Petition for Writ of Certiorari — Teresita A. Canuto, Petitioner v. Troy Alexander, et al.
Supreme Court briefJul 17, 2020
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Appendix TOC - i
APPENDIX TABLE OF CONTENTS
Opinions and Orders
Order of the United States Court of Appeals for the
District of Columbia (January 30, 2020)...................
App.la
Memorandum Opinion and Order of the United States District Court for the
District of Columbia (June 30, 2018)................................................................ App.4a
Memorandum Opinion of the United States District Court for the
District of Columbia (August 10, 2017).......................................
App.28a
Order Dated July 30, 2018—Leave to File is Denied per Judge Sullivan with
Regards to “Notice of Constitutional Challenge of Statute”
(August 30, 2018)
App.62a
Order of the United States District Court for the District of Columbia
(August 10, 2017)...................................................................................
App.64a
Order Directing Plaintiff to Complete Service of Process
(August 10, 2017)...........................................................
App.66a
Rehearing Order and Mandate
Rehearing Denial Order of the United States Court of Appeals for the
District of Columbia (April 20, 2020)..................................................
App.69a
Mandate of the United States Court of Appeals for the
District of Columbia (April 28, 2020)..................................................
App.70a
Other Documents
Defendant Bank of America, N.A., Motion to Dismiss Plaintiffs Amended
Complaint (September 9, 2017)...................................................................
App.71a
Defendant Woodman-Sylvan Properties, Inc.’s Motion to Dismiss Plaintiffs
Amended Complaint (September 25, 2017)
App.77a
Memorandum of Points and Authorities in Support of Defendant
Woodman-Sylvan Properties, Inc.’s Motion to Dismiss
Plaintiffs Amended Complaint (September 25, 2017).............
App.79a
Appendix TOC - ii
APPENDIX TABLE OF CONTENTS (Continued)
Defendant Cirrus Asset Management Inc.’s Motion to Dismiss Plaintiff s
Amended Complaint Filed on August 22, 2017 and request for Sanctions
App.87a
(August 30, 2017)
Appellant’s Motion to Dismiss Appellee Cirrus Asset Management Inc.’s
Motion for Summary Affirmance and Appellee Cirrus Asset Management
Inc.’s Motion to Dismiss for lack of Personal Jurisdiction
(July 22, 2019)
.App.89a
Request to Submit Evidence That the Amended Complaint Filed on
January 18, 2017 is the Same Copy of the Amended Complaint Filed on
August 22, 2017 (October 19, 2017)
App.96a
Motion for Leave to File Supplemental Relevant Evidence Depicting
Defendants’ Relationship, Control Over Private Person Temporarily
Engage to Perform the Task of Sexual Assaults and Battery During the
Year 2014, 2015 and 2016 (September 15, 2017)
App.99a
Correspondence Dated July 21, 2019 Filed to Appellate Court
Re^ Supplemental Appendix (July 14, 2019)........................
App.l03a
Correspondence dated July 14, 2019 filed to Appellate Court
Re: requests to replace previous Appendix dated July 5, 2019
(July 21, 2019)................................ ................................................
.App.l08a
Image of Healed Wounds........................................... ...........................
.App.llla
District Court Docket Report
(July 17, 2019).................
.App.ll2a
USCA Case #19-5186
Document #1826297
T&mizbStates (Eourt
Filed: 01/30/2020
Page 1 of 3
(Appeals
For The District of Columbia Circuit
September Term, 2019
No. 19-5186
1:16-CV-02282-EGS
Filed On: January 30,2020
Teresita A. Canuto,
Appellant
v.
Troy Alexander, Ltc.~ Batallion Commander
(U.S. Army Reserve), et al.,
Appellees
BEFORE:
Srinivasan, Millett, and Katsas, Circuit Judges
ORDER
Upon consideration of appellant’s brief and amended brief, the motions for
summary affirmance, the responses thereto, the replies, and the surreply; the motion
for summary reversal, the responses thereto, and the reply; the motions to strike, the
responses thereto, and the reply; the motion for sanctions; the motion for default ruling;
and the supplemental filings, it is
r
ORDERED that the motion for default ruling be denied. The U.S. Government’s
response in opposition to appellant’s motion for summary reversal was timely pursuant
to this court’s order dated October 2, 2019. It is
FURTHER ORDERED that the motions to strike be denied. Motions to strike are
disfavored. See Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty, Ltd..
647 F.2d 200, 201 (D.C. Cir. 1981). It is
FURTHER ORDERED that the motions for summary affirmance be granted and
the motion for summary reversal be denied. The merits of the parties' positions are so
clear as to warrant summary action. See Taxpayers Watchdog, Inc, v. Stanley. 819
F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
First, the district court properly dismissed appellant’s claims against appellees
Cirrus Asset Management, Inc., and Woodman-Sylvan Properties, Inc., for lack of
personal jurisdiction. A plaintiff may meet his or her burden of establishing personal
jurisdiction by showing that a defendant is subject to either general jurisdiction or
App.la
USCA Case #19-5186
Document #1826297
Filed: 01/30/2020
Page 2 of 3
ffinxitb States (Hcmrt of
For The District of Columbia Circuit
September Term, 2019
No. 19-5186
specific jurisdiction. See Estate of Klieman v. Palestinian Authority. 923 F.3d 1115,
1119-20 (D.C. Cir. 2019). Here, both Cirrus and Woodman-Sylvan are California
corporations, and appellant has failed to allege any contacts with the District of
Columbia that would justify either general or specific jurisdiction over those appellees.
See Liynat v. Palestinian Authority, 851 F.3d 45, 56-58 (D.C. Cir. 2017).
Next, appellant raises no argument with respect to the district court’s decision to
dismiss her claims against Bank of America N.A. as barred under the applicable
statutes of limitations, and any such argument is therefore forfeited. See U.S. ex rel.
Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004).
As for the claims against the U.S. government appellees, appellant seeks money
damages for several tort claims, including assault, battery, and intentional infliction of
emotional distress. However, the Federal Tort Claims Act specifies that “[a]n action
shall not be instituted upon a claim against the United States for money damages ...
unless the claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency ....” 28 U.S.C. §
2675(a); see also McNeil v. United States, 508 U.S. 106,107 (1993). As appellant
failed to exhaust her administrative remedies prior to bringing suit in this case and has
shown no legal basis for her argument that the requirement does not apply to her, the
district court properly concluded that it lacked jurisdiction over her tort claims. See
Simpkins v. District of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997).
As for appellant’s federal claims against the U.S. government appellees,
because appellant ha& not challenged the district court’s ruling as to her claims under
42 U.S.C. §§ 1981 and 1983 and 18 U.S.C. § 242, she has forfeited any such
arguments. See U.S. ex rel. Totten. 380 F.3d at 497. The district court also properly
dismissed on sovereign immunity grounds appellant’s claims under the due process
clause of the Fourteenth Amendment. See Clark v. Library of Congress, 750 F.2d 89,
103 (D.C. Cir. 1984). Although the Federal Tort Claims Act waives sovereign immunity
as to certain torts, see 28 U.S.C. §§ 1346(b)(1), 2679(b), it does not include a waiver for
constitutional tort claims. See FDIC v. Meyer. 510 U.S. 471,478 (1994). It is
FURTHER ORDERED that the motion for sanctions be denied. Appellant is
forewarned that this court will not hesitate to grant a motion for sanctions against the
appellant, or impose sanctions on its own motion, in any of appellant’s future appeals, if
warranted. See D.C. Cir. Rule 38.
Page 2
App.2a
USCA Case #19-5186
Document #1826297
Filed: 01/30/2020
Page 3 of 3
PIvLxtzb States (Himri of ^Appsalg
For The District of Columbia Circuit
No. 19-5186
September Term, 2019
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
r
Page 3
App.3a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 1 of 23
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESITA A. CANUTO,
Plaintiff,
v.
)
)
)
)
) Civil Action No.
JAMES MATTIS, Secretary of
Defense, et al.,
Defendants.
16-2282
(EGS)
)
)
)
MEMORANDUM OPINION AND ORDER
Teresita Canuto, proceeding pro se, filed a second amended
complaint against two United States Army officers and various
senior federal officials (collectively "federal defendants") and
private entities Woodman-Sylvan Properties, Inc.
Sylvan"), Cirrus Asset Management, Inc.
America, N.A.
("Woodman-
("Cirrus"), and Bank of
("Bank of America"). The allegations within Ms.
Canuto's ninety-page second amended complaint are identical to
those in her first amended complaint:1 that members of the United
i
The Court dismissed several of Ms. Canuto's claims in Canuto v.
Mattis, 273 F. Supp. 3d 127 (D.D.C. 2017). Ms. Canuto has also
filed a series of lawsuits based on nearly identical factual
allegations in the United States Court of Federal Claims. Each of
those complaints were dismissed. See Canuto v. United States, No..
15-410C, 2015 WL 1926375 (Fed. Cl. Apr. 27, 2015); Canuto v.
United States, No. 15-821C, 2015 WL 8481577 (Fed. Cl. Dec. 9,
2015); Canuto v. United States, No. 16-414C, 2016 WL 8710473
(Fed. Cl. May 4, 2016). The United States Court of Appeals for
the Federal Circuit affirmed each of those dismissals. See Canuto
v. United States, 615 F. App'x 951 (Fed. Cir. 2015); Canuto v.
United States, 651 F; App'x 996 (Fed. Cir. 2016) (per
1
App.4a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 2 of 23
States armed forces sexually assaulted her on a number of
occasions after infiltrating her home and using sleeping gas to
render her unconscious. She asserts various constitutional,
federal statutory, and common law claims.
Pending before the Court are (1) Cirrus' motion to dismiss,
see ECF No. 43;
(2) Bank of America's motion to dismiss, see ECF
No. 44; (3) Woodman-Sylvan's motion to dismiss, see ECF No. 49;
and (4) the federal defendants' motion to dismiss, see ECF No.
66. Upon consideration of these motions, the responses and
replies thereto, the relevant law, and the entire record, the
Court GRANTS Cirrus' motion, GRANTS IN PART Bank of America's
motion, GRANTS Woodman-Sylvan's motion, and GRANTS the federal
defendants' motion.2 Ms. Canuto's second amended complaint is
DISMISSED.
I. Background
A. Factual Background
The allegations in Ms. Canuto's second amended complaint
are undisputedly identical to those in her first amended
complaint. Compare First Am. Compl., ECF No. 10 with Second Am.
curiam); Canuto v. United States, 673 F. App'x 982 (Fed.
Cir. 2016) (per curiam).
2 Ms. Canuto filed several unopposed motions for leave to file
supplemental responses. Because Ms. Canuto is pro se, the Court
considered every document she filed. Thus, the Court GRANTS (1)
motion for leave to file supplemental evidence, ECF No. 47; and
(2) motion for leave to file supplemental response, ECF No. 54.
2
App.5a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 3 of 23
Compl., ECF No. 42; see also PI.'s Suppl. to Second Am. Compl.,
ECF No. 60 at 1-23 (explaining that the "only difference" between
the complaints is "the name of public officials sued in their
official capacity who ceased to hold office [who have been]
substituted with their successors").114 Because the complaints
allege the same facts, the Court herein incorporates the facts
articulated in Canuto v. Mattis, 273 F. Supp. 3d 127
(D.D.C.
2017). See Mem. Op., ECF No. 38 at 3-5.
To briefly summarize, Ms. Canuto alleges that members of
the United States armed forces, assisted by "illegal foreigners"
and other civilians acting under the direction of senior
military officers and federal officials, sexually assaulted her
on numerous occasions beginning in October 2014. See id. at 3.
She alleges that the assaults were first perpetrated in her
Panorama City, California apartment, which was managed by
Woodman-Sylvan. See id. In July 2016, Ms. Canuto moved to a
Northridge, California apartment building managed by Cirrus,
where she alleges that the assaults continued to'occur. See id.
at 3-4. Finally, Ms. Canuto contends that important documents
3 When citing electronic filings throughout this opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
4 In addition to changing the names of the federal defendants,
Ms. Canuto sued Woodman-Sylvan, as the Court granted her leave
to do. See Order, ECF No. 37; Mem. Op., ECF No. 38 at 5-9
(finding that Ms. Canuto was clearly attempting to sue WoodmanSylvan despite naming a different company as defendant).
3
App.6a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 4 of 23
and records were stolen from her Bank of America safe deposit
box located in Panorama City, California in 2009. See id. at 4.
Based on these factual allegations, Ms. Canuto alleges that
the defendants have violated her due process and equal
protection rights. She also asserts various state common law
claims. See Second Am. Compl., ECF No. 42 at 6, 16-18.
