Verdiner v. Washington Metropolitan Area Transit Authority

Filing 14

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/11/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LATASHA VERDINER
:
v.

:

Civil Action No. DKC 15-2612

:
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this personal
injury case is a motion to dismiss filed by Defendant Washington
Metropolitan Area Transit Authority (“WMATA” or “Defendant”).
(ECF No. 11).

The issues have been fully briefed and the court

now rules, no hearing being deemed necessary.
For

the

following

reasons,

the

motion

Local Rule 105.6.

will

be

granted,

and

Plaintiff will have 21 days within which to file an amended
complaint.
I.

Background
A.

Factual Background1

This case stems from a July 3, 2012, incident on the Green
Line

Metro

near

College

Park,

Maryland.

(ECF

No.

2

¶

4).

Plaintiff Latasha Verdiner (“Plaintiff”) was a passenger when
the train on which she was riding lost power and came to a
1

When considering a motion to dismiss for failure to state
a claim, the well-pled allegations in the complaint are accepted
as true. See Brockington v. Boykins, 637 F.3d 503, 505 (4th Cir.
2011).

sudden stop.

At the time of the incident, Plaintiff alleges,

Defendant’s employees operated the train.
some

time

and

receiving

no

guidance

After waiting for
or

assistance

from

Defendant’s employees, Plaintiff and other passengers evacuated
the train.

There was no ladder or assistive device, the ground

outside the car was rocky and uneven, and there was only a small
space

between

the

train

car

and

a

concrete

wall.

Upon

evacuating the train, Plaintiff “wrenche[d] her knee” as she
landed and fell against the wall.

(Id. ¶ 6).

She walked along

the rail to the College Park Metro station, injuring her knees
and back.
B.

Procedural History

Plaintiff originally filed a complaint in the Circuit Court
for Prince George’s County, asserting three counts of negligence
against Defendant.
September 3, 2015.

Defendant removed the case to this court on
(ECF No. 1).

The complaint alleges that:

Defendant violated federal, state, local, and industry standards
by, inter alia, failing to have, implement, follow, and oversee
policies and procedures for evacuating passengers trapped on the
rail system (Count I); Defendant is vicariously liable for the
conduct of its employees that violated federal, state, local,
and

industry

standards

(Count

2

II);

and

Defendant

harmed

Plaintiff

by

negligently

hiring,

training,

and

supervising

employees (Count III).2
On September 10, Defendant filed a motion to dismiss for
lack

of

claim.

subject

matter

(ECF No. 11).

jurisdiction

and

failure

to

state

a

Plaintiff responded in opposition and

attached as exhibits the police and incident reports as well as
excerpts from Defendant’s Standard Operating Procedures (“SOP”).
(ECF

Nos.

12;

acknowledged

12-1;

that

“the

12-2).

In

hiring,

her

opposition,

training

and

Plaintiff

supervision

of

[Defendant’s] employees is a discretionary function for which
[Defendant]
Plaintiff
dismissed.

is

immune

voluntarily

from

suit.”

withdrew

Count

(ECF
III,

No.

12,

which

at
will

8).
be

Defendant replied, requesting that its motion to

dismiss be treated as a motion for summary judgment.

(ECF No.

13).3

2

The complaint erroneously identifies Count III as a
duplicative “Count II.”
(ECF No. 2 ¶ 29).
This opinion will
refer to three distinct counts: Count I (id. ¶ 27); Count II
(id. ¶ 28); and Count III (id. ¶ 29).
3

In reviewing the motion to dismiss under Fed.R.Civ.P.
12(b)(6), the court may consider allegations in the complaint,
matters of public record, and documents attached to the motion
to dismiss that are integral to the complaint and authentic.
See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th
Cir. 2009).
The court may also consider documents attached to
the complaint.
CACI Int’l v. St. Paul Fire & Marine Ins. Co.,
566 F.3d 150, 154 (4th Cir. 2009); see Fed.R.Civ.P. 10(c) (“A
copy of a written instrument that is an exhibit to a pleading is
a part of the pleading for all purposes.”).
3

II.

Standard of Review
A.

Rule 12(b)(1)

Assertions of governmental immunity are properly addressed
under

Fed.R.Civ.P.

12(b)(1),

which

allows

defendants

to

challenge an action for lack of subject matter jurisdiction.
See Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205
(4th Cir. 2002) (citing Williams v. United States, 50 F.3d 299,
304 (4th Cir. 1995)).

Generally, “questions of subject matter

jurisdiction must be decided ‘first, because they concern the
court’s very power to hear the case.’”

Owens–Illinois, Inc. v.

Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm.
Moore,
1998)).

et

al.,

Moore’s

Federal

Practice

§

12.30[1]

(3d

ed.

The plaintiff bears the burden of proving that subject

matter jurisdiction properly exists in federal court.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

Evans v.

