Thomas v. Lescht

• Court: District Court, District of Columbia
• Decided: February 3, 2025
• Docket: Civil Action No. 2023-3528
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANET THOMAS,

Plaintiff,

v. Civil Action No. 23-cv-3528 (TSC)

ALAN LESCHT, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Janet Thomas, proceeding pro se, filed this action for legal malpractice against

Defendants Alan Lescht and Jack Bradley Jarrett, III. Plaintiff retained Defendants to represent

her in an employment discrimination case against the United States Agency for International

Development (“USAID”) before the Equal Employment Opportunity Commission (“EEOC”) in

December 2018. In July 2021, an Administrative Judge granted USAID’s Motion for Summary

Judgment, dismissing Plaintiff’s EEOC complaint. Plaintiff claims that Defendants were negligent

and breached their duty of care to competently represent her in the EEOC proceedings. Defendants

moved to dismiss Plaintiff’s Amended Complaint, ECF No. 5, for lack of subject matter

jurisdiction and failure to state a claim. Defs.’ Mot. to Dismiss (“Defs.’ MTD”), ECF No. 10. The

court finds that Plaintiff’s legal malpractice claim does not arise under federal law and the

Amended Complaint fails to adequately plead diversity jurisdiction. Accordingly, the court lacks

subject matter jurisdiction and Defendants’ Motion to Dismiss is GRANTED. Because it lacks

subject matter jurisdiction, the court need not address Defendants’ motion to dismiss for failure to

state a claim and Plaintiff’s Motion for Referral to the Disciplinary Board, ECF No. 21, is

DENIED.

Page 1 of 6 I. BACKGROUND

Defendants represented Plaintiff on three EEOC complaints. Am. Compl. ¶¶ 7–8. In

December 2018, she retained their firm, Alan Lescht & Associates, to file the first complaint,

alleging discrimination, hostile work environment, and retaliation under Title VII against her then-

current employer, USAID. Id. ¶ 7 (Claim 1: OCRD-004-19-F; EEOC 570-2020-00280C).

Defendant Jarrett was the principal attorney on her case. Id. In November 2019, USAID

terminated Plaintiff. Id. ¶ 8. She then filed two additional EEOC complaints, alleging wrongful

termination in retaliation for protected activity and retaliation against a former employee. Id. ¶ 8

(Claim 2: OCRD-007-20-F; EEOC 570-2020-01065X and Claim 3: OSRC-037-20-F; EEOC 570-

2020-01594X). Plaintiff provided sworn written testimony to substantiate each EEOC claim. Am.

Compl. Exs. 1–3, ECF No. 5-1, 2, 3. In October 2020, Jarrett filed a motion to consolidate the

three complaints into one proceeding. See Am. Compl. ¶ 8; Defs.’ MTD Ex. 9, ECF No. 10-11;

Pl.’s Opp’n to Defs.’ MTD (“Pl.’s Opp’n”) at 7, ECF No. 16. On July 21, 2021, an EEOC

Administrative Judge granted USAID summary judgment on all of Plaintiff’s claims, concluding

“there are no genuine issues of fact in dispute” and the claims failed as a matter of law. Pl.’s Opp’n

Ex. 4 at 1, 9–18, ECF No. 16-1; Am. Compl. ¶ 11.

Plaintiff filed this action for legal malpractice in November 2023. Compl., ECF No. 1.

She amended her Complaint as of right on December 8, 2023. Am. Compl. at 1. She alleges that

Defendants were negligent and breached their duty of care. Id. ¶ 10. In support, she claims that

Defendants: (1) combined the three claims in a manner that reframed the case, misrepresented the

issues, and omitted critical incidences, id.; (2) failed to argue that USAID violated its own policies

and procedures, id. ¶¶ 17–19; (3) failed to argue that USAID violated 5 U.S.C. § 4302, id. ¶ 20;

and (4) failed to file an amended complaint after consolidating the cases, id. ¶ 21. Defendants

moved to dismiss on December 26, 2023. Defs.’ MTD at 1. Page 2 of 6 Separately, on July 1, 2024, Plaintiff moved to refer Defendants to the District of Columbia

Office of Disciplinary Counsel for investigation and disciplinary action. Pl.’s Mot. for Referral at

6, ECF No. 21. Plaintiff argues that Defendants’ motion to dismiss arguments before this court

constitute a fraud upon the court. Id. at 4.

II. LEGAL STANDARD

Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1). Defs.’ MTD at 1. Federal district courts have limited jurisdiction—

“they possess only that power authorized by the Constitution and statute, which is not to be

expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (internal citations omitted). When deciding a Rule 12(b)(1) motion, the court must “assume

the truth of all material factual allegations in the complaint and ‘construe the complaint liberally,

granting plaintiff the benefit of all inferences.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Courts “must

construe pro se filings liberally.” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)

(citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

III. ANALYSIS

Federal district courts typically derive jurisdiction from two statutory grants: federal

question jurisdiction, 28 U.S.C. § 1331, and diversity jurisdiction, id. § 1332. Plaintiff has not

alleged an adequate basis for either form of jurisdiction.

In her Amended Complaint, Plaintiff asserts federal question jurisdiction because the case

“is about legal malpractice of a Title VII Civil Rights employment case.” Am. Compl. ¶ 1. That

nexus is insufficient. Federal question jurisdiction only exists if a well-pleaded complaint

establishes that “federal law creates the cause of action asserted” or the case necessarily raises a

substantial and actually disputed federal question. Gunn v. Minton, 568 U.S. 251, 257 (2013) Page 3 of 6 (citing Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)). Courts in this

jurisdiction have determined that “breach of contract or attorney malpractice claims properly

belong in state court, even where the underlying case involved claims arising under federal law.”