B. Procedural Background
Because Ms. Canuto brings identical claims in her second
amended complaint, it is worth discussing the Court's August 10,
2017 decision dismissing most of Ms. Canuto's first amended
complaint. See Order, ECF No. 37; Mem. Op., ECF No. 38.
In her first amended complaint, Ms. Canuto sued DePauw HK
Property Management ("DePauw") instead of Woodman-Sylvan. See
First Am. Compl., ECF No. 10. DePauw argued that' it was not
capable of being sued and, in any event, it had received
improper service. The Court found that Ms. Canuto had clearly
intended to sue Woodman-Sylvan, not Depauw, and allowed Ms.
Canuto to amend her complaint to replace DePauw with WoodmanSylvan. Mem. Op., ECF No. 38 at 5-9, 16; see also Order, ECF No.
37. Ms. Canuto named Woodman-Sylvan as defendant in her second
amended complaint. See Second Am. Compl., ECF No. 42.
Cirrus also filed a motion to dismiss, arguing that the
Court lacked personal jurisdiction over it. The Court agreed and
4
App.7a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 5 of 23
granted Cirrus' motion, dismissing Ms. Canuto's claims without
prejudice. See Mem. Op., ECF No. 38 at 17-23; Order, ECF No. 37.
Bank of America filed a motion to dismiss as well, arguing
that the claims against it were barred by the applicable
statutes of limitations. The Court granted the motion and
dismissed the claims against Bank of America with prejudice. See
Mem. Op., ECF No. 38 at 23-33; Order, ECF No. 37.
Although Ms. Canuto had also sued the federal defendants
in her first amended complaint,
see First Am. Compl., ECF No.
10, she had not served them, see Mem. Op., ECF No. 38 at 2
n.3. The Court dismissed the claims against the federal
defendants without prejudice, see Mem. Op., ECF No. 38 at 2
n.3, and directed Ms. Canuto to file proof of service by a
date certain, see Service Order, ECF No. 39.
Ms. Canuto filed her second amended complaint on August
22, 2017. See Second Am. Compl., ECF No. 42.
II. Analysis
When, as here, a plaintiff is proceeding pro se, her
complaint must be "liberally construed" and held to "less
stringent standards than formal pleadings drafted by lawyers."
Estelle v. Gamble, 429 U.S. 97, 106 (1976)(citations omitted).
Construing Ms. Canuto's second amended complaint liberally, the
Court concludes that it must be dismissed.
5
App.8a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 6 of 23
A. Cirrus' Motion to Dismiss
Cirrus argues that Ms. Canuto's claims against it should be
dismissed because the second amended complaint does not contain
any facts that alter the Court's previous ruling that it lacked
personal jurisdiction over the company. See Cirrus' Mot., ECF
No. 43. The Court agrees.
The Court dismissed Ms. Canuto's original claims against
Cirrus without prejudice.5 See Mem. Op., ECF. No. 38 at 17-23. Ms.
Canuto. does not allege any new facts in her second amended
complaint such that the Court could find that it has "either
general or specific [personal] jurisdiction under the relevant
District of Columbia statutes." Bradley v. Define, 55 F. Supp. 3d
31, 39 (D.D.C. 2014). Because the facts alleged against Cirrus in
the second amendment complaint are, as Ms. Canuto herself
explains, the "same" as those already considered,
see Pl.'s
Suppl. to Second Am. Compl., ECF No. 60, the Court herein
incorporates its extensive personal jurisdiction analysis in the
2017 Memorandum Opinion. See Mem. Op., ECF. No. 38 at 17-23.
Ms. Canuto argues that the Court has personal jurisdiction
over Cirrus because it "exercises sufficient control over its
subsidiaries." Pl.'s Opp'n (Cirrus), ECF No. 52 at 10. However,
5 See Havens v. Mabus, 759 F.3d 91, 98 (D.C. Cir. 2014)
(concluding that a dismissal for lack of jurisdiction is not an
adjudication on the merits) (citing Fed. R. Civ. P. 41(b)).
6
App.9a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 7 of 23
Ms. Canuto does not proffer any facts about Cirrus' alleged
"subsidiaries." See id. As such, the Court has no basis to find
that it has personal jurisdiction over these unknown entities.
Indeed,
it is not accurate that Cirrus' contacts "bear no
relation to [Ms. Canuto's] suit." Id. The Court cannot hear a
claim against a particular defendant unless that defendant has
sufficient "minimum contacts with it such that the maintenance
of the suit does not offend traditional notions of fair play and
substantial justice." International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). Ms. Canuto has not met her burden to
establish a factual basis for personal jurisdiction. Mem. Op.,
ECF No. 38 at 17
(citing Okolie v. Future Servs. Gen.
Contracting Co., W.L.L., 102 F. Supp. 3d 172, 175
Trading &
(D.D.C.
2015)). Thus, the Court GRANTS Cirrus' motion to dismiss.
B. Bank of America's Motion to Dismiss
Similarly, Bank of America argues that Ms. Canuto's claims
against it should be dismissed because the second amended
complaint "contains the same factual allegations and claims
against Bank of America" that were dismissed with prejudice in
August 2017. Bank of America's Mot., ECF No. 44 at 2. Again, the
Court agrees.
Because the facts alleged against Bank of America in the
second amendment complaint are, as Ms. Canuto explains, the
"same" as those already considered, see Pi.'s Suppl. to Second
7
App.10a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 8 of 23
Am. Compl., ECF No. 60, the Court herein incorporates its
extensive statutes of limitations analysis in the 2017 Memorandum
Opinion. See Mem. Op., ECF. No. 38 at 23-33; see also Canuto v.
Dep't of Defense, Civ No. 17-cv-979, 2017 WL 6886186 at *1-2
(D.D.C. Oct. 13, 2017), aff'd 723 Fed. Appx. 6 (D.C. Cir. April
27, 2018) (finding that Ms. Canuto's similar claims against Bank
of America were barred by res judicata in light of the Court's
August 2017 Canuto v. Mattis Memorandum Opinion).
Ms. Canuto does not respond to Bank of America's arguments.
Pl.'s Opp'ns (Bank of America), ECF Nos. 50, 51; see also PI.'s
Suppl. Opp'ns, ECF Nos. 55,
62. Instead, her twelve-page
opposition memorandum discusses Section 5 of the Federal Trade
Commission Act ("the Act"), which "prohibits entities from
engaging in unfair or deceptive acts or practices in interstate
commerce." Pl.'s Opp'n (Bank of America), ECF No. 50 at 1. The
Act is irrelevant to whether Ms. Canuto's claims are time-barred.
See Mem. Op., ECF No. 38. Because the Court already dismissed Ms.
Canuto's identical claims against Bank of America, the Court
GRANTS IN PART Bank of America's motion to dismiss.
Bank of America also asks the Court to find that Ms. Canuto
is a "vexatious litigant," who should be enjoined from filing new
claims without leave of court. Bank of America's Mot., ECF No. 44
at 2-4. Bank of America points to the fact that, within two weeks
of the Court's August 2017 Memorandum Opinion, Ms. Canuto filed
8
App.11a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 9 of 23
the same claims against Bank of America in Canuto v. Department
of Defense, Civ. Case. No. 17-979. Id. In response, Ms. Canuto
argues that she has a "constitutional right to sue." Pl.'s Suppl.
Opp'n, ECF No. 55 at 8.
Ms. Canuto may not bombard the courts with frivolous and
vexatious litigation. Federal Rule of Civil Procedure 11 states
that "an attorney or unrepresented party" must perform a
reasonable inquiry into the legal viability and factual accuracy
of a pleading or written motion before filing it with the
court. Fed. R. Civ. P. 11(b). The rule authorizes a court to
sanction "an attorney, law firm, or party" who violates the
rule, making clear that "[a] sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct." Fed. R. Civ. P. 11(c); see also Crawford-El v.
Britton, 523 U.S. 574, 600 (1998)
("Rule 11 ... authorizes
sanctions for the filing of papers that are frivolous, lacking
in factual support, or presented for any improper purpose, such
as to harass.")
(quotations omitted)).
There is "no question" that a Court can impose sanctions or
a pre-filing injunction, as Bank of America requests, in order to
"protect the integrity of the courts and the orderly and
expeditious administration of justice." Stankevich v. Kaplan, 156
F. Supp. 3d 86,
98
(D.D.C. 2016)(quoting Kaempfer v. Brown, 872
F.2d 496, 496 (D.C. Cir. 1989)). However, such action
9
App.12a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 10 of 23
w \
should remain very much the exception to the general rule, r n
and \> > the use of such measures against' pro se plaintiffs
'should be approached with particular caution. r n Smith v.
Scalia, 44 F. Supp. 3d 28, 46 (D.D.C. 2014)
Powell, 851 F.2d 427, 431
(quoting In re
(D.C. Cir. 1988)).
The Court declines to sanction Ms. Canuto by issuing a
prefiling injunction because she "is a pro se litigant .
.
[who has] yet to receive a formal declaration that [her] claims
are frivolous." Stankevich, 156 F. Supp. 3d at 98. However, Ms.
Canuto is emphatically reminded that she had a full and fair
opportunity to litigate her claims against Bank of America. She
is admonished that she is not entitled to a second bite at the
apple. Indeed, a court may choose to impose sanctions for her
conduct in the future.
C. Woodman-Sylvan's Motion to Dismiss
Woodman-Sylvan moves to dismiss the claims against it for *
lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2) and for failure to state a claim pursuant to
Rule 12(b)(6). See Woodman-Sylvan Mot., ECF No. 49. The Court
concludes—as it did with Cirrus, another California-based
property management company with no ties to the District—that it
lacks personal jurisdiction over Woodman-Sylvan. Because the
Court lacks jurisdiction, it need not resolve Woodman-Sylvan's
Rule 12(b)(6) arguments.
10
App.13a
Case 1:16-cv702 2 82-EGS Document 70 Filed 06/30/18 Page 11 of 23
Under Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of establishing a factual basis for
personal jurisdiction. Okolie, 102 F. Supp. 3d at 175 (citing
Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir.
1990)). To meet that burden, the plaintiff
must allege specific
acts connecting [the] defendant with the forum. r // Id.
(quoting
Second Amendment Found, v. U.S. Conference of Mayors, 21A F.3d
521, 524 (D.C. Cir. 2001)). When making a personal jurisdiction
determination, a court need not treat all of the plaintiff's
allegations as true. Bricklayers & Trowel Trades Int'l Pension
Fund v. Valley Concrete, Inc., Civ. No. 16-1684, 2017 WL 2455028,
at *2 (D.D.C. June 6, 2017). Instead, the court may "receive and
weigh affidavits and any other relevant matter to assist it in
determining the jurisdictional facts." Jin v. Ministry of State
Sec., 335 F. Supp. 2d 72, 77 (D.D.C. 2004).
Assessing whether a court may exercise personal jurisdiction
over a defendant "typically implicates a state's jurisdictional
statute or rule." Alkanani v. Aegis Def. Servs., LLC,
Supp. 2d 13, 21 (D.D.C. 2014)
976 F.
(internal quotations and
alterations omitted). Therefore, this Court has personal
jurisdiction over Woodman-Sylvan only if a District of Columbia
court could exercise personal jurisdiction over it. See Fed. R.
Civ. P. 4(k)(1)(A); see also Daimler AG v. Bauman, 571 U.S. 117,
11
App.14a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 12 of 23
125 (2014) ("Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons.").6
"Two requirements must be met for a District of Columbia
court to exercise personal jurisdiction over a defendant."
Bradley v. DeWine, 55 F. Supp. 3d 31, 39 (D.D.C. 2014). "First,
the defendant must qualify for either general or specific
jurisdiction under the relevant District of Columbia statutes."
Id. "Second, the exercise of jurisdiction over the defendant
must comply with the Due Process Clause .
.
." Id. at 39-40.
1. General Jurisdiction
There are two District of Columbia statutes that confer
general jurisdiction. King v. Caliber Home Loans, Inc., 210 F.
Supp. 3d 130, 136 (D.D.C. 2016). One, D.C. Code § 13-422, states
that a "District of Columbia court may exercise personal
jurisdiction over a person domiciled in, organized under the
6 To the extent that Ms. Canuto means to assert federal statutory
claims against Woodman-Sylvan, see Second Am. Compl., ECF No. 42
at 6, 14, 21, none of the statutes that she cites contemplate
nationwide service of process. See Locke v. FedEx Freight, Inc.,
No. 12-708, 2012 WL 7783085, at *4 (D. Colo. Aug. 31, 2012)
(explaining that 42 U.S.C. § 1981 and 42 U.S.C. § 1983 do not
confer nationwide service of process); cf. McCray v. Holder, 391
F. App'x 887, 888 (D.C. Cir. 2010) (per curiam) .(explaining that
there is no private right of action under 18 U.S.C. § 242) .
