DOE v. KIPP DC SUPPORTING CORPORATION et al

Filing 22

MEMORANDUM AND OPINION granting 6 , 13 , 17 Defendants' Motions to Dismiss, denying without prejudice 18 Plaintiff's motion to amend. Signed by Judge Rudolph Contreras on 1/3/19. (lcrc1) Modified on 1/3/2019 (lcrc1, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE,

:
:
Plaintiff,
:
Civil Action No.:
:
v.
:
Re Document Nos.:
:
KIPP DC SUPPORTING CORP., et al.
:
:
Defendants.
:
MEMORANDUM OPINION

18-260 (RC)
6, 13, 17

GRANTING DEFENDANTS’ MOTIONS TO DISMISS;
DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO AMEND
I. INTRODUCTION
Plaintiff Jane Doe, a survivor of sexual abuse as a middle and high school student between
2004 and 2009, initiated this case on February 2, 2018. Doe brings claims against her abuser,
Alan Coleman; the two educational institutions that employed Coleman between 2004 and 2009
and allegedly knew of the abuse, Kipp DC Supporting Corporation (“Kipp DC”) and Capital
City Public Charter School, Inc. (“Capital City”); and the founder and then-principal of Kipp
DC, Susan Ettinger. Doe also brings claims against ten unnamed agents and employees of Kipp
DC and Capital City. Defendants have separately moved to dismiss and all argue that Doe’s
claims are barred by the statute of limitations. While the Court is sympathetic to Doe’s plight,
and more generally to the difficulties encountered by victims of sexual assault in obtaining civil
relief for their injuries, it finds that Doe’s claims are time-barred under D.C. law. The Court
accordingly grants the motions to dismiss. Because Doe’s motion to amend her complaint fails
to comply with its Local Rules, the Court denies the motion without prejudice.

II. BACKGROUND 1
Doe began attending Kipp DC in 2000 or 2001, and was a student at the school until
2005. See Compl. ¶¶ 1, 20, ECF No. 4. She first came into contact with Coleman during the
2004-2005 school year, when Coleman became her eighth-grade science and history teacher. Id.
¶¶ 21, 28. After gaining her trust and confidence, Coleman began sexually assaulting Doe a few
months after they met, in approximately November 2004. See id. ¶ 26. Coleman would go on to
continuously abuse Doe for the remainder of the 2004-2005 school year, subjecting her to
frequent sexual assault and humiliation. See id. Doe alleges that Ettinger and Kipp DC
eventually came to suspect that Coleman was having inappropriate relations with her. See id. ¶
33. She further alleges that these suspicions led Kipp DC to discontinue Coleman’s contract at
the end of the 2004-2005 school year. Id. ¶ 29. Coleman subsequently found employment with
Capital City starting in the 2005-2006 school year. Id. According to Doe, while Ettinger
informed a Capital City board member of her suspicions, neither she, Kipp DC, nor Capital City
undertook to investigate Coleman or in any other way take action to protect Doe and stop the
abuse. See id. ¶ 33.
After being promoted to the ninth grade at the end of the 2004-2005 school year, Doe left
Kipp DC and began attending another school. Id. ¶ 28. However, Coleman’s abuse continued.
See id. ¶ 29. Doe’s mother learned of the abuse during the 2005-2006 school year and reported
Coleman’s behavior to Capital City. Id. ¶ 31. According to Doe, Capital City failed to take any
disciplinary action against Coleman. Id. In 2007, Coleman manipulated Doe into moving into
his house, where they slept in the same room and bed. See id. ¶ 51. As a result, the frequency of

1

On a motion to dismiss for failure to state a claim, the Court accepts as true the factual
allegations in the complaint and construes them liberally in the Plaintiff’s favor. See, e.g.,
United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
2

his assaults escalated. See id. ¶ 53. Doe turned eighteen in 2008. See id. ¶ 1. The relationship
did not end until June 2009. Id. ¶ 26.
In February 2015, Doe began to realize the wrongfulness of Coleman’s behavior. On
February 20, 2015, she questioned Coleman on Facebook about whether their relationship had
been wrongful and abusive. Id. ¶ 34. On February 25, 2015, she asked Coleman to resign from
his teaching position at Capital City, where he was still employed. Id. After he failed to do so,
Doe contacted Capital City herself. Id. While Capital City then proceeded to terminate
Coleman, the school did not notify the authorities of his behavior. Id. The D.C. Metropolitan
Police Department was not alerted to Coleman’s conduct until April 2016, when a former Kipp
DC teacher who Doe also told of the abuse reached out to the police. See id. ¶ 35. Coleman
subsequently pled guilty to sexual abuse of a minor in Maryland state court and to first-degree
sexual abuse in D.C. Superior Court. See Docket, People v. Coleman, No. 130514C (Md.
Mongtomery Cty. Cir. Ct.); Docket, United States v. Coleman, 2016 CF1 011951 (D.C. Sup.
Ct.). 2
Doe filed her complaint in this case on February 2, 2018, bringing claims pursuant to 42
U.S.C. § 1983, Title IX, and for negligence per se against Kipp DC, Ettinger, and Capital City
(collectively, the “School Defendants”), gross negligence claims against Ettinger, and claims for
assault, battery, and intentional infliction of emotional distress (“IIED”) against both Coleman
and the School defendants. 3 See Compl. ¶¶ 58–160. Kipp DC and Ettinger (collectively, the

