Agbara v. At&t Mobility LLC

• Court: District Court, District of Columbia
• Decided: October 22, 2021
• Docket: Civil Action No. 2019-2945
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) EMMANUEL AGBARA, ) ) Plaintiff, ) ) v. ) Civil Action No. 19-cv-2945 (TSC) ) ) EVELYN ONYENYI OKOJI, NIGERIAN ) CATHOLIC COMMUNITY AT ST. ) JEROME CATHOLIC CHURCH, ) CHARLES EDEH, and KINSLEY ) KELECHI OGIDEH, ) ) Defendants. ) )

MEMORANDUM OPINION

Pro se Plaintiff Emmanuel Agbara brings this action against his former wife Evelyn O.

Okoji, the Nigerian Catholic Community at St. Jerome Catholic Church (“Church”), Reverend

Father Charles Edeh, and Kinsley Kelechi Ogideh. Agbara claims that because of his former

wife’s alleged involvement with lay members of the Church, he suffered loss of privacy,

property damage to his home, and emotional distress. ECF No. 1, Compl. ¶¶ 25, 30, 35, 41. The

Church and Rev. Edeh move to dismiss this action for lack of personal jurisdiction, Fed. R. Civ.

P. 12(b)(2), and for failure to state a claim upon which relief may be granted, Fed. R. Civ. P.

12(b)(6). For the reasons set forth below, the court will GRANT the motion, ECF No. 37, but

not for the reasons offered by these Defendants.

A. Background

Agbara’s claims center around events leading up to his contentious divorce from

Okoji, who was a member of the Church. Compl. ¶ 81. Agbara alleges that Rev. Edeh Page 1 of 11 “facilitated” a “relationship” between Okoji and defendants Kinsley Ogideh and Livinity

Okparaeke, both church members. 1 Id. ¶¶ 28, 79. Ogideh, who was the church’s choir director,

allegedly used his “power and influence” to seduce Okoji. Id. ¶¶ 92-93. Rev. Edeh purportedly

assigned Okparaeke to provide marriage counseling to Okoji, even though Okparaeke had no

professional training in that field. Id. ¶ 78. Agbara contends that Rev. Edeh was negligent in

failing to supervise Okparaeke and this lack of supervision was a “material factor” in the

relationship that later developed between Okoji and Okparaeke. Id. ¶¶ 84-85. Agbara alleges

that Okoji became pregnant, after which Rev. Edeh, Ogideh, and Okparaeke “collectively or

individually coerced” Okoji to terminate the pregnancy. Id. ¶ 96. Agbara asserts that the

termination occurred at his “family home,” and “destroyed plaintiff’s furniture and other

properties.” Id. at ¶¶ 79, 84. Specifically, he appears to allege damage to a carpet, a mattress,

and the edge of a wall. Id. ¶ 98-101, 104.

Agbara further alleges that around the time of his divorce, the three individual

Defendants coerced Okoji to “hack” his cellular telephone account. Id. ¶¶ 34, 40, 97.

Okoji purportedly proceeded to unlawfully obtain private information from his cellular

telephone carrier and later disclosed that information to third parties and used the

information against him in their divorce proceedings. Id. ¶¶ 15, 18, 24, 97 113-15.

Agbara brings claims for emotional distress and negligence against the Church and Rev.

Edeh (collectively the “Church”) for assigning Okparaeke as a marriage counselor, failing to

supervise him, causing the destruction of Agbara’s “non-marital” property, and for invading

1 This court dismissed Okparaeke for lack of personal jurisdiction. ECF No. 18. Ogideh has yet to appear. Page 2 of 11 Agbara’s privacy by hacking his cellular account. Id. ¶¶ 30, 116-19; ECF No. 43, Pls. Resp. at

24, 26. The Church has moved to dismiss.

B. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks and citation omitted). In deciding a Rule 12(b)(6) motion, the court

may consider “any documents either attached to or incorporated in the complaint and matters of

which [the Court] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117

F.3d 621, 624 (D.C. Cir. 1997).

To establish personal jurisdiction over a defendant not physically present in the forum,

the defendant typically must “have certain minimum contacts with [the forum] 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) (internal quotation marks and

citation omitted). “Because this ‘personal jurisdiction requirement recognizes and protects an

individual liberty interest,’ however, like other individual rights it may be waived–-for example,

if the defendant agrees ‘to submit to the jurisdiction of a given court.’” Creighton Ltd. v. Gov’t

of Qatar, 181 F.3d 118, 125 (D.C. Cir. 1999) (quoting Insurance Corp. of Ireland, Ltd. v.

