Taylor v. District of Columbia

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FELICIA TAYLOR, individually and as legal guardian for her minor children, D.B. and T.B., Plaintiff, Civil Action 08-00578 (HHK) v.

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Felicia Taylor, individually and on behalf of D.B. and T.B., two children who are in her

care, brings this action against the District of Columbia and a number of its employees

(collectively “District”), Annie Milloy, the children’s former foster care provider, and Thomas D.

Walsh, Inc. (“Walsh”), the management company for the property where Milloy and the children

lived.1 Taylor asserts claims against the District under 42 U.S.C. § 1983 alleging violations of

D.B. and T.B.’s constitutional rights, and claims against Walsh asserting common-law tort

causes of action. Before the Court is Walsh’s “Renewed Motion to Dismiss” [#126]. Walsh

seeks a dismissal of Taylor’s common-law claims as against it for lack of subject matter

jurisdiction, arguing that the Court may not exercise supplemental jurisdiction over the claims.2

1 Taylor also named Lucille Hicks, one of the owners of the property where Milloy and the children lived, as a defendant in her complaint, but, as discussed infra, the Court dismissed Hicks as a defendant. See Taylor v. District of Columbia, 626 F. Supp. 2d 25, 29 (2009). 2 Walsh also seeks a “dismissal of all Lead Paint Claims against served District of Columbia Defendants . . . . so that all Lead Paint Claims will be dismissed by this Court and can proceed instead in Superior Court pursuant to Plaintiff’s Serptember16 2009, Complaint in that court.” Def.’s Mot. at 1. Aside from the question of whether Walsh has standing to seek such a Upon consideration of the motion, the opposition thereto, and the record of this case, the Court

concludes that the motion should be granted.

I.

Pertinent to the instant motion, and according to Taylor’s complaint, the circumstances

giving rise to this suit are as follows. In May 2000, the District removed D.B. and T.B. from the

custody of their birth mother out of concern for their health and welfare and placed them into

foster care with Milloy. Milloy resided in a home owned by Lucille Hicks and managed by

Walsh. While the children were living on the property, the District regularly tested their blood

lead levels, which showed “sustained blood lead levels for 2-4 times the upper normal limits.”

Second Am. Compl. ¶ 29.3

In September 2002, the District conducted a lead inspection test, which confirmed that

there were lead-based paints in Milloy’s residence. The following month, Milloy and Hicks

received a written “Notice of Defect” from the District informing them that “lead-based paints

[had] been identified on [the] property” and directing them to correct the lead-based paint hazard

dismissal, Walsh does not cite any authority in support of its position. The Court thus declines to address it. 3 Magistrate Judge Alan Kay granted in part Taylor’s motion for leave to amend her second amended complaint. The amendments to Taylor’s second amended complaint are not relevant to issues raised by the instant motion. Taylor argues that diversity jurisdiction exists because Judge Kay permitted Taylor to amend her second amended complaint to indicate that T.B. and D.B. are now citizens and residents of the state of Maryland. Because Walsh is a citizen of the District of Columbia, Taylor asserts that this Court has diversity jurisdiction over her claims against Walsh. Taylor’s position cannot be sustained. As Magistrate Judge Kay stated in his August 13, 2009 memorandum order, “the updated citizenship does not change the fact that diversity jurisdiction does not exist in this suit because (1) Plaintiffs did not assert facts establishing diversity jurisdiction in their initial complaint and (2) courts assess diversity of citizenship at the time of filing.” Mem. Order at 5 (citing Taylor, 626 F. Supp. 2d at 28 n.2).

2 within 10 days of the notice. Id. ¶ 33. Taylor alleges that D.B. and T.B. suffered injuries as a

result of the failure of Hicks and Walsh to correct the lead hazard at Milloy’s residence and the

failure of the District to require compliance with the Notice of Defect.

Around March 2003, in response to allegations that D.B. and T.B. had been

inappropriately exposed to sexual activity by Milloy and sexually assaulted while in her care, the

District removed D.B. and T.B. from Milloy’s care and placed them with Taylor, with whom

they presently reside. Taylor filed this suit in the Superior Court for the District of Columbia,

and it was removed to this Court based on the District’s notice that this Court has federal

question jurisdiction. Taylor’s complaint asserts District of Columbia common-law claims of

negligence, gross negligence, and breach of the implied warranty of habitability against Hicks

and Walsh (“state-law claims”), and causes of action based on 42 U.S.C. § 1983 against the

District.

Hicks filed a motion to dismiss for lack of subject matter jurisdiction on February 3,

2009, which the Court subsequently granted. The Court reasoned that Taylor’s state and federal

claims did not arise from a common nucleus of operative fact and concluded that it should not

exercise supplemental jurisdiction. Taylor v. District of Columbia, 626 F. Supp. 2d 25 (2009).

Walsh then filed a Motion to Dismiss that adopted and incorporated by reference Hicks’ motion

to dismiss, which the Court denied without prejudice. Walsh’s renewed motion to dismiss is

currently before the Court.

II.

The Court agrees with Walsh that the rationale set forth by the Court in its June 17, 2009

memorandum opinion for dismissing the case against Hicks applies with equal force for

3 dismissing the case against Walsh. This Court is unable to exercise supplemental jurisdiction of

Taylor’s state-law claims against Walsh because “the state and federal claims here do not derive

from a common nucleus of operative fact.” Taylor, 626 F. Supp. 2d at 29. “[T]he facts

necessary to prove that the District breached a duty of care to D.B. and T.B. would provide little

insight into whether [Walsh] unlawfully failed to remedy the lead-based hazard.” Id. (citing

Singh v. George Washington Univ., 368 F. Supp. 2d 58, 72 (D.D.C. 2005)). The Court observes

further that, in opposing Walsh’s motion, Taylor does not add any new pertinent argument that

was not already considered and rejected by the Court when it dismissed Taylor’s claims against

Hicks.3

III.

For the foregoing reasons, Walsh’s “Renewed Motion to Dismiss” [#126] is granted. An

appropriate order accompanies this memorandum opinion.

Henry H. Kennedy, Jr. United States District Judge

3 In opposing Walsh’s motion, Taylor primarily relies on Morgan v. Barry, 785 F. Supp. 187 (D.D.C. 1992), a case that she previously relied on in opposing Hicks’ motion to dismiss. In granting Hicks’ motion, this Court stated that Morgan “provides scant support for [Taylor’s] position.” Taylor, 626 F. Supp. 2d at 29.