Accordingly, this Court's exercise of personal jurisdiction is
not "authorized by a federal statute," see Fed. R. Civ. P.
4(k)(1)(C), and instead is limited to the exercise of personal
jurisdiction.of a court of general jurisdiction in the District
of Columbia, see Fed. R. Civ. P. 4(k)(1)(A).
12
App.15a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 13 of 23
laws of, or maintaining his or its principal place of business
in, the District of Columbia as to any claim of relief."
Ms. Canuto has not alleged any facts that could satisfy any
of these criteria. See generally Second Am. Compl., ECF No. 42;
PI.' s Opp.'n (Woodman-Sylvan), ECF No. 53. Indeed, Ms. Canuto
states that Woodman-Sylvan is located in Studio City, California.
See Second Am.. Compl., ECF No. 42 at 14. Accordingly, the Court
is unable to exercise general jurisdiction over Woodman-Sylvan
pursuant to § 13-422.
The other general jurisdiction statute, D.C. Code § 13-334,
permits the exercise of personal jurisdiction over "a foreign
corporation doing business in the District." The reach of this
"doing business" provision is co-extensive with the reach of
general jurisdiction under the due process clause. Day v. Corner
Bank (Overseas) Ltd., 789 F. Supp. 2d 150, 156 (D.D.C. 2011).
Thus, this Court can exercise "doing business" general
jurisdiction over Woodman-Sylvan only if its contacts with the
District of Columbia "are so 'continuous and systematic' as to
render [it] essentially at home" in the District. Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The
Court cannot exercise "doing business" general jurisdiction over
Woodman-Sylvan because Ms. Canuto has not alleged that it has
had any contacts with the District of Columbia, let alone
continuous and systematic contacts. See generally Second Am.
13
App.16a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 14 of 23
Compl., ECF No. 42; PI.'s Opp.'n (Woodman-Sylvan), ECF No. 53.
Accordingly, the Court is unable to exercise general
jurisdiction over Woodman-Sylvan pursuant to D.C. Code § 13334 .
Ms. Canuto argues that the Court has personal jurisdiction
because Woodman-Sylvan "exercises sufficient control over its
subsidiaries." Pl.'s Opp.'n (Woodman-Sylvan), ECF No. 53 at 10.
However, Ms. Canuto does not proffer any facts about WoodmanSylvan' s alleged "subsidiaries" such that the Court could find
that it has personal jurisdiction over these unknown entities.
See id. Therefore, Ms. Canuto has not met her burden to allege
facts connecting Woodman-Sylvan to the forum.
2. Specific Jurisdiction
D.C. Code § 13-423 authorizes the exercise of specific
jurisdiction under certain enumerated circumstances, including
when an entity transacts any business in the District; contracts
to supply services in the District; causes tortious injury in the
District; or has an interest in, uses, or possesses real property
in the District. D.C. Code § 13-423(a) (1)- (5) . As explained
above, Ms. Canuto has not alleged that Woodman-Sylvan has had any
contacts with the District of Columbia. See generally Second Am.
Compl., ECF No. 42; Pl.'s Opp'n (Woodman-Sylvan), ECF No. 53. She
has also not alleged that her injuries occurred here; the alleged
attacks and property damage all occurred in California. See
14
App.17a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 15 of 23
Second Am. Compl., ECF No. 42 at 14. Therefore, Ms. Canuto "has
not shown that [her] claims 'aris[e] from acts enumerated in' the
District's long-arm statute or that the exercise of jurisdiction
would satisfy due process." Capital Bank Int'l Ltd. v. Citigroup,
Inc. f 276 F. Supp. 2d 72, 77 (D.D.C. 2003)
(citing D.C. Code §
13-423(b)); Gorman v. Ameritrade Corp., 293 F.3d 506, 509-10
(D.C. Cir. 2002)).
Ms. Canuto argues that the Court has jurisdiction over
Woodman-Sylvan because it committed fraud in the District. See
PI.'s Suppl. Opp'n, ECF No. 55 at 5 15. She alleges that Ms.
Emmelene Pabelo lied to the Court in her declaration on behalf of
DePauw. See id.
(referring to Pabelo Decl., ECF No. 5-2). While
the Court ultimately disagreed with Ms. Pabelo's assertions
regarding DePauw's ability to be sued, it did not find that Ms.
Pabelo deliberately mislead or defrauded the Court. See Mem.
Opin., ECF No. 38 at 5-9. Indeed, Ms. Canuto does not plead any
facts regarding Ms. Pabelo's allegedly false representation
beyond summarily reciting the elements of fraud and concluding
that fraud was committed. See PI.'s Suppl. Opp'n, ECF No. 55 at f
15; Tefera v. Onewest Bank, FSB, 19 F. Supp. 3d 215, 223 (D.D.C.
2014)
("[The plaintiff's] single conclusory reference to fraud
misses the mark for notice pleading under [Federal Rule of Civil
Procedure] Rule 8, let alone the heightened pleading standard
required for fraud claims under Rule 9(b)."). Moreover, such
15
App.18a
Case l:16-cv02282-EGS Document 70 Filed 06/30/18 Page 16 of 23
allegations are missing from her complaint. See generally Second
Am. Compl., ECF No. 42. Accordingly, the Court GRANTS WoodmanSylvan' s motion to dismiss for lack of personal jurisdiction.
D. Federal Defendants' Motion to Dismiss
The federal defendants move to dismiss Ms. Canuto's claims
on several grounds:
(1) Ms. Canuto's allegations are
"fundamentally unrealistic," such that they should be dismissed
for lack of jurisdiction;
(2) Ms. Canuto failed to
administratively, exhaust her tort claims;
(3) Ms. Canuto's
complaint names improper federal defendants;
(4) the Court lacks
subject matter jurisdiction over certain federal claims and/or
Ms. Canuto failed to state certain federal claims; and (5) Ms.
Canuto brought her claims in an improper venue. See Fed. Defs.'
Mot., ECF No. 66. Because the Court agrees that Ms. Canuto
failed to administratively exhaust her state law claims, that it
lacks jurisdiction over certain federal claims, and that Ms.
Canuto failed to state certain federal claims, the Court need
not assess whether Ms. Canuto's claims are "fundamentally
unrealistic," whether she named the proper defendant, or whether
this District is the correct venue.
1. State Law Claims
Ms. Canuto sues the federal defendants in their "official
capacit[ies]." Pl.'s Suppl. to Second Am. Compl., ECF No. 60 at
16
App.19a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 17 of 23
1. She alleges that the federal defendants repeatedly sexually
assaulted her, injured her, stole her property, "tagged" her
vehicle, and stalked her. See Second Am. Compl., ECF No. 42 at
7-12. She sues them for assault, battery, and infliction of
emotional distress, among other possible common law claims. See
id. at 16; see also Mem. Op., ECF No. 38 at 28. The federal
defendants argue that these tort claims are subject to the
Federal Torts Claims Act ("FTCA") and must be dismissed because
Ms. Canuto failed to exhaust her administrative remedies. Fed.
Defs.' Mot., ECF No. '66 at 10-11. The Court agrees.
Ms. Canuto seeks money damages from the federal defendants.
See Second Am. Compl., ECF No. 42 at 16-18 (seeking twenty
million dollars for each injury and each alleged rape, seeking
eight-hundred million in putative damages). "Because plaintiff
demands money damages from a federal government agency,
[s]he
must proceed under the Federal Tort Claims Act ("FTCA"), which
operates as a waiver of the government's sovereign immunity for
certain tort claims." Edwards v. U.S. Park Police, 251 F. Supp.
3d 109, 111 (D.D.C. 2017)
(citing Richards v. United States, 369
U.S. 1, 6 (1962)) .
"The FTCA provides that an action shall not be instituted
upon a claim against the United States for money -damages unless
the claimant has first exhausted her administrative remedies."
McNeil v. United States, 508 US. 106, 107
17
App.20a
(1993). Indeed, "[a]
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 18 of 23
tort claim against the United States shall be forever barred
unless ... action is begun within six months after the date of
mailing ... of notice of final denial of the claim by the agency
to which it was presented." 28 U.S.C. § 2401(b); see also
Mittleman v. United States, 104 F.3d 410, 413 (D.C. Cir. 1997) ("A
claim not so presented and filed is forever barred."). The record
establishes that Ms. Canuto did not file an administrative FTCA
claim. See Wells Decl., ECF No. 66-1 (U.S. Air Force has no
record of FTCA claim); McConahy Decl., ECF No. 66-2 (U.S. Army
has no record of FTCA claim); Russell Decl., ECF No. 66-3 (U.S.
Navy has no record of FTCA claim); Sessa Decl., ECF No. 66-4
(Department of Homeland Security has no record of FTCA claim).
Therefore, the Court lacks jurisdiction over Ms. Canuto's state
law claims. See Simpkins v. District of Columbia,
108 F.3d 366,
371 (D.C. Cir. 1997)(finding that the district court "lacked
subject matter jurisdiction, or if not jurisdiction, the
functional eguivalent of it," because the plaintiff had not
exhausted his administrative remedies).
Ms. Canuto does not address this argument, instead
contending that the federal defendants lacked "acceptable
identification" in the United States. See Pl.'s Opp'n (federal
defendants), ECF No. 67 at 2-3; see also Pl.'s Surreply, ECF NO.
69. Her argument is non-responsive and irrelevant.
18
App.21a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 19 of 23
2. Federal Law Claims
Ms. Canuto also sues the federal defendants for violations
of various federal laws including:
U.S.C. § 1983,
(3)
(1)
42 U.S.C. § 1981,
(2) 42
18 U.S.C. § 242, and (4) the due process
clause of the Fourteenth Amendment. Second Am. Compl., ECF No.
42 at 6. The federal defendants argue that these claims must be
dismissed as the statutes do not provide a cause of action and
because sovereign immunity bars Ms. Canuto's due process claim.
Fed. Defs.' Mot., ECF No. 66 at 11-13. The Court agrees.
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face. r tr Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Starting with 42 U.S.C. § 1981, Ms.
Canuto does not state a plausible claim. Under Section 1981,
"[a]11 persons within the jurisdiction of the United States
shall have the same right ... to sue, be parties, give
evidence, and to -the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens." 42 U.S.C. § 1981(a). "The rights
protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of
State law." 42 U.S.C. •§ 1981(c) (emphasis added) . Therefore,
Section 1981 does not apply to actions taken under the color of
federal law. Davis v. U.S. Dep't of Justice, 204 F.3d 723, 726
19
App.22a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 20 of 23
(7th Cir. 2000)("[T]he alleged [42 U.S.C.] § 1981 violations for
which [plaintiff] seeks redress all took place under color of
federal law and are not actionable under [Section] 1981."). Ms.
Canuto has sued federal officials in their official capacities for
actions taken under the color of federal law. See Second Am.
Compl., ECF No. 42. Her Section 1981 claim must therefore be
dismissed.
This result is also required for Ms. Canuto's 42 U.S.C. §
1983 claim. "Section 1983 provides a private cause of action
against any person who, under the color of state law, deprives
another of a constitutional or statutory right." Cohen v. Univ.
of District of Columbia, — F.Supp.3d —, 2018 WL 1935627 at *9
(D.D.C. April 24,' 2018) (emphasis added); see also 42 U.S.C. §
1983. Like Section 1981, Section 1983 does not "authorize suits
challenging actions taken under color of federal law," or "waive
the United States' sovereign immunity." Dye v. United States, 516
F. Supp. 2d 61, 71 (D.D.C. 2007)(emphasis added)(citations
omitted). "Because section 1983 does not create a cause of action
against a federal actor," courts must dismiss a plaintiff's
Section 1983 claims against a federal agency. Miango v. Dem. Rep.
Congo, 243 F. Supp. 3d 113, 134 (D.D.C. 2017). Indeed, Ms. Canuto
has sued federal officials in their official capacities for
actions taken under color of federal law. Her Section 1983 claim
must be dismissed.
20
App.23a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 21 of 23
Third, Ms. Canuto lacks a cause of action under 18 U.S.C. §
242. This is a criminal statute, criminalizing certain activity
that deprives another, of any Constitutional or federal right. 18
U.S.C. § 242. It does not confer a private right of action in a
civil case. See Al-Hakim v. Obama, 650 F. App'x 29
2016)
(per curiam)
(D.C. Cir.