2

The Court takes judicial notice of the docket for Coleman’s related criminal cases. See,
e.g., Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 67 (D.D.C. 2014) (“A court may take judicial
notice of facts contained in public records of other proceedings.” (citing Covad Commc’ns Co. v.
Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).
3

In her opposition to Coleman’s motion to dismiss, Doe appears to argue that Coleman
should also be liable on her Title IX, § 1983, and gross negligence claims. See Pl.’s Opp’n
Coleman Mot. Dismiss at 4–7, 9, ECF No. 19. In her oppositions to the Kipp Defendants’ and
3

“Kipp Defendants”) filed a motion to dismiss for failure to state a claim on March 16, 2018, see
Kipp Mot. Dismiss at 1, ECF No. 6, followed by Capital City on April 20, 2018, see Capital City
Mot. Dismiss at 1, ECF No. 13, and Coleman on April 23, 2018, see Coleman Mot. Dismiss at 1,
ECF No. 17. All three motions have been fully briefed.
III. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the
complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,
e.g., Philip Morris, 116 F. Supp. 2d at 135.
“The statute of limitations is an affirmative defense, FRCP 8(c), and need not be
negatived by the language of the complaint.” U.S. ex rel. Landis v. Tailwind Sports Corp., 51 F.
Supp. 3d 9, 38 (D.D.C. 2014) (quoting Jones v. Rogers Mem’l Hosp., 442 F.2d 773, 775 (D.C.
Cir. 1971)). As a result, motions to dismiss based on a statute of limitations defense are
generally disfavored, and the D.C. Circuit has “repeatedly held [that] courts should hesitate to
dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.”
Firestone v. Firestone, 76 F.3d 1205, 1208–09 (D.C. Cir. 1996). In order for such a motion to be
Capital City’s motions to dismiss, Doe similarly appears to argue that Kipp DC and Capital City
should be liable on her gross negligence claim. See Pl.’s Opp’n to Kipp Mot. Dismiss at 7–8,
ECF No. 11; Pl’s Opp’n to Capital City Mot. Dismiss at 8, ECF No. 18. Because it dismisses all
claims as time-barred, the Court does not address these issues.
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granted, “the factual allegations in the complaint must clearly demonstrate all the elements of the
statute of limitations defense and that the plaintiff has no viable response to the defense.”
Landis, 51 F. Supp. 3d at 38 (citing Nader v. Democratic Nat’l Comm., 567 F.3d 692, 699–702
(D.C. Cir. 2009)); see also Jones v. Bock, 549 U.S. 199, 215 (2007) (noting that a “complaint is
subject to dismissal for failure to state a claim” when the allegations “show that relief is barred
by the applicable statute of limitations”).
IV. ANALYSIS
In their respective motions to dismiss, Defendants all argue that Doe’s claims are barred
by the statute of limitations. See Kipp Mem. Supp. Mot. Dismiss, ECF No. 6; Capital City Mem.
Supp. Mot. Dismiss, ECF No. 13-1; Coleman Mem. Supp. Mot. Dismiss, ECF No. 17. In her
oppositions, Doe raises several arguments for why her claims are not time-barred, including
application of the discovery rule, continuing violation of a duty to report, and equitable tolling.
See Pl.’s Opp’n to Kipp Mot. Dismiss, ECF No. 11. 4 In her opposition to the Capital City
motion to dismiss, Doe also moves in the alternative to amend the complaint. See Pl’s Opp’n to
Capital City Mot. Dismiss at 14, ECF No. 18. The Court first reviews the parties’ arguments as
to the Title IX, § 1983, and IIED claims, followed by their arguments as to Doe’s negligence per
se and gross negligence claims, and their arguments as to the assault and battery claims. Finally,
the Court briefly addresses Doe’s motion to amend the complaint. Because the Court finds that
Doe’s claims are time-barred as a matter of law and that the motion to amend fails to comply
with its Local Rules, it grants the motions to dismiss and denies leave to amend the complaint.

