UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHANTE C. LEE, AS PARENT AND NEXT FRIEND OF M.L., A MINOR Plaintiff, Civil Action No. 18-2786 (CKK) v. SEED PUBLIC CHARTER SCHOOL OF WASHINGTON, DC, ET AL., Defendants. Memorandum Opinion (August 21, 2020) Upon consideration of the briefing, the relevant authorities, and the record, 1 the Court
GRANTS Defendant SEED Foundation’s Motion to Dismiss Plaintiff’s Second Amended
Complaint (“Defendant’s Motion”), ECF No. 37. Accordingly, and for the reasons provided
herein, the Court hereby DISMISSES WITHOUT PREJUDICE Counts I, II, III, and IV of the
Second Amended Complaint, as to Defendant SEED Foundation.
I. Background
This case involves alleged instances of bullying and violence suffered by a young boy,
M.L., while he was a student at the SEED Public Charter School (the “SEED School”) in
Washington, D.C. Second Am. Compl. ¶ 10. Plaintiff Chante Lee is M.L.’s natural and legal
parent, and she now brings this action on her son’s behalf against both the SEED School and the
SEED Foundation, a corporation which allegedly manages the SEED School. Id. ¶¶ 1–10.
1 The Court’s consideration has focused on the following: • Second Am. Compl., ECF No. 26; • Def.’s Mem. Of Points & Authorities In Supp. Of Its Mot. To Dismiss Pl.’s Second Am. Compl. (“Def.’s Mot.”), ECF No. 37-3; • Pl.’s Mem. Of Points & Authorities In Opp’n To Def.’s Mot. To Dismiss Second Am. Compl. (Pl.’s Opp’n”), ECF No 42-1; and • Def.’s Reply Mem. (“Def.’s Reply”), ECF No. 43.
1 A. Factual Background
The facts of this case are saddening. 2 M.L. is a child with autism. Id. ¶ 3. As Plaintiff
explains, autism “is a pervasive developmental disability and is considered to be a neurological
impairment characterized by significant deficits in verbal and non-verbal communication, a
tendency to engage in repetitive and stereotypical movements, and unusual reactions to changes
in routines or environments.” Id. In addition to his autism, M.L. is also “socially delayed” because
he “is younger than his peers by two years.” Id. It is against this developmental backdrop, that
Plaintiff presents the troubling acts of bullying directed at her son. Id. ¶¶ 11–24.
During the 2016 academic year, M.L. was a sixth-grade student at the SEED School. Id. ¶
11. M.L. was ten-years old at the time, and, as a residential student, he lived on SEED campus
housing during the school week. Id. ¶¶ 3, 11. According to Plaintiff, “M.L. was the victim of
several instances of violence and bullying committed by other students at the Seed School” during
the course of the 2016-17 school year. Id. ¶ 12. Specifically, “on or about September 26, 2016,
two students at SEED assaulted minor M.L. on the SEED soccer field.” Id. ¶ 13. “M.L. was
stomped in the face, hit with rocks and suffered a concussion.” Id. Later, on October 25, 2016,
“SEED administration personnel acknowledged the constant bulling by some SEED students” and
“promised to monitor the situation and take action to protect M.L. from violence and bullying.”
Id. ¶ 14.
The administration, however, was unable to make good on its promise. Id. In 2017, the
bullying against M.L. only intensified, and Plaintiff alleges that school “administrators failed to
document, investigate, [or] take immediate and appropriate action to investigate” the misconduct.
2 For the purposes of the motion before the Court, the Court accepts as true the well-pled allegations in Plaintiff’s Second Amended Complaint. The Court does “not accept as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014).
2 Id. ¶ 18. On September 19, 2017, for example, “M.L. was attacked in the boys’ gym locker room
by other male students.” Id. ¶ 15. Plaintiff, as M.L.’s parent, was notified of the attack, but was
not provided with an incident report, as was required by the school’s academic policies handbook.
