Curne v. Small Business Administration

• Court: District Court, District of Columbia
• Decided: December 10, 2024
• Docket: Civil Action No. 2023-3789
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JARRELL DEANDRE CURNE,

Plaintiff, Civil Action No. 23-3789 (BAH) v. Judge Beryl A. Howell U.S. SMALL BUSINESS ADMINISTRATION, et al.,

Defendants.

MEMORANDUM OPINION

Pro se plaintiff Jarrell Deandre Curne initiated this action on December 20, 2023, and, after

amending his complaint once, seeks relief from a number of both named and unnamed federal

officials and entities, and nongovernmental entities, including the United States, United States

Small Business Administration (“SBA”), United States Attorney General Merrick Garland, the

United States Department of Justice (“DOJ”), two unknown individuals employed by the federal

government (“John Does”), Internal Revenue Service (“IRS”) Agent Jeffrey D. Thomas; and

Assistant United States Attorney (“AUSA”) Paul Becker (collectively, the “federal defendants”);

US Bank, National Association (“U.S. Bank”); and Stinson LLP (“Stinson”), for alleged violations

of his rights connected with his receipt of a Paycheck Protection Program (“PPP”) loan, his

application for forgiveness of that loan, and an ongoing criminal prosecution of plaintiff in the

Western District of Missouri. See Am. Compl., ECF No. 40 (docketing plaintiff’s amended

complaint); Pl.’s Resp. to Order of the Court (“Text of Pl.’s Am. Compl.”), ECF No. 26 (containing

the updated redlined version of plaintiff’s amended complaint). 1 All defendants have now moved,

1 The docket entry officially docketing plaintiff’s amended complaint, ECF No. 40, states that the text of plaintiff’s Amended Complaint can be found in plaintiff’s motion for leave to file an amended complaint, ECF No. 18, filed on June 2, 2024. See Am. Compl., ECF No. 40. Plaintiff, however, filed an updated redlined version of his

1 in three separate motions, to dismiss the Amended Complaint. See Fed. Defs.’ Mot. Dismiss &

Mot. Transfer Case (“Fed. Defs.’ MTD”), ECF No. 31; U.S. Bank’s Mot. Dismiss Am. Compl.

(“U.S. Bank’s MTD”), ECF No. 45; Stinson LLP’s Mot. Dismiss Am. Compl. (“Stinson LLP’s

MTD”), ECF No. 46. For the reasons explained below, U.S. Bank and Stinson LLP’s motions are

granted, and the federal defendants’ motion is granted in part and denied in part. Plaintiff’s claims

will be dismissed, except for his Bivens action against the two John Doe federal employees and

his claim against the United States for unlawful disclosure of confidential tax information, which

claims will be transferred to the Western District of Missouri.

I. BACKGROUND

The factual background and procedural history of this case are summarized below.

A. Factual Background

Plaintiff, a citizen of Missouri, is a music manager, executive, and recording artist who

owns and operates Hustle Ova Everything Entertainment, LLC (“HOEE”). Am. Compl. at 4. In

May 2020, HOEE received a PPP loan for $312,500 through U.S. Bank, based on an application

signed and submitted by plaintiff. See U.S. Bank SBA Payroll Protection Loan at 3–7, ECF No.

18-1; see also Am. Compl. ¶ 24.C., 22. The PPP loan was assigned SBA loan number

5511277304. Am. Compl. ¶ 22. Plaintiff thereafter applied for the loan to be forgiven, which

application was denied by SBA, on August 1, 2023, because “insufficient” documentation had

been provided to determine whether the loan was eligible for forgiveness. Compl. (“First

Compl.”), Ex. 3, ECF No. 1-2 at 13; Am. Compl. ¶ 8.

amended complaint on June 16, 2024, see Text of Pl.’s Am. Compl., in response to an order from the Court, see Min. Order (June 12, 2024), which filing prompted the Court to grant plaintiff’s motion for leave to file an amended complaint, see Min. Order (July 10, 2024). Therefore, this redline is treated as the operative version of plaintiff’s complaint.

2 Plaintiff appealed the denial of forgiveness to the SBA’s Office of Hearings and Appeal

(“OHA”), Am. Compl. ¶¶ 13, 15; Fed. Defs.’ MTD at 2 (citing Decl. of Shamia A. Stewart

Submitted Supp. Fed. Defs.’ Mot. Dismiss (“Stewart Decl.”) ¶ 5, Ex. B, ECF No. 31-2), and

submitted with his appeal various business documents, Fed. Defs.’ MTD at 2 (citing Stewart

Decl.). The SBA then withdrew its final loan review decision to conduct further review of the loan

and its eligibility. Am. Compl. ¶ 13. Shortly thereafter, on August 29, 2023, the OHA dismissed

plaintiff’s appeal for lack of jurisdiction because the final decision had been withdrawn and the

loan forgiveness decision was thus still undergoing review. First Compl., Ex. 1, ECF No. 1-2 at

8. As plaintiff and the federal defendants both acknowledge, at the time plaintiff filed his Amended

Complaint, a final decision on plaintiff’s application for PPP loan forgiveness had yet to be made,

and the loan forgiveness application was still pending. See Am. Compl. ¶ 8; Fed. Defs.’ MTD at

3.

Meanwhile, on June 29, 2023, plaintiff filed a case in the U.S. Court of Federal Claims

(“CFC”) against the United States, alleging violations of his constitutional rights by IRS Agent

Jeffery Thomas, two unknown IRS agents, SBA employee Stacy Spencer, and the IRS and SBA.

See Compl., Curne v. United States, 1:23-cv-1031-PSH (Fed. Cl.), ECF No. 1. The government’s

motion to dismiss this action, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), see

Mot. Dismiss, Curne v. United States, 1:23-cv-1031-PSH (Fed. Cl.), ECF No. 22, was granted, on

February 15, 2024, in an oral opinion, with judgment entered in favor of the government on

February 21, 2024, see Curne v. United States, 1:23-cv-1031-PSH (Fed. Cl.), ECF Nos. 42, 43.

Plaintiff’s motion for relief from judgment, id., ECF No. 44, was denied on July 18, 2024, id., ECF

No. 49, prompting plaintiff to file an appeal to the Federal Circuit, which appeal remains pending,

see Curne v. United States, No. 24-2360 (Fed. Cir.) (opened Sept. 26, 2024).

3 While plaintiff’s CFC complaint was pending, plaintiff was indicted, on September 6,

2023, in the Western District of Missouri on two counts of wire fraud, in violation of 18 U.S.C. §

1343, and 28 counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), for alleged

illegal actions in connection with the PPP loan to plaintiff’s business. Indictment, United States

v. Curne, 4:23-cr-205-BCW-1 (W.D. Mo.), ECF No. 1 (filed Sept. 6, 2023); see also Am. Compl.

¶ 17. A jury trial is currently scheduled in this case for April 2025. See Order, United States v.

