of emotional distress,
against him because he argues that the Manns have failed to state facts sufficient to support that
claim. As explained below, the Court will deny Bahi’s motion to dismiss Count V.
BACKGROUND
The following are the facts according to the plaintiffs’ amended complaint. Drs. David E.
Mann and Vera D. Mann “are an elderly married couple” who have lived in the District of
Columbia for 30 years. Amend. Compl. [ECF No. 1-2] ¶ 1. Each plaintiff is referred to by his or
her first name to avoid confusion. As of May 2016, they were both 91 years old. Id. ¶ 14. In
February 2015, David underwent emergency surgery and spent several weeks in intensive care.

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Id. ¶ 15. Vera was unable to provide the nursing care that David would need upon returning home,
so they sought to hire qualified medical professionals to provide that care at their home. Id.
Tri-Cities Nurse Registry and Helpmates, Inc., doing business as Capital City Nurses,
provides two options for nursing care. See id. ¶ 18. Customers may directly hire Licensed
Practical Nurses who are employed by the company. Id. ¶ 19. This service is known as “Capital
City Nurses Healthcare Services.” Id. Alternatively, customers may hire “qualified, independent
caregiver[s]” through its referral service, known as Capital City Nurses Registry. Id. ¶ 20 (internal
quotations omitted).
Ultimately, the Manns’ son hired “two primary caregivers” for Vera and David through the
referral service, Capital City Nurses Registry: Constant Ottro Bahi and Marie Poteman. Id. ¶ 21.
Beginning in “late March 2015,” Bahi worked as plaintiffs’ daytime caregiver, from approximately
7 a.m. to 7 p.m., and Poteman worked as the nighttime caregiver, from approximately 7 p.m. to 7
a.m. Id. When Bahi or Poteman were unavailable, Capital City Nurses Registry provided
substitute caregivers, one of whom was Mariatu Sesay. Id. ¶ 22. Generally, the Manns were alone
in their home with Bahi, Poteman, or Sesay; occasionally, the Manns’ housekeeper was there as
well.
Over the next several months, the Manns noticed that several items had gone missing from
their home, and observed Bahi, Poteman, and Sesay engaged in a variety of suspicious behaviors.
There is no need to recount all of the allegations here, but a few will set the scene. For example,
Vera noticed that “small kitchen items” had gone missing, but thought they were merely displaced
until she observed Poteman carrying some place settings upstairs, after which the items were not
seen again. Id. ¶¶ 26, 28. Vera also noticed Poteman carrying packages to her car at a time when
there was no reason to be doing so. Id. ¶ 29. At one time, once the Manns suspected the thefts,

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David “nailed boards across some of the kitchen cupboards” and in response, Poteman ceased
speaking to David, and then ceased coming to work entirely a few days later. Id. ¶ 30. Vera also
noticed Bahi wandering through portions of the house that were behind locked doors and that Bahi
was not meant to enter. Id. ¶ 31. She also encountered Bahi in David’s office (which was locked)
standing in front of open files. Id. ¶ 33. And around the same time that she noticed that items
from her house were missing, she observed Bahi carrying large briefcases to his car with no
explanation. Id. ¶ 34. Vera also believed that on August 23, 2015, Sesay stole a silver platter. Id.
¶ 35. Vera and Sesay had been sitting in the room where the platter was displayed, Vera stepped
out for a moment, and then when she returned, the platter was gone. Id. Vera reported the theft
to Capital City Nurses Registry, but the company took no further action. Id. ¶ 36. When Sesay
was later assigned to cover a shift at the Manns’ residence, the plaintiffs refused to admit her to
their house. Id. ¶ 37.
More relevant to the immediate issues raised in this motion, at one point Vera “became so
concerned” with Bahi’s “roaming” through locked portions of the house, that “she packed her most
valuable possessions in boxes and cartons and moved them to her third-floor bedroom, which she
thought was secure behind the second floor locked passageway and her own locked bedroom
entrance door.” Id. ¶ 38. Some days later, on September 7 or 8, she awoke at approximately 2
a.m. to find Bahi in her bedroom, visible in the low light that Vera always kept on. Id. ¶ 39. Vera
“recognized him” from the back “immediately” and “stayed in bed silently watching him from
under her blanket.” Id. “She saw his face plainly when he turned. Knowing that [David] was
sleeping on another floor, she remained quiet and motionless.” Id. She observed Bahi “rummaging
through the cartons of her belongings” and ultimately removing “some boxes” and “extracting
valuables,” such as jewelry, from others. Id.