Id. ¶¶ 15–17. Moreover, “M.L. was labeled gay” and some students “circulated video of M.L.
naked in the shower, pronouncing him gay.” Id. ¶ 19. “M.L. was mentally devasted by the
incident.” Id. And, as a result of the constant bullying, M.L. “was afraid to leave his dormitory
room to go to the bathroom at night.” Id. ¶ 20.
Finally, “on September 27, 2017, after students [again] verbally assaulted and insulted
M.L., teased him, called him gay, while in his dorm room, M.L. attempted suicide.” Id. ¶ 21.
Understandably, Plaintiff withdrew M.L. from the SEED School thereafter. Id. ¶¶ 22–23. Plaintiff
further states, however, that in early 2018 another SEED student died as a result of an on-campus
suicide. Id. ¶ 25. Following this heartbreaking event, more parents of SEED students came
forward with complaints, id. ¶ 26, and media reports ensued, addressing purported shortcomings
in the SEED School’s ability to monitor and care for the safety of its residential students, id. ¶¶
27–34. In particular, Plaintiff laments the failure of the SEED School to provide adequate
supervision of residential areas, such as the student dormitory. Id. ¶¶ 37–40.
B. Procedural Background
On August 22, 2018, Plaintiff filed a complaint, on behalf of M.L., in the Superior Court
of the District of Columbia, raising negligence claims against the SEED School. See Not. of
Removal, ECF No. 1, ¶ 1. On November 20, 2020, Plaintiff amended her complaint to include
statutory claims under § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and the
Individuals with Disabilities Education Act (20 U.S.C. § 1411, et. seq.). Id. ¶ 3–4. Invoking
federal-question jurisdiction under 28 U.S.C. § 1331, the SEED School subsequently removed
3 Plaintiff’s Amended Complaint to this Court on November 29, 2018. See generally id. The SEED
School then moved to dismiss Plaintiff’s Amended Complaint on multiple grounds. See Def.’s
Mot. Dismiss, ECF No. 5. This Court granted the SEED School’s motion, in part, holding that
Plaintiff had not properly exhausted her IDEA claim and that Plaintiff’s Rehabilitation Act claim
was time-barred, “insofar as it relies on events occurring before August 22, 2017.” Lee as Next
Friends of M.L. v. Seed Pub. Charter Sch. of Washington, D.C., No. CV 18-2786 (CKK), 2019
WL 4469285, at *1 (D.D.C. Sept. 18, 2019).
Following this partial dismissal, Plaintiff filed a Second Amended Complaint on January
6, 2020. See generally Second Am. Compl., ECF No. 26. This pleading again raised a
Rehabilitation Act claim and claims of common law negligence against the SEED School. See id.
¶¶ 95–153. Of note, however, the Second Amended Complaint also raised such claims against a
new party, Defendant SEED Foundation. See id. As alleged by Plaintiff, the SEED Foundation
is a private corporation that acts as an “independent contractor” for the SEED School and,
allegedly, “manages” the SEED School as well. Id. ¶¶ 9, 139–40. Plaintiff now asserts that the
SEED Foundation, along with the SEED School, is liable for the injuries caused to M.L. Id. ¶¶
95–153. The Second Amended Complaint raises five individual counts specifically against the
SEED Foundation: (1) Violation of § 504 of the Rehabilitation Act of 1973, (2) Gross Negligence,
(3) Negligent Infliction of Emotional Distress, (4) Negligence, and (5) Punitive Damages. Id. ¶¶
95–157. On February 13, 2020, the parties entered a joint stipulation dismissing Plaintiff’s claim
for punitive damages against the SEED Foundation, as well as Plaintiff’s Rehabilitation Act claim
against the SEED Foundation “insofar as it relies on events occurring before August 22, 2017.”
Order, ECF No. 36; see also FED. R. CIV. P. 41(a)(1).
