Elghannam v. National Association of Boards of Pharmacy

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALI ELGHANNAM,

Plaintiff,

v. Case No. 15-cv-01554 (CRC)

NATIONAL ASSOCIATION OF BOARDS

OF PHARMACY,

Defendant.

MEMORANDUM OPINION AND ORDER

Ali Elghannam, an Egyptian immigrant and native Arabic speaker, aspires to practice

pharmacy in the United States. Before he may do so, however, he must obtain a certificate from the

Foreign Pharmacy Graduate Examination Committee (“FPGEC”) of the National Association of

Boards of Pharmacy (“NABP”), one requirement of which is the successful completion of the Test

of English as a Foreign Language (“TOEFL”). Elghannam sat for this examination on April 10,

2015 and was informed ten days later by the Educational Testing Service (“ETS”), the non-profit

organization that administers and scores the TOEFL exam, that he had obtained high marks in all

categories. To Elghannam’s dismay, ETS subsequently notified him that it had canceled his score,

explaining that it had identified inconsistencies between the voice on the speaking portion of

Elghannam’s April 10 test and the voice from earlier tests that he had taken. Several months later,

NABP informed Elghannam that it could not award him his FPGEC certificate due to his lack of a

valid TOEFL score. Elghannam responded with a pro se complaint in the Superior Court for the

District of Columbia seeking an order requiring NABP to issue that certificate. NABP timely

removed the case to this Court and now moves to dismiss the complaint for failure to state a claim.

The Court will grant NABP’s motion.

Elghannam alleges wrongdoing only by ETS. The sole allegation he makes against NABP

is that it “agreed immediately” with ETS’s decision to cancel his TOEFL score. Pl.’s Opp’n 1.

Because this “naked assertion” is completely “devoid of . . . ‘factual enhancement’” regarding any

potential misconduct by NABP, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Court will dismiss

Elghannam’s complaint without prejudice and allow him an opportunity to file an amended

complaint.

I. Standard of Review

To overcome a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). Facial plausibility entails “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. While the court “must take

all of the factual allegations in the complaint as true,” legal conclusions “couched as a factual

allegation” do not warrant the same deference. Id. (citing Twombly, 550 U.S. at 555).

“A document filed pro se is to be liberally construed and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976)) (internal citation and quotation marks omitted). A court cannot consider matters outside the

pleadings in deciding a Rule 12(b)(6) motion, but it may consider “documents attached as exhibits

or incorporated by reference in the complaint.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.

Supp. 2d 117, 119 (D.D.C. 2011) (citing Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46

(D.D.C. 2009)) (internal citation omitted). Further, a pro se plaintiff’s pleadings must be

“considered in toto” to determine whether they “set out allegations sufficient to survive dismissal.”

Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir. 2015).

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II. Analysis

Because Elghannam’s complaint does not meet “the threshold requirement of [Federal] Rule

[of Civil Procedure] 8(a)(2) that” it contain allegations that “possess enough heft to show that the

[he] is entitled to relief” against NABP, Twombly, 550 U.S. at 557 (internal quotation marks

omitted), it fails to state a claim upon which relief can be granted and therefore warrants dismissal

under Federal Rule of Civil Procedure 12(b)(6). First, the complaint itself, while replete with

allegations of potential wrongdoing by ETS, includes no claim at all against NABP. It speaks only

of “ETS’ conduct” and “ETS’ actions.” Compl. 5; see also Order on Plaintiff’s Motion to Remand,

Oct. 23, 2015, ECF No. 10 (“Although Elghannam claims in his complaint that the Educational

Testing Service violated his ‘due process rights,’ he does not make any such claim against the

defendant in this case: NABP.”). For instance, Elghannam expresses his “belie[f]” that ETS

cancelled his test score in “retaliation for two previous complaints that [he] made to ETS.”

Compl. 3. He also alleges that “ETS[’s] decision . . . violat[ed] [his] due process rights as well as

[constituted] defamation.” Finally, Elghannam contends that “ETS breached its adhesion contract

(A Slave Contract).” The closest that Elghannam comes to alleging any form of wrongdoing by

NABP is in his opposition to NABP’s motion to dismiss, where he claims that NABP “agreed

immediately with a new Educational Testing Services’ [decision] to cancel [his] valid score.” Pl.’s

Opp’n 1. The Court understands Elghannam to allege that ETS and NABP conspired to invalidate

his test score, thereby breaching a contract between himself and ETS and potentially infringing on

certain of his rights.

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Elghannam’s pleadings, however, even considered in toto, simply do not contain “enough

factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. 1

Indeed, they contain no facts at all that “raise a reasonable expectation that discovery will reveal

evidence of illegal agreement.” Id. Elghannam alleges merely that NABP made an “agree[ment]”

with ETS to cancel his score, Pl.’s Opp’n 1, but this “bare assertion[], much like the pleading of

conspiracy in Twombly, . . . [is] conclusory and not entitled to be assumed true,” Iqbal, 556 U.S.

at 681. Other than this conclusory allegation, which the Court cannot credit, Elghannam claims

only that NABP is withholding his FPGEC certificate and that NABP was made aware of ETS’s

findings. Compl. 3, 5. These facts, however, taken as true, do not allow the Court to draw “the

reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678,

and therefore fail to “show[] that the pleader is entitled to relief” against NABP, Fed. R. Civ. P.

8(a)(2), particularly as all the alleged misconduct solely involves the actions of ETS. The Court

accordingly will grant NABP’s motion to dismiss the complaint but allow Elghannam an

opportunity to amend his complaint consistent with the pleading standard articulated in Twombly

and Iqbal.

III. Conclusion

Therefore, it is hereby

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NABP contends that Elghannam’s allegation of an agreement or conspiracy should be

disregarded in its entirety because he is endeavoring “to plead new allegations not included in his

Complaint [in an] attempt to create a connection between the alleged wrongdoer, ETS, and NABP.”

Def.’s Reply 2. While courts have held that even a pro se plaintiff “is not entitled to raise new

claims for the first time in an opposition to a motion to dismiss,” Morris v. Carter Glob. Lee, Inc.,

997 F. Supp. 2d 27, 42 (D.D.C. 2013), the D.C. Circuit has recently held that a district court must

consider together all allegations that pro se plaintiffs make in their pleadings—including in their

oppositions—when resolving a motion to dismiss, see Whole Foods Mkt. Grp., 789 F.3d at 151.

This Court will therefore not disregard Elghannam’s allegations that appear only in his opposition

to NABP’s motion to dismiss.

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ORDERED that [5] Defendant’s Motion to Dismiss the Complaint be GRANTED. It is

further

ORDERED that Plaintiff’s Complaint be DISMISSED WITHOUT PREJUDICE. It is

further

ORDERED that Plaintiff shall amend his complaint, if at all, no later than January 4, 2016.

Should Plaintiff fail to file a proper amended complaint within that time, the case will be dismissed.

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: December 14, 2015

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