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After this incident, Vera confronted Bahi. Id. ¶ 40. While he neither admitted nor denied
taking the items, he allegedly responded by talking “at length about his faith in God” and telling
Vera “how she would have a revelation and be rewarded in the Kingdom of Heaven for the good
that her property would do in the hands of others.” Id.
Approximately 10 days after this strange encounter, the Manns discovered that a locked
closet had been forced open, and “the contents of the closets [sic] ransacked.” Id. ¶ 41. Multiple
valuable fur coats were missing, as were sterling silver objects. Id. ¶ 45, 48. At this point, the
Manns phoned the police. Bahi did not show up to work that day, nor did he return anytime
afterwards. Id. ¶¶ 41–42. Vera and David then filed this lawsuit in D.C. Superior Court in April
2016, and filed an Amended Complaint in May 2016. Defendants removed the suit to federal court
on the basis of diversity jurisdiction. See Notice of Removal [ECF No. 1] at 1; 28 U.S.C. §§ 1441,
1446, 1332. 1 The complaint alleges twelve counts, five of which are against Bahi: (i) conversion,
(ii) trespass to chattels, (iii) trespass, (iv) intrusion upon seclusion, and (v) intentional infliction of
emotional distress (IIED). Bahi now brings this motion to dismiss regarding Count Five, arguing
that even if the facts as alleged are true, his conduct does not amount to intentional infliction of
emotional distress.
LEGAL STANDARD
At the motion to dismiss stage, all of a plaintiff’s factual allegations are taken as true. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to survive a Rule 12(b)(6) motion to
dismiss, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true.” Id. (internal
citation omitted). The complaint “must contain sufficient factual matter, accepted as true, to state

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As initially filed, the complaint named Capital Health Care Associates, Inc., as a defendant. That defendant
was voluntarily dismissed on May 26, 2016. See Notice of Voluntary Dismissal [ECF No. 9].

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a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).
DISCUSSION
Because this case comes to the Court through diversity jurisdiction, the District of
Columbia’s choice of law rules apply. See Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 857
(D.C. Cir. 2006). The parties here agree that D.C. law applies. Under D.C. law, “[t]o succeed on
a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and
outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes
the plaintiff severe emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189 (D.C. 2013)
(internal quotation marks omitted). Generally, “mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities” that are simply “inconsiderate or unkind” are not
sufficiently outrageous to support this claim. King v. Kidd, 640 A.2d 656, 668 (D.C. 1993)
(quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Nor is it enough “that the defendant
has acted with an intent which is tortious or even criminal.” Armstrong, 80 A.3d at 189 (internal
quotation marks and alterations omitted). Rather, “[t]he conduct must be so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (quoting Drejza v.
Vaccaro, 650 A.2d 1308, 1312 n.10 (D.C. 1994) (quoting Restatement (Second) of Torts § 46
cmt. d (1965))). In the classic (if cartoonish) formulation, “[t]he ultimate question is whether the
recitation of the facts to an average member of the community would arouse his [or her] resentment
against the actor, and lead him [or her] to exclaim ‘Outrageous!’” Purcell v. Thomas, 928 A.2d
669, 711 (D.C. 2007) (internal quotation marks omitted) (alterations original). The tortfeasor’s

