Amiri V.gelman Management Company

• Court: District Court, District of Columbia
• Decided: August 19, 2010
• Docket: Civil Action No. 2008-1864
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABDUL WAKIL AMIRI,

Plaintiff, v. Civil Action No. 08-1864 (JDB) GELMAN MANAGEMENT COMPANY, et al.,

Defendants.

MEMORANDUM OPINION

This matter is before the Court on defendants’ motion to dismiss or, alternatively, for

summary judgment.1 For the reasons discussed below, defendants’ motion to dismiss will be

granted.

I. BACKGROUND

Plaintiff, a tenant in an apartment building in Washington, D.C. managed by Gelman

Management Company (“Gelman”), brings this action against Gelman and Nicholas Pitsch, a

Gelman employee. Generally, plaintiff alleges that defendants have (1) increased his rent in

amounts and at intervals which violate the Rental Housing Act of 1985, see D.C. Code §

42-3501.01, et seq., (2) refused to address numerous violations of the District of Columbia

Housing Code, (3) harassed him by repeatedly initiating eviction actions in the Superior Court of

the District of Columbia, Landlord and Tenant Branch, (4) otherwise retaliated against him for

1 Plaintiff’s Further Motion for Sanctions [Dkt. #30] is meritless and it will be denied.

-1- complaining to city officials about these matters, and (5) discriminated against him on the basis

of his national origin and race. See generally Am. Compl. at 1-9. Plaintiff demands

compensatory and punitive damages. Id.

II. DISCUSSION

Gelman moves to dismiss on the ground that the Court lacks subject matter jurisdiction.

See Mem. in Supp. of Defs.’ Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Defs.’

Mem.”) at 1-8. According to Gelman, plaintiff establishes neither federal question jurisdiction

nor diversity jurisdiction. See id. at 3.

“A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1) presents a threshold

challenge to the court’s subject matter jurisdiction.” Sledge v. United States, No. RWT 06cv742,

2010 WL 2745788, at *3 (D.D.C. July 13, 2010); see Bell v. Hood, 327 U.S. 678, 682 (1946). A

complaint is subject to dismissal on jurisdictional grounds “when it ‘is patently insubstantial,’

presenting no federal question suitable for decision.” Tooley v. Napolitano, 586 F.3d 1006, 1009

(D.C. Cir. 2009) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)); see Lydonville Sav.

Bank & Trust Co. v. Lussier, 211 F.3d 697, 701 (2d Cir. 2000) (quoting Bell, 327 U.S. at 682-83)

(“Federal question jurisdiction exists whenever the complaint states a cause of action under

federal law that is neither ‘clearly . . . immaterial and made solely for the purpose of obtaining

jurisdiction’ nor ‘wholly insubstantial and frivolous.’”).

Federal district courts are courts of limited jurisdiction and “possess only that power

conferred by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377

(1994). “The basic statutory grants of federal-court subject-matter jurisdiction are contained in

28 U.S.C. §§ 1331 and 1332.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Federal

-2- district courts have jurisdiction in civil actions arising under the Constitution, laws or treaties of

the United States, see 28 U.S.C. § 1331, and may have jurisdiction over state common law

disputes that arise between citizens of different states where the amount in controversy exceeds

$75,000, see 28 U.S.C. § 1332(a).

In assessing whether a complaint sufficiently alleges subject matter jurisdiction, the

Court

accepts as true the allegations of the complaint, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1249

(2009), and liberally construes the pleadings such that the plaintiff benefits from all inferences

derived from the facts alleged, Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). However,

“[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a

cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement.” Iqbal, 129 S. Ct. at 1249 (internal citations, quotation marks and

brackets omitted); see Dichter-Mad Family Partners, LLP v. United States, No. CV 09-9061,

2010 WL 1632628, at *8 & n.10 (C.D. Cal. Apr. 20, 2010) (applying pleading standards set forth

in Iqbal and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), to address sufficiency of plaintiff’s

allegations with respect to court’s subject matter jurisdiction); Sanchez v. United States, No.

09-1260, 2010 WL 1626118, at *7 (D.P.R. Mar. 31, 2010) (same).