4 Now before the Court is Defendant SEED Foundation’s partial motion to dismiss the
Second Amended Complaint. Therein, the SEED Foundation raises challenges, both jurisdictional
and on the merits, to the remaining Rehabilitation Act and negligence claims asserted against it in
the Second Amended Complaint. See FED. R. CIV. P. 12(b)(1), (6). Defendant’s Motion has been
fully briefed and is now ripe for review.
II. Legal Standard
Defendant requests dismissal of Plaintiff’s claims both for lack of subject-matter
jurisdiction and for failure to state a claim for which relief may be granted. These two grounds for
dismissal are analyzed pursuant to different rules.
Motions to dismiss for lack of subject-matter jurisdiction are analyzed pursuant to Federal
Rule of Civil Procedure 12(b)(1). A court must dismiss a case pursuant to Rule 12(b)(1) when it
lacks subject-matter jurisdiction. In determining whether there is jurisdiction, “the court may
consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. For
Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)) (internal quotation marks omitted). “At the
motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed
with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of
fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the
favorable inferences that a plaintiff receives on a motion to dismiss, it is still true that the
“[p]laintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “Although a court
must accept as true all factual allegations contained in the complaint when reviewing a motion to
5 dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the complaint . . . will bear
closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to
state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007)
(internal citations and quotation marks omitted).
Motions to dismiss for failure to state a claim for which relief may be granted are analyzed
pursuant to Federal Rule of Civil Procedure 12(b)(6). According to Rule 12(b)(6), a party may
move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can
be granted.” FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain
sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III. Discussion
Defendant’s Motion presents three principal arguments for the Court to address: (1)
Plaintiff lacks constitutional standing to assert any claim against the SEED Foundation, (2)
Plaintiff has insufficiently pleaded her Rehabilitation Act claim against the SEED Foundation, and
(3) Plaintiff has insufficiently pleaded her negligence claims against the SEED Foundation. The
Court will address each argument in turn.
A. Article III Standing
Defendant first argues that Plaintiff lacks the requisite constitutional standing to assert a
claim against it in this case. See Def.’s Mot. at 5–6. Because standing is a “threshold jurisdictional
6 requirement,” this Court must address it first before evaluating this case on the merits. Bauer v.
Marmara, 774 F.3d 1026, 1031 (D.C. Cir. 2014).
Article III of the Constitution limits this Court’s jurisdiction to “actual cases and
controversies.” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). A plaintiff “bears the
burden of showing that he has standing for each type of relief sought.” Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009). “To establish constitutional standing, plaintiffs ‘must have
suffered or be imminently threatened with a concrete and particularized injury in fact that is fairly
traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial
decision.’” Mendoza, 754 F.3d at 1010 (quoting Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S.Ct. 1377, 1386 (2014); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). At the pleading stage, a plaintiff is “required only to state a plausible claim that each of
the standing elements is present.” Attias v. Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017).
Here, Defendant does not challenge Plaintiff’s assertion of injury-in-fact or the potential
for redress through the compensatory damages Plaintiff seeks to recover. See Def.’s Mot. at 5–7.
Nor does the Court doubt that the alleged violence and bullying suffered by M.L. constitutes a
concrete injury. See, e.g., Second Am. Compl. ¶ 15; see also Seed Pub. Charter Sch., 2019 WL
4469285, at *8. Instead, Defendant challenges only the second prong of Article III standing:
traceability. See Def.’s Mot. at 6 (“Plaintiff has failed to allege any injury sustained by M.L. that
is fairly traceable to SEED Foundation.”). Specifically, Defendant argues that neither Plaintiff’s
negligence claims nor her claim under the Rehabilitation Act are causally connected to any of
Defendant’s alleged conduct. See id. The Court disagrees.
To establish the second prong of Article III standing, Plaintiff must plausibly allege a
“‘causal connection between the injury and the conduct complained of [that is] ‘fairly traceable to
7 the challenged action of the defendant, and not the result of the independent action of some third
party not before the court.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan,
504 U.S. at 561). Article III standing, however, “does not require that the defendant be the most
immediate cause, or even a proximate cause, of the plaintiffs’ injuries.” Attias, 865 F.3d at 629.