4

Doe brings substantially the same arguments regarding the applicability of the statute of
limitations defense in her three oppositions. See generally Pl.’s Kipp Opp’n; Pl.’s Capital City
Opp’n; Pl.’s Coleman Opp’n.
5

A. Doe’s Title IX, § 1983, and IIED Claims Are Time-Barred
First, the Defendants argue that the applicable statute of limitations has passed on Doe’s
Title IX, § 1983, and IIED claims. See Kipp Mem. Supp. at 6–11; Capital City Mem. Supp. at
6–7; Coleman Mem. Supp. at 5–6. Doe retorts that the discovery rule tolled the statute of
limitations until she realized the wrongfulness of her relationship with Coleman, and therefore
that all three claims are timely. See, e.g., Pl.’s Kipp Opp’n at 3–6, 8–9. The Court disagrees and
finds that, as a matter of law, the discovery rule is not applicable to this case. As a result, the
statute of limitations began running on Doe’s claims when she turned eighteen and her claims are
untimely.
1. The Discovery Rule Does Not Apply
Doe argues that her case “falls squarely with the discovery rule decisions in the District
of Columbia,” Pl.’s Kipp Opp’n at 4, because she alleges that she did not realize she was abused
until February 2015. The Court disagrees. Because past D.C. Court of Appeals decisions and
legislative history consistently suggest that the discovery rule should not be extended to
situations where a victim of sexual abuse recalls that abuse but does not appreciate its
wrongfulness, the Court declines to extend the discovery rule to Doe’s claims.
As an initial matter, Doe’s IIED claim is pursuant to D.C. law, and thus subject to D.C.
tolling rules. As the School Defendants acknowledge, neither Title IX nor § 1983 provide for
specific statutes of limitations. See Kipp Mem. Supp. at 3–4; Capital City Mem. Supp. at 6–7.
Instead, “the appropriate statute of limitations for a § 1983 claim ‘is that which the State
provides for personal-injury torts.’” Morris v. Carter Global Lee, Inc., 997 F. Supp. 2d 27, 35
(D.D.C. 2013) (quoting Wallace v. Kato, 549 U.S. 384, 387 (2007)). For Title IX, “federal law
requires applying the local statute of limitation for the most-analogous injury.” Mwabira-Simera

6

v. Howard Univ., 692 F. Supp. 2d 65, 71 (D.D.C. 2010) (citing Wilson v. Garcia, 471 U.S. 261,
275 (1985)). “When a federal cause of action borrows a state statute of limitations, ‘coordinate
tolling rules’ are usually borrowed as well.” King-White v. Humble Indep. Sch. Dist., 803 F.3d
754, 764 (5th Cir. 2015) (quoting Hardin v. Straub, 490 U.S. 536, 539 (1989)); see also Island
Insteel Sys., Inc. v. Waters, 296 F.3d 200, 210 n.4 (3rd Cir. 2002) (“[W]here a court borrows a
statute of limitations from state law, the court must also borrow from state law the relevant
tolling principles.” (citing Hardin, 490 U.S. at 539; Bd. Of Regents of the Univ. of N.Y. v.
Tomanio, 446 U.S. 478, 486 (1980)). Accordingly, Doe’s Title IX and § 1983 claims are also
subject to D.C. tolling rules.
Under D.C. law, a claim will generally “accrue[] for purposes of the statute of limitations
at the time the injury actually occurs.” Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C.
1994). However, “[w]here the relationship between the fact of injury and the alleged tortious
conduct may be obscure,” accrual of a claim is determined “by applying the ‘discovery rule.’”
Id. at 472–73 (quoting Bussineau v. President & Dirs. of Georgetown Coll., 518 A.2d 423, 425–
26 (D.C. 1986)). Under the discovery rule, a claim “does not accrue until the plaintiff,
exercising due diligence, has ‘discovered or reasonably should have discovered all of the
essential elements of her possible cause of action, i.e., duty, breach, causation and damages.’”
Farris v. Compton, 652 A.2d 49, 54 (D.C. 1994) (quoting Colbert, 641 A.2d at 473). The D.C.
Court of Appeals “has refused to validate broad application of the rule in [all] contexts, instead
opting for consideration on a ‘case by case basis.’” Commonwealth Land Title Ins. Co. v. KCI
Techs., Inc., 297 F. Supp. 3d 106, 111 (D.D.C. 2018) (quoting Ehrenhaft v. Malcom Price, Inc.,
483 A.2d 1192, 1204 (D.C. 1984)).