("[T]here is no private right of action under
[18 U.S.C.] § 242."). Her claim must be dismissed.
Finally, sovereign immunity bars Ms. Canuto's due process
claim.7 Ms. Canuto sues the federal defendants in their
"official capacit[ies]." PI.'s Suppl. to Second Am. Compl., ECF
No. 60 at 1. "Absent a specific waiver by the government,
sovereign immunity bars lawsuits for damages against the United
States, its agencies and government employees acting in their
official capacity." Schwaner v. USCG Headquarters, 588 F. Supp.
2d 49, 50-51 (D.D.C. 2008)
(citing FDIC v. Meyer, 510 U.S. 471,
475 (1994)); Clark v. Library of Congress, 750 F.2d 89, 102- 03
(D.C. Cir. 1984)). The FTCA waives the United States' sovereign
immunity, but only as to certain common law torts. See id. at 51
(citing 28 U.S.C'. §§ 1346(b)(1), 2679(b)). "[T]he United States
simply has not rendered itself liable under §1346(b) for
7 Ms. Canuto brings her due process claim pursuant to the
Fourteenth Amendment. See Second Am. Compl., ECF No. 42 at 6.
Because the Fourteenth Amendment applies only to states and
not to the federal government, the Court will construe her
claim as a violation- of the Fifth Amendment. See Bolling v.
Sharpe, 347 U.S. 497, 499-500 (1954).
21
App.24a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 22 of 23
constitutional tort claims." FDIC, 510 U.S. at 478. The Court
therefore must dismiss Ms. Canuto's due process claims against
the federal defendants in their official capacities. 8
Ms. Canuto does not adequately respond to the federal
defendants' arguments, instead she argues that she has "an
absolute rights
[sic] to bring tort claims .
.
. against federal
defendants." Pl.'s Opp'n (federal defendants), ECF No. 67 at 4.
As the Court has just explained, this is not the case.
Therefore, the Court GRANTS the federal defendants' motion
to dismiss.
Ill. Conclusion and Order
For the foregoing reasons, it is hereby ORDERED that:
Cirrus' motion to dismiss, ECF No. 43, is GRANTED;
8
(1)
(2) Bank of
Ms. Canuto clearly states that she is suing the defendants in
their official capacities. See Pl.'s Suppl. to Second Am.
Compl., ECF No. 60 at 1. However, even if Ms. Canuto had
attempted to sue the federal defendants in their individual
capacities, she fails to state a Bivens claim. See Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Not only has Ms. Canuto not served the individual
defendants in their individual capacities, but she also has not
alleged that each individual defendant was "personally involved"
in the alleged Constitutional injury. Simpkins, 108 F.3d at 369.
Indeed, Ms. Canuto has not alleged a due process injury at all.
Her second amended complaint merely concludes that the federal
defendants "violated . . . the due process clause and equal
protection clause of the Constitution," without alleging any
facts to support this claim. See, e.g., Second Am. Compl., ECF
No. 42 at 9. While the Court liberally construes Ms. Canuto's
complaint, "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice."
Iqbal,. 556 U.S. at 678.
22
App.25a
Case l:16-cv-02282-EGS Document 70 Filed 06/30/18 Page 23 of 23
America's motion to dismiss, ECF No. 44, is GRANTED IN PART—in
that Ms. Canuto's claims against Bank of America are dismissed
with prejudice—and DENIED IN PART—in that the Court declines to
issue a prefiling injunction;
(3) Woodman-Sylvan's motion to
dismiss, ECF No. 49, is GRANTED; and (4) the federal defendants'
motion to dismiss, ECF No. 66, is GRANTED.. Because Ms. Canuto's
second amended complaint is dismissed in full, the Court DENIES
her motion to seek damages, ECF No. 45. This is a final,
appealable Order.
SO ORDERED.
Signed:
Emmet G. Sullivan
United States District Judge
June 30, 2018
23
App.26a
Activitv in Case i :!6-c\ -02282-EGS CAXUTO v. CARTER* a! OrdcrDCDJiCFNotice to:
DCD.ECFXotiee 07/O2TO18 09:06 PM
f From: DCOJECFNotseegdcd.uscourts.gov
To: DCD_ECFXoticefuicdaiseoun5.gov
Thiv b an automatic e-mail message generated by the C'.M/D f system. Please IH)
KF Xfo l\If to
(his e-mail bemuse the mail bov is unattended,
***XOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receiv e one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access
fees apply to all other users. To avoid later charges, download a copy of each document during this first
v iewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
ITS. District Court
District of Columbia
Notice of Electronic Filing
The following transact lor. was entered e:t " 1 2nl8 at
CAXUTO v, CARTER e: a.
Case Xante:
Case Number:
IviTcvT2S:,jTT
Filer:
warning: case closed on 06/30/2018
Document Number: Ac document attached
PM rmu f.’.cd or. 7 2 2W 8
Docket Text:
MINUTE ORDER directing the Clerk to seal [10] amended complaint, [42] second amended
complaint, and [60] supplement to second amended complaint because the pleadings contain
the plaintiffs sensitive, personal information. Signed by Judge Emmet G. Sullivan on
7/2/2018. (Icegs3)
l:16-cv-02282-EGS Notice has been electronically mailed to:
Craig L. Sarnsr
esarner a :bonr.eF\:cr;:r.r..co:r.. :racksrr « bv'nrerkic’ran.cmr.
Anne Kelley Howard
ahovvardbudowr.oble.com. rshcrman|7budownohie.com
Waiter Edward Giilcrist. Jr
Kevin Patrick Farrell
wgiIl.cristgbudownobSe.com. ebrandor.^budownobie.com
kevinJarreligw iisoneiser.com. mark.maternal?wilsaneiscr.com
Marsha Weliknown Ycc
marslta.yee^usdcy.gov. CaseVien.ECFgiiscoj.gov. marshawvceggmailxom
1:16-cv-02282-EGS Notice will be delivered by other means to::
TERESITA A. CAXUTO
9406 Gothic Avenue
North Hills. CA 91343
App.27a
Case l:16-cv-02282-EGS Document 38 Filed O8/IO/17 Page 1 of 34
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESITA A. CANUTO,
Plaintiff,
v.
)
)
) Civil Action No. 16-2282
JAMES MATTIS,1 Secretary of
Defense, et al.,
Defendants.
(EGS)
)
)
)
)
)
MEMORANDUM OPINION
Teresita Canuto, proceeding pro se, has filed suit against
two United States Army officers and various senior federal
officials
(collectively "federal defendants")
and the private
entities DePauw HK Property Management ("DePauw"), Cirrus Asset
Management, Inc.
("Cirrus"), and Bank of America, N.A.
("Bank of
America"). The gravamen of Ms. Canuto's complaint is that
members of the United States armed forces have sexually
assaulted her on a number of occasions after infiltrating her
home and using sleeping gas to render her unconscious.2 She
i
Public officers sued in their official capacity who. have ceased
to hold office since the commencement of this action have been
automatically substituted with their successors under Federal
Rule of Civil Procedure 25(d).
2 Ms. Canuto.has filed a series of lawsuits based on nearly
identical factual allegations in the United States Court of
Federal Claims.-Each of her complaints there was dismissed. See
Canuto v. United States, No. 15-410C, 2015 WL 1926375 (Fed. Cl.
Apr. 27, 2015); Canuto v. United States, No. 15-821C, 2015 WL
8481577 (Fed. Cl. Dec. 9, 2015); Canuto v. United States, No.
App.28a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 2 of 34
asserts various constitutional, federal statutory, and state
common law claims.
DePauw has filed a Motion to Quash Service and/or in the
Alternative Motion to Dismiss Pursuant to Rule 12(b) (5)
("DePauw's Mot."), ECF No. 5; Cirrus has filed a Motion to
Dismiss Plaintiff's Amended Complaint for Lack of Personal
Jurisdiction ("Cirrus' Mot."), ECF No. 11; and Bank of America
has filed a Motion to Dismiss the claims against it on statute
of limitations grounds ("BOA's Mot."), ECF No. 16.3 Upon
consideration of these motions, the responses and replies
thereto, the relevant law, and the entire record, the Court
GRANTS IN PART and DENIES IN PART DePauw's motion; GRANTS
Cirrus' motion; and GRANTS Bank of America's motion.
16-414C, 2016 WL 8710473 (Fed. Cl. May 4, 2016). The United
States Court of Appeals for the Federal Circuit affirmed each of
those dismissals. See Canuto v. United States, 615 F. App'x 951
(Fed. Cir. 2015); Canuto v. United States, 651 F. App'x 996
(Fed. Cir. 2016) (per curiam); Canuto v. United States, 673 F.
App'x 982 (Fed. Cir. 2016) (per curiam),
3 The federal defendants have yet to file a responsive pleading
or a motion to dismiss because they have yet to be served. The
Court will resolve the now-pending motions to dismiss and, in a
separate Order, will direct Ms. Canuto to serve the federal
defendants and file proof of that service by a date certain. If
she fails to provide proof of service by that date or fails to
provide an adequate written explanation as to why service has
not been completed, the Court will dismiss the claims against
the federal defendants without prejudice. See Fed. R. Civ. P.
4 (m) .
App.29a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 3 of 34
I.
Background4
Ms. Canuto alleges that members of the United States armed
forces, assisted by "illegal foreigners" and other civilians and
acting under the direction of senior military officers and
senior federal officials, sexually assaulted her on numerous
occasions from October 2014 to the present. Am. Compl., ECF No.
10 at 6-14,
16, 21-22,
67-69.5 She contends that the federal
officials orchestrated these attacks to punish her and her
husband for seeking an award under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. , as
compensation for their son's autism, which they believe was
caused by his receipt of certain vaccinations.
Canuto v. Sec'y of HHS,
660 F. App'x 955
Id. at 16; see
(Fed. Cir. 2016)
(per
curiam).
She alleges that the assaults were first perpetrated in her
apartment unit in a Panorama City, California apartment building
that is managed by DePauw. Am. Compl., ECF No. 10 at 13, 21. In
July 2016, she moved to a Northridge, California apartment
4 The Court GRANTS Ms. Canuto's Motion of Plaintiff to Make an
Amendment Due to Error Noticed in the Filed Amended Complaint,
ECF No. 13, and will consider the operative complaint to be her
amended complaint, see Am. Compl., ECF No. 10, further amended
by the four very minor changes that she seeks to make to her
amended complaint by means of her Motion of Plaintiff to Make an
Amendment Due to Error Noticed in the Filed Amended Complaint.
5 Page-number citations to documents the parties have filed refer
to the page numbers that the Court's electronic filing system
assigns.
App.30a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 4 of 34
building managed by Cirrus, where she alleges that the assaults
have continued to occur. See id. at 14, 22. In both locations,
Ms. Canuto alleges that her assailants have carried out the
assaults by first cutting holes in the ceiling to gain access to
the apartment and then releasing sleeping gas to put her into a
"deep sleep," leaving her defenseless against their attacks. Id.
at 7, 13, 21-22, 41. She contends that when she wakes in the
morning, she knows that she has been assaulted because she has
cuts and bruises on various parts of her body. See id. at 14,
21-35, 53-80. She also alleges that her assailants frequently
follow her when she is driving, id. at 6-13, 21, 36, 39, and she
alleges that they have stolen various items from her apartment
and car, including medical and hospitalization records. Id. at
12, 22, 37, 40-41. Ms. Canuto contends that she has a history of
having important documents and records stolen from her, as, on
some unspecified date in 2009, various documents went missing
from a safe deposit box that she had at a Bank of America branch
location in Panorama City, California. Id. at 11, 40.
Based on these factual allegations, Ms. Canuto alleges that
the defendants have violated her Fourteenth Amendment due
process and equal protection rights, and she cites 18 U.S.C. §
242, 42 U.S.C. § 1981, and 42' U.S.C. § 1983 as statutory bases
for relief. Id. at 5-9, 20. She also asserts various state
common law claims. Id. at 15-16, 20. She seeks monetary damages,
App.31a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 5 of 34
the return of the items allegedly stolen from her,
and the
production of the names of the persons who allegedly followed
and assaulted her and the names of the Bank of America employees
who had access to her safe deposit box.
II.
id. at 41-42.
Analysis
A.
DePauw's Motion to Quash Service and/or Dismiss
DePauw moves to quash the service of process against it
"and/or in the alternative" to dismiss the claims against it.
DePauw's Mot., ECF No. 5 at 1. DePauw rests its motion on two
arguments. It argues that, per Federal Rule of Civil Procedure
17 (b), it is not an entity that is capable of being sued,
id. at
7-9, and, in any event, that service of process as to it was
deficient, id. at 4-7.