Curne, 4:23-cr-205-BCW-1 (W.D. Mo.), ECF No. 44 (filed Sept. 24, 2024).

B. Procedural Background

Plaintiff initiated the instant action on December 20, 2023, naming the United States, the

SBA, Attorney General Garland, the DOJ, two John Doe federal employees, Stinson LLP, U.S.

Bank, the CBE Group, Inc., and Pioneer Credit Recovery, Inc., as defendants. See First Compl.

Plaintiff’s initial complaint requested injunctive relief to “stop” the ongoing criminal case against

him, id. ¶ 5; an order forgiving plaintiff’s first PPP loan of $312,500 and approving a “second

draw” loan for an additional $312,500; and, lastly, an “order” directing defendants to “cease and

desist violating [his] constitutional rights,” id. at 12.

Six months later, plaintiff sought leave to add two additional defendants: the Internal

Revenue Service and Zachary D. Miller, an attorney at Burr & Forman in Nashville, Tennessee,

see Pl.’s Mot. to Join Parties, ECF No. 17, and to file an amended complaint, see Pl.’s Mot. for

Leave to File Am. Compl, ECF No. 18. His motion to file an amended complaint was granted,

without objection from defendants. Min. Order (July 17, 2024); see also U.S. Bank’s Resp. to

Pl.’s Mot. for Leave to File Am. Compl., ECF No. 27; Stinson LLP’s Resp. to Pl.’s Mot. for Leave

to File Am. Compl., ECF No. 28; Fed. Defs.’ Resp. to Pl.’s Mot. for Leave to File Am. Compl.

4 ECF No. 29. 2 Plaintiff’s Amended Complaint added two new named defendants to the case: IRS

Agent Jeffrey D. Thomas, named specifically in his official capacity, and AUSA Paul Becker. See

Am. Compl. at 46 (listing the defendants in the case). The Amended Complaint seeks to “enjoin”

the “pending criminal prosecution” against him in the Western District of Michigan, Am. Compl.

at 6, and, construed liberally, appears to raise the following claims:

• breach of contract and negligence against U.S. Bank, id. at 6, 13, 28; • unlawful discrimination by US Bank, in violation of 15 U.S.C. § 1691, id. at 6, 29; • defamation by US Bank and IRS Agent Jeffrey D. Thomas, id. at 30–31; • a “Bivens Action” against Agent Thomas, id. at 34, and the two John Doe federal employees, id. at 5–6, 34; • unlawful disclosure of plaintiff’s tax information by Agent Thomas, in violation of 26 U.S.C. § 6103, id. at 35; • Federal Torts Claims Act (“FTCA”) and Taxpayer Bill of Rights violations by Agent Thomas, id. at 37–40; • unlawful carrying of a firearm, in violation of the Law Enforcement Officers Safety Act of 2004 (“LEOSA”) by Agent Thomas, id. at 40–41; • negligent misrepresentation by Stinson LLP, id. at 43–45; 3 and • a claim, under 42 U.S.C. § 1983, id. at 1, 5, 42, although the basis and targeted defendants for this claim is unclear. The federal defendants seek dismissal of the Amended Complaint on multiple grounds,

Fed. Defs.’ MTD, and both defendants U.S. Bank and Stinson LLP seek dismissal for failure to

state a claim on which relief could be granted, pursuant to Federal Rule of Civil Procedure

12(b)(6), and Stinson also contends the Amended Complaint fails to plead the allegation of

2 While the Amended Complaint asserts claims of negligent misrepresentation against Pioneer Credit Recovery and the CBE Group, both of those defendants were dismissed, with prejudice, from this lawsuit, pursuant to joint stipulations of dismissal with plaintiff. See Pioneer Credit Recovery’s Joint Stip. of Dismissal with Prejudice, ECF No. 37; Min. Order (July 10, 2024) (dismissing Pioneer); Stip. of Dismissal with Prejudice as to Def. CBE Group, Inc., ECF No. 39; Min. Order (July 11, 2024) (dismissing CBE Group). 3 The Amended Complaint claims tortious interference through negligent misrepresentation and defamation by Zachary D. Miller, Am. Compl. at 41, but this individual is not named as a defendant in the Amended Complaint, see generally id., and plaintiff has provided no proof of service on or otherwise joined Miller as a defendant in the case, meaning any claims raised against him must be dismissed.

5 negligent misrepresentation with sufficient particularity, Rule 9(b), see Stinson LLP’s MTD.4

These three motions are ripe for consideration. See Pl.’s Resp. to Mot. to Dismiss or Transfer

(“Pl.’s Opp’n”), ECF No. 52; Stinson LLP’s Reply Mem. Supp. Mot. Dismiss, ECF No. 53; U.S.

Bank’s Reply Mem. Supp. Mot. Dismiss, ECF No. 54.

II. DISCUSSION

Each of plaintiff’s claims are discussed below.

A. Claims Against Federal Defendants

As a threshold matter, throughout the Amended Complaint, plaintiff attacks the criminal

indictment against him in the Western District of Missouri as inaccurate and wrongful, see, e.g.,

Am. Compl. at 5–6, 7, 9, 12, 14, 20–21, 23, 34, and as the basis for asking this Court to “enjoin”

this ongoing criminal case, id. at 6; see also Pl.’s Opp’n ¶ 35 (“Due to the loan no longer being

denied, I am asking this court to order the federal government to dismiss the indictment until a

decision has been made.”). Clear binding precedent, however, forecloses plaintiff’s requested

relief and requires dismissal of this request.

“It is well-settled . . . that a court will not act to restrain a criminal prosecution if the moving

party has an adequate remedy at law and will not suffer irreparable injury if denied equitable

relief.” Miranda v. Gonzales, 173 F. App’x 840, 841 (D.C. Cir. 2006) (citing Deaver v. Seymour,

822 F.2d 66, 69 (D.C. Cir. 1987) (citing Younger v. Harris, 401 U.S. 37 (1971))). As the D.C.

Circuit has found, “Congress has established a comprehensive set of rules governing federal

criminal prosecutions—the Federal Rules of Criminal Procedure.” Deaver, 822 F.2d at 71. Here,

those rules provide plaintiff with an adequate means to challenge the indictment against him and

4 Plaintiff was advised about defendants’ pending motions to dismiss and the potential consequences of failing to respond to the motions, see Order, Aug. 22, 2024, ECF No. 51, as required by Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988).

6 raise to the court hearing the criminal case any alleged defects with the prosecution. See, e.g.,

Miranda, 173 F. App’x at 841 (holding that Fed. R. Crim. P. 12 provided an opportunity to raise

defects with the prosecution); Deaver, 822 F.2d at 70 (same). Allowing a defendant to challenge

a potential or ongoing prosecution in an “independent civil suit” would undermine the “final

judgment rule,” which “generally prevents defendants from bringing appeals until after

conviction.” Deaver, 822 F.2d at 71. Any disagreement plaintiff has with the government’s

decision to prosecute him must be addressed through the established methods of the Federal Rules

of Criminal Procedure and potentially on appeal after final judgment is entered, not by “bringing

ancillary equitable proceedings.” Id. Plaintiff may not use this case to “circumvent federal

criminal procedure,” id., and therefore his request for this Court to enjoin the ongoing federal

prosecution against him in the Western District of Missouri is entirely improper.