7

Here, Doe argues that the discovery rule applies to her claims because she did not realize
her relationship with Coleman had been abusive until February 2015. Pl.’s Kipp Opp’n at 4–6.
Doe relies primarily on Farris, in conjunction with past discovery rule cases. See id. In Farris,
the plaintiffs alleged that they had been abused as children in the 1950s and 1960s and that the
trauma had caused them to repress their memories of the abuse for several decades. See Farris,
652 A.2d at 52–53. After psychological evaluation and therapy, the plaintiffs had recovered
their memories of the abuse in 1990 and had brought suit in 1991, more than twenty-five years
after the abuse had allegedly ended. See id. The D.C. Court of Appeals held that the discovery
rule applied to their claims—and that the claims were not time-barred—based on the
considerations of “basic fairness” inherent to the discovery rule and in particular on the
overarching principle that “no man may take advantage of his own wrong.” Id. at 55.
The Court of Appeals in Farris noted that the case was different from the court’s past
discovery rule decisions, which had involved plaintiffs who alleged that they were not aware of
their injuries. See id. The Farris Plaintiffs did not allege that they were unaware of the abuse or
of its wrongfulness when it occurred, but rather that they had been contemporaneously aware and
had then fully repressed their memories of that abuse, such that they had no recollection of the
abuse for a significant portion of their lives. See id. The Court emphasized that its opinion
extended applicability of the discovery rule specifically to situations involving a total repression
of memories. See id. at 63–64. Doe recognizes this distinction, but argues that the D.C. Court of
Appeals’ past cases “had more often applied the discovery rule in cases where the victim was
unaware of the abuse or its wrongfulness” and support extending the discovery rule to her
claims. Pl.’s Kipp Opp’n at 4. The Court disagrees.

8

First, the D.C. Court of Appeals in Farris, while not ruling on the issue, gave some
indication of its thoughts as to the applicability of the discovery rule when a sexual abuse victim
recalls the facts of the abuse but does not understand its wrongfulness until much later. The
court noted in a footnote to its opinion that there was
Some apparent softness in the plaintiffs’ allegations in regards to whether the
repression of their memories was total or partial, and as to whether that repression
extended to the fact that they were abused (rather than only to the plaintiffs'
understanding of the wrongfulness of the abuse and of its effect upon their alleged
problems as adults).
Farris, 652 A.2d at 63 n.24. It added that “[a]n overwhelming majority of the courts
which have confronted the issue have held that the statute of limitations is not tolled in the
absence of a claim that the plaintiffs, as adults, totally repressed their recollection of the fact of
the abuse.” Id. (emphasis in original) (listing cases). Farris’s limited ruling, combined with the
court’s admonition that most other courts had declined to further extend the discovery rule,
strongly suggest that the Court of Appeals would not have applied the discovery rule in Doe’s
circumstances, when she does not allege that she repressed the fact of the abuse, only that she did
not recognize its wrongfulness.
The past discovery rule cases Doe cites in her opposition are easily distinguishable from
Farris. Cases where D.C. courts have applied the discovery rule typically involve situations
where “sophisticated professionals may take advantage of lay clients without the clients ever
being aware of the wrong.” KCI Techs., 297 F. Supp. 3d at 111. Both Colbert and Bussineau,
which Plaintiff cites to, Pl.’s Kipp DC Opp’n at 4, involved medical malpractice, see Colbert,
641 A.2d at 470; Bussineau, 518 A.2d at 424. The D.C. Court of Appeals has also applied the
discovery rule to situations involving legal malpractice, e.g. Weisberg v. Williams, Connolly &
Califano, 390 A.2d 992, 995 (D.C. 1978), and defects in the design and construction of a home,

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Ehrenhaft, 483 A.2d at 1194–96. This case does not involve such a situation. Instead, Doe seeks
to extend the holding of Farris beyond the specific set of facts considered by the court. Without
a clear mandate from the D.C. Court of Appeals, this Court is unwilling to do so.
Finally, the legislative history behind the 2009 IntraFamily Offenses Act, which amended
the statute of limitations applicable to claims relating to sexual abuse of a minor, further suggests
that the discovery rule should not apply to Doe’s situation. The IntraFamily Offenses Act
amended D.C. Code § 12-301, which, inter alia, provides the limitations period for bringing civil
claims relating to sexual abuse. Under the old statute, all claims relating to sexual abuse would
fall in the catch-all category of § 12-301(8), which provides for a 3-year limitations period. See
D.C. Code § 12-301(8). The amended statute added a new subsection, § 12-301(11), which
specifically applies to claims “arising out of sexual abuse that occurred while the victim was a
minor.” D.C. Code § 12-301(11). For such claims, the new limitations period is the later of
seven years from the victim’s eighteenth birthday or three years from “when the victim knew, or
reasonably should have known, of any act constituting abuse.” Id.
In its report to the D.C. Council on the bill amending the statute, the council’s Committee
on Public Safety and the Judiciary explained that it had determined the seven-year period to be
fair in light of “the law in other jurisdictions” and “[g]iven the nature of the behavior and its
effects.” Comm. On Pub. Safety and the Judiciary, Report on Bill 17-55, the “IntraFamily
Offenses Act of 2008” at 5 (D.C. 2008), http://lims.dccouncil.us/Download/18480/B17-0055CommitteeReport1.pdf. The committee also explained that the alternative three-year period was
intended to essentially codify the discovery rule announced in Farris, by “leav[ing] unchanged
the current law in the District of Columbia that gives a plaintiff three years from when he or she
knew or should have known of . . . [the] abuse.” Id. The Committee indicated its understanding