For the reasons that follow, the Court concludes that Ms.
Canuto has sued a suable entity—she has just misnamed that
entity. Even so, the Court concludes that service was deficient
as to that suable entity, so the Court will quash the attempted
service and permit Ms. Canuto another opportunity to serve the
properly named suable entity.
1.
Capacity and Misnomer
The Court will analyze the capacity issue first.
See Tri-
Med Fin. Co. v. Nat'1 Century Fin. EntersInc., Nos. 98-3617,
99-3062, 2000 WL 282445, at *4
(6th Cir. Mar, 6, 2000)
(describing capacity as a "threshold issue"). Federal Rule of
App.32a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 6 of 34
Civil Procedure 17(b) governs capacity. In relevant part, it
provides:
Capacity to sue or be sued is determined as
follows:
(1) for an individual who is not acting in a
representative capacity, by the law of the
individual's domicile;
(2) for a corporation, by the law under which
it was organized; and
(3) for all other parties, by the law of the
state where the court is located, except that:
(A) a partnership or other unincorporated
association with no such capacity under
that state's law may sue or be sued in its
common name to enforce a substantive right
existing
under
the
United
States
Constitution or laws ....
Fed. R. Civ. P. 17(b). DePauw contends that because Ms. Canuto
does not allege-that it is an incorporated entity, its capacity
to be sued is governed by the law of the District of Columbia
per Federal Rule 17(b)(3). DePauw's Mot., ECF No. 5 at 7-8. It
then argues that it is not a suable entity under the relevant
Rule 17 (b) (3). analysis. See id. at 8-9.
The Court concludes, however, that it need not address the
doctrinal niceties of the Rule 17 (b) (3) analysis that concern
the suability of a non-individual, non-corporate party because,
in the Court's view, there is not really a capacity problem
here. Rather, Ms. Canuto has brought suit against a suable
California corporation—Woodman-Sylvan Properties,
App.33a
Inc.—but she
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 7 of 34
has mistakenly named that corporation "DePauw HK Property
Management" in her complaint.
A Google search for "DePauw HK Property Management"
reveals, on the first page of responsive hits, a link to the
website of an entity called "Woodman Sylvan Properties." See
"DePauw HK Property Management," Google Search,
https://www.google.com/search?q=DePauw+HK+Property+Management
(last visited Aug. 1, 2017).6 The website of Woodman Sylvan
Properties, in turn, explains that its properties "were managed
and developed under the ownership of H.K. DePauw" and that the
business is "still family owned." See Woodman Sylvan Properties
"About Us" Page, http://www.woodmansylvan.com/aboutus
(last
visited Aug. 1, 2017). The address listed for Woodman Sylvan
Properties on its website is 12514 Moorpark Street, Studio City,
California 91604, see id.—the exact address Ms. Canuto provided
for DePauw in her complaint,
see Am. Compl., ECF No. 10 at 4,
and the exact address at which she attempted to serve DePauw by
mail. See DePauw's Mot., ECF No. 5 at 3. A search of the
California Secretary of State's California Business Search
Database for a corporation named "Woodman Sylvan Properties"
reveals a Statement of Information for a corporation named
6 The Court may take judicial notice of the information provided
on the websites that it has consulted. See Nat'1 Grange of the
Order of Patrons of Husbandry v. Cal. State Grange, 182 F. Supp.
3d 1065, 1082 n.5 (E.D. Cal. 2016).
App.34a
Case l:16-cv-02282*EGS Document 38 Filed 08/10/17 Page 8 of 34
"Woodman-Sylvan Properties, Inc." See "Woodman Sylvan
.Properties," California Business Search,
https://businesssearch.sos.ca.gov/ (last visited Aug. 1, 2017).7
The address of that corporation is 12514 Moorpark Street, Studio
City, California 91604; its agent for service of process, who
receives service of process at the corporation's Studio City
address, is a person named Elizabeth DePauw Jacobson; and all
key officers and all directors of the corporation share a common
name of DePauw. See Statement of Information, Filed with
California Secretary of State on July 25, 2016.
Ms. Canute is clearly suing the corporate entity WoodmanSylvan Properties even though she has named "DePauw HK Property
Management" as a defendant in her complaint. The issue thus most
squarely before the Court is "not one of capacity to be sued,
but merely one of mistaken identity." Montalvo v.
Bldg., 426 F.2d'1135, 1146 (5th Cir. 1970)
Tower Life
(holding that
misnomer, not capacity to be sued, was the relevant issue when a
building, rather than the corporation that owned the building,
was named as the defendant in a complaint). Because there is no
doubt concerning the suability of a California corporation,
see
1 The Court may take judicial notice of filings ■with the
California Secretary of State. See Nat'l Grange of the Order of
Patrons of Husbandry v. Cal. State Grange, 182 F. Supp. 3d 1065,
1075 n.3 (E.D. Cal. 2016).
App.35a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 9 of 34
Fed. R. Civ. P. 17(b)(2); Cal. Corp. Code § 105, there is a
suable entity here: Woodman-Sylvan Properties.
Given the Court's duty to grant leave to amend a complaint
"when justice so requires," Fed. R. Civ. P. 15(a)(2), and its
authority to grant that leave sua sponte, e.g.,
Town of Islip v.
Datre, No. 16-2156, 2017 WL 1157188, at *25 (E.D.N.Y. Mar. 28,
2017), the Court will permit Ms. Canuto leave to amend her
complaint to replace defendant "DePauw HK Property Management"
with defendant "Woodman-Sylvan Properties,
2.
Inc."
Service of Process
Assuming that Woodman-Sylvan Properties were standing in
the shoes of DePauw, there is still a service of process problem
as to that corporate defendant.
Pursuant to Federal Rule of Civil Procedure 4(h) (1) a
corporation must be served:
(A) in the manner prescribed by Rule 4(e) (1)
for serving an individual; or
(B) by delivering a copy of the summons and of
the complaint to an officer, a managing or
general agent, or any other agent authorized
by appointment or by law to receive service of
process and—if the agent is one authorized by
statute and the statute so requires—by also
mailing a copy to the defendant ....
Fed. R. Civ. P. 4(h)(1). Here, Ms. Canuto attempted to serve
DePauw/Woodman-Sylvan Properties by delivering the summons and
the complaint by certified mail. See Certified Mail Receipt, ECF
App.36a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 10 of 34
No. 6 at 2. Service by mail is deficient under Federal Rule
4(h)(1)(B). Wesenberg v. New Orleans Airport Motel Assocs.
TRS,
LLC, No. 14-1632, 2015 WL 5599012, at *2 (E.D. La. Sept. 22,
2015)
("Courts have consistently held .
.
. that Rule
4(h) (1) (BJ's delivery requirement refers to personal service,
not service by mail."). That ieaves Ms. Canuto to rely upon
Federal Rule 4(h)(1)(A), which, as explained above, triggers
Federal Rule 4 (e) (1) .
Federal Rule 4(e)(1) permits service by "following state
law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made." Fed. R. Civ. P. 4(e)(1). The
relevant state law of California
(the state "where service is
made") and of the District of Columbia (the state where this
District Court is located) is the state law "authorizing service
of process on a corporation, not the [law] authorizing service
on an individual." James v. Booz-Allen & Hamilton, Inc., 206
F.R.D. 15, 17
(D.D.C. 2002).
As concerns service of process on DePauw/Woodman-Sylvan
Properties pursuant to California law, there are two
deficiencies with Ms. Canute's attempted service of process
here. First, California law permits service by mail, but service
by mail requires delivery of two copies of a statutorilyspecified notice and acknowledgement form and "a return
App.37a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 11 of 34
envelope, postage prepaid, addressed to the sender" along with
the summons and the complaint. See Cal. Civ. Proc. Code §
415.30.8 Ms. Canuto has not demonstrated compliance with the
8
Section 415.30 states in relevant part:
(a) A summons may be served by mail as provided
in this section. A copy of the summons and of
the complaint shall be mailed (by first-class
mail or airmail, postage prepaid) to the
person to be served, together with two copies
of the notice and acknowledgement provided for
in subdivision (b) and a return envelope,
postage prepaid, addressed to the sender.
(b) The notice specified in subdivision (a)
shall be in substantially the following form:
(Title of court and case, with action number,
to be inserted by the sender prior to mailing)
NOTICE
To: (Here state the name of the person to be
served.)
This summons is served pursuant to Section
415^30 of the California Code of Civil
Procedure. Failure to complete this form and
return it to the sender within 20 days may
subject you (or the party on whose behalf you
are being served) to liability for the payment
of any expenses incurred in serving a summons
upon you in any other manner permitted by law.
If you are served on behalf of a corporation,
unincorporated
association
(including
a
partnership), or other entity, this form must
be signed in the name of such entity by you or
by a person authorized to receive service of
process on behalf of such entity. In all other
cases, this form must be signed by you
personally or by a person authorized by you to
acknowledge receipt of summons. Section 415.30
provides that this summons is deemed served on
App.38a
Case l:16-cv:02282-EGS Document 38 Filed 08/10/17 Page 12 of 34
notice and acknowledgement form and return envelope
requirements. Second, there are four categories of persons
through whom a corporation may be served:
(1) the person
designated as an agent for service of process;9 (2) certain
statutorily-specified officers and agents of the corporation;
(3) if the corporation is a bank, a cashier or assistant
cashier; or (4.) in certain circumstances, the California
Secretary of State. Cal. Civ. Proc. Code § 416.10. Here,
Emmelene A. Pableo received the summons and the complaint that
Ms. Canuto sent via certified mail. See Decl. of Emmelene A.
the date of execution of an acknowledgment of
receipt of summons.
Signature of Sender
ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
This acknowledges receipt on (insert date) of
a copy of the summons and of the complaint at
(insert address).
Date:
(Date this acknowledgment is executed)
Signature of person
acknowledging receipt,
with title if
acknowledgment is made on
behalf of another person
9 As indicated above, that person is Elizabeth DePauw Jacobson.
See Statement of Information, Filed with California Secretary of
State on July 25, 2016.
App.39a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 13 of 34
Pableo, ECF No. 5-2 SI 3. Although Ms. Pableo works at the
address of Woodman-Sylvan Properties,
see id. SI 5, she does not
appear to be a person who readily falls within one of the four
categories of persons through whom that corporation may be
served. Accordingly, service of that corporation was deficient
under California law.
As concerns service of process on DePauw/Woodman-Sylvan
Properties pursuant to District of Columbia law, there are also
deficiencies rendering Ms. Canuto's attempted service improper.
First, District of Columbia Superior Court Rule of Civil
Procedure 4(h)(1)(B) permits service of a corporation by
delivering the summons and the complaint "to an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process," D.C.
Super. Ct. R. Civ. P. 4(h)(1)(B), but, based on her declaration,
Ms. Pableo—the person to whom the summons and the complaint
were delivered—does not appear to fit any of those
designations. See Decl. of Emmelene A. Pableo, ECF No. 5-2.
District of Columbia Superior Court Rule of Civil Procedure
4(h)(1)(A) alternatively permits a corporation to be served "in
the manner prescribed by [District of Columbia Superior Court
Rule of Civil Procedure] 4(e)(1)
for serving an'individual."
D.C. Super. Ct. R. Civ. P. 4(h)(1)(A). That Rule, in turn,
permits service by "following District of Columbia law, or the
App.40a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 14 of 34
state law for serving a summons in an action brought in courts
of general jurisdiction in the state where service is made."
D.C. Super. Ct. R. Civ. P. 4(e)(1). Service by mail under the
law of California—"the state where service is made"—was
deficient for the reasons articulated in the immediately
preceding paragraph.• As to District of Columbia law, service by
mail can be achieved by sending the summons and the complaint by
first-class mail, but that method of service requires sending
two copies of a notice and acknowledgement form and "a return
envelope, postage prepaid, addressed to the sender," D.C. Super.
Ct. R. Civ. P. 4(c)(5), and, again, Ms. Canuto has not
demonstrated compliance with such requirements. Service can also
be accomplished by mailing a copy of the summons and the
complaint "to the person to be served by registered or certified
mail, return receipt requested." D.C. Super. Ct. R. Civ. P.