Plaintiff raises several other claims for relief against the federal defendants, which are

addressed next. With two exceptions, plaintiff’s claims against the federal defendants will be

dismissed. His Bivens action against the two John Doe federal employees and his claim of

unlawful disclosure of confidential tax information, with the United States substituted as the sole

defendant, will be transferred to the Western District of Missouri.

1. Section 1983 Does Not Authorize Suits Against the Federal Government.

The Amended Complaint purports to raise a claim against the federal defendants under 42

U.S.C. § 1983, although the complaint is not clear as to what exactly this claim entails. See Am.

Compl. at 1, 5, 42. Regardless, any Section 1983 claim against the federal defendants must be

dismissed for lack of subject matter jurisdiction.

Federal district courts “are courts of limited subject-matter jurisdiction” and may “decide

only those cases over which Congress grants [them] jurisdiction.” Bronner ex rel. Am. Stud. Ass’n

7 v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315,

317 (D.C. Cir. 2012)). Absent subject-matter jurisdiction over a case, the court must dismiss it.

See Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443,

455 (2004)); Fed. R. Civ. P. 12(h)(3). When a court’s subject-matter jurisdiction is challenged, the

plaintiff bears the burden of demonstrating that the court has subject-matter jurisdiction over the

claim at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992)).

Under the doctrine of sovereign immunity, “the United States may not be sued without its

consent,” which means that “the existence of consent is a prerequisite for jurisdiction” in suits

against the United States. United States v. Mitchell, 463 U.S. 206, 212 (1983). A waiver of

sovereign immunity by the federal government “must be unequivocally expressed in statutory text

and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations and internal citations

omitted). Similarly, waivers of sovereign immunity are “strictly construed” in favor of the United

States. Orff v. United States, 545 U.S. 596, 601–02 (2005). “To sustain a claim that the

Government is liable for awards of monetary damages, the waiver of sovereign immunity must

extend unambiguously to such monetary claims.” Lane, 518 U.S. at 192 (citing United States v.

Nordic Vill., Inc., 503 U.S. 30, 34 (1992)). The question whether sovereign immunity has been

waived implicates courts’ subject-matter jurisdiction, meaning that the plaintiff bears the burden

of establishing that sovereign immunity has been abrogated by the federal government to prove

that jurisdiction exists for a claim against the United States. See Jackson v. Bush, 448 F. Supp. 2d

198, 200 (D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575

(D.C. Cir. 2003)).

8 Section 1983 authorizes suits against “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” who

deprives any person of “any rights, privileges, or immunities secured by the Constitution and

laws.” 42 U.S.C. § 1983 (emphasis supplied). By its plain terms, this statute only authorizes suits

against individuals acting under state law, not federal. Id.; see also Bolden-Bey v. U.S. Parole

Comm’n, 731 F. Supp. 2d 11, 14 (D.D.C. 2010) (collecting cases holding that Section 1983 does

not authorize suit against federal actors); Townsend v. United States, 236 F. Supp. 3d 280, 325

(D.D.C. 2017). Since Section 1983 contains no text explicitly authorizing suits against the United

States, this statute does not waive the federal government’s sovereign immunity, meaning that

none of the federal defendants are subject to civil suit in their official capacities, pursuant to

Section 1983. See, e.g., Bolden-Bey, 731 F. Supp. 2d at 14; Bourbon v. Mabus, 813 F. Supp. 2d

200, 209–10 (D.D.C. 2011). Therefore, this claim must be dismissed for lack of subject matter

jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1).

2. Plaintiff Failed to Administratively Exhaust His FTCA Claims.

The Amended Complaint appears to raise tort claims against the federal defendants,

including alleging that IRS Agent Thomas defamed plaintiff, Am. Compl. at 31–34, and committed

such torts as “false imprisonment, false arrest, abuse of process, and malicious prosecution,” id. at

38, for which plaintiff attempts to bring a claim under the FTCA, id. at 37–39. The allegations

also mention AUSA Becker a number of times, see, e.g., id. at 4, 8, 23, 33, but do not purport to

raise a legal claim against him, see generally id. These claims, which are all governed by the

FTCA, must also be dismissed for lack of subject matter jurisdiction.

As an initial matter, the United States is the only proper defendant for plaintiff’s tort claims

against the federal defendants. The Supreme Court has explained that “[t]he Federal Employees

9 Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act,

accords federal employees absolute immunity from common-law tort claims arising out of acts

they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007)

(citing 28 U.S.C. § 2679(b)(1)). When a lawsuit names a federal employee as a defendant for

“wrongful or negligent conduct,” id., the Attorney General may certify that the employee was

acting “within the scope of his office or employment at the time of the incident out of which the

claim arose,” id. at 229–30 (quoting 28 U.S.C. § 2679(d)(1), (2)). The plaintiff may challenge the

certification and attempt to rebut that the employee was acting within the scope of employment.

Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (“A plaintiff may contest the Attorney

General’s scope-of-employment certification before a district court,” which requires alleging

“sufficient facts that, taken as true, would establish that the defendant[‘s] actions exceeded the

scope of [his] employment” (alterations in original) (quoting Stokes v. Cross, 327 F.3d 1210, 1215

(D.C. Cir. 2003))). If the certification is not challenged, however, “the case is . . . restyled as an

action against the United States that is governed by the” FTCA, Council on Am. Islamic Rels. v.

Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006), and the employee is dismissed from the action,

with the United States substituted as the defendant, Osborn, 549 U.S. at 230.

The Amended Complaint contains no allegations that AUSA Becker committed any of the

claimed tortious behavior, but only IRS Agent Thomas. See, e.g., Am. Compl. at 31–33, 35. The

government has provided a Westfall Certification certifying that Agent Thomas was “acting within

the scope of his employment as an employee of the United States of America at the time of the

alleged incidents,” Gov’t’s Westfall Certification, ECF No. 31-2, and plaintiff has made no attempt

to rebut this certification. To the contrary, plaintiff has only named Agent Thomas as a defendant

in his “Official Capacity,” Am. Compl.. at 46, recognizing him as an official actor. Therefore,

10 pursuant to the government’s uncontested Westfall Certification, the United States must be

substituted as the sole defendant for plaintiff’s tort claims against the federal defendants.

