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

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App.62a

Leave to file DENIED

United States District Judge

appendix v

COMPLAINT

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\: 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.

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