4(c)(4). Ms. Canuto has not demonstrated that her certified
mailing satisfied the "return receipt requested" requirement,
see Certified Mail Receipt, ECF No. 6 at 2
(showmng unchecked
"Return Receipt" boxes), and, additionally,
"the person to be
served by registered or certified mail" is Woodman-Sylvan
Properties' designated agent for service of process, Elizabeth
DePauw Jacobson, not Ms. Pableo. See Haw v. Dep't of Justice,
309 F.R.D. 101,
105 & n.3 (D.D.C. 2015)
(holding that service as
to a corporate entity was improper under District of Columbia
App.41a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 15 of 34
law when the summons and the complaint were mailed to the
corporate entity but were signed for by someone who was not an
officer or registered agent of that entity).10
Thus service was not proper under federal, District of
Columbia, or California law as to the suable but misnamed
corporate defendant Woodman-Sylvan Properties. "Although the
Court has the authority to dismiss an action outright on the
basis of insufficient service of process, the court can, in its
sound discretion, direct that service be effected within a
10 Although service was deficient under District of Columbia law
for the reasons articulated, D.C. Code § 13-334 (a) does not pose
a service of process, obstacle here, contrary to DePauw/WoodmanSylvan Properties' argument otherwise. See DePauw's Mot., ECF
No. 5 at 6-7. Section 13-334 (a) only mandates that a corporation
be served in the District of Columbia when that corporation
actually transacts some business in the District of Columbia.
See D.C. Code § 13-334 (a) ("In an action against a foreign
corporation doing business in the District . . . .") (emphasis
added); cf. Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
514 (D.C. Cir. 2002) ("Where the basis for obtaining
jurisdiction over a foreign corporation is § 13-334(a), as it is
here, a plaintiff who serves the corporation by mail outside the
District is foreclosed from benefitting from [the statute's]
jurisdictional protection.") (internal quotation marks omitted).
Section 13-334 (a) does, not present a service of process barrier
where DePauw/Woodman-Sylvan Properties is concerned, as it does
not appear that that corporation conducts any business in the
District of Columbia. DePauw/Woodman-Sylvan Properties' lack of
contact with the District of Columbia might constitute a
personal jurisdiction problem, but DePauw/Woodman-Sylvan
Properties did not move to dismiss on that basis, and the Court
is foreclosed from addressing that issue sua sponte. Kapar v.
Kuwait Airways Corp.', 845 F.2d 1100, 1105 (D.C. Cir. 1988)
,("[B]ecause personal jurisdiction may be conferred by consent of
the parties, expressly or by failure to object, a court may not
sua sponte dismiss for want, of personal jurisdiction . . . .")
(internal quotation marks omitted).
App.42a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 16 of 34
specified time, quashing the defective service without
dismissing the case." Estate of Scherban v. Suntrust Bank, No.
15-1966, 2016 WL 777913, at *4
(D.D.C. Feb. 26, 2016)
(internal
quotation marks omitted). "Dismissal is generally inappropriate
when there exists a reasonable prospect that service may yet be
obtained." Angelich v. MedTrust, LLC, 910 F. Supp. 2d 128, 132
(D.D.C. 2012). Further, quashing rather than dismissing is all
the more reasonable where a pro se plaintiff is concerned, as a
pro se plaintiff deserves "some leniency in applying the rules
for effective service of process." Roland v. Branch Banking &
Trust Corp., 149 F. Supp. 3d 61, 66 (D.D.C. 2015).
Accordingly, the Court GRANTS DePauw's motion to quash
service of process and DENIES its motion to dismiss the claims
against it. Ms. Canuto shall have 30 days from the date of this
Memorandum Opinion and its accompanying Order (1) to amend her
complaint to replace defendant "DePauw HK Property Management"
with defendant "Woodman-Sylvan Properties, Inc.," and (2) to
effect proper service on Woodman-Sylvan Properties.
App.43a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 17 of 34
B.
Cirrus' Motion to Dismiss11
Cirrus moves to dismiss the claims against it for lack of
personal jurisdiction. See Cirrus' Mot., ECF No. 11.12 For the
reasons that follow, the Court concludes that it lacks personal
jurisdiction over Cirrus, and, accordingly, its motion will be
granted.13
Under Federal Rule of Civil Procedure 12(b) (2), the
plaintiff bears the burden of establishing a factual basis for
personal jurisdiction. Okolie v. Future Servs. Gen.
Contracting Co., W.L.L.,
102 F. .Supp. 3d 172, 175
Trading &
(D.D.C. 2015)
(citing Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.
Cir. 1990)). To meet that burden, the plaintiff
W \
must allege
specific acts connecting [the] defendant with the forum. / tr Id.
(quoting Second Amendment Found, v. U.S. Conference of Mayors,
274 F.3d 521, 524
(D.C. Cir. 2001)). When making a personal
jurisdiction determination, a court need not treat all of the
li
Because amendment of the complaint to correct misnomer as to
one defendant will not change the analysis applicable as to the
now-pending motions to dismiss filed by Cirrus and Bank of
America, the Court will proceed to rule on those motions.
12 Cirrus also purports to reserve its right to dismiss for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule 12(b)(6) in the event that dismissal is
not granted as to it on personal jurisdiction grounds. Cirrus'
Mem. in Supp. of Mot. to Dismiss Am. Compl. for Lack of Personal
Jurisdiction ("Cirrus' Mem. Supp."), ECF No. 11 at 10 n.3.
13 Cirrus' earlier-filed motion to dismiss—which was filed prior
to Ms. Canuto's filing of her amended complaint, see Cirrus'
Mot. to Dismiss PI.'s Compl. for Lack of Personal Jurisdiction,
ECF No. 8—is DENIED'AS MOOT.
App 44a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 18 of 34
plaintiff's allegations as true. Bricklayers & Trowel Trades
Int'l Pension Fund v. Valley' Concrete, Inc., No1. 16-1684, 2017
WL 2455028, at *2
(D.D.C. June 6, 2017) . Instead, the court may
"receive and weigh affidavits and any other relevant matter to
assist it in determining the jurisdictional facts." Id.
(internal quotation marks omitted).
Assessing whether.a court may exercise personal
jurisdiction over a defendant "typically implicates a state's
i
jurisdictional statute or rule." Alkanani v. Aegis Def. Servs.,
LLC, 976 F. Supp. 2d' 13, 21
(D.D.C. 2014)
(internal quotation
marks and alteration omitted). That is the case as concerns
Cirrus, so this Federal District Court has personal jurisdiction
over Cirrus only if a District of Columbia court could exercise
personal jurisdiction over Cirrus. See Fed. R. Civ. P.
4(k) (1) (A) .14 "Two requirements must be met for a District of
14 To the extent that Ms. Canuto means to assert federal
statutory claims against Cirrus, see Am. Compl., ECF No. 10 at
5-9, 20; PI.'s Opp. to Cirrus' Mot., ECF No. 18 at 1, none of
the statutes that she cites contemplates nationwide service of
process. See Locke v. FedEx Freight, Inc., No. 12-708, 2012 WL
7783085, at *4 (D. Colo. Aug. 31, 2012) (explaining that 42
U.S.C. § 1981 and 42 U.S.C. § 1983 do not confer nationwide
service of process); cf. McCray v. Holder, 391 F. App'x 887, 888
(D.C. Cir. 2010) (per curiam) (explaining that there is no
private right of action under 18 U.S.C. § 242)..Accordingly,
this Court's exercise of personal jurisdiction is not
"authorized by a federal statute," see Fed. R. Civ. P.
4(k)(1)(C), and instead is limited to the exercise of personal
jurisdiction of a court of general jurisdiction in the District
of Columbia. See Fed. R. Civ. P. 4(k)(1)(A).
App.45a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 19 of 34
Columbia court to exercise personal jurisdiction over a
defendant." Bradley v. DeNine, 55 F. Supp. 3d 31,
39 (D.D.C.
2014). "First, the defendant must qualify for either general or
specific jurisdiction under the relevant District of Columbia
statutes." Id. "Second, the exercise of jurisdiction over the
defendant must comply with the Due Process Clause of the
Fourteenth Amendment." Id. at 39-40. General jurisdiction
permits the Court to adjudicate "any and all claims" brought
against the defendant. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011). Specific jurisdiction, on the
other hand, "is-confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction." Id.
(internal quotation marks omitted).
For the reasons that follow, the Court can exercise neither
general nor specific jurisdiction over Cirrus.
1.
General Jurisdiction
There are two District of Columbia statutes that confer
general jurisdiction. King v. Caliber Home Loans, Inc., 210 F.
Supp. 3d 130, 136 (D.D.C. 2016). One, D.C. Code § 13-422, states
that a "District of Columbia court may exercise personal
jurisdiction over a person domiciled in, organized under the
laws of, or maintaining his or its principles place of business
in, the District of Columbia as to any claim of relief." D.C.
Code § 13-422.
App.46a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 20 of 34
Here, Ms. Canuto has not alleged any facts that could
satisfy any of these criteria. See generally Am. Compl., ECF No.
10; Pl.'s Opp. to Cirrus' Mot., ECF No. 18; Pl.'s Surreply to
Cirrus' Reply, ECF No. 26.15 To the contrary, Cirrus' President
has averred that Cirrus is a corporation that is organized under
the laws of California and that maintains its principal place of
business in California. Aff. of Steve Heimler, ECF No. 11-2 52
2-3. Accordingly, the Court is unable to exercise general
jurisdiction over Cirrus pursuant to § 13-422.
The other general jurisdiction statute, D.C. Code § 13-334,
permits the exercise of personal jurisdiction over "a foreign
corporation doing business in the District." D.C. Code § 13334 (a) . The reach of this "doing business" general jurisdiction
under § 13-334 (a) is co-extensive with the reach of general
jurisdiction under the Due Process Clause. Day v. Corner Bank
(Overseas) Ltd., 789 F. Supp. 2d 150, 156 (D.D.C. 2011). Thus
this Court can exercise "doing business" general jurisdiction
over Cirrus only if its contacts with the District of Columbia
"are so 'continuous and systematic' as to render [it]
15 Cirrus has moved to strike Ms. Canuto's surreply. See Cirrus'
Mot. to Strike, ECF No. 28. In response, Ms. Canuto has filed a
motion to defend her. surreply. See Pl.'s Mot. to Defend, ECF No.
31. In view of Ms. Canuto's pro se status, the Court DENIES
Cirrus' motion to strike and GRANTS Ms. Canuto's motion to
defend. See Buaiz v. United States, 471 F. Supp. 2d 129, 133
(D.D.C. 2007) (accepting and considering a plaintiff's surreply
because that plaintiff was proceeding pro se) .
App.47a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 21 of 34
essentially at home" in the District. Goodyear, 564 U.S. at 919.
The Court cannot exercise "doing business" general
jurisdiction over Cirrus because Ms. Canuto has not alleged that
Cirrus has had any contacts with the District of Columbia, let
alone continuous and systematic contacts. See generally Am.
Compl., ECF No. 10; Pl.'s Opp. to Cirrus' Mot., ECF No. 18;
PI.'s Surreply to Cirrus' Reply, ECF No. 26. Again, to the
contrary, Cirrus' President has averred that Cirrus has never
managed any properties in the District, has no offices in the
District, has never conducted any business in the District, and
does not solicit business or derive any revenue from goods or
services rendered in the District. Aff. of Steve Heimler, ECF
No. 11-2 If 8-11. Cirrus is certainly not "at home" in the
District of Columbia; it is not even a frequent guest.
Accordingly, the Court is unable to exercise general
jurisdiction over Cirrus pursuant to § 13-334(a).
Accordingly, this Court cannot exercise general
jurisdiction over Cirrus.
2.
Specific Jurisdiction
D.C. Code § 13-423 authorizes the exercise of specific
jurisdiction under certain enumerated circumstances, including
when an entity transacts any business in the District; contracts
to supply services in the District; causes tortious injury in
the District; or has an interest in, uses, or possesses real
App.48a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 22 of 34
property in the District. D.C. Code § 13-423 (a) (1) — (5) . As
explained above, Ms. Canuto has not alleged that Cirrus has had
any contacts with the District of Columbia,
see generally Am.
Compl., ECF No. 10; Pl.'s Opp. to Cirrus' Mot., ECF No. 18;
PI.'s Surreply to Cirrus' Reply, ECF No. 26, and Cirrus'
President's affidavit confirms that Cirrus has absolutely no
connection of any sort to the District of Columbia, let alone
any connection that constitutes the conduct listed in § 13423(a). See generally Aff. of Steve Heimler, ECF No. 11-2.
Moreover, even if Ms. Canuto were able to establish contact
between the District of Columbia and Cirrus, she "has not shown
that [her] claims 'aris [e] from acts enumerated in' the
District's long-arm statute or that the exercise of jurisdiction
would satisfy due process." Capital Bank Int'l Ltd. v.