Federal courts do not have subject matter jurisdiction to hear claims under the FTCA until

plaintiffs have first “exhausted their administrative remedies” by raising those claims to the

appropriate federal agency or agencies. McNeil v. United States, 508 U.S. 106, 113 (1993). To

do so, a plaintiff must file an “administrative claim” with the agency of the employee who caused

the alleged harm. Simpkins v. District of Columbia, 108 F.3d 366, 370–71 (D.C. Cir. 1997); see

also 28 U.S.C. § 2675(a). The administrative claim must contain “(1) a written statement

sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a

sum-certain damages claim.” GAF Corp. v. United States, 818 F.2d 901, 919 (D.C. Cir. 1987). In

cases where a plaintiff fails to file such a complaint and thus has not administratively exhausted

the claim before filing suit, district courts “lack[] subject matter jurisdiction” to hear the claim.

Simpkins, 108 F.3d at 371. Similar to sovereign immunity, since exhaustion under the FTCA is a

question of the court’s subject-matter jurisdiction, see, e.g., GAF Corp. 818 F.2d at 917–20;

Abdurrahman v. Engstrom, 168 F. App’x 445, 445 (D.C. Cir. 2005) (affirming dismissal of FTCA

claims for lack of subject-matter jurisdiction where the exhaustion requirement was not met), a

plaintiff seeking relief under the FTCA bears the burden of showing proper exhaustion of any tort

claim, Stoddard v. U.S. Parole Comm’n, 900 F. Supp. 2d 38, 41 (D.D.C. 2012) (citing GAF Corp.,

818 F.2d at 919), by a preponderance of the evidence, Norton v. United States, 530 F. Supp. 3d 1,

5 (D.D.C. 2021).

Plaintiff here has not met this burden to show exhaustion of his tort claims by filing the

required administrative claim with either the DOJ, AUSA Becker’s employer, or the IRS, which

employs IRS Agent Thomas. Despite generally acknowledging this exhaustion requirement, Am.

11 Compl. at 37 (stating “[t]his was sent to Anne Delmare, the Court of Claims and IRS”), this

ambiguous statement falls far short of alleging that a proper administrative claim was filed with

the correct federal agencies, much less establishing this prerequisite for an FTCA suit by a

preponderance of the evidence. 5 Such a showing is a “jurisdictional prerequisite” to proceeding

with tort claims against the federal government, Stoddard, 900 F. Supp. 2d at 41 (citing McNeil,

508 U.S. at 113), and absent such showing, plaintiff has failed to establish this Court’s subject

matter jurisdiction to adjudicate his tort claims against the federal defendants. His tort claims must

therefore be dismissed.

3. Plaintiff Cannot State a Claim Under LEOSA.

Plaintiff additionally alleges that IRS Agent Thomas violated 18 U.S.C. § 926C, the Law

Enforcement Officers Safety Act of 2004 (“LEOSA”), by carrying a concealed firearm on

plaintiff’s property despite plaintiff banning third parties from entering his property with concealed

firearms. Am. Compl. at 40–41. As the government correctly points out, however, the LEOSA

“does not apply to” plaintiff. Fed. Defs.’ MTD at 17. Instead, the law creates a “federal right” for

“active and retired ‘qualified law enforcement officer[s]’ who meet certain requirements” to “carry

a concealed weapon” “notwithstanding contrary state or local law.” DuBerry v. District of

Columbia, 824 F.3d 1046, 1048 (D.C. Cir. 2016) (alteration in original) (quoting 18 U.S.C. §

926C(a)). Nothing in the text of LEOSA creates a private right of action for private plaintiffs to

sue law enforcement officers who are carrying concealed firearms, even when exceeding the scope

of the right created by LEOSA. To be sure, LEOSA explicitly states that the law does not

5 The statement in the Amended Complaint that “[t]his” was sent to Anne Delmare, Am. Compl. at 37, who is the attorney representing the United States in plaintiff’s CFC suit, see Curne v. United States, 1:23-cv-1031-PSH (Fed. Cl.), suggests that plaintiff first made the government aware of his tort claims when they were raised in his CFC lawsuit, rather than as part of an administrative claim. The government indicates that plaintiff “did not attempt to exhaust an administrative claim with” the relevant federal agencies. Fed. Defs.’ MTD at 9.

12 supersede state and local laws allowing private persons to limit the carrying of concealed weapons

on their private property. 18 U.S.C. § 926C(b)(1); see also Am. Compl. at 40–41 (“LEOSA does

not supersede state laws permitting private property owners from limiting or prohibiting the

carrying of concealed weapons on their property.”). This provision, however, merely helps define

the scope of the concealed carry right created by the statute and protects local and state laws from

preemption. To the extent such state and local limits on carrying concealed firearms on private

property exist in Missouri, plaintiff may seek to enforce them through the proper state and local

channels. This Court, however, is not empowered to adjudicate such claims under LEOSA or any

other authorities that plaintiff has identified, and thus this claim must be dismissed for failure to

state a claim upon which relief can be granted.

4. The Western District of Missouri is the Proper Venue for Plaintiff’s Bivens Action.

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

the Supreme Court recognized a cause of action to sue, for damages, a “federal agent acting under

color of his authority” for violating the Fourth Amendment, id. at 389. Plaintiff here brings such

a claim—a so-called Bivens action—for alleged Fourth Amendment violations by IRS Agent

Thomas and the two John Doe federal agents, Am. Compl. at 34. Plaintiff’s Bivens claim against

Agent Thomas will be dismissed because Agent Thomas has not been properly named or served

as an individual defendant in this case, while his claim against the two John Doe federal agents

will be transferred to the Western District of Missouri.

“[A] Bivens action may be maintained against a defendant only in his or her individual

capacity, and not in his or her official capacity.” Majhor v. Kempthorne, 518 F. Supp. 2d 221,

244–45 (D.D.C. 2007) (quoting Pollack v. Meese, 737 F. Supp. 663, 666 (D.D.C. 1990)). In this

case, plaintiff has only named IRS Agent Thomas as a defendant in his official capacity. See Am.

13 Compl. at 46 (listing Agent Thomas as a defendant in his “Official Capacity”). Furthermore,

beyond serving the United States Attorney’s Office representing the federal defendants in this case,

plaintiff has not provided notice specifically to Agent Thomas of the claim against him, served

Agent Thomas with process individually, nor otherwise taken steps to join him as an individual

defendant in this case. See id.; Fed. Defs.’ MTD at 1 n.1 (noting that plaintiff “has not served

Thomas with the summons or Complaint” and that Agent Thomas is only represented by the

government in his official capacity); Pl.’s Mot. to Join Parties (asking to add the IRS as a defendant

in the case because the agency employs Agent Thomas, but not asking to join Agent Thomas

individually). As a result, plaintiff’s Bivens action against Agent Thomas must be dismissed for

failing to properly join him as an individual defendant.