10

that, pursuant to Farris, the discovery rule could only apply “where a plaintiff has alleged total
repression of any recollection of sexual abuse,” id. (emphasis in original) (quoting Farris, 652
A.2d at 59), and thus that “[a]n allegation that the plaintiff did not appreciate ‘the wrongfulness
of the abuse and . . . its effect’ upon the plaintiff is not enough to extend the statute of
limitations,” id. at 6 (omission in original) (quoting Farris, 652 A.2d at 63 n.24).
To be sure, the discovery rule is a judge-made tool and the committee’s interpretation of
Farris is not law. Nonetheless, the discovery rule, “guided by considerations of basic fairness,”
relies on the notion that “the legislature should not be presumed to have intended to deny a
plaintiff who did not know . . . of her injury at the time that it occurred[] her day in court.”
Farris, 652 A.2d at 56. Through the 2009 amendment, the legislature here has made clear that it
did not intend for Doe’s sexual abuse claims to benefit from limitations tolling. The Court
accordingly declines to apply the discovery rule to Doe’s claims.
2. Doe’s Claims are Time-Barred
The parties dispute which statute of limitations applies to Doe’s claims. Because the
discovery rule does not toll Doe’s claims until she realized the wrongfulness of her abuse in
2015, the Court finds that the claims are time-barred regardless of which statutory provision
applies.
As discussed in Part IV.A.1. above, Title IX and § 1983 do not provide for specific
statutes of limitations. Instead, “the appropriate statute of limitations for a § 1983 claim ‘is that
which the State provides for personal-injury torts,’” Morris, 997 F. Supp. 2d at 35 (quoting
Wallace, 549 U.S. at 387), and for Title IX “federal law requires applying the local statute of
limitation for the most-analogous injury,” Mwabira-Simera, 692 F. Supp. 2d at 71, which the
School Defendants contend is also personal injury here, Kipp Mem. Supp. at 3; Capital City

11

Mem. Supp. at 6–7. Accordingly, the School Defendants argue that the appropriate statute of
limitations on the Title IX and § 1983 constitutional claims is three years, as provided by the
catch-all limitations period in D.C. Code § 12-301(8). By contrast, Doe argues that her claims
are covered by § 12-301(11), which provides for a limitations period of seven years from the
victim’s eighteenth birthday when the discovery rule does not apply.
The Court need not decide which statutory provision applies because either way, Doe’s
Title IX and § 1983 constitutional claims are time-barred. 5 When two or more defendants are
closely connected, such as in a superior-subordinate relationship, the D.C. Court of Appeals has
held that a plaintiff’s knowledge of misconduct by one defendant places her on notice of claims
against the connected potential co-defendants. See Cevenini v. Archbishop of Washington, 707
A.2d 768, 773 (D.C. 1998) (citing Diamond v. Davis, 680 A.2d 364, 380 (D.C. 1996) (Ruiz, J.,
concurring in part and dissenting in part)). Here, Doe was on notice of her claims against both
Coleman and the School Defendants at the latest at the end of 2005, when Kipp DC and Capital
City had failed to stop the abuse or otherwise investigate Coleman. If § 12-301(8) applies, the
statute of limitations did not begin to run until Doe’s eighteenth birthday because the abuse
occurred when she was a minor. See D.C. Code § 12-302(a). Doe turned eighteen at some point
in 2008. See Compl. ¶ 1. At most, the limitations period thus expired in late 2011, and Doe’s
claims are time-barred. If § 12-301(11) applies, the limitations period extended to seven years
past Doe’s eighteenth birthday, or late 2015. Again, the claims are time-barred.