Citigroup, Inc., 276 F. Supp. 2d 72, 77
(D.D.C. 2003)
(citing
D.C. Code § 13-423 (b); Gorman, 293 F.3d at 509; Koteen v.
Bermuda Cablevision, Ltd.,
913 F.2d 973, 974-75
(D.C. Cir.
1990)). Thus, this Court cannot exercise specific jurisdiction
over Cirrus.16
16 Ms. Canuto's arguments to the contrary are unavailing. Her
assertion that the Court has federal question jurisdiction does
not solve the personal jurisdiction problem where Cirrus is
concerned. See Pl.'s Opp. to Cirrus' Mot., ECF No. 18 at 1.
Federal question jurisdiction is a form of subject matter
jurisdiction and whether it exists does not change the Court's
personal jurisdiction analysis in this case. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 577 (1999) ("Jurisdiction to
App.49a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 23 of 34
Accordingly, the Court is unable to exercise personal
jurisdiction over Cirrus. Thus the Court GRANTS Cirrus' motion
to dismiss for lack of personal jurisdiction.
C.
Bank of America's Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Bank
of America moves to dismiss the claims against it on statute of
limitations grounds. See Bank of America's Mem. in Supp. of Mot.
to Dismiss ("BOA's Mem. Supp."), ECF No. 16-1 at 1. Bank of
America contends that the only allegations concerning it in Ms.
Canuto's complaint relate to certain documents—namely, a
passport, divorce papers, a marriage contract, a certificate of
employment, and. a business registration form—that at some point
in 2009 went missing from the safe deposit box that she had at a
Bank of America branch in Panorama City, California.
Id. at 1-2,
5-6; Am. Compl.; ECF No. 10 at 11. Thus Bank of America contends
that the only claim against it is one for state law breach of
contract, apparently on the theory that the safe deposit box
rental agreement was purportedly breached when the documents
resolve [a] case [ ] on the merits requires both authority over
the category of claim in suit (subject-matter jurisdiction) and
authority over the parties (personal jurisdiction) . . . .").
Additionally, her conclusory argument that this-Court, has "longarm jurisdiction," see Pl.'s Opp. to Cirrus' Mot., ECF No. 18 at
2, fails because without any connections between Cirrus and the
District of Columbia, the Court cannot exercise specific
jurisdiction over Cirrus pursuant to the applicable District of
Columbia long-arm statute, as explained above.
App.50a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 24 of 34
went missing. See BOA's Mem. Supp., ECF No. 16-1 at 5-6. Bank of
America asserts that that breach of contract claim—which it
contends accrued in 2009——is barred by the applicable three-year
District of Columbia limitations period.
Id.
Ms. Canuto has filed three separate responses to Bank of
America's motion. See Pl.'s Opp. to BOA's Mot., ECF No. 23;
PI.'s Surreply to BOA's Reply, ECF No. 29; Pl.'s Notice to the
Court, ECF No. 33. None of those responses addresses the statute
of limitations issue. Instead, Ms. Canuto's responses largely
focus on her contention that Bank of America has defaulted
because it filed its motion to dismiss more than 21 days after
it was served. See Pl.'s Opp. to BOA's Mot., ECF No. 23 at 1-2;
Pl.'s Surreply to BOA's Reply, ECF No. 29 at 1-2.
For the reasons that follow, the Court concludes that Bank
of America's motion to dismiss was timely filed and that the
claims Ms. Canuto asserts against it are barred by the
applicable limitations periods.
1.
Timeliness
"The issue of how long a defendant may wait before moving
to dismiss under Federal Rule of Civil Procedure 12 (b)
is
surprisingly confusing and the courts disagree considerably in
this respect." Luv N' Care, Ltd. v. Babelito, S.A., 306 F. Supp.
2d 468, 472
(S.D.N.Y. 2004). Some courts have held that "under
the plain language of Rule 12 (b), a motion asserting a 12(b)
App.51a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 25 of 34
defense may be filed at any time before a responsive pleading
has been filed." Thompson v. Advocate South Suburban Hosp., No.
15-9184, 2016 WL 4439942, at *3 (N.D. Ill. Aug. 23, 2016)
(citing Hedeen Int'l, LLC v. Zing Toys, Inc., 811 F.3d 904, 905
(7th Cir. 2016)); see also Sun Microsys. Inc. v. Hynix
Semiconductor Inc., 534 F. Supp. 2d 1101, 1118
(N.D. Cal. 2007)
("[T]he Ninth Circuit allows a motion under Rule 12(b) to be
filed any time before the responsive pleading is filed."). Under
this understanding of Rule 12(b), Bank of America's motion to
dismiss was timely, as that motion was Bank of America's first
filing and therefore it was filed before Bank of America filed a
responsive pleading.'
Others courts, not unreasonably, have concluded "that the
timing rules for filing an answer under Rule 12 (a) must also
apply to motions to dismiss under Rule 12(b)." Luv N' Care, 306
F. Supp. 2d at 472. Those courts are thus of the view that "Rule
12 requires a motion to dismiss under Rule 12(b) to be filed
before the deadline for pleading—either within the 21 days set
by Rule 12(a) or within an extension of time granted by the
Court according to Rule 6(b)." Gillo v. Gary Cmty. Sch. Corp.,
No. 14-99, 2014 WL 3767680, at *2 (N.D. Ind. July 31, 2014). But
Rule 12 (a)'s 21-day pleading clock does not start to run until a
defendant is properly served. See Fed. R. Civ. P. 12(a)
(requiring a defendant to serve an answer "within 21 days after
App.52a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 26 of 34
being served with the summons and complaint"); see also Luv N'
Care, 306 F. Supp. 2d at 471
(explaining that if a defendant has
not been served, its time to respond under Rule 12(a) has "not .
.
. begun").
Here, Ms. Canuto attempted to serve Bank of America by
mailing the summons and the complaint to a Bank of America
branch in California. See PI.'s Opp. to BOA's Mot., ECF No. 23
at 1. Under an analysis that should be familiar at this point,
see supra Part II.A.2, this attempted service was deficient:
First,, under Federal Rule 4(h)(1)(B),
service by mail was
inadequate. Wesenberg, 2015 WL 5599012, at *2. Second, even
assuming that a cashier or assistant cashier or some other
enumerated agent was delivered the summons and the complaint at
the Bank of America branch where service was attempted,
see Cal.
Civ. Proc. Code § 416.10, Ms. Canuto has not demonstrated that
she has complied with the California service by mail requirement
that two copies of a notice and acknowledgement form be provided
to the person to be served, nor has she demonstrated that she
complied with the requirement of providing "a return envelope,
postage prepaid, addressed to the sender." See Gal. Civ. Proc.
Code § 415.30. Accordingly, service under California law was
deficient. Third, under District of Columbia law, Ms. Canuto has
not demonstrated that the person to whom the summons and the
complaint was delivered at the Bank of America branch was an
App.53a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 27 of 34
authorized recipient of service,
see D.C. Super. Ct. R. Civ. P.
4(h)(1)(B); see Bazarian Int'l Fin. Assocs., LLC v. Desarrollos
Aerohotelco, C.A., 168 F. Supp. 3d 1,
13 (D.D.C. 2016)
("[T]he
plaintiff bears the burden of demonstrating that service has
been effected properly."), nor has she demonstrated compliance
with the District of Columbia's service by mail requirements.
See D.C. Super. Ct. R. Civ. P. 4(c)(4)
receipt be requested), 4(c)(5)
(requiring that a return
(requiring delivery of notice and
acknowledgment forms and "a return envelope, postage prepaid,
addressed to the sender"). Thus, even if the Court were to
conclude that, per Rule 12(a), a Rule 12(b) motion must be filed
within 21 days of service, the Court cannot conclude that Bank
of America missed its filing deadline: Without proof that Bank
of America was properly served, the Court cannot conclude that
Bank of America's 21-day clock ever started running.
Accordingly, whatever the appropriate rule'for the
timeliness of a Rule 12(b) motion, Bank of America's Rule
12(b)(6) motion was timely filed in this case.
2.
Statutory Time Limitations
Federal Rule of Civil Procedure 12(b)(6) "is the vehicle
for asserting the affirmative defense of statutory time
limitation." Peart v. Latham & Watkins LLP,
985 F. Supp. 2d 72,
80 (D.D.C. 2013). Because statute of limitations issues often
depend on contested questions of fact, "a defendant is entitled
App.54a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 28 of 34
to succeed on a Rule 12(b) (6) motion to dismiss brought on
statutes of limitations grounds only if the facts that give rise
to this affirmative defense are clear on the face of the
plaintiff's complaint." Lattisaw v. District of Columbia,
Supp. 3d 142, 153
118 F.
(D.D.C. 2015).
Liberally construing Ms. Canuto's filings, the Court
discerns that she is attempting to assert the following claims
against Bank of America: state common law claims for breach of
contract, 17 trespass, assault, battery, invasion of privacy,
intentional infliction of emotional distress, and negligence,
see Am. Compl., ECF No. 10 at 11-12, 15-16, 40; PI.'s Opp. to
BOA's Mot., ECF No. 23 at 2; Pl.'s Surreply to BOA's Reply, ECF
No. 29 at 2, and federal law claims under 42 U.S.C. § 1981 and
42 U.S.C. § 1983. See Am. Compl., ECF No. 10 at 20, 39.18 Given
the facts alleged in Ms. Canuto's amended complaint, all of
these claims against Bank of America are conclusively time
barred.
17 Ms. Canuto's amended complaint states that she is not making a
breach of contract claim, Am. Compl., ECF No. 10 at 20, but in a
later filing she says that one of her claims against Bank of
America is for breach of contract. Pl.'s Surreply to BOA's
Reply, ECF No. 29 at 2.
18 To the extent that Ms. Canuto seeks to assert a claim under 18
U.S.C. § 242 against Bank of America, that claim is barred
because there is no private right of action under § 242. McCray
v. Holder, 391 F. App'x 887, 888 (D.C. Cir. 2010) (per curiam).
App.55a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 29 of 34
i.
State Law Claims
"When deciding state-law claims under diversity or
supplemental jurisdiction, federal courts apply the choice-oflaw rules of the jurisdiction in which they sit." Ideal Elec.
Sec. Co. v. Int'l Fid. Ins. Co., 129 F.3d 143, 148
(D.C. Cir.
1997). "Because the District of Columbia treats the statute of
limitations as a procedural issue rather than a substantive one,
the law of the forum state applies, as it does with respect to
all procedural matters." Gaudreau v. Am. Promotional Events,
Inc., 511 F. Supp. 2d 152, 157 (D.D.C. 2007)
(internal quotation
marks omitted).-Accordingly, District of Columbia law provides
the limitations periods for Ms. Canuto's state law claims. Under
District of Columbia law, none of the state law claims asserted
against Bank of America has a statute of limitations longer than
three years. See FiberLight, LLC v. WMATA, No. 16-2248, 2017 WL
2544131, at *8 (D.D.C. June 12, 2017)
(three-year statute of
limitations for a breach of contract claim under D.C. Code § 12301(7)); Tolbert v. Nat'1 Harmony Mem'1 Park, 520 F. Supp. 2d
209, 211-12 (D.D.C. 2007)
(three-year statute of limitations for
a trespass claim under D.C. Code § 12-301(3)); King v. Barbour,
No. 16-727, 2017 WL 782880, at *2 (D.D.C. Feb. 28, 2017)
(one-
year statute of limitations for an assault claim under D.C. Code
§ 12-301(4)); Battle v. District of Columbia, 21 F. Supp. 3d 42,
47 (D.D.C. 2014)
(one-year statute of limitations for a battery
App.56a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 30 of 34
claim under D.C. Code § 12-301(4)); Doe v. Se. Univ., 732 F.
Supp. 7, 8
(D.D.C. 1990)
(one-year statute of limitations for an
invasion of privacy claim);
43
(D.D.C. 2009)
Thong v. Salon,
634 F. Supp. 2d 40,
(three-year statute of limitations for an
intentional infliction of emotional distress claim but a shorter
statute of limitations when that claim is "intertwined" with
claims that have a shorter statute of limitations);
Swanson v.
Howard Univ., No. 17-127, 2017 WL 1377901, at *3 (D.D.C. Apr.
13, .2017)
(three-year statute of limitations for a negligence
claim under D.C. Code § 12-301(8)). The statutory period begins
to run "from the time the right to maintain the action accrues."
D.C. Code § 12-301. The cause of action accrues "when the
plaintiff knows or through the exercise of due diligence should
have known of the injury." See District of Columbia v. Dunmore,
662 A.2d 1356,
1359 (D.C. 1995)
(internal quotation marks
omitted).