As for the Bivens action against the two John Doe federal agents, the government is correct

that venue is improper in the District of Columbia. See Fed. Defs.’ MTD at 1, 14–16. The general

federal venue statute establishes three categories under which venue is proper in a civil action in

federal court. See 28 U.S.C. § 1391(b). First, such a suit may be filed in any “judicial district in

which any defendant resides, if all defendants are residents of the State in which the district is

located.” Id. § 1391(b)(1). Second, venue is proper in any “judicial district in which a substantial

part of the events or omissions giving rise to the claim occurred, or a substantial part of the property

that is the subject of the action is situated.” Id. § 1391(b)(2). Finally, if neither previous category

establishes at least one proper venue for the suit, it may be filed in “any judicial district in which

any defendant is subject to the court’s personal jurisdiction with respect to such action.” Id.

§ 1391(b)(3).

Here, plaintiff has not alleged that the John Doe federal agents reside in the District of

Columbia. To the contrary, the amended complaint alleges that “JOHN DOE’S ADDRESS” is

14 located in “Lee’s Summit, MO 64064.” Am. Compl. at 6 (capitalization in original). Furthermore,

plaintiff has not alleged that any of the “events or omission” related to his Bivens action occurred

in D.C., see generally id., but instead took place at plaintiff’s address in “Grandview, Missouri

64030,” id. at 34. Both cities are located in the Western District of Missouri, see Fed. Defs.’ MTD

at 16, meaning that venue would be proper in that district. 6

When a case is filed in the wrong venue, the court “shall dismiss, or if it be in the interest

of justice, transfer” the case to “any district . . . in which [the case] could have been brought.” 28

U.S.C. § 1406(a). In the instant case, both parties agree that plaintiff’s Bivens action should be

transferred to the Western District of Missouri, the proper venue for this claim. Fed. Defs.’ MTD

at 1, 16; Pl.’s Opp’n at 2–3. Therefore, this claim will be transferred. 7

5. Plaintiff’s Claim for Disclosure of Confidential Tax Information Will Also Be Transferred to the Western District of Missouri.

Finally, plaintiff claims that an “IRS employee” told plaintiff’s mother that plaintiff had

received a $312,500 PPP loan, which information plaintiff alleges was protected tax information

and thus that the disclosure violated the confidentiality provisions of 26 U.S.C. § 6103. Am.

Compl. at 35. As the government correctly argues, Section 6103 does not contain a private right

of action to sue an IRS employee for disclosing confidential tax information. Fed. Defs.’ MTD at

16; see also generally 26 U.S.C. § 6103. Two other provisions of the tax code, however, provide

private rights of action to sue the United States for disclosures in violation of Section 6103.

6 Given that the first two provisions establish proper venue in at least one district, the third category for venue is not relevant here. 7 The government understandably anticipates a broad reading of the amended complaint as including AUSA Becker in the Bivens action and responds accordingly. See Fed. Defs.’ MTD at 14. The amended complaint, however, is not susceptible to such an expansive reading, as it specifically names “federal officers Jeffrey D. Thomas and 2 other unknown individuals” as the federal officials who allegedly violated his constitutional rights at his house in Grandview, Missouri. Am. Compl. at 34; see also id. at 36. AUSA Becker is not mentioned in any of the Bivens allegations, and therefore cannot be understood to be a defendant as to that claim.

15 Specifically, Section 7431(a), provides a private right of action to sue the United States if “any

officer or employee of the United States knowingly, or by reason of negligence, . . . discloses any

return or return information . . . in violation of any provision of section 6103,” 26 U.S.C. § 7431(a),

and Section 7433 provides a private right of action against the United States if such information is

disclosed “recklessly or intentionally, or by reason of negligence,” and is “in connection with any

collection of Federal tax with respect to a taxpayer,” 26 U.S.C. § 7433(a). While Section 7433

contains an exhaustion requirement, see 26 U.S.C. § 7433(d), Section 7431 does not, see generally

26 U.S.C. § 7431. The United States is substituted as the sole proper defendant when a government

employee is sued for violating either provision in his or her official capacity. See, e.g., Pollinger

v. United States, 539 F. Supp. 2d 242, 250 (D.D.C. 2008) (substituting the United States for three

individual IRS employees sued under Section 7433 and collecting cases supporting the substitution

of the United States for individual employees under both Section 7433 and Section 7431).

The government argues that “[p]laintiff has failed to allege that he exhausted his

administrative remedies” under Section 7433, warranting dismissal of this claim. Fed. Defs.’ MTD

at 17. The government’s motion, however, provides no basis for reading plaintiff’s complaint as

raising a claim that his tax information was improperly disclosed “in connection with” trying to

collect taxes from him, 26 U.S.C. § 7433, rather than claiming an improper disclosure unrelated

to the collection of taxes, which would fall under the cause of action in Section 7431, see, e.g.,

Evans v. United States, 478 F. Supp. 2d 68, 72 n.2 (D.D.C. 2007) (recognizing that “Section 7431

actions may . . . be brought” when the disclosures in question “are not in connection with

‘collection’ of taxes” (citations omitted)). In this case, plaintiff’s allegations suggest that the

alleged disclosure by IRS Agent Thomas was made in the course of the criminal investigation of

the PPP loan obtained by plaintiff. See Am. Compl. at 31, 35. Investigating possible criminal

16 activity could fall under Section 7431 rather than a collection action necessarily falling under

Section 7433. See, e.g., Evans, 478 F. Supp. 2d at 72 n.2 (discussing examples of disclosures

falling under Section 7431, including multiple involving criminal investigations); Barrett v. United

States, 51 F.3d 475, 476–78 (5th Cir. 1995) (analyzing disclosures made during the course of a

criminal investigation under Section 7431). In other words, Section 7433 is irrelevant here, as is

plaintiff’s failure to exhaust as required by that statutory section.

To properly plead a violation of Section 7431, a “plaintiff must specifically allege who

made the alleged disclosures, to whom they were made, the nature of the disclosures, the

circumstances surrounding them, and the dates on which they were made.” Bancroft Glob. Dev.

v. United States, 330 F. Supp. 3d 82, 101 (D.D.C. 2018) (quoting May v. United States, No. 91-

0650-CV-W-9, 1992 U.S. Dist. LEXIS 16055, at *6 (W.D. Mo. Apr. 17, 1992)). This information

is needed “to put the [g]overnment on notice of which exact actions a plaintiff challenges.” Id.

Here, plaintiff has met this standard. First, plaintiff alleges that “IRS SA Jeffrey D. Thomas” is

the IRS employee who disclosed his confidential tax information. Am. Compl. at 35. He alleges

that the disclosure was made to his mother, and that the disclosure consisted of Agent Thomas

telling her about plaintiff’s receipt of a $312,500 loan, which information was included in

plaintiff’s 2020 tax returns, id., as well as “how much money [plaintiff’s] company made,” id. at

21. He says the disclosure took place in “April of 2023,” id. at 21, 35, and that the disclosures

were made when Agent Thomas “attempted to speak with” plaintiff’s mother after Agent Thomas

was denied access to the residence of one of plaintiff’s employees in Olathe, Kansas, id. at 31.