5

The Court notes that, Defendants’ arguments notwithstanding, the plain language of
§ 12-301(11) strongly suggests that the statutory provision applies to Doe’s claims. The
provision applies to claims that “aris[e] out of sexual abuse that occurred while the victim was a
minor,” D.C. Code § 12-301(11), and all of Doe’s claims directly stem from her abuse by
Coleman, including her claims against the School Defendants.
12

The same reasoning applies as to Doe’s IIED claim. The Kipp Defendants argue that
Doe’s IIED claim is intertwined with her assault and battery claims, and thus subject to a oneyear limitations period under D.C. Code § 12-301(4). Kipp Mem. Supp. at 5. If this is the case,
the statute of limitations began running when Doe turned eighteen in 2008 and the limitations
period expired in 2009, so Doe’s claims are time barred. If, as Doe alleges, the IIED claim is
“intertwined with her claims in Counts I, II, III, IV, and V” and the three-year limitations period
of § 12-301(8) applies, Pl.’s Kipp Opp’n at 9, the limitations period extended to 2011 and Doe’s
claims are still time-barred. And finally, even if D.C. Code § 12-301(11) is applicable to the
IIED claim, the limitations period was only extended to seven years past Doe’s eighteenth
birthday, or 2015, and the IIED claim is again time-barred.
B. Doe’s Negligence Per Se and Gross Negligence Claims are Time-Barred
Next, Doe brought two negligence per se claims against the School Defendants, premised
respectively on violations of D.C. Code § 22-3001 and § 22-3008 and on a violation of D.C.
Code § 4-1321.02(a), see Compl. ¶¶ 91–112, as well as a separate gross negligence claim against
Ettinger, see id. ¶¶ 113–129. The School Defendants move to dismiss the claims as time-barred
because all three were subject to a three-year statute of limitations. See Kipp Mem. Supp. at 4;
Capital City Mem. Supp. at 7. Doe asserts in response that the discovery rule tolled the statute of
limitations and that the School Defendants’ continuing failure to comply with the mandatory
reporting requirements of § 22-3001, § 22-3008, and § 4.1321.02(a) means the time limit for
filing the negligence per se claims was never exhausted. See Pl.’s Kipp Opp’n at 6–7. In her
opposition to the Kipp Defendants’ motion, Doe also asserts that the same reporting

13

requirements tolled the statute of limitations on her gross negligence claims against Ettinger. 6
See id. As discussed above in Part IV.A.1., the Court finds that the discovery rule does not apply
to Doe’s claims. The Court also finds Doe’s reporting requirements argument unavailing, and it
accordingly dismisses the negligence per se and gross negligence claims as time-barred.
1. Mandatory Reporting Requirements Did Not Extend the Limitations Period
Doe contends that the negligence per se and gross negligence claims are timely because
of the School Defendants’ continuing failure to comply with mandatory reporting requirements
under D.C. Code § 22-3001, § 22-3008, and § 4-1321.02(a). The School Defendants respond
that § 22-3001 and § 22-3008 do not create a duty to report, and that their failure to comply with
§ 4-1321.02(a) does not constitute a continuing tort that would allow Doe to defeat the statute of
limitations. See Kipp Reply at 7–9, ECF No. 16; Capital City Mem. Supp. at 11–12. 7 The Court
agrees.
First, as the Kipp Defendants argue in their reply, see Kipp Reply at 8–9, and Capital
City in its motion, see Capital City Mem. Supp. at 12, D.C. Code § 22-3001 and § 22-3008
6

The Kipp Defendants point out in their reply that Doe’s complaint does not indicate her
gross negligence claim to be premised on a duty to report, but rather on the duty to supervise.
See Kipp Reply at 12, ECF No. 16. They argue that “a plaintiff cannot add new allegations to a
complaint in an opposition to a motion to dismiss” and that the Court should accordingly reject
Doe’s continuing duty argument as to her gross negligence claim. Id. While the Court agrees, it
does not elaborate on the issue further because Doe’s continuous duty argument would fail even
if she was able to assert it.
7

The Kipp Defendants separately argue in their reply that § 4-1321.02(a) also did not
create a duty for Kipp DC or Ettinger to report Doe’s abuse. See Kipp Reply at 9–11. They note
that before 2007, the statute only imposed an obligation to report suspected abuse by parents,
guardians, or caretakers, and that following a 2007 amendment the revised section only imposes
a duty to report suspected abuse of a child “known to [the reporter] in his or her professional or
official capacity.” Id. at 11 (quoting D.C. Code § 4-1321.02(a)). The Kipp Defendants point out
that by 2007 Doe was no longer enrolled at Kipp DC, and thus not known to them in a
professional or official capacity. The Court does not address this argument because even
assuming that D.C. Code § 4-1321.02(a) created a duty to report, such a duty could not form the
basis for the continuing tort Doe alleges.
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together codify the offense of first degree child sexual abuse and do not appear to create any duty
to report allegations of sexual abuse. Doe fails to address the argument in its opposition to
Capital City’s motion to dismiss, and the Court is not aware of any law supporting her contention
that these provisions create a mandatory reporting requirement for the School Defendants. The
Court accordingly rejects Doe’s continuing duty argument as to the negligence per se claim
based on violations of § 22-3001 and § 22-3008, and as to the gross negligence claim to the
extent it is premised upon violations of § 22-3001 and § 22-3008.
Second, while Doe does not cite any law in her opposition, she appears to be invoking the
continuing tort doctrine when she argues that her negligence claims arising from the School
Defendants’ failure to comply with their duty to report under § 4-1321.02(a) are not time-barred.
The School Defendants both argue that the continuing tort doctrine should not apply. See Kipp
Reply at 8 n.5; Capital City Reply at 5, ECF No. 20. The Court finds that Doe was on notice of
her claims in 2009 at the latest and thus that the continuing tort doctrine does not toll the statute
of limitations.
Under D.C. law, “a plaintiff establishes a continuing tort by showing ‘(1) a continuous
and repetitious wrong, (2) with damages flowing from the act as a whole rather than from each
individual act, and (3) at least one injurious act within the limitation period.”’ Whelan v. Abell,
953 F.2d 663, 673 (D.C. Cir. 1992) (quoting DeKine v. District of Columbia, 422 A.2d 981, 988
n.16 (D.C. 1980)). “The concept is allied with the discovery rule,” and damages caused by
conduct occurring outside of the statute of limitations can only be recovered when “the
continuing tort has a cumulative effect, such that the injury might not have come about but for
the entire course of conduct.” Beard v. Edmondson & Gallagher, 790 A.2d 541, 548 (D.C.
2002) (emphasis in original) (quoting John McShain, Inc. v. L’Enfant Plaza Props., Inc., 402