Compagnie des Bauxites, 456 U.S. 694, 702, 704 (1982)).

Page 3 of 11 C. ANALYSIS

The Church seeks dismissal on two grounds: lack of personal jurisdiction and failure to

state a claim upon which relief may be granted. The court finds that although the dismissal is not

warranted for lack of personal jurisdiction, Agbara fails to state a viable claim for relief.

1. Personal Jurisdiction

In their first responsive pleading, the Church moved to dismiss for lack of subject matter

jurisdiction and for failure to state a claim. ECF No. 11. Almost one month later, Okparaeke

filed an answer to the complaint challenging personal jurisdiction, and the court subsequently

dismissed him from the suit. ECF Nos. 15; 18. The Church then filed an Amended Motion to

Dismiss and raised a personal jurisdiction challenge, arguing that this court cannot exercise

personal jurisdiction over it because the alleged events occurred in Maryland and because the

Church does not have the requisite contacts with the District of Columbia. ECF No. 20, Mot. to

Dismiss at 3-4.

The court denied the Church’s first motion to dismiss as moot and denied the amended

motion to dismiss without prejudice because the Church raised arguments in the reply brief that

were not raised in its primary brief and also appeared to abandon arguments raised in the primary

brief. 3/12/2020 Minute Order. Moreover, the reply did not address Agbara’s argument that the

Church waived personal jurisdiction by failing to raise it in its initial motion to dismiss. Id.

Nonetheless, the court allowed the Church to file an amended motion to dismiss. Id. Almost a

year after filing their first responsive pleading, and over nine months after filing their first

amended responsive pleading, the Church filed a second motion to dismiss, which is at issue

here.

Page 4 of 11 Federal Rule of Civil Procedure 12(b)(2) allows a defendant to move to dismiss a claim

for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Rule 12(h) cautions, however, that a

defendant waives its right to assert personal jurisdiction as a defense where it was available, but

fails to raise it in its first responsive pleading. Fed. R. Civ. P. 12(h)(1) (“a party waives any

defense listed in Rule 12(b)(2) . . . by . . . omitting it from a motion in the circumstances

described in Rule 12(g)(2)); Fed. R. Civ. P. 12(g)(2) (a “party that makes a motion under this

rule must not make another motion under this rule raising a defense or objection that was

available to the party but omitted from its earlier motion.”). There is no waiver, however, if the

defense is raised in a responsive pleading later amended “by Rule 15(a)(1) as a matter of

course.” Fed. R. Civ. P. 12(h)(1)(B) (emphasis added). Rule 15(a)(1) allows a party to “amend

its pleading once as a matter of course within . . 21 days after serving” the initial pleading. Fed.

R. Civ. P. 15(a). Reading Rule 12 and Rule 15 together, a party waives its right to assert a

defense of lack of personal jurisdiction unless it is raised in the first responsive pleading or in an

amended pleading made as a matter of course. Agbara argues the Church waived its personal

jurisdiction defense because it did not raise it in its first responsive pleading.

The Church argues that it has not waived its right to assert this defense because the court

invited it to file a second amended motion to dismiss. See ECF No. 37. The Church points out

that Rule 15 allows amendment of original pleadings and that leave to amend should be freely

given. Id. at 5. Relying on subsection (b)(2) of Rule 15, the Church argues that when the court

dismissed its previous motions and invited it to file a second amended motion to dismiss, the

court was granting the Church leave to amend its original pleading, thereby preserving its right to

assert a personal jurisdiction defense. Id. at 6. In support of this position, the Church cites

Chase v. Pan-Pacific Broadcasting, Inc, 750 F.2d 131 (D.C. Cir. 1984), in which the D.C.

Page 5 of 11 Circuit noted that “Rule 15(a) allows a party to “amend his pleading once as a matter of course’

and, after the opening round, on leave of court ‘freely given when justice so requires.’” See ECF

No. 37 at 5-6.

The court is not persuaded by the Church’s argument. As an initial matter, the court did

not give the Church permission to raise the personal jurisdiction defense in its second amended

motion. Rather, it allowed the Church to file a second amended motion because the Church’s

pleadings were confusing: it filed an amended motion adding the personal jurisdiction defense—

without leave of court—more than twenty-one days after its original motion, failed to address

Plaintiff’s argument that it had waived the defense, and then filed a reply brief that abandoned

some previously raised arguments, while simultaneously raising additional arguments. See

3/12/2020 Minute Order. The court’s forbearance in allowing Defendants an opportunity to file

a coherent single amended responsive pleading cannot be interpreted as granting the Church

permission to raise previously waived arguments, but was rather an attempt to promote judicial

efficiency.