Steele v. Salb, 681 F. Supp. 2d 34, 36 (D.D.C. 2010) (collecting cases); cf. Gunn, 568 U.S. at 258–

59 (“It is clear that Minton’s legal malpractice claim does not arise under federal patent

law. . . state legal malpractice claims based on underlying patent matters will rarely, if ever, arise

under federal patent law for purposes of § 1338(a).”). “The fact that Plaintiff’s lawsuit is based

on alleged errors made by Defendants while representing Plaintiff in a federal Title VII action is

not sufficient to create federal question jurisdiction in this case.” Steele, 681 F. Supp. 2d at 37.

Although Plaintiff did not assert diversity jurisdiction, the court has an “independent

obligation” to determine subject matter jurisdiction, Momenian v. Davidson, 878 F.3d 381, 389

(D.C. Cir. 2017), and “must construe pro se filings liberally,” Richardson, 193 F.3d at 548. Subject

matter jurisdiction based in diversity requires that (1) the amount in controversy exceeds $75,000

and (2) the parties are “citizens of different states.” See 28 U.S.C. § 1332(a)(1). Plaintiff plainly

satisfies the first prong, as she seeks “$2 million” with interest for “lost wages and benefits,

compensatory damages, emotional distress, pain and suffering and legal fees.” Am. Compl. ¶¶ 23–

24. But she fails to carry her burden under the second prong. To adequately establish diversity of

citizenship, Plaintiff must allege that the parties are domiciled in different states, which is

determined by “physical presence in a state, and intent to remain there for an unspecified or

indefinite period of time.” Momenian, 878 F.3d at 389 (quoting Prakash v. Am. Univ., 727 F.2d

1174, 1180 (D.C. Cir. 1984)). “An allegation of residence alone is insufficient to establish the

citizenship necessary for diversity jurisdiction.” Novak v. Cap. Mgmt. & Dev. Corp., 452 F.3d

902, 906 (D.C. Cir. 2006) (quoting Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n.20

Page 4 of 6 (D.C. Cir. 1983)). Plaintiff alleges that her “current mailing address” is in New Jersey, that

Defendant Lescht “is located” in Washington, D.C., and that Defendant Jarrett’s “current address”

is in Virginia. Am. Compl. ¶¶ 4–6. Despite affiliating each party with a different state, Plaintiff’s

allegations do not equate to diverse citizenship. First, it is unclear whether Plaintiff’s “mailing

address” is her residence and Defendant Jarrett’s address is disputed. Id.; Defs.’ MTD at 1 n.1.

Even if the parties reside at the proffered addresses, the court cannot conclude diversity jurisdiction

exists. See, e.g., Novak, 452 F.3d at 906. As noted above, residency does not establish domicile,

“an essential element of federal diversity jurisdiction.” Id. “That is a fatal pleading defect even

for a pro se litigant.” Hayman v. Bldg Metro Cap. LLC, No. 22-cv-2092-TJK, 2023 WL 5951976,

at *4 (D.D.C. Sept. 13, 2023); see also Humphries v. Newman, No. 18-cv-2936-JMC, 2022 WL

612657, at *6 (D.D.C. Mar. 2, 2022).

It is possible that the parties are diverse, but, as it stands, the Amended Complaint pleads

insufficient facts for the court to make that determination. To remedy the defect, Plaintiff must

allege that she is physically located and intends to remain in a different state than either Defendant.

Momenian, 878 F.3d at 389. Plaintiff has not established Defendants’ or her own domicile. Even

taking judicial notice of Defendants’ law firm business address, it does not necessarily follow that

Defendants are domiciled in the same state as the business. For her own domicile, Plaintiff

provides a “mailing address” in New Jersey, but her sworn statements suggest significant ties to

Washington, D.C. See Am. Compl. ¶ 4; Am. Compl. Ex. 1 at 2 (“I was in Washington from

October 2015 until May 2017.”); Am. Compl. Ex. 2 at 3 (Plaintiff returned to Washington in

September 2019 and was told she “would not be returning back to Kabul.”); id. at 9 (Plaintiff was

encouraged “to apply for a position in the office back in Washington after [she] complete[d] [her]

Afghanistan assignment.”).

Page 5 of 6 Because Plaintiff has not established that her claim arises under federal law or diversity of

citizenship, the court will grant Defendants’ motion to dismiss without prejudice. The court does

not reach Defendants’ Rule 12(b)(6) motion and denies Plaintiff’s request to refer Defendants for

disciplinary action. See Al-Tamimi v. Adelson, 916 F.3d 1, 7 (D.C. Cir. 2019) (“Jurisdiction is

power to declare the law, and when it ceases to exist, the only function remaining to the court is

that of announcing the fact and dismissing the cause.” (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998))). Plaintiff may, however, seek leave to amend her complaint. See

Pl.’s Opp’n at 3. In general, “courts freely grant pro se litigants leave to amend . . . in the absence

of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure

deficiencies, or futility.” Richardson, 193 F.3d at 548–49 (internal citations omitted). Although

Plaintiff has already amended as of right, further amendment to address the jurisdictional

deficiencies may not be futile.

IV. CONCLUSION

For the reasons discussed above, the court shall GRANT Defendants’ Motion to Dismiss,

ECF No. 10, and DENY Plaintiff’s Motion for Referral to Disciplinary Board, ECF No. 21.

Plaintiff’s Motion for Leave to File a Second Amended Complaint is due by March 3, 2025.

Date: February 3, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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