These allegations provide sufficient information to allow the government to rebut the claims based

on the particular alleged conversation and disclosure. See, e.g., Bancroft Glob. Dev., 330 F. Supp.

3d at 101–02 (holding that, “[w]hile more detail would always be helpful, the [g]overnment”

17 would not need more information to defend against the claims “when so many other details have

also been pleaded” and discussing examples of cases). Of course, the government may still argue

that the alleged disclosures fell under an exception to Section 6103 or were otherwise proper, but

those arguments were not raised at this stage, and plaintiff has provided sufficient allegations to

survive the motion to dismiss stage.

Pursuant to 28 U.S.C. § 1404(a), “a district court may transfer any civil action to any other

district . . . where it might have been brought” if such a transfer is “in the interest of justice” and

“[f]or the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). This authority may also

be invoked sua sponte where appropriate. See In re Scott, 709 F.2d 717, 721 (D.C. Cir. 1983);

Miller v. Toyota Motor Corp., 620 F. Supp. 2d 109, 117 (D.D.C. 2009) (transferring a case to

another district sua sponte); Jenkins v. United States, Civil Action No. 22-3757 (CKK), 2023 WL

130740, at *2 (D.D.C. Jan. 9, 2023). Under 28 U.S.C. § 1406, a court may transfer a case filed in

a district without proper venue to a district where venue is proper “if it be in the interest of justice.”

28 U.S.C. § 1406(a). Here, plaintiff alleges no facts to suggest that venue is proper in the District

of Columbia. Instead, the actions and disclosures in question happened at plaintiff’s mother’s

house in “Grandview, Missouri,” Am. Compl. at 31, making venue proper in the Western District

of Missouri. Furthermore, both plaintiff and the federal defendants have consented to transfer of

any claims not dismissed to the Western District of Missouri. See Fed. Defs.’ MTD at 18; Pl.’s

Opp’n at 2–3. Transferring this claim along with plaintiff’s Bivens action, see supra, Part II.A.4,

is also more convenient for both parties and will conserve judicial and parties’ resources, by

avoiding bifurcating plaintiff’s case and forcing the parties to litigate two cases in two different

courts, and for any potential witnesses, who are likely to be located in the Western District of

Missouri, where the alleged disclosures took place.

18 For all these reasons, the United States will be substituted as the proper defendant for

plaintiff’s claim of unlawful disclosure of his confidential tax information, and the claim will be

transferred to the Western District of Missouri.

B. Claims Against U.S. Bank

Plaintiff alleges four separate claims against U.S. Bank: (1) breach of contract, Am. Compl.

at 28; (2) negligence, id.; see also U.S. Bank’s Mem. Supp. Mot. to Dismiss Am. Compl. (“U.S.

Bank’s Mem. Supp. MTD”) at 3 n.4, ECF No. 45-1 (acknowledging plaintiff’s separate negligence

claim); (3) unlawful discrimination, in violation of 15 U.S.C. § 1691, Am. Compl. at 29; and (4)

defamation, id. at 30. U.S. Bank argues that all four claims should be dismissed for failure to state

a claim upon which relief could be granted, under Federal Rule of Civil Procedure 12(b)(6), and

alternatively that claims one, three, and four are precluded by the result of a previous arbitration

between plaintiff and U.S. Bank. See generally U.S. Bank’s Mem. Supp. MTD.

At the outset, U.S. Bank’s argument that plaintiff’s first, third, and fourth claims are

precluded by the previous arbitration submitted to the Court, see Award of Arbitrator, ECF No.

45-2, is not persuasive. This arbitration award resolved plaintiff’s claims related to “several

personal accounts” he had with U.S. Bank and “do[es] not relate to [plaintiff’s] businesses or the

business relationship” between plaintiff and U.S. Bank, including the PPP loan extended to

plaintiff’s business. Id. at 1. The claims raised by plaintiff in the instant case, however, clearly

related to the PPP loan and plaintiff’s business relationship with U.S. Bank. See, e.g., Am. Compl.

at 28 (alleging plaintiff violated “a Duty to Defer” the PPP loan pending the SBA’s forgiveness

determination); id. at 29 (alleging the discrimination related to plaintiff’s PPP loan for HOEE); id.

at 30 (alleging the defamation involved statements to the SBA about the same PPP loan). Although

the arbitrator may have considered some statements related to the PPP loan, see, e.g., Award of

19 Arbitrator at 1 (acknowledging that “certain evidence was admitted at the hearing related to

[plaintiff’s business’s] PPP loan”), id. at 3 (describing discrimination allegations involving the

PPP loan), the arbitrator’s award specifically notes these business-related claims were not at issue

in the arbitration and that such claims were not considered or resolved, Award of Arbitrator at 1

(“While certain evidence was admitted at the hearing related to Hustle’s PPP loan, this consumer

arbitration and this award do not relate to [plaintiff]’s businesses or the business relationship

between the parties” (emphasis supplied)). In short, plaintiff’s claims against U.S. Bank are not

precluded by the arbitrator’s decision. Nonetheless, as explained next, the claims against U.S.

Bank cannot survive.

1. Plaintiff Does Not Allege US Bank Breached Any Specific Provision Obliging the Bank to Take Action on His Loan.

Plaintiff alleges U.S. Bank breached its contract with him by refusing to “Honor the

contract and Defer the Loan or Relay that it needs to be done.” Am. Compl. at 28. Plaintiff,

however, has failed to allege that any provision of the contract creates this obligation, and the

contract itself contains no provision requiring U.S. Bank to do so.

A breach of contract claim requires that the plaintiff allege (1) the existence of a valid

contract between the parties, (2) “an obligation or duty arising out of the contract,” (3) a breach of

this duty, and (4) damages as a result of the breach. U.S. Conf. of Mayors v. Great-West Life &

Annuity Ins. Co., 327 F. Supp. 3d 125, 129 (D.D.C. 2018) (quoting Tsintolas Realty Co. v. Mendez,

984 A.2d 181, 187 (D.C. 2009)). At the motion to dismiss stage, courts are generally prohibited

from considering documents or other materials outside of the pleadings; for contract claims,

however, where a party has attached the contract to its pleading or incorporated the contract by

reference, the court may properly consider the contract in deciding the motion to dismiss.

CopyWatch, Inc. v. Am. Nat’l Red Cross, 299 F. Supp. 3d 189, 196 (D.D.C. 2018) (quoting

20 Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015)); Patrick v. District of

Columbia, 126 F. Supp. 3d 132, 135–36 (D.D.C. 2015) (quoting Ward v. D.C. Dep't of Youth

Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011)); Elec. Priv. Info. Center v. IRS, 575 F.