Instead, an injury may be “fairly traceable” to a defendant, where the defendant’s conduct was a
“substantial factor” leading to the injury itself. Tozzi v. U.S. Dep't of Health & Human Servs., 271
F.3d 301, 308 (D.C. Cir. 2001).
In this case, Plaintiff has provided sufficient factual allegations to plausibly establish a
causal connection between M.L.’s injury and Defendant’s conduct. Here, Plaintiff explains that
M.L. was injured through the course of bullying and acts of violence occurring at the SEED
School. See Second Am. Compl. ¶¶ 11–34. And to connect this injury to the SEED Foundation,
Plaintiff alleges that “Defendant SEED Foundation is a corporation that manages the SEED
School.” Id. ¶ 9. Specifically, Plaintiff asserts that the SEED Foundation is responsible for
ensuring that employees of the SEED School “are properly trained and supervised to perform their
jobs.” Id. ¶ 72. Moreover, Plaintiff alleges that the SEED Foundation participates in setting SEED
school policy. Id. ¶ 144. Plaintiff further alleges that this supervisory role specifically includes
oversight of the school’s rules and regulations, including the school’s anti-bullying policy. Id. ¶
71–73. Even if these allegations do not demonstrate that the SEED Foundation was “the immediate
cause, or even a proximate cause, of the [M.L.’s] injuries,” they are sufficient to show, at the
pleading stage, that M.L.’s injuries were fairly traceable to Defendant. Attias, 865 F.3d at 629.
Accordingly, the Court concludes that Plaintiff has established sufficient Article III standing to
raise claims against the SEED Foundation and DENIES Defendant’s motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1).
8 B. The Rehabilitation Act
In Count I of the Second Amended Complaint, Plaintiff raises a statutory claim under §
504 of the Rehabilitation Act of 1973. See Second Am. Compl. ¶¶ 95–106. Section 504 provides
that:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a). Litigants possess “express rights of action . . . under section 504 of the
Rehabilitation Act.” Women’s Equity Action League v. Cavazos, 906 F.2d 742, 750 (D.C. Cir.
1990). “To prove a violation of section 504, the plaintiff[ ] must show that (1) they are disabled
within the meaning of the Rehabilitation Act, (2) they are otherwise qualified, (3) they were
excluded from, denied the benefit of, or subject to discrimination under a program or activity, and
(4) the program or activity is carried out by a federal executive agency or with federal funds.” Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008).
Here, Defendant SEED Foundation argues that Plaintiff cannot pursue a § 504 claim
because Plaintiff has not established that Defendant is a recipient of federal funds. See Def.’s Mot.
at 7. Defendant couches this argument within a jurisdictional framework. See id. Nonetheless,
Defendant’s challenge to Plaintiff’s § 504 claim is on the merits, and, therefore, the Court will
address it in kind. See Kaplan v. Cent. Bank of the Islamic Republic of Iran, 896 F.3d 501, 519–
20 (D.C. Cir. 2018) (Edwards, J., concurring) (“Statutory standing . . . concern[s] a party’s cause
of action, not the court’s jurisdiction.”); Lee v. Corr. Corp. of Am./Corr. Treatment Facility, 61 F.
Supp. 3d 139, 144 (D.D.C. 2014) (dismissing § 504 claim under Rule 12(b)(6)).
9 When considering the merits of Plaintiff’s Rehabilitation Act cause of action, the Court
finds that the Second Amended Complaint does not state a plausible § 504 claim against Defendant
SEED Foundation. The Supreme Court has made clear that § 504, by its terms “limits its coverage
to the ‘program or activity’ that ‘receiv[es]’ federal financial assistance.” U.S. Dep't of Transp. v.