In deciding

a Rule 12(b)(1) motion, the court “may consider evidence outside

Here, however, Plaintiff attached two exhibits to her
response in opposition. Plaintiff may not amend the pleading by
attaching documents to her opposition brief, and the court will
not consider the exhibits at this stage.
See Zachair, Ltd. v.
Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (holding that
facts first alleged in an opposition brief cannot be considered
on Rule 12(b)(6) review); Lindsey-Grobes v. United Airlines,
Inc., No. GJH-14-00857, 2014 WL 5298030, at *5 (D.Md. Oct. 14,
2014) (“An affidavit attached to an opposition to a motion to
dismiss, however, is no place for [the plaintiff] to add
material facts to a deficient complaint.”).
Accordingly, the
court declines to convert Defendant’s motion into one for
summary judgment and, at the motion to dismiss stage, will not
consider documents outside the pleading.
4

the pleadings” to help determine whether it has jurisdiction
over the case before it.

Richmond, Fredericksburg & Potomac

R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991).

Such a

motion should only be granted “if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.”
B.

Id.

Rule 12(b)(6)

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Fed.R.Civ.P. 8(a)(2), which
requires a “short and plain statement of the claim showing that
the

pleader

requires

a

is

entitled

‘showing,’

rather

entitlement to relief.”
544, 555 n.3 (2007).

to

relief.”
than

a

“Rule
blanket

8(a)(2)

still

assertion,

of

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
5

1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

v.

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.
604

F.2d

844,

(4th

847

United Black Firefighters v. Hirst,
Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but

it

has

not

relief.’”
8(a)(2)).

‘show[n]

Iqbal,

556

that
U.S.

the
at

pleader

679

is

(quoting

entitled

to

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Id.

III. Analysis
Defendant

moves

to

dismiss

under

Rule

12(b)(1),

arguing

that it is immune from attacks on its policies and procedures
governing responses to emergency situations and from liability
for

the

hiring,

training,

and

supervision

of

its

employees.

Furthermore, citing Rule 12(b)(6), Defendant contends that the
complaint

fails

to

state

a

claim
6

upon

which

relief

can

be

granted.

Plaintiff concedes that Defendant is immune from suit

for the hiring, training, and supervision of its employees, but
asserts that Defendant’s actions in response to the emergency
situation fall beyond the scope of sovereign immunity.

From the

complaint, however, it is not clear whether Plaintiff argues
that Defendant failed to have a policy in place or whether it
breached

some

policy

in

place,

or

both.

The

difference

is

critical to the adjudication of this case.
The

complicated

path

for

assessing

Defendant’s

immunity

arises from its unique status:
WMATA is a mass transit system (serving the
District of Columbia and suburban areas)
that enjoys a unique type of sovereign
immunity with respect to certain claims.
Created in 1966, WMATA was formed by an
interstate compact (“the Compact”) enacted
and consented to by Congress and adopted by
the state of Maryland, the District of
Columbia, and the Commonwealth of Virginia.
Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.
1981).
The Compact provides that WMATA is
an interstate agency and instrumentality of
each of the signatories to the Compact.
Delon Hampton & Assocs., Ctd. v. WMATA, 943
As such an
F.2d 355, 359 (4th Cir. 1991).
agency, WMATA enjoys the same rights and
privileges as a state, including sovereign
immunity.
Id. (citing Beatty v. WMATA, 860
F.2d 1117, 1126 (D.C. Cir. 1988)).
Pierce v. Wash. Metro. Area Transit Auth., No. DKC-09-1917, 2010
WL 4485826, at *3 (D.Md. Nov. 9, 2010).

Accordingly, both the

United States Court of Appeals for the District of Columbia
Circuit and the United States Court of Appeals for the Fourth
7

Circuit
immunity

have

held

for

some

that

Defendant

actions

brought

is

entitled
against

to

it.

sovereign
See

id.

(clarifying that Defendant’s “immunity is not all encompassing,
as the Compact waives that immunity for some claims — i.e.,
those that stem from the performance of a propriety, or nongovernmental function”).

Section 80 of the Compact provides:

The Authority shall be liable for its
contracts and for its torts and those of its
directors, officers, employees, and agents
committed in the conduct of any proprietary
function, in accordance with the applicable
signatory (including rules of conflict of
laws), but shall not be liable for any torts
occurring
in
the
performance
of
a
governmental function. The exclusive remedy
for such breach of contracts and torts for
which the Authority shall be liable, as
herein provided, shall be by suit against
the Authority.
Md. Code Ann., Transp. § 10–204(80).
approach

in

determining

whether

Courts employ a two-step

sovereign

immunity

Smith, 290 F.3d at 207.
First, the test looks to whether WMATA “is
engaged in a quintessential governmental
function.” [Id.] If it is, the activity is
within WMATA’s sovereign immunity and the
inquiry ends. Id. If WMATA was not engaged
in a quintessential government function, the
court “must proceed to the second inquiry,
[wherein] it must determine whether the
challenged activity is discretionary or
ministerial.”
Id.
If an activity is
discretionary, WMATA is immune “from any
claim, ‘however negligently caused.’”
Id.
(quoting Dalehite v. United States, 346 U.S.
15, 32 (1953)).
In contrast, “sovereign
immunity never shields ministerial actions.”
8

attaches.