Supp. 3d 84, 88 (D.D.C. 2021) (quoting Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46

(D.D.C. 2009)). A document may be incorporated by reference into a complaint even where it is

not attached to the complaint, if the document is “referred to in the complaint and [ ] integral to

[the plaintiff's] claim.” Banneker Ventures, 798 F.3d at 1133 (alterations in original) (quoting

Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)). In the instant case, plaintiff attached a

copy of the contract with U.S. Bank to his motion to amend his complaint, see U.S. Bank SBA

Payroll Protection Loan, and this contract is referenced in the Amended Complaint, which alleges

that U.S. Bank breached the contract, see Am. Compl. at 28. These references to the contract are

sufficient for review on a motion to dismiss, particularly since the contract is unquestionably

“integral” to the breach of contract claim.

Plaintiff alleges that defendant U.S. Bank breached section “1.2” of the contract. Id. This

provision, however, does not create any obligation on behalf of U.S. Bank unilaterally to forgive

plaintiff’s loan or tell the SBA that plaintiff’s loan should be forgiven, as plaintiff alleges. See id.

Instead, this provision lays out how plaintiff may apply for loan forgiveness and only creates an

obligation on the part of U.S. Bank to “provide the Borrower written notification of the remaining

balance and re-amortization of the Loan” after forgiveness has been approved, U.S. Bank SBA

Payroll Protection Loan ¶ 1.2—something plaintiff acknowledges has not yet happened, as he

repeatedly alleges the application for forgiveness is still pending, see, e.g., Am. Compl. at 10, 19.

As U.S. Bank persuasively argues, plaintiff certainly has not identified any “specific provision of

any contract” with U.S. Bank that requires the Bank to continue servicing his loan. U.S. Bank’s

21 Mem. Supp. MTD at 5. The amended complaint therefore fails to state a claim against U.S. Bank

for breach of contract.

2. Plaintiff’s Negligence Claim Against U.S. Bank Does Not Plead Facts Sufficient to Show a Duty Existed or Was Breached.

Plaintiff’s claim of negligence against U.S. Bank similarly fails to state a claim. To state

a claim of negligence, a plaintiff “must show: (1) that the defendant owed a duty to the plaintiff,

(2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach.”

Poola v. Howard Univ., 147 A.3d 267, 289 (D.C. 2016) (citation omitted). In alleging that the

defendant owed a duty to the plaintiff, the plaintiff must also show that the duty existed

independent of any contractual relationship between the two parties, meaning that the duty could

not arise out of a contract between them. Armstrong v. Navient Sols., LLC, 292 F. Supp. 3d 464,

473 (D.D.C. 2018) (citing Carter v. Bank of Am., N.A., 888 F. Supp. 2d 1, 15 (D.D.C. 2012)).

Here, plaintiff does not allege any facts to show that U.S. Bank had a duty to plaintiff

independent of the contract or that any duty was breached. Making merely conclusory allegations

that U.S. Bank “owed both [plaintiff] and [his] company a duty” and that “US Bank breached that

duty,” is wholly insufficient, absent any facts to support those assertions. Am. Compl. at 29.

While the Court must assume that any factual allegations in the complaint are true, the same is not

true of “a formulaic recitation of the elements of a cause of action” that is “devoid” of “further

factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 557 (2007)). Plaintiff has not pled any facts that suggest a duty

existed in this case independent of his contract with U.S. Bank, and even if such a duty existed, he

also has not pled any facts to suggest that any duty was breached. Accordingly, plaintiff’s

negligence claim against U.S. Bank must be dismissed.

22 3. Plaintiff’s Claim of Discrimination Does Not Plead Sufficient Facts to Support an Inference of Discrimination by U.S. Bank.

Plaintiff further alleges that U.S. Bank discriminated against him in violation of the Equal

Credit Opportunity Act (“ECOA”). Am. Compl. at 29. This law prohibits “discriminat[ing]

against any applicant, with respect to any aspect of a credit transaction— . . . on the basis of race

. . .” 15 U.S.C. § 1691(a). U.S. Bank characterizes plaintiff’s allegations as “inadequate threadbare

recitals of race discrimination because they present no facts from which one could conclude that

race was a factor in U.S. Bank’s actions.” U.S. Bank’s Mem. Supp. MTD at 8 (emphasis in

original). The Court agrees. Plaintiff claims that U.S. Bank treated him, “A BLACK MAN,”

differently by “MAKING STATEMENTS WITHOUT VERIFYING THE ACCURACY” and

“[d]en[ying]” forgiveness of his loan when it was “supposed to be [a]pproved.” Am. Compl. at

29 (capitalization in original). Plaintiff also references a YouTube video of an investigative news

report on specific instances where other black man have faced discrimination at U.S. Bank

branches. Id. at 27, 29. A video discussing individual incidents of discrimination, even ones

occurring at U.S. Bank branches, does not prove any discrimination occurred in this case, and

plaintiff’s conclusory allegations provide no facts or other basis that would support an inference

that U.S. Bank took any actions in this case as a result of plaintiff’s race, as is required for a claim

of discrimination to pass muster under Rule 12(b)(6). See, e.g., Presidential Bank, FSB v. 1733

27th Street SE LLC, 271 F. Supp. 3d 163, 171–72 (D.D.C. 2017) (dismissing an ECOA claim

because it “present[ed] no facts from which [the defendants] could conclude that race was a factor

in [the plaintiff’s] treatment of them”).

Even if plaintiff’s allegations that he is a black man and is being treated “DIFFERENTLY”

by U.S. Bank is construed liberally to mean that the “DIFFERENT” treatment is because of his

race, see Am. Compl. at 29, plaintiff never establishes that other customers who were not black

23 were treated differently in circumstances similar to those faced by plaintiff. Importantly, the

allegation of discrimination appears to rest largely on the denial of plaintiff’s application for

forgiveness of the PPP loan. See id. (“The loan was supposed to be Approved, and Forgiven”;

“The Treasury, SBA and IRS have all changed their position and US Bank still refuses, and Denys

[sic] me.”). Here, however, the denial decision cannot be attributed to U.S. Bank, but is instead

made by the SBA, as plaintiff ultimately recognizes, e.g., id. at 10 (“Plaintiff was denied

forgiveness in the Small Business Administration with a PPP loan he managed”), and furthermore,

as plaintiff points out, his application for forgiveness is no longer denied and is still pending final

decision, e.g., id. (“THE LOAN IS CURRENTLY PENDING FORGIVENESS BY THE SBA,

AND ALL PARTIES HAVE AGREED IT IS NO LONGER DENIED” (capitalization in

original)). Ultimately, plaintiff’s claim contains no “circumstantial facts, history, or context,”

Presidential Bank, 271 F. Supp. 3d at 172, to support an inference that U.S. Bank discriminated

against plaintiff based on his race, particularly given plaintiff’s main allegations about the denial

of loan forgiveness do not relate to actions taken by U.S. Bank. This discrimination claim must

4. Plaintiff Does Not Allege U.S. Bank Made Any False Statement About Him.

Plaintiff’s final claim against U.S. Bank alleges that the Bank defamed him by telling the

SBA “that it believed his tax documents were fabricated due to nothing ever being filed” when

“the tax documents were, in fact . . . filed.” Am. Compl. at 30. Stating a claim for defamation

requires proving four elements: (1) that the defendant “made a false and defamatory statement

concerning the plaintiff,” (2) that defendant “published the statement without privilege to a third

party,” (3) that defendant was “at least negligen[t]” in publishing the statement to the third party,

and (4) “either that the statement was actionable as a matter of law irrespective of special harm or

24 that its publication caused the plaintiff special harm.” Gregorio v. Hoover, 238 F. Supp. 3d 37, 55

(D.D.C. 2017) (quoting Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)).