Paralyzed Veterans of Am., 477 U.S. 597, 604 (1986). Following this statutory construction, courts
in this circuit have limited “the scope of section 504 of the Rehabilitation Act . . . to those who
actually receive federal financial assistance.” Abdus-Sabur v. Hope Vill., Inc., 221 F. Supp. 3d 3,
9 (D.D.C. 2016) (citation omitted); see also West v. Spellings, 480 F. Supp. 2d 213, 217 (D.D.C.
2007). In Lee, for example, this Court dismissed a § 504 claim raised against a Maryland
corporation operating a private prison because, although the corporation contracted with the
Bureau of Prisons and the U.S. Marshals, the plaintiff did not “allege that [the corporation]
receive[d] subsidies from the federal government” sufficient to qualify as “federal financial
assistance” within the meaning of the statute. 61 F. Supp. 3d at 144.
Plaintiff’s Second Amended Complaint suffers from a similar deficiency. As Defendant
notes, Plaintiff alleges only that “defendants [sic] Seed was receiving federal funding, as
contemplated by § 504 of the Rehabilitation Act of 1973.” Second Am. Compl. ¶ 67; see also
Def.’s Mot. at 7. This allegation relates specifically to the SEED School, a public institution
formed pursuant to D.C. Code §38-1802.01, et. seq., but not to the SEED Foundation, a private
corporation. See Second Am. Compl. ¶¶ 7–9. Indeed, while Plaintiff specifically alleges that co-
Defendant SEED School “is subject to § 504 of the Rehabilitation Act of 1973,” id. ¶ 8, Plaintiff
omits any parallel allegation that Defendant SEED Foundation is similarly subject to that statute,
see id. ¶ 9. Instead, the Second Amended Complaint and Plaintiff’s opposition brief emphasize
the managerial control Defendant Seed Foundation exercises over the school. See, e.g., id. ¶¶ 9,
10 72–73; Pl.’s Opp’n at 4–7. But nowhere does Plaintiff plausibly allege that Defendant SEED
Foundation itself received “federal financial assistance.” Without this predicate allegation,
Plaintiff has failed to state a claim under § 504 against Defendant Seed Foundation, and this Court
shall DISMISS Count I of the Second Amended Complaint accordingly. See Women’s Equity
Action League, 906 F.2d at 750 (“Plaintiffs have . . . express rights of action against federally-
funded discriminators under section 504 of the Rehabilitation Act.”) (emphasis added); Lee, 61 F.
Supp. 3d at 144.
C. Negligence
In addition to the Rehabilitation Act claim, Plaintiff also asserts three common law causes
of action against Defendant SEED Foundation for gross negligence (Count II), negligent infliction
of emotional distress (Count III), and negligence (Count IV). See Second Am. Compl. ¶¶ 107–
153. In both the Second Amended Complaint and her opposition brief, Plaintiff expressly frames
these causes of action as direct negligence claims against Defendant SEED Foundation. See id.;
Pl.’s Opp’n at 7–8. The Court, therefore, will only address them as such. 3
To state a claim for negligence, Plaintiff must adequately allege “a duty of care owed by
the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests
of the plaintiff, proximately caused by the breach.” Washington Metro. Area Transit Auth. v.
Ferguson, 977 A.2d 375, 377 (D.C. 2009) (citing Mixon v. Washington Metro. Area Transit Auth.,
959 A.2d 55, 58 (D.C. 2008)). To establish “gross negligence,” a claimant must further
demonstrate that there was “such an extreme deviation from the ordinary standard of care as to
support a finding of wanton, willful and reckless disregard or conscious indifference for the rights
3 The parties and conduct at issue in Plaintiff’s negligence claims are connected to the District of Columbia. See Second Am. Compl. ¶¶ 3–9, 107–153. Accordingly, the Court will apply the law of the District of Columbia to Plaintiff’s common law negligence claims. See Wilkins v. District of Columbia, 879 F. Supp. 2d 35, 39 (D.D.C. 2012).