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“[i]ntent or recklessness can be inferred from the outrageousness of the acts.” Howard Univ. v.
Best, 484 A.2d 958, 985 (D.C. 1984).
Bahi argues that even if the allegations are true, his conduct does not rise to the necessary
level of outrageousness to support a claim for IIED. In support of this theory, he argues that
property-related torts—such as those alleged here—can never rise to the level of justifying an IIED
claim. He also contends that plaintiffs have failed to allege a sufficient injury because neither of
them assert that they suffered physical harm as a result of their distress. Bahi’s arguments are not
persuasive.
Based on the allegations in the complaint, whether Bahi’s actions were “extreme and
outrageous” and whether they support an inference that he acted intentionally or recklessly, are
factual questions for a jury. Whether “the defendant’s conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery . . . should be submitted to the jury if reasonable
people could differ.” Id. Here, based on the facts alleged in the complaint—taken as true at the
motion to dismiss phase—reasonable people could disagree.
Bahi is simply incorrect that property-related torts can never support a claim for intentional
infliction of emotional distress. To the contrary, D.C. law has recognized instances where harm
to property gave rise to an IIED claim. See, e.g., Parker v. Stein, 557 A.2d 1319, 1322–23 (D.C.
1989) (IIED claim arising from landlord throwing away all of tenants’ belongings “is predicated
on allegedly intentional wrongdoing to [tenant’s] property, and we see no reason to treat it
differently from other suits for intentional torts”); Azzam v. Rightway Dev. Inc., 789 F. Supp. 2d
110, 118 (D.D.C. 2011) (IIED claim arising from destruction of house and its contents without
notice); cf. Oliver v. Mustafa, 929 A.2d 873, 878–79 & nn.2–3 (D.C. 2007) (standard for punitive
damages is similar to that of IIED, and improper eviction and removal of personal belongings is

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sufficient for punitive damages). This is consistent with the overall approach to IIED claims: the
core inquiry is the outrageousness of the conduct and the distress it causes, rather than any specific
type of conduct.
What constitutes outrageous conduct depends on the specific circumstances at issue. For
example, in an employment relationship, generally neither firing an employee without cause, see
Howard Univ. v. Baten, 632 A.2d 389, 395 (D.C. 1993), nor a solitary instance of race
discrimination, see Paul v. Howard Univ., 754 A.2d 297, 308 (D.C. 2000), will give rise to an IIED
claim. But a “pervasive discriminatory environment” will. Burnett v. Am. Fed’n of Gov’t Emps.,
102 F. Supp. 3d 183, 190 (D.D.C. 2015). In the context of interfering with a person’s home and
belongings, tearing down a fence between properties and trespassing on a neighbor’s garden, as
part of a long-standing dispute over an easement, is not sufficiently outrageous for an IIED claim.
See Wood v. Neuman, 979 A.2d 64, 77–78 (D.C. 2009). But removing all of a tenant’s belongings
and throwing them away without warning, Parker, 557 A.2d at 1322–23, or bulldozing a home and
all the belongings inside, Azzam, 789 F. Supp. 2d at 118–19, are extreme enough that the question
must go to the jury. When it comes to insulting a plaintiff, sending factually accurate anonymous
letters to the plaintiff’s future employer about the plaintiff’s past performance does not give rise
to an IIED claim. See Armstrong, 80 A.3d at 181–82, 189–90. Likewise, sending a letter to the
plaintiffs’ neighbors accusing plaintiffs of writing a bad check is insufficient for an IIED claim.
Weaver v. Grafio, 595 A.2d 983, 990–91 (D.C. 1991).
As is clear from these cases, context matters. See King, 640 A.2d at 668; Burnett, 102 F.
Supp. 3d at 190. Indeed, the D.C. Court of Appeals has stated so explicitly, explaining that a court
“must consider: (1) applicable contemporary community standards of offensiveness and decency,
and (2) the specific context in which the conduct took place, for ‘[i]n determining whether conduct

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is extreme or outrageous, it should not be considered in a sterile setting, detached from the
surroundings in which it occurred.’” King, 640 A.2d at 668 (alteration original) (quoting Harris
v. Jones, 380 A.2d 611, 615 (Md. 1977)). The context “consists of” not only the “nature of the
activity at issue” but also “the relation between the parties, and the particular environment in which
the conduct took place.” Id. (internal quotation marks omitted). Relevant to this case, the
relationship between the parties might make conduct that is otherwise merely offensive into
conduct that is extreme and outrageous; thus “[c]ourts carefully scrutinize a defendant’s conduct
where the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress.”
Id. (internal quotation marks omitted).

This is especially relevant when the tortfeasor has

“‘knowledge that the [victim] is peculiarly susceptible to emotional distress, by reason of some
physical or mental condition or peculiarity.’” Id. (quoting Restatement (Second) of Torts § 46
cmt. f (1965)). Courts have often taken notice of the parties’ relationship, and how that contributes
to the outrageousness of the conduct in that particular context.