Monument Realty LLC v. WMATA, 535 F.Supp.2d
60, 76 (D.D.C. 2008).
Pierce, 2010 WL 4485826, at *3.
Here, it cannot be said that Defendant was engaged in a
quintessential

government

transportation

differs

function.

from

The

activities

which only the government can perform.

operation

like

law

of

public

enforcement,

See Smith, 290 F.3d at

206 n.7 (“The provision of mass transportation by a public body
. . . is generally recognized as a ‘proprietary’ function.”);
Pierce, 2010 WL 4485826, at *4 (identifying police activity,
prosecutorial decisions, and firefighting as “quintessentially
governmental” functions).

Moreover, Defendant does not contend

that it was engaged in a quintessential government function.
(See ECF No. 11, at 11-13).

Turning to the second step of the

inquiry, the court must determine whether the challenged conduct
is discretionary or ministerial.
“[A] duty is discretionary if it involves
judgment, planning, or policy decisions. It
is
not
discretionary
[i.e.,
it
is
ministerial] if it involves enforcement or
administration of a mandatory duty at the
operational level, even if professional
expert evaluation is required.”
[KiSKA
Constr. Corp. v. WMATA, 321 F.3d 1151, 1159
n.9 (D.C. Cir. 2003) (internal quotation
marks omitted)]. Two more pointed questions
dictate the outcome.
First, the court
considers whether any statute, regulation,
or policy “specifically prescribes a course
of action for an employee to follow.”
Id.
at 1159.
If the course is prescribed, the
activity is not discretionary.
Second, the
9

court must determine whether the exercise of
discretion is grounded in “social, economic,
or political goals.”
Id.
If it is,
sovereign immunity applies.
Pierce,

2010

WL

4485826,

at

*4.

Put

simply,

ministerial

activity “connotes the execution of policy as distinct from its
formulation”

and

thus

is

not

accorded

immunity.

Griggs

v.

WMATA, 232 F.3d 917, 921 (D.C. Cir. 2000).
In her opposition to Defendant’s motion, Plaintiff refers
to

Defendant’s

instructions

SOP

to

as

train

providing
operators

“detailed
and

[Rail

and

comprehensive

Operations

Control

Center (“ROCC”)] personnel regarding the responsibilities and
procedures for disabled trains and evacuations.”
at 7).

(ECF No. 12,

According to Plaintiff, “The SOP shows that [Defendant]

had a policy in place prescribing the course of action for all
[of Defendant’s] employees and the incident report shows that
despite

the

followed.”
there

was

SOP,

that

(Id.).
a

prescribed

course

of

action

was

not

Plaintiff, thus, appears to contend that

mandatory

duty

imposed

by

the

SOP,

that

WMATA

employees failed to follow that duty, and that, as a result, she
suffered injury.

(See id. (“[Defendant] was acting, or failing

to act as the case may be, within its ministerial function and
therefore [is] not shielded by sovereign immunity.”)).
Defendant

cannot

be

sued

for

failure

to

have

a

Here,

policy

or

procedure because such a decision is discretionary, but it can

10

be sued if there was a mandatory evacuation policy or procedure
in place that was not followed.

See Robinson v. Washington

Metro. Area Transit Auth., 858 F.Supp.2d 33, 38-39 (D.D.C. 2012)
(finding that sovereign immunity did not bar the plaintiff’s
action

because

WMATA’s

safety directives).

employees

allegedly

failed

to

follow

On Rule 12(b)(1) review, and considering

evidence outside the pleading, material jurisdictional facts are
in dispute.
F.2d

at

See Richmond, Fredericksburg & Potomac R.R., 945

768.

At

this

time,

the

court

will

not

dismiss

Plaintiff’s complaint for lack of subject matter jurisdiction.
Reviewing the complaint under Rule 12(b)(6), however, the
court

will

not

consider

exhibits

attached

to

Plaintiff’s

opposition brief; rather, the court confines its review to the
pleading.

See supra n.3.

Plaintiff must provide a factual

basis in the complaint to show that Defendant owed her duties.
See

Felder

v.

WMATA,

105

F.Supp.3d

52,

59-60

(D.D.C.

2015)

(granting a motion to dismiss because the plaintiff did not
provide facts to show that WMATA had policies and procedures
related

to

his

claim).

The

complaint

is

reveal the precise deficits she alleges.

too

conclusory

to

Plaintiff contends

that Defendant breached various duties, but does not clearly
state

what

Plaintiff

those
does

duties

not

were.

provide

a

(See
factual

ECF

No.

basis

2

for

¶¶

9-24).

evaluating

whether a mandatory duty obligated Defendant’s agents to act in
11

a certain manner, and if they fell short.

To the extent that

she seeks to assert such a claim, those allegations must be made
clear.

Plaintiff will be granted the opportunity to amend her

complaint.

Accordingly, Defendant’s motion to dismiss will be

granted, and the court will allow Plaintiff 21 days to file an
amended complaint.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendant will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12