Here, Ms. Canuto was or should have been aware of any
injury caused by Bank of America at some unspecified time in
2009, as that is when she noticed that documents had gone
missing from her safe deposit box in a Bank of America branch in
California and when, accordingly, she ceased using her safe
deposit box at that Bank of America branch. See Am. Compl., ECF
App.57a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 31 of 34
No. 10 at 11-12.19 Thus her state law claims against Bank of
America accrued in 2009. In waiting to file suit until November
16, 2016, approximately seven years after Bank of America's
actions that allegedly caused her injury, Ms. Canuto brought her
state law claims against Bank of America too late. Those claims
are time barred.
li.
Federal Law Claims
Ms. Canuto's federal statutory claims against Bank of
America under 42 U.S.C. § 1981 and 42 U.S.C. § 1983 are also
time barred.
Section 1981 prohibits racial discrimination with respect
to the right of "[a]11 persons within the jurisdiction of the
United States .-.
. to make and enforce contracts." 42 U.S.C. §
1981. If a § 1981 claim relates to conduct that occurred after
the formation of the contract in guestion, then it "is governed
by the federal four-year limitations period found in 28 U.S.C. §
1658." Lattisaw, 118 F. Supp. 3d at 156-57
(internal quotation
marks omitted). Because Ms. Canuto entered into a safe deposit
box rental contract with Bank of America in 2005 but complains
about Bank of America's conduct from 2009, see Am. Compl., ECF
No. 10 at 11, she challenges only post-contract formation
19 Ms. Canuto alleges that Bank of America is still billing her
for a safe deposit box. See PI.'s Notice to the Court, ECF No.
33 at 1-2. That allegation does not. appear to be connected to
any of her claims against Bank of America.
App.58a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 32 of 34
conduct and, accordingly, her § 1981 claim is subject to a fouryear limitations period running from the date on which that
claim accrued. The latest that that claim could have accrued was
on some unspecified date in 2009 when, again, Ms. Canuto was or
should have been aware of the injury that Bank of America
allegedly inflicted: permitting documents to go missing from a
safe deposit box located at a Bank of America branch in
California. See Am. Compl., ECF No. 10 at 11-12; Lattisaw, 118
F. Supp. 3d at 157 (assuming that the discovery rule applies in
the context of a § 1981 claim and explaining that that rule
mandates that the statute of limitations period begins to run
when a plaintiff is aware or should be aware of the injury).
Because the instant action commenced on November 16, 2016, more
than four years after Ms. Canuto's § 1981 claim against Bank of
America accrued, that claim is time barred.
And even putting to the side that Bank of America does not
act under the color of state law and thus a § 1983 claim cannot
be maintained against it, see Quezada v. Marshall, 915 F. Supp.
2d 129, 135 (D.D.C. 2013)
(citing Williams v. United States, 396
F.3d 412, 414 (D.C. Cir. 2005)), 20 the § 1983 claim against Bank
20 To the extent that Ms. Canuto means to assert Fourteenth
Amendment constitutional claims against Bank of America outside
of the vehicle of the § 1983 claim, see. Am. Compl., ECF No. 10
at 5, those claims are similarly barred. See Williams, 396 F.3d
at 414 ("Courts generally treat 'under color' of law . .
as
App.59a
Case l:l6-cv-02282-EGS Document 38 Filed 08/10/17 Page 33 of 34
of America is barred on statute of limitations grounds. Even
though Bank of America's conduct and Ms. Canuto's alleged injury
occurred in California, this Court "looks[s] to District law for
the applicable statute of limitations" for Ms. Canuto's § 1983
claim. See Jones v. Kirchner, 835 F.3d 74,
2016)
80-81
(D.C. Cir.
(applying the statute of limitations imposed by District
of Columbia law to a § 1983 claim brought in the District of
Columbia even though the alleged constitutional tort occurred in
Maryland). The applicable limitations period is three years.
Id.
at 81. A § 1983 claim generally accrues when the alleged
wrongful conduct occurs. See Munoz v. Bd. Of Trs. of the Univ.
of the Dist. of Columbia, 427 F. App'x 1, 4
(D.C. Cir. 2011)
(per curiam). Because the alleged wrongful conduct undergirding
Ms. Canuto's § 1983 claim against Bank of America occurred on
some unspecified date in 2009, her § 1983 claim against Bank of
America accrued in 2009. Because the instant action commenced on
November 16, 2016, more than three years after Ms. Canuto's §
1983 claim against Bank of America accrued, that claim is time
barred.
Accordingly, because all of the claims asserted against
Bank of America are barred on statute of limitations grounds,
the Court GRANTS its motion to dismiss.
the same thing as the 'state action' reguired under the
Fourteenth Amendment.") (some internal quotation marks omitted).
App.60a
Case l:16-cv-02282-EGS Document 38 Filed 08/10/17 Page 34 of 34
III. Conclusion'
For the foregoing reasons, DePauw's motion to quash and/or
dismiss is GRANTED IN PART and DENIED IN PART; Cirrus' motion to
dismiss is GRANTED; and Bank of America's motion to dismiss is
GRANTED. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed:
Emmet G. Sullivan
United States District Judge
August 10, 2017
App.61a
i
IN THE UNITED- STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Leave to file DENIED
£ Slt4uva>-lkc.
United States district Judge
Original copy of Brief and Appendix of Appellant
i<i.<
M;iil Ifnnin
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{ } -V Dm- i'u < - nif. .)ki.
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App.62a
Leave to file DENIED
United States District Judge
appendix v
COMPLAINT
k- iimn
\: i ;• }<■».!»’«
I
Angela i* v iU’^ar C Jerk ol t tmrl
App.63a
Case l:16-cv-02282-EGS Document 37 Filed 08/10/17 Page 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESITA A. CANUTO,
Plaintiff,
)
) Civil Action No. 16-2282 (EGS)
v.
JAMES MATTIS,1 Secretary of
Defense, et al.,
)
)
Defendants.
)
ORDER
For the reasons stated in the accompanying Memorandum
Opinion, it is hereby
ORDERED that Ms. Canuto's [13] Motion of Plaintiff to Make
an Amendment Due to Error Noticed in the Filed Amended Complaint
is GRANTED; and it is further
ORDERED that DePauw/Woodman-Sylvan Properties'
[5] Motion
to Quash' Service and/or in the Alternative Motion to Dismiss
Pursuant to Rule 12(b) (5) is GRANTED IN PART and DENIED IN PART.
Ms. Canuto's prior service of DePauw/Woodman-Sylvan Properties
is QUASHED, and, by no later than 30 days from the date of this
Order, Ms. Canuto may file an amended complaint with defendant
"Woodman-Sylvan Properties, Inc." substituted in place of
1 Public officers sued in their official capacity who have ceased
to hold office since the commencement of this action have been
automatically substituted with their successors under Federal
Rule of Civil Procedure 25(d).
App.64a
Case l:16-cv-02282-EGS Document 37 Filed 08/10/17 Page 2 of 2
"DePauw HK Property Management." and must properly serve WoodmanSylvan Properties; and it is further
ORDERED that Cirrus'
[8] Motion to Dismiss Plaintiff's
Complaint for Lack of Personal Jurisdiction is DENIED AS MOOT;
and it is further
ORDERED that Cirrus'
[28] Motion to Strike Plaintiff's
March 2, 2017 Response to Defendant's Motion to Dismiss
Plaintiff's Amended Complaint is DENIED; and it is further
ORDERED that Ms. Canuto's [31] Motion to Defend is GRANTED;
and it is further
ORDERED that Cirrus'
[11] Motion to Dismiss Plaintiff's
Amended Complaint for Lack of Personal Jurisdiction is GRANTED;
and it is further
ORDERED that the claims against Cirrus are DISMISSED
WITHOUT PREJUDICE; and it is further
ORDERED that Bank of America's [16] Motion to Dismiss is
GRANTED; and it is further
ORDERED that the claims against Bank of America are
DISMISSED WITH PREJUDICE.
SO ORDERED.
Signed:
Emmet. G. Sullivan
United States District Judge
August 10, 2017
App.65a
Case l:16-cv-02282-EGS Document 39 Filed 08/10/17 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESITA A. CANUTO,
Plaintiff,
)
)
)
)
)
) Civil Action No. 16-2282 (EGS)
v.
JAMES MATTIS, Secretary of
Defense, et al.,
Defendants.
)
)
)
)
)
)
'
ORDER DIRECTING PLAINTIFF TO COMPLETE SERVICE OF PROCESS
Under Federal Rule of Civil Procedure 4(m), a plaintiff
must serve a defendant with a summons and the complaint within
90 days after the filing of the complaint. To date, the Court
has no record that the federal defendants—the Secretary of
Defense, the Secretary of the Navy, the Secretary of the Army,
the Secretary of the Air Force, the Secretary of Homeland
Security, the President, and the two United States Army
officers—have been served with a summons and the complaint, and
the 90-day time limit has expired.
Accordingly, it is hereby ORDERED that, by no later than 30
days from the date of this Order, Ms. Canuto must either:
(1)
file with the.Court proof that the federal defendants have been
served,^ with a summons and the complaint, or (2) provide the
Court with a written explanation for why service of process has
not been completed.
1
App.66a
To properly serve the federal defendants, Ms. Canuto must
comply with Federal Rule of Civil Procedure 4(i), which
provides:
(1) United States. To serve the United States,
a party must:
(A) (i) deliver a copy of the summons and of
the complaint to the United States attorney
for - the district where the action is
brought—or to an assistant United States
attorney or clerical employee whom the United
States attorney designates in a writing filed
with the court clerk—or
(^-i) send a copy of each by registered or
certified mail to the civil-process clerk at
the United States attorney's office;
(B) send a copy of each by registered or
certified mail to the Attorney General of the
United States at Washington, D.C.; and
(£•) if the action challenges an order of a
nonparty agency or officer of the United
States, send a copy of each by registered or
certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee
Sued in an Official Capacity. To serve a
United States agency or corporation, or a
United States officer or employee sued only in
an official capacity, a party must serve the
United States
and also send a copy of the
,
summons and of the complaint by registered or
certified mail to the agency, corporation,
officer, or employee.
(3) Officer or Employee Sued Individually.
To
serve a United States officer
or employee sued
in an individual capacity for an act or
omission occurring in connection with
duties
performed
on
the
United
States'
behalf
(whether or not the officer or employee is
also sued in an official capacity), a party
2
App.67a
i*
must serve the United States and also serve
the officer or employee under Rule 4(e), (f) ,
or (g).
If Ms . Canuto fails to file proof of proper service by the
date specified above, or if the Court determines that plaintiff
has not shown good cause for the failure to serve the federal
defendants, the claims against the federal defendants will be
dismissed without prejudice.
SO ORDERED.
SIGNED: Emmet G. Sullivan
United States District Judge
August 10, 2017
3
App.68a
USCA Case #19-5186
Document #1838826
Filed: 04/20/2020
Page 1 of 1
Pinxitb States (Eourt of
For The District of Columbia Circuit
No. 19-5186
September Term, 2019
1:16-cv-02282-EGS
Filed On: April 20,2020
Teresita A. Canuto,
Appellant
v.
Troy Alexander, Ltc.-Batallion Commander
(U.S. Army Reserve), et al.,
Appellees
BEFORE:
Srinivasan, Chief Judge, and Henderson,' Rogers, Tatel, Garland,
Griffith, Miilett, Pillard, Wilkins, Katsas, and Rao, Circuit Judges
ORDER
Upon consideration of the petition for rehearing en banc, and the absence of a
request by any member of the court for a vote, it is
ORDERED that the petition be denied.
t
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Isl
Daniel J. Reidy
Deputy Clerk
” Circuit Judge Henderson did not participate in this matter.
App.69a
\
USCA Case #19-5186
Document #1840242
Filed: 04/28/2020
Page 1 of 1
(Ecmri of ^Appeals
For The District of Columbia Circuit
No. 19-5186
September Term, 2019
1:16-cv-02282-EGS
Filed On: April 28, 2020 [1840242]
Teresita A. Canuto,
*
Appellant
v.
Troy Alexander, Ltc.- Batallion Commander
(U.S. Army Reserve), etal.,
Appellees
MANDATE
In accordance with the order of January 30, 2020, and pursuant to Federal Rule
of Appellate Procedure 41, this constitutes the formal mandate of this court.
FOR THE COURT:
Mark J. Langer, Clerk
r
BY:
Link to the order filed January 30, 2020
App.70a
/si
Daniel J. Reidy
Deputy Clerk
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.