1. Plaintiff Does Not Establish Federal Question Jurisdiction

By alleging Gelman’s violation of the Civil Rights Act of 1964, see Am. Compl. at 9,

plaintiff presumably attempts to establish federal question jurisdiction under 28 U.S.C. § 1331.

But plaintiff presents neither factual allegations nor any explanation of the basis for his claim,

and it is unclear which provision of the Civil Rights Act, if any, might apply to his case. He

-3- does not allege that Gelman has denied him access to a place of public accommodation in

violation of 42 U.S.C. § 2000a, or excluded him from participation in or denied him the benefits

of a federally assisted program in violation of 42 U.S.C. § 2000d, or otherwise denied him his

civil rights.

If, for example, plaintiff intends to bring a claim under 42 U.S.C. § 1981, which

guarantees to all persons within the United States “the same right in every State and Territory . . .

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), his claim fails because he has not alleged

that Gelman purposefully discriminated against him because of his race. Here, plaintiff “merely

invoke[s] his race in the course of a claim’s narrative,” but this does not “automatically . . .

entitle[] [him] to pursue relief” under § 1981. Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C.

1990); see Jaffree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982) (per curiam) (affirming dismissal

of § 1981 claim which alleged in conclusory fashion that plaintiff’s charges had not been

investigated by the FBI because of his race); Middlebrooks v. Godwin Corp., No. 09-02048,

2010 WL 2553612, at *4 (D.D.C. June 25, 2010) (dismissing § 1981 claim where “[t]he only

suggestion that plaintiff’s race or color played any role in her interactions with [defendants] are

[her] conclusory statements that she was ‘terminated . . . based on [her] race’ and ‘color’”);

McKnight v. Middleton, No. 08-CV-3896, 2010 WL 1221431, at *18 (E.D.N.Y. Mar. 29, 2010)

(dismissing claims under §§ 1981 and 1982 where plaintiff “failed to plead any non-speculative

facts supporting an inference of racial animus, let alone intentional discrimination”).

If plaintiff intends to bring this action under 42 U.S.C. § 1983, he fares no better. “To

state a claim under [§ ] 1983, a plaintiff must allege both (1) that he was deprived of a right

-4- secured by the Constitution or laws of the United States, and (2) that the defendant acted ‘under

color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d 308, 312

(D.C. Cir. 1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)); see Gonzaga

Univ. v. Doe, 536 U.S. 273, 279 (2002) (noting “that § 1983 actions may be brought against state

actors to enforce rights created by federal statutes as well as by the Constitution”). Nothing in

the complaint suggests that Gelman is a state actor or acted in concert with the District of

Columbia. Plaintiff, then, fails to state a claim under § 1983 upon which relief can be granted.

See Amiri v. Kelting, 356 Fed. Appx. 423 (D.C. Cir. 2009) (affirming dismissal of complaint

where plaintiff Amiri “alleged no conduct by a state actor within the purview of 42 U.S.C. §

1983”); Md. Minority Contractors Ass’n v. Lunch, 203 F.3d 821 (4th Cir. 2000) (table)

(affirming dismissal of § 1983 claim against a private company where the complaint did not

allege that the company was extensively regulated by the state or that the company otherwise

was a state actor).

Plaintiff’s bare assertions of discrimination are not sufficient to state a civil rights claim

of any kind, and a single passing reference to the Civil Rights Act of 1964 cannot establish this

Court’s jurisdiction. See, e.g., Morrow v. United States, No. 09-555, 2010 WL 2724279, at *8

(D.D.C. July 12, 2010) (dismissing one count of complaint containing “the sort of ‘formulaic

recitation of elements of a cause of action’ proscribed by the Supreme Court in Twombly”). This

is simply not a federal civil rights action. What is left, instead, is a landlord and tenant dispute

falling squarely within the jurisdiction of the District of Columbia courts. See, e.g., Johnson v.

Robinson, 576 F.3d 522 (D.C. Cir. 2009) (per curiam) (affirming dismissal of complaint for lack

of subject matter jurisdiction because it “is an outgrowth of a D.C. landlord-tenant dispute

-5- between residents of the District” and because “it established neither federal question nor

diversity of citizenship jurisdiction”).

