Rubio v. District of Columbia

• Court: District Court, District of Columbia
• Decided: November 29, 2010
• Docket: Civil Action No. 2010-0262
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JESSICA RUBIO, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-262 (RWR) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM ORDER

Plaintiff Jessica Rubio filed a two-count complaint under

42 U.S.C. § 1983 against the District of Columbia and Corrections

Corporation of America (“CCA”), for purported violations of her

constitutional rights that occurred while Rubio was incarcerated

on separate occasions in 2008 and 2009. (Compl. ¶ 6.) On

March 16, 2010, CCA moved under Federal Rule of Civil Procedure

12(b)(6) to dismiss Count II of the complaint as it applied to

CCA. Rubio filed no opposition. Instead, on March 23, 2010,

Rubio filed a motion for leave to file an amended complaint that

adds one count of false imprisonment. The District of Columbia

filed no opposition to Rubio’s motion. However, CCA opposed

Rubio’s motion, arguing that Rubio’s motion was untimely, and

that the proposed new count would be futile because CCA could not

be held liable under that count.

Count III of Rubio’s amended complaint does not name CCA and

seeks to hold liable only the District of Columbia. Moreover, -2-

Rubio was entitled to amend her complaint as a matter of course

within 21 days after CCA filed its motion to dismiss. Fed. R.

Civ. P. 15(a)(1)(B). Thus, Rubio’s motion was neither untimely

nor even necessary, and will be granted.

Count II of the amended complaint is identical to Count II

of the original complaint, and CCA’s motion to dismiss will be

treated as one to dismiss Count II of the amended complaint.

Since Rubio filed no opposition, CCA’s motion will be deemed

conceded, and will be granted. See Local Civil Rule 7(b); Fox v.

Am. Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C. Cir. 2004)

(affirming a district court’s dismissal of a complaint where the

plaintiff failed to comply with Local Civil Rule 7(b)); see also

Cooper v. Farmers New Century Ins. Co., 607 F. Supp. 2d 175, 180

(D.D.C. 2009) (granting motion to dismiss as conceded based on

the plaintiff’s failure to respond to arguments raised in the

motion); Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d 18, 24

(D.D.C. 2010) (citing CSX Transp., Inc. v. Commercial Union Ins.,

Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986) and Felter v. Salazar,

679 F. Supp. 2d 1, 4 n.2 (D.D.C. 2010)). Therefore, it is hereby

ORDERED that Rubio’s motion [6] for leave to file an amended

complaint be, and hereby is, GRANTED. It is further

ORDERED that the Clerk file the amended complaint [#6-1].

It is further -3-

ORDERED that CCA’s motion [2] to dismiss Count II as it

applies to CCA be, and hereby is, GRANTED. Count II of the

amended complaint is dismissed as it applies to CCA.

SIGNED this 29th day of November, 2010.

/s/ RICHARD W. ROBERTS United States District Judge