15

A.2d 1222, 1231 n.20 (D.C. 1979)). Importantly here, “once the plaintiff has been placed on
notice of an injury and the role of the defendants’ wrongful conduct in causing it, the policy
disfavoring stale claims makes application of the ‘continuous tort’ doctrine inappropriate.”
Hendel v. World Plan Exec. Council, 705 A.2d 656, 667 (D.C. 1997).
Doe argues that the School Defendants had a “continuous duty to report . . . Coleman’s
abuse” under D.C. Code 4-1321.02(a), that they “never fulfilled that duty”—or alternatively that
the duty terminated in 2016 when Coleman was arrested—and consequently that the statute of
limitations on her negligence per se and gross negligence claims premised on § 4-1321.02(a)
began to run in 2016 at the earliest. Pl.’s Kipp Opp’n at 7. The Court finds this argument
unavailing. As an initial matter, the D.C. Court of Appeals has emphasized that the continuous
tort doctrine is intended to apply to situations where a tort causes continuing and cumulative
harm. Here, it is unclear what harm to Doe the School Defendants’ failure to report Coleman
caused once the abuse ended, between 2009 and 2016. More importantly, as the Defendants
point out and as discussed above in Part IV.A.1., Doe was on notice of her claims at the time of
the abuse because her negligence claims “accrue[d] for purposes of the statute of limitations at
the time the injury actually occur[ed].” Colbert, 641 A.2d at 472. Because the continuous tort
doctrine “is allied with the discovery rule,” Beard, 790 A.2d at 548, and applying the doctrine is
inappropriate when a plaintiff is on notice of her injuries, see Hendel, 705 A.2d at 667, the Court
finds that the doctrine does not operate to toll Doe’s negligence claims premised on violation of a
duty to report under § 4-1321.02(a). 8

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The Court also notes that the Iowa Court of Appeals addressed a mandatory reporting
statute under similar circumstances in S.O. ex rel. J.O. Sr. v. Carlisle School Dist., 766 N.W.2d
648, 2009 WL 605994, at *1 (Iowa Ct. App. Mar. 11, 2009) (unpublished table decision), and
explicitly rejected the application of the continuous tort doctrine. See id. at *4–5. S.O. involved
a reporting statute that created civil liability for failing to report suspected child abuse within
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2. Doe’s Negligence Per Se and Gross Negligence Claims are Time-Barred
Absent any tolling of the limitations period, the Court finds that Doe’s negligence per se
and gross negligence claims are time-barred. The School Defendants argue that Doe’s
negligence claims are all subject to the catch-all three-year statute of limitations under § 12301(8). See Kipp Mem. Supp. at 4; Capital City Mem. Supp. at 7. Doe does not challenge the
applicability of § 12-301(8) to the negligence per se claims, and makes no arguments as to gross
negligence. See Pl.’s Kipp Opp’n at 6–8. As discussed above in Part IV.A.2., although Doe was
on notice of her claims at the time of the abuse, the statute of limitations did not begin to run
until Doe’s eighteenth birthday because the abuse occurred when she was a minor. See D.C.
Code § 12-302(a). Doe turned eighteen in 2008, see Compl. ¶ 1, and the three-year limitations
period on her negligence claims expired in late 2011. 9 Doe’s claims are therefore time-barred.
C. Doe’s Assault and Battery Claims Are Time-Barred
Finally, all Defendants move to dismiss Doe’s assault and battery claims as barred by a
one-year statute of limitations. See Kipp Mem. Supp. at 11; Capital City Mem. Supp. at 7;
Coleman Mem. Supp. at 5. Doe does not challenge the applicability of the one-year statute of
twenty-four hours. See id. at *4. To defeat the statute of limitations on their failure to report
claim against the school district, the plaintiffs had alleged that the failure to report was a
continuing tort. See id. at *1–2. The lower court found that, pursuant to the statute, a mandatory
reporter’s failure to report abuse created a single wrongful act that became actionable once
twenty-four hours had passed. See id. at *4. The Court of Appeals agreed and explained that the
continuous tort doctrine could not apply because there was “a single act of omission, even if
plaintiff’s injury [was] continuing in nature.” Id. at *5. Given that D.C. Code § 4-1321.02(a) is
less permissive than the Iowa statute and requires “immediately report[ing] . . . knowledge or
suspicion” of sexual abuse, D.C. Code § 4-1321.02(a) (emphasis added), the Court questions
whether it is possible for failure to comply with the statute to form a continuing tort that is
actionable for an indefinite period of time beyond an immediate period of time.
9