2. Plaintiff Does Not Establish Diversity Jurisdiction

Gelman “is a District of Columbia limited partnership with its principal place of business

in the District of Columbia.” Defs.’ Mem. at 3; see Cert. Required by LCvR 7.1 of the Local

Rules of the U.S. Dist. Court for the Dist. of Columbia [Dkt. #14]. Because plaintiff and Gelman

both reside or conduct business in the District of Columbia, Gelman argues that “complete

diversity does not exist between the parties,” such that this Court is deprived of subject matter

jurisdiction. Id. Plaintiff’s opposition fails to address this argument, and the Court treats the

matter as conceded. See LCvR 7(b); Yelder v. Gates, No. 09-1301, 2010 WL 2521718, at *2

(D.D.C. June 22, 2010); Hoffman v. Dist. of Columbia, 781 F. Supp. 2d 86, 94 (D.D.C. 2010).

“[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different

State from each plaintiff,” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)

(emphasis in original), and therefore “diversity jurisdiction is not . . . available when any

plaintiff is a citizen of the same State as any defendant,” id. at 374. Absent a showing by

plaintiff that either he or both defendants are not citizens of the District of Columbia, the

amended complaint must be dismissed for lack of complete diversity. Lewis v. Gov’t of the Dist.

of Columbia, 534 F. Supp. 2d 20, 22 (D.D.C. 2008), aff’d, 296 Fed. Appx. 75 (D.C. Cir. 2008)

(per curiam); Bush v. Butler, 521 F. Supp. 2d 63, 70-71 (D.D.C. 2007). Plaintiff has not made

that showing.

3. The Court Declines to Exercise Supplemental Jurisdiction

Insofar as plaintiff brings common law tort claims or claims under District of Columbia

-6- law, see Am. Compl. at 9, he relies on 28 U.S.C. § 1367 to establish supplemental jurisdiction.

Under this provision, a district court “shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form part of

the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §

1367(a). For these purposes, the District of Columbia is considered a state. See 28 U.S.C. §

1367(e).

“[A] federal court should consider and weigh in each case . . . the values of judicial

economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction

over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 (1988). Generally, a federal court “should decline the exercise of

jurisdiction by dismissing the case without prejudice” where the federal claims are resolved early

in the litigation leaving only state law claims. Id. (citation omitted). In light of plaintiff’s failure

to state a federal claim, the Court identifies no reason to retain jurisdiction over any remaining

claims under District of Columbia law. See Middlebrooks v. Godwin Corp., No. 09-02048, 2010

WL 2553612, at *8 (D.D.C. June 25, 2010); Mesumbe v. Howard Univ., No. 09-1582, 2010 WL

1539816, at *5 (D.D.C. Apr. 19, 2010).

4. The Amended Complaint Fails to State a Claim Against Nicholas Pitsch

The sole mention of defendant Pitsch in plaintiff’s amended complaint reads as follows:

Nicholas Pitsch has been playing an ugly role in my discrimination who is a tool to cause injuries on [plaintiff] to be discriminated by various ways, so I want $5 million from him in compensatory and $2 million dollars in punitive damages totally $7 million dollars from him in my discrimination for rent increases unlawfully or my eviction due to discrimination unlawfully[.]

Am. Compl. at 9. In light of the Supreme Court’s rulings in Iqbal and Twombly, it is apparent

-7- that this pleading utterly fails to state a claim against defendant Pitsch, as it offers only a “naked

assertion[] devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1249.

III. CONCLUSION

The vague and conclusory allegations of plaintiff’s amended complaint establish neither

federal question jurisdiction nor diversity jurisdiction as to defendant Gelman. Nor does plaintiff

state a cognizable claim as against defendant Pitch. Accordingly, defendants’ motion to dismiss

for lack of subject matter jurisdiction and failure to state a claim will be granted. An Order

accompanies this Memorandum Opinion.

/s/ JOHN D. BATES United States District Judge DATE: August 19, 2010

-8-