More importantly, this court does not have the authority to allow the Church to resurrect

a waived personal jurisdiction defense. Rule 12(h) allows a party to amend their answer without

waiver or penalty if filed pursuant to Rule 15 subsection (a)(1), which only allows an amendment

“as of right” if filed within twenty-one days of the original pleading. C. Wright & A. Miller,

Fed, Prac. & Proc. § 1391 (3rd ed. 2021). Rule 12(h) does not allow an amended pleading

without penalty if filed pursuant to subsection (a)(2), which permits an amendment upon motion

or agreement of the opposing party. Thus, Rule 12(h) “denies the court discretion to grant leave

to amend in the case of the defenses [such as lack of personal jurisdiction] enumerated in Rule

12(b)(2) through Rule 12(b)(5).” Id. at § 1394; see id. at § 1391 (noting that defenses such as

Page 6 of 11 lack of personal jurisdiction “are waived if they are not included in a preliminary motion under

Rule 12 as required by Rule 12(g) or, if no such motion is made, they are not included in the

responsive pleading or an amendment as of right to that pleading under Rule 15(a).”).

The Church did not assert a lack of personal jurisdiction defense in its first responsive

pleading or in an amended pleading “as of right,” made within twenty-one days after its initial

pleading. Instead, it raised the defense in amended pleadings filed more than twenty-one days

after the initial pleading. Accordingly, it waived the defense and the Church’s reliance on Chase

v. Pan-Pac. Broad., Inc., 750 F.2d 131 (D.C. Cir. 1984) is unavailing. That case involved

defendants who asserted a timely personal jurisdiction defense in their answer, and the issue was

whether the defense was waived when defendants also asserted a crossclaim in their answer.

Moreover, in quoting the opinion, the Church ignored the court’s admonishment that the purpose

of Rule 12(h), “is to assure that a defense of lack of jurisdiction over the person is asserted

promptly. It provides that the defense is waived if it is neither made by pre-answer motion nor

included in . . . an amendment thereto made within twenty days.” Id. at 132 (emphasis added).

Therefore, dismissal for lack of personal jurisdiction is not appropriate here.

2. Invasion of Privacy Claim

Although the Church did not address the issue, the court will dismiss the invasion of

privacy claim because Agbara did not assert facts connecting the Church with the unauthorized

“hacking” of his cellular telephone account. Agbara attached to his Complaint what appears

to be a document from his cellular telephone carrier, former defendant AT&T, 2

2 The court dismissed AT&T as a defendant without prejudice, ordering Agbara to arbitration. See 10/25/2019 Minute Order; ECF Nos. 24, 25.

Page 7 of 11 disclosing the results of an investigation into Agbara’s complaint that someone

accessed his account without his consent. Compl. at Ex. 1, ECF p. 5. AT&T stated that

Agbara’s “passcode was changed on 03/16/2018 by a caller who identified herself as the

account holder’s spouse. The caller was able to verify information in order to

authenticate themselves as an authorized party.” Id. Thus, while he asserts facts

connecting Okoji with the alleged invasion of his privacy, he has asserted no facts

connecting the Church to the alleged invasion. Federal Rule of Civil Procedure Rule 8(a)

requires a “short and plain” recitation of facts supporting a plaintiff’s claims. See Ashcroft v.

Iqbal, 556 U.S. 662, 677-78 (2009) (“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.”)

(internal quotation marks and citation omitted). Plaintiff has alleged no facts meeting the Rule 8

pleading requirement as to the Church on the invasion of privacy claim and, therefore, the court

will dismiss the claim without prejudice.

3. Negligence Claim

Under Maryland law, “[t]o establish a cause of action in negligence a plaintiff

must prove the existence of four elements: a duty owed to him (or to a class of which he is a

part), a breach of that duty, a legally cognizable causal relationship between the breach of duty

and the harm suffered, and damages.” Jacques v. First Nat’l Bank, 307 Md. 527, 531, 515 A.2d

756, 758 (1986) (citing Cramer v. Housing Opportunities Comm’n, 304 Md. 705, 712, 501 A.2d

35 (1985)). The Church argues that Agbara’s negligence claim fails because he has not

pleaded facts establishing that it owed him a duty. The Church points out that Agbara

never asserts he was a member of the church and thus any duty was owed to Okoji, not

Agbara.

Page 8 of 11 Agbara does not dispute that he was not a member of the church; indeed, he repeatedly

alleges that Okparaeke provided pastoral care and/or counseling solely to Okoji. ECF No.