As with Doe’s claims discussed above in Part IV.A.2, even if the negligence claims fell
under the umbrella of § 12-301(11), the limitations period would only extend to seven years past
Doe’s eighteenth birthday, or late 2015. Even under that statutory provision, Doe’s claims are
still time-barred.
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limitations; rather, she argues that the limitations period should be tolled pursuant to the
discovery rule or to equitable tolling. As discussed above in Part IV.A.1., the Court finds that
the discovery rule does not apply to Doe’s claims. Because the Court finds that equitable tolling
also does not apply, it dismisses the assault and battery claims as untimely.
As a general rule, “District of Columbia law does not recognize an equitable tolling
exception to the statute of limitations.” Nattah v. Bush, 770 F. Supp. 2d 193, 208 (D.D.C. 2011)
(quoting Johnson v. Marcheta Invs. Ltd. P’ship, 711 A.2d 109, 112 (D.C. 1998)); see also East v.
Graphic Arts Indus. Joint Pension Tr., 718 A.2d 153, 156 (D.C. 1998) (“[R]ejection of the
application of equitable tolling . . . rests on the belief that where the legislature has provided no
savings statute, courts would exceed their prescribed role by providing a remedy.” (quoting
Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996))). As the D.C. Court of Appeals noted in
Graphic Arts, D.C. only recognizes “two limited exceptions to [its] generally strict application of
statutes of limitations: the lulling doctrine and the discovery rule.” 718 A.2d at 156. The Court
has already rejected the applicability of the discovery rule to this case. And the lulling doctrine
tolls the statute of limitations only when a defendant “has done anything that would tend to lull
the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run.” Id.
at 156–57 (quoting Bond v. Serano, 566 A.2d 47, 50 (D.C. 1989). Nothing of the sort is alleged
here, so that doctrine is also inapplicable. “[F]ederal courts cannot apply the doctrine of
equitable tolling differently than would the District of Columbia courts,” Nattah, 770 F. Supp. 2d
at 208 (alteration in original) (quoting Williams v. District of Columbia, 916 F. Supp. 1, 5
(D.D.C. 1996)). The Court accordingly rejects Doe’s equitable tolling argument and dismisses
her assault and battery claims as untimely.

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D. The Court Denies Doe’s Motion to Amend the Complaint
In her opposition to Capital City’s motion to dismiss, Doe moves in the alternative to
amend the complaint, noting that “[t]he court should freely give leave [to amend a pleading]
when justice so requires.” Pl.’s Capital City Opp’n at 14 (second alteration in original) (quoting
Fed R. Civ. P. 15(a)(2)). The Court denies the motion for failure to comply with the Local
Rules. Under Local Rules 7(i) and 15.1, “a motion for leave to file an amended pleading shall be
accompanied by an original of the proposed pleading as amended.” D.D.C. R. 7(i), 15.1. Courts
in this circuit have routinely denied motions for leave to amend that fail to comply with these
Local Rules. See, e.g., Brown v. Potomac Elec. Power Co., 306 F. Supp. 3d 194, 202 (D.D.C.
2018); Townsend v. United States, 282 F. Supp. 3d 118, 124 n.2 (D.D.C. 2017). Because Doe
failed to include the proposed amendments in her motion to amend, the Court accordingly denies
the motion.
V. CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss (ECF Nos. 6, 13, 17) are
GRANTED, Plaintiff’s motion to amend (ECF No. 18) is DENIED WITHOUT PREJUDICE,
and this case is DISMISSED WITHOUT PREJUDICE. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: January 3, 2019

RUDOLPH CONTRERAS
United States District Judge

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