11 and safety of others.” Wells v. Hense, 235 F. Supp. 3d 1, 13 (D.D.C. 2017) (citing District of
Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997)). Finally, to state a claim for negligent infliction
of emotional distress, a claimant must allege that “he or she was (1) in the ‘zone of danger’; which
was (2) created by the defendant’s negligence; (3) making the plaintiff fear for his or her own
safety; resulting in (4) emotional distress that was serious and verifiable.” Jograj v. Enter. Servs.,
LLC, 270 F. Supp. 3d 10, 26–27 (D.D.C. 2017). Because each of these variant claims requires a
duty of care, none of Plaintiff’s negligence actions against Defendant can proceed without
establishing some duty owed by the SEED Foundation in this case. See Hedgepeth v. Whitman
Walker Clinic, 22 A.3d 789, 793 (D.C. 2011); Bd. of Trustees of Univ. of D.C. v. DiSalvo, 974
A.2d 868, 870 (D.C. 2009); Def.’s Mot. at 7.
“In determining the existence of a duty owed to a plaintiff, courts have applied a
foreseeability of harm test, which is based on the recognition that duty must be limited to avoid
liability for unreasonably remote consequences.” Hedgepeth, 22 A.3d at 794 (quotation omitted).
“Inherent . . . in the concept of duty is the relationship between the parties out of which the duty
arises.” Id. Whether a duty exists, however, is also “the result of a variety of considerations and
not solely the relationship between the parties.” DiSalvo, 974 A.2d at 871. “Ultimately, the
determination of whether a duty should be imposed is made by weighing the various policy
considerations and reaching a conclusion that the plaintiff’s interests are, or are not, entitled to
legal protection against the conduct of the defendant.” Hedgepeth, 22 A.3d at 794 (quotation
omitted).
The Court is not persuaded, in this case, that Plaintiff has established a duty of care owed
by Defendant SEED Foundation, an independent contractor, to M.L., a student. As an initial
matter, because the SEED Foundation is not a school itself, see id. ¶¶ 9, 139, Plaintiff cannot rely
12 upon the traditional common law duty of care owed by schools to their students. See Thomas v.
City Lights Sch., Inc., 124 F. Supp. 2d 707, 709 (D.D.C. 2000). Instead, Plaintiff contends that the
SEED Foundation owes a duty to M.L. because of the contractual arrangement between the SEED
Foundation and the SEED School. See Pl.’s Opp’n at 8 (“The duty of care in this context is based
on Exhibit A, the SEED document that establish[es] the contractual and managerial relationship
between the SEED Foundation and SEED PCS.”). Accordingly, the Court must “look to the
contract to determine the scope of the undertaking as it relates to the protection of [M.L.]”, and
whether the services provided by the SEED Foundation were “necessary for [his] protection.”
Presley v. Commercial Moving & Rigging, Inc., 25 A.3d 873, 888 (D.C. 2011).
Here, the agreement at issue gives the SEED Foundation certain advisory responsibilities,
such as the ability to offer periodic training sessions to SEED School staff, assist in the
development of school programming, and to approve of the Head of School appointment. See Pl.’s
Opp’n, Ex. A (May 19, 2009 Agreement), ¶¶ 3, 9. The scope of these services, however, does not
establish a clear connection between the SEED Foundation and individual students themselves.