See, e.g., id. at 669–71

(employer/employee); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 935 (D.C. 1995)
(landlord/tenant).
Here, reasonable jurors could believe that Bahi’s conduct—especially when viewed in the
light of his relationship with the Manns—was outrageous and extreme. Bahi had permission to
enter the Manns’ home, but that permission was implicitly conditioned on his agreement to not
enter the locked areas of their home (and, it should go without saying, to not steal from the Manns).
See Amend. Compl. ¶ 31. He was in a particular position of trust given that he was responsible
for providing medical care to David, whom Bahi knew was physically unable to care for himself.
See id. ¶ 21. Taking the allegations in the complaint as true, as the Court must at this stage, Bahi
intruded into locked areas of the house on multiple occasions for the purpose of stealing property.

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See id. ¶¶ 31–34. On one of those occasions, he entered Vera’s locked bedroom in the middle of
night, rummaged through her closet and belongings, and stole valuables. Id. ¶ 39. When Vera
confronted him, he told her to be thankful that someone else would benefit from the stolen items.
Id. ¶ 40. This behavior is brazen and bizarre, to say the least. For many, encountering an intruder
in their bedroom at night would be terrifying. It would be particularly petrifying for someone in
Vera’s predicament: by her own account, she was physically frail and homebound, and therefore
unable to flee, seek assistance, or resist (if needed) when encountering an intruder. See id. ¶ 52.
Bahi was well aware of Vera’s physical limitations—he had been hired precisely because she was
unable to care for David, and he had spent months in Vera’s company by the time the nighttime
incident took place. Reasonable jurors could find that, in the context of a nurse hired to provide
care for a frail and vulnerable elderly couple, breaking into a bedroom at night, stealing, and then
telling the victim to be thankful for the theft, is beyond the bounds of decency in a civilized society.
Bahi also argues that the Manns’ claim must fail because they have not alleged any physical
harm resulting from their distress at Bahi’s conduct. But D.C. law does not require that a plaintiff
suffer physical harm as a result of his or her emotional distress. The D.C. Court of Appeals has
addressed this misapprehension head on, explaining: “Our cases have long recognized that a
plaintiff may recover damages for mental suffering unaccompanied by physical injury as part of
his recovery for an intentional tort.” Parker, 557 A.2d at 1322–23 (collecting cases); see also
Burnett, 102 F. Supp. 3d at 190–91 (permitting recovery without physical injury).
It is true that the D.C. Court of Appeals has occasionally framed the second prong of the
test as requiring “the plaintiff [to] demonstrate ‘an intent on the part of the alleged tortfeasor to
cause a disturbance in [the plaintiff’s] emotional tranquility so acute that harmful physical
consequences might result.” Wood, 979 A.2d at 77 (second alteration original) (quoting Sterling

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Mirror of Md., Inc. v. Gordon, 619 A.2d 64, 67 (D.C. 1993)). From this, Bahi argues that Vera
Mann has not pleaded sufficient harm to sustain her claim of IIED. See Def.’s Mot. to Dismiss
[ECF No. 10-1] at 8–9; Def.’s Reply [ECF No. 19] at 4; see also Wood, 979 A.2d at 78 (“crying,”
and feeling “shaken” and like a “pariah” in the neighborhood are not sufficient for IIED claim);
Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003) (“mental anguish”
and “stress” are not sufficient for IIED claim). But the analysis in Wood focused on how the
mildness of the plaintiff’s claimed harm indicated that the conduct in question was “quite
underwhelming rather than outrageous.” Wood, 979 A.2d at 78. And Futrell did not consider the
issue of the plaintiff’s physical harm at all, beyond reciting this formulation of the rule. Futrell,
816 A.2d at 808. Neither Futrell nor Wood, then, gives the Court any reason to believe that
Parker’s clear statement on the topic is no longer good law. Hence, the Court will follow Parker
and reject Bahi’s argument to the contrary.
CONCLUSION
For the reasons explained above, plaintiffs have alleged sufficient facts to state a claim for
intentional infliction of emotional distress. Whether the events occurred as plaintiffs allege, and
whether Bahi’s conduct is sufficiently outrageous for plaintiffs to prevail on that claim, are
questions of fact that must be further developed through discovery, and ultimately decided by a
jury. Bahi’s motion to dismiss will therefore be denied. A separate order has been issued on this
date.

/s/
JOHN D. BATES
United States District Judge
Dated: March 17, 2017

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