45, Pls. Aff. ¶¶ 4, 7, 26-27, 31, 33; Pls. Resp. at 3 (alleging “Okoji went to church

alone.”). But he argues that the absence of a special relationship is not fatal to his

claims because:

[u]nder the legal entity concept, a wrong to a marriage, is a wrong to the legal entity, and each member of the legal entity, husband or wife, is individually wronged and each has a right of action in tort against in both Maryland and the District of Columbia . . . Adultery is certainly a wrong against the legal entity of marriage, and constitutes a basis for an action in tory against the tortfeasors.

Pls. Resp. at6; see id. at 5, 8. 3 Agbara argues that under the “legal entity concept,”

marriage is a single unit and “the wrong done (to one member) is individual to both the

husband and to the wife, and a right of action against the wrongdoers should be in each

of them.” Pls. Resp. at 5. The only case Agbara cites in support of this argument is a

District of Columbia case and, because Maryland law applies, not dispositive. See

Hitaffer v. Argone Co., 183 F.2d 811, 818 (overruled on other grounds by Smither & Co.

v. Coles, 242 F.2d 220 (D.C. Cir. 1957) (discussing loss of consortium claim).

Moreover, the court is unable to find Maryland case law endorsing or adopting

the “legal entity concept.” Indeed, Maryland law provides precisely the opposite: it does not

recognize a tort based on injury to a marital relationship. In Gasper v. Lighthouse, Inc., 533

3 Defendant argued that Maryland law applies in this case because the District of Columbia’s choice of law rules require that in a diversity action the court consider the laws of the jurisdiction where the injury, contact, domicile, and relationship occurred. Defs. Reply at 8. (citing Felton v. Harris Design & Constr. Co., 417 F. Supp. 2d. 17, 21-22 n. 3 (D.D.C. 2006)). Although Plaintiff mentions the District of Columbia, where he currently resides, he does not dispute that Maryland law applies. Page 9 of 11 A.2d 1358 (1987), the court considered the viability of a martial relations tort where the plaintiff

and his wife divorced after the wife’s affair with a licensed counselor who had provided

marriage counseling to the couple. The plaintiff sued the counselor under a negligence theory

for interfering with the marital relationship and sued the counselor’s employer for failure to

supervise. Id. at 1359-60. The court rejected the marital relations tort, finding that in 1945 the

Maryland legislature abolished the action for “alienation of affection.” Id. at 1359. Accordingly,

the plaintiff could not indirectly pursue a claim for damage to his martial relationship by

couching it as a negligence claim: “[o]ne cannot sue to recover for injuries arising from

‘defilement of the marriage bed’ or from an interference with the marriage by simply casting the

defendant’s conduct as a breach of contract, or negligence, or some other intentional tort.” Id. at

1360 (citations omitted).

The Gasper court explained, however, that abolishment of the “alienation of affection”

action “does not preclude a person from maintaining a traditional breach of contract action or a

recognized tort action merely because the breach arose from an improper liaison with the

plaintiff’s spouse or because one effect of the alleged breach or tortious conduct was a disruption

or break of his or her marriage.” Id. at 1360. Agbara has not pleaded facts which might meet

this standard. See, e.g., Figueiredo-Torres v. Nickel, 584 A.2d 69, 72-74 (Md. 1991) (allowing

husband to bring claim for professional negligence against former couple’s therapist). The court

will therefore grant the Church’s motion to dismiss as to the negligence claims relating to alleged

damage to Agbara’s marriage. 4

4 Agbara’s property damage claim fails because has not alleged facts establishing the Church caused the damage or that the damage was a foreseeable result of the Church’s conduct. See Troxel v. Iguana Cantina, LLC, 29 A.3d 1038, 1049-50 (Md. 2011) (successful negligence Page 10 of 11 4. Emotional Distress

Agbara claims that the Church’s negligence caused him emotional distress. But

again, Maryland law is a bar to this claim, in Maryland, “[u]nintended emotional distress

negligently inflicted by conduct not itself tortious is not a recognized tort.” Lapides v. Trabbic,

758 A.2d 1114, 1121 (2000) (citing Hamilton v. Ford Motor Credit Co., 502 A.2d 1057, cert.

denied, 306 Md. 118, 507 A.2d 631 (1986)). Accordingly, the court will dismiss this claim with

prejudice.

D. CONCLUSION

For the reasons set forth above, by separate order, the court will GRANT the

Church’s amended motion to dismiss.

Date: October 22, 2021

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

claims require showing that the defendant is the proximate cause of a foreseeable loss resulting from a breach of duty).

Page 11 of 11