Here, plaintiff has failed to allege any facts showing that U.S. Bank’s statement that his

“tax documents were fabricated,” Am. Compl. at 30, was false. Plaintiff contends that U.S. Bank’s

claim about his tax documents was wrong because they “were, in fact . . . filed,” id., but that

statement, even if true, would not prove U.S. Bank made a false statement by indicating his tax

documents had been fabricated. Nothing in the Amended Complaint presents evidence to suggest

this statement was false or to show that plaintiff’s tax documents were accurate. See generally id.

Even if U.S. Bank had no “direct access” to plaintiff’s tax documents, id. at 30, and even if U.S.

Bank was wrong that he had not filed tax documents, plaintiff has not shown that U.S. Bank’s

statement itself—that plaintiff “fabricated” his documents—is false. Without alleging this element

of a defamation cause of action, plaintiff cannot sustain a defamation action against U.S. Bank,

and thus this claim must also be dismissed.

C. Claims Against Stinson LLP

The Amended Complaint raises claims against Stinson LLP for (1) breach of contract, Am.

Compl. at 28 (alleging that “US Bank and their counsel Stinson LLP both refused to Honor the

contract and Defer the Loan or Relay that it needs to be done”), and (2) negligent

misrepresentation, id. at 43. 8 Stinson LLP moves to dismiss each claim for failure to state a claim.

See generally Stinson LLP’s MTD.

8 Stinson reads the amended complaint as also asserting negligence against Stinson, see Stinson LLP’s MTD at 1; Stinson LLP’s Mem. Supp. Stinson LLP’s Mot. to Dismiss Am. Compl. (“Stinson LLP’s Mem. Supp. MTD”) at 5, ECF No. 46–1, and contends this claim should also be dismissed for failure to state a claim, see generally id. This reading is understandable, given that the breach of contract claim against Stinson and the breach of contract and negligence claims against defendant U.S. Bank are raised in the same section of the Amended Complaint. Am. Compl. at 28–29. The best reading of plaintiff’s complaint, however, does not include Stinson in plaintiff’s claim for negligence. While Stinson is mentioned in relation to breach of contract, id. at 28 (alleging that “US Bank and their counsel Stinson LLP both refused to Honor the contract and Defer the Loan or Relay that it needs to be done”), the firm is not mentioned in relation to negligence, id. at 29 (alleging only that “US Bank owed . . . a duty” and

25 1. Plaintiff Does Not Allege a Contract Existed with Stinson LLP.

Plaintiff’s breach of contract claim against Stinson LLP fails to state a claim because he

does not allege the existence of a contract between himself and Stinson, instead arguing that

Stinson, as U.S. Bank’s counsel, “refused to Honor the contract” between himself and U.S. Bank.

Am. Compl. at 28. A breach of contract claim, however, requires, among other elements, “a valid

contract between the parties,” U.S. Conf. of Mayors, 327 F. Supp. 3d at 129 (emphasis supplied)

(quoting Tsintolas Realty Co., 984 A.2d at 187), and plaintiff has not pled any facts to establish

this requirement, meaning this claim must be dismissed.

2. Plaintiff Does Not Sufficiently Plead Negligent Misrepresentation.

Plaintiff’s final claim against Stinson LLP alleges negligent misrepresentation against the

firm for “provid[ing] the plaintiff with false and incorrect information,” Am. Compl. at 43, and

that a lawyer from “Stinson refus[ed] to relay information to her client needed for the SBA,” id. at

44. To raise a claim of negligent misrepresentation, a plaintiff must show that (1) the defendant

“made a false statement or omitted a fact that he had a duty to disclose,” (2) the false statement or

omitted fact “involved a material issue,” and (3) “that the plaintiff reasonably relied upon the false

statement or omission to his detriment.” Heyer v. Schwartz & Assocs. PLLC, 319 F. Supp. 3d 299,

306–07 (D.D.C. 2018) (quoting Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1131 (D.C. 2015)).

In addition, claims of negligent misrepresentation are held to the heightened pleading standards of

Federal Rule of Civil Procedure 9(b), see, e.g., Intelect Corp. v. Cellco P’ship GP, 160 F. Supp.

3d 157, 188 n.19 (D.D.C. 2016) (collecting cases holding this requirement applies to negligent

misrepresentation), which requires that plaintiffs claiming negligent misrepresentation “state the

“breached that duty”). Were the amended complaint read to include a negligence claim against Stinson, the claim would also be dismissed for failure to state a claim, given that Stinson is not mentioned in the portion of the complaint alleging negligence and none of the elements of a negligence claim have been pled against the firm.

26 time, place and content of the false misrepresentations, the fact misrepresented and what was

retained or given up as a consequence of the” misrepresentation. Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994) (quoting United States v. Cannon, 642 F.2d 1373, 1385 (D.C.

Cir. 1981)).

Here, plaintiff has failed to allege facts establishing any of the elements of negligent

misrepresentation. As Stinson correctly asserts, the Amended Complaint does not allege “any

specific facts establishing that Stinson failed to disclose any facts it had a duty to disclose to

[p]laintiff, U.S. Bank, or anyone else.” Stinson’s Mem. Supp. Stinson LLP’s Mot. to Dismiss Am.

Compl. (“Stinson LLP’s Mem. Supp. MTD”) at 6, ECF No. 46–1. Nor does the Amended

Complaint allege that such an omission or false statement was material, or that plaintiff relied on

it and suffered a detriment as a result. See generally Am. Compl.

The Amended Complaint seems to suggest that a lawyer at Stinson made a false statement

when telling plaintiff to “contact the SBA” himself and made an omission when the lawyer

“refus[ed] to relay information to” U.S. Bank that was needed for the SBA. Id. at 44. Plaintiff

fails to allege, however, why Stinson had a duty to disclose any omitted information, how these

statements and omissions were material, or how plaintiff relied on them and suffered a detriment

as a result. These fatal flaws mean that this claim also fails to state a claim and must therefore be

dismissed.

III. CONCLUSION

For the foregoing reasons, taking the alleged facts in plaintiff’s Amended Complaint as

true, plaintiff’s Bivens action against the two John Doe federal employees and claim against the

United States for unlawful disclosure of his confidential tax information will be transferred to the

27 Western District of Missouri, while his remaining claims must be dismissed, pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6).

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: December 10, 2024

__________________________ BERYL A. HOWELL United States District Judge