Indeed, the agreement stipulates that the SEED School retains direct authority to hire staff and also
to “maintain and operate the campus.” Id. ¶¶ 1, 9; see also Second Am. Compl. ¶ 144. In light of
this allocation of responsibility, it is not reasonably foreseeable that the periodic oversight offered
by Defendant SEED Foundation as an independent contractor would be necessary to prevent harm
to students like M.L. caused by intra-school bullying. See id. ¶¶ 11–22. Plaintiff offers no
authority to the contrary, see Pl.’s Opp’n at 7–9, and relevant case law in this jurisdiction militates
against imposing a duty of care on third-parties like the SEED Foundation. See Bradley v. Nat’l
Collegiate Athletic Ass’n, 249 F. Supp. 3d 149, 176 (D.D.C. 2017) (dismissing negligence claim
against athletic conference where its policies and procedures created relationships with universities
13 but could not support a duty owed to individual student athletes); Presley, 25 A.3d at 888 (“We
are not persuaded that . . . CRSS should have foreseen that its obligation under the CQM contract
to ‘anticipate problems’ and to ‘monitor’ safety compliance was ‘necessary for the protection’ of
Presley.”) (citing Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1097 (D.C. 1994)).
Furthermore, there are additional bases supporting the Court’s conclusion that Defendant
SEED Foundation does not owe M.L. a direct duty of care. When discerning whether such a duty
exists, courts not only consider the relationship between the parties and the foreseeability of harm
at issue, but also whether “considerations of fairness counsel against imposing a duty.” Presley,
25 A.3d at 890. Importantly, these “considerations of fairness” take into account “decisions made
by the courts and the legislatures.” Parker v. John Moriarty & Assocs., 224 F. Supp. 3d 1, 8
(D.D.C. 2016) (emphasis added). And here, the legislature has provided pertinent guidance.
Specifically, D.C. Code Ann. § 38-1802.04(c)(17)(A) dictates that “public charter school[s], and
[their] incorporators, Board of Trustees, officers, employees, and volunteers, shall be immune from
civil liability, both personally and professionally, for any act or omission within the scope of their
official duties.” The entities enumerated in § 38-1802.04(c)(17)(A) become liable only where they
commit an act of gross negligence, an intentional tort, or a crime. Id.; see also Seed Pub. Charter
Sch., 2019 WL 4469285, at *8.
The exclusion of independent contractors like the SEED Foundation from this list is
noteworthy. Plaintiff argues that the omission of independent contractors from § 38-
1802.04(c)(17)(A), indicates that entities like the SEED Foundation are logically subject to
liability for acts of ordinary negligence. See Second Am. Compl. ¶¶ 134, 139. But Plaintiff’s
statutory interpretation relies upon an inverted application of the expressio unius canon, which
puts the cart before the horse. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (“The
14 force of any negative implication . . . depends on context.”). Indeed, Plaintiff’s reading of § 38-
1802.04(c)(17)(A) would insulate charter schools and teachers from their own negligent conduct,
while leaving independent contractors liable for those same acts, notwithstanding their more
attenuated connection with students. Plaintiff offers no explanation for this inconsistency, which
cannot be reasonably reconciled with the “considerations of fairness” courts must address when
evaluating duties of care. Presley, 25 A.3d at 890. Ultimately, a more persuasive inference is that
§ 38-1802.04(c)(17)(A) does not confer immunity upon independent contractors like the SEED
Foundation because the legislature understood that such entities do not owe charter school students
a common law duty of care. Moreover, this conclusion aligns with a general “public policy
consideration,” Bradley, 249 F. Supp. 3d at 177, in favor of incentivizing the work of non-profit
enterprises with the purpose of providing “support [to] boarding schools serving under-resourced
populations.” Pl.’s Opp’n at 2.
For these reasons, The Court concludes that Defendant SEED Foundation does not owe
M.L. a duty of care. Consequently, Plaintiff has not stated a claim of direct negligence against
Defendant SEED Foundation, and the Court shall DISMISS Counts II, III, and IV of the Second
Amended Complaint, as to Defendant SEED Foundation, accordingly.
15 IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant SEED Foundation’s Motion to
Dismiss Plaintiff’s Second Amended Complaint, ECF No. 37. Accordingly, and for the reasons
provided above, the Court hereby DISMISSES WITHOUT PREJUDICE Counts I, II, III, and
IV of the Second Amended Complaint, as to Defendant SEED Foundation. An appropriate Order
accompanies this Memorandum Opinion.
Date: August 21, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge