Frasier v. Hp Enterprise Services, LLC , 212 F. Supp. 3d 1 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JAMES B. FRASIER, JR., et al.,, )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-1492 (RMC)
)
HP ENTERPRISE SERVICES, LLC )
et al., )
)
Defendants. )
)
OPINION
The morning of September 16, 2013 started as a typical Monday in the District of
Columbia. So it was at the Washington Navy Yard. While some headed to their offices or
meetings, others drank their morning coffee at their desks and chatted about their respective
weekends. This was the case for Frank Kohler, John Johnson, Mary Delorenzo Knight, Sylvia
Frasier, Jennifer Jacobs, Jane McCullough, and Arthur Daniels, who reported early to their
respective workstations on the third and fourth floors of Navy Yard’s Building 197. It was also
the case for Richard Michael Ridgell, who welcomed employees and visitors from his guard
station on the first floor, and for Kenneth Bernard Proctor, who entered Building 197 to get his
breakfast as he regularly did during his 22-year-career at the Navy Yard. Then, what seemed to
be a typical Monday morning at the Navy Yard quickly became a dark and tragic moment in our
Nation’s capital and the lives of many families.
At approximately 8:00 a.m., Aaron Alexis, a civilian contractor working as a
computer technician at the Navy Yard, entered Building 197 using a valid temporary access card
and headed to his workstation in the fourth floor. Unknown to anyone, Mr. Alexis had a
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concealed sawed-off shotgun and ammunition in his backpack. He entered a restroom on the
fourth floor, pulled out the gun, and assembled it. As he came out, he opened fire
indiscriminately. Mr. Alexis continued his carnage through various floors of the building until
law enforcement officers fatally shot him on the first floor at 9:25 a.m. The shooting resulted in
twelve deaths and four non-fatal injuries.
Before the Court are nine related lawsuits arising out of the Navy Yard shooting.
Plaintiffs are the personal representatives of the estates (or surviving family members or heirs) of
seven decedents, a survivor seriously injured by Mr. Alexis, and a survivor who was a witness to
the shooting. Plaintiffs assert a combination of negligence and intentional tort claims against HP
Enterprise Services, LLC (HPES), which provided information technology services to the U.S.
Navy as a government contractor, and The Experts, Inc. (The Experts), which was an HPES
subcontractor and Mr. Alexis’s employer. In addition, three of the nine cases also include claims
against HBC Management Services, Inc. and The Hana Group, Inc. (collectively HBC), which
provided security services at Building 197 of the Navy Yard.
The question raised by these related lawsuits is whether these companies can be
held liable for money damages to the families of the decedents and to the two survivors for the
criminal acts of Aaron Alexis. For the reasons that follow, the Court will grant in part and deny
in part the motions to dismiss filed by HPES and The Experts. The Court will grant HBC’s
motion to dismiss. Only Plaintiffs’ claims of negligent retention and supervision against HPES
and The Experts will remain and proceed to discovery.
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I. FACTS 1
In seven of the nine cases, the complaints seek damages for the deaths of those
murdered by Mr. Alexis:
• Delorenzo v. HP Enterprise Servs., LLC, Case No. 1:15-cv-0216-RMC
• Frasier v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1492-RMC
• Proctor v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1494-RMC
• Halmon-Daniels v. The Experts, Inc., Case No. 1:15-cv-1501-RMC
• Kohler v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1636-RMC
• Ridgell v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1637-RMC
• Zagami v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1638-RMC
The remaining two complaints seek damages for injuries (mental, emotional, and physical)
suffered during the shooting:
• McCullough v. HP Enterprise Servs., LLC, Case No. 1:15-cv-1639-RMC
• Jacobs v. The Experts, Inc., Case No. 1:15-cv-2242-RMC
Plaintiffs assert common law negligence claims against both HPES and The
Experts for failing to anticipate and prevent the mass shooting by Mr. Alexis, as well as claims
of negligent hiring, retention, supervision, undertaking, and credentialing. Plaintiffs also rely on
various statutes, regulations, and policy manuals to assert negligence per se and statutory duty
1 These facts are taken directly from the Complaints in the nine related cases. The Court has also
considered documents incorporated by reference in the Complaints. See EEOC v. St. Francis
Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997) (stating that courts may consider
documents incorporated by reference in a complaint, as well as any matters of which the Court
may take judicial notice, without converting a motion to dismiss into a motion for summary
judgment); see also Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119-20
(D.D.C. 2011) (explaining that courts may consider such documents even if they are not
produced “by the plaintiff in the complaint but by the defendant in a motion to dismiss”)
(citations and internal quotation marks omitted).
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claims against HPES and The Experts. In addition, Mr. Proctor and Ms. McCullough allege that
HPES and The Experts are vicariously liable for Mr. Alexis’s intentional torts of assault and
battery. Finally, Ms. Kohler, Ms. Zagami, and Ms. Jacobs also aver negligence claims against
the security company, HBC. Richard Ridgell worked for HBC and his estate does not sue his
former employer. None of the other Plaintiffs worked for any of the Defendants.
The nine Complaints include lengthy factual allegations regarding Mr. Alexis’s
history and the sequence of events prior to the mass shooting of September 16, 2013. Plaintiffs
rely extensively on government investigations, particularly by the Navy, and adopt government
determinations, in many instances verbatim, as part of their own allegations.
A. History of Mr. Alexis Prior to his Employment with The Experts 2
Plaintiffs allege that Mr. Alexis had an arrest record long before he was hired by
The Experts and assigned to work at the Washington Navy Yard. On June 3, 2004, the Seattle
Police Department arrested Mr. Alexis for allegedly shooting out the rear tires of a construction
worker’s vehicle. Mr. Alexis told the police that the construction worker had disrespected him
and that he had a blackout fueled by anger. Mr. Alexis was charged, but never prosecuted or
convicted, with malicious mischief. Plaintiffs also allege that, in 2006, Mr. Alexis was
investigated because the tires of five vehicles in Mr. Alexis’s apartment complex were slashed.
Mr. Alexis was not arrested or charged on this occasion. In 2007, the Office of Personnel
Management ran a records check on Mr. Alexis, who was serving in the Navy. The records
check revealed the 2004 arrest in Seattle. Mr. Alexis provided a written account of the 2004
2 For purposes of ruling on the motions to dismiss, the Court accepts these factual allegations as
true, noting that Plaintiffs failed to properly allege that HPES or The Experts knew or should
have known about these facts about Mr. Alexis prior to his employment with The Experts.
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incident to the Naval Recruiting District, which also conducted an inquiry into relevant court
documents.
On August 10, 2008, Mr. Alexis was removed from a nightclub in DeKalb
County, Georgia. Mr. Alexis was screaming profanities and acting in a hostile manner. He was
arrested for disorderly conduct, but never prosecuted or convicted. On July 12, 2009, in Fort
Worth, Texas, Mr. Alexis received a non-judicial punishment by the Navy and was reduced one
pay grade after he jumped from a staircase while reportedly intoxicated and fractured his right
ankle. “There was no police involvement in this incident.” Frasier Compl., Case No. 15-1492
[Dkt. 1] ¶ 21. On September 5, 2010, he was again arrested in Fort Worth for discharging a
firearm in his residence. The bullet went through the ceiling of Mr. Alexis’s apartment into a
neighbor’s apartment. Mr. Alexis told the police that it was an accident and that he was cleaning
his firearm. Mr. Alexis was never charged or convicted for discharging the firearm. His Navy
Commanding Officer initiated administrative proceedings against Mr. Alexis to separate him
from the Navy, but the proceedings did not continue once it became clear that Mr. Alexis was
not going to be charged with a crime.
On December 2, 2010, Mr. Alexis requested separation from the Navy under the
Enlisted Early Transition Program. On December 9, 2010, the Bureau of Naval Personnel
approved Mr. Alexis’s request. Mr. Alexis was honorably discharged from the Navy and
received a re-entry code of RE-1, which made Mr. Alexis eligible to reenlist in the Navy or
another armed service. In addition, Mr. Alexis received a Navy Reserve Identification and
Privilege Card.
B. Employment History of Mr. Alexis with The Experts
In September 2012, Mr. Alexis applied for employment as a computer technician
with The Experts, a subcontractor of HPES, which performed work for the Navy under the
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Navy-Marine Corps Intranet Continuity of Service Contract (Contract). 3 The Contract invoked
the National Industrial Security Program Operating Manual (NISPOM), which defined the
security requirements for cleared defense contractors, and required HPES and The Experts “to
develop and maintain a program that ensures all pertinent derogatory information regarding
cleared personnel is forwarded for consideration in the personnel security clearance
determination process.” Proctor Compl., Case No. 15-1494 [Dkt. 1] ¶ 18. Specifically,
NISPOM required cleared contractors to convey any derogatory information about Contract
personnel to the Department of Defense’s (DoD) Central Adjudication Facility via “incident
reports” through the Joint Personnel Adjudication System, “which is the DoD system of record
for personnel security clearance adjudication and management.” Id. ¶ 19.
Under NISPOM’s terms, Mr. Alexis already had a valid security clearance when
he was hired because he had not been separated from the Navy for more than 24 months. In
addition to NISPOM’s security requirements, HPES required The Experts to conduct a pre-
employment eligibility background check, “which involved a drug test, a motor vehicle driving
record check, and criminal convictions checks.” Id. ¶ 24. Mr. Alexis was found to be suitable
and given his honorable discharge, re-entry code of RE-1, and security clearance, The Experts
hired Mr. Alexis as a computer technician assigned to work on the Contract. Plaintiffs allege
that Mr. Alexis should not have been found eligible for the position because the pre-employment
background check should have revealed Mr. Alexis’s arrests.
Mr. Alexis worked for The Experts from September to December 2012 on various
projects in Texas, California, and Japan. On December 27, 2012, Mr. Alexis resigned. Plaintiffs
3For purposes of the motions to dismiss, HPES and the Court treat Mr. Alexis as an employee or
contractor of both HPES and The Experts.
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make no allegations concerning Mr. Alexis’s conduct or behavior during this short stint. On
June 27, 2013, Mr. Alexis re-applied for the same position. Since Mr. Alexis still had a valid
security clearance, The Experts merely conducted the tests required by its contract with HPES ––
namely a drug test, a motor vehicle driving record check, and a criminal convictions check.
Once again, Mr. Alexis was found to be suitable for the job and was rehired on July 2013 and
assigned to work in Norfolk, Virginia. Once again, Plaintiffs allege that “The Experts[’]
background check failed to uncover Alexis’s prior arrest record and w[as] insufficient.” Id. ¶ 27.
1. Events of August 2013
In August 2013, Mr. Alexis was reassigned to a project at the Naval Undersea
Warfare Center in Newport, Rhode Island. On August 4, Mr. Alexis was at the Norfolk airport
awaiting his flight to Providence, Rhode Island, when he called his project coordinator at The
Experts to report that he was angry at a male who was seated across the aisle and was making
fun of him. The project coordinator was able to calm Mr. Alexis down and persuaded him to get
away from the individual and seek help from airport security. On August 5, 2013, the project
coordinator reported the call to the company’s Contract team. Later that day, Mr. Alexis
contacted the company’s travel coordinator to complain about noise in his hotel, the Residence
Inn in Middletown, Rhode Island. Mr. Alexis wanted to move to the Navy Gateway Inns &
Suites in Newport, which was approved.
Two days later, on August 6, 2013, at 6:00 p.m., Mr. Alexis called the travel
coordinator for The Experts to complain that three individuals, two men and one female, had
followed him from the Residence Inn to the Navy Gateway Inns & Suites. Mr. Alexis claimed
that they “were talking about him through the walls of an adjacent room” and were using an
“ultrasonic device that was physically pinning him to the bed” and keeping him awake. Kohler
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Compl., Case No. 15-1636 [Dkt. 1-1] ¶ 37; Ridgell Compl., Case No. 15-1637 [Dkt. 1-1] ¶ 35;
Zagami Compl., Case No. 15-1638 [Dkt. 1-1] ¶ 37; Jacobs Compl., Case No. 15-2242 [Dkt. 1-1]
¶ 47. Mr. Alexis made a similar report to the Contract’s program manager for The Experts. At
8:45 p.m., the travel coordinator conveyed the information to the desk clerk at the Navy Gateway
Inns & Suites and expressed her concern that Mr. Alexis could harm someone. Shortly
thereafter, the travel coordinator contacted the Contract’s program manager to report the
information concerning Mr. Alexis.
In response, the desk clerk at the hotel contacted the Naval Station Newport
Police to relay the information and ask that a police officer be assigned close to the hotel in case
Mr. Alexis attempted to hurt someone. 4 When the police officers responded to the call and
arrived at the hotel, they discovered that Mr. Alexis had dismantled his bed because he believed
that someone was hiding under it. In addition, Mr. Alexis had taped a microphone to the room’s
ceiling to record the voices of the individuals that followed him to the hotel and were talking
about him. Mr. Alexis was not arrested or placed in protective custody. At 9:18 p.m., Mr.
Alexis told other police officers that someone had implanted a chip in his head and was using
microwave signals to restrict his movements and keep him awake.
Later that evening, the Contract’s program manager, her immediate manager, and
the Facility Security Officer (FSO) 5 for The Experts, held a conference call to discuss the
situation with Mr. Alexis. The Experts management team decided that Mr. Alexis should leave
Newport and return to Fort Worth so he could rest. The program manager contacted Mr. Alexis
4The Police Department received a total of four calls from and about Mr. Alexis –– specifically,
on August 6 at 2:00 a.m., 9:18 p.m., and 10:16 p.m., and August 7 at 2:54 a.m.
5 The FSO is a company officer who reported directly to the Chief Operating Officer and was
responsible for managing the security program under the Contract for The Experts.
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to inform him of the decision, although Mr. Alexis wanted to stay. At 11:35 p.m., the FSO
accessed the Joint Personnel Adjudication System to cancel “the visit notification for [Mr.]
Alexis that the FSO previously established for access to [Newport’s Naval Undersea Warfare
Center].” Proctor Compl. ¶ 43.
On August 7, 2013, at 1:12 a.m., the program manager emailed HPES
representatives and the rest of the Contract’s management team for The Experts to report that
Mr. Alexis would not complete his Newport assignment because he was not feeling well and that
she had booked return airfare for Mr. Alexis. Around 3:00 a.m., Mr. Alexis called the HPES
second shift supervisor stating that he was being followed and needed to move out of his room.
Mr. Alexis asked the HPES supervisor if he could stay in her room at the Marriott hotel in
Newport. The supervisor, who knew Mr. Alexis from previously working together on the project
in Japan, agreed to let him stay in her room. When Mr. Alexis arrived at the Marriott hotel, he
told the supervisor that three individuals who traveled on the same plane from Norfolk followed
him to the Residence Inn and then to the Navy Gateway Inns & Suites and were threatening him
and keeping him awake.
Mr. Alexis also told the HPES supervisor that the same people had followed him
to the Marriott hotel and checked into the room below. Mr. Alexis asked the supervisor if she
could hear their voices, to which she replied that she could not. The supervisor dismissed Mr.
Alexis’s story and went to sleep. Mr. Alexis called the City of Newport Police to report that
people were following him. The police responded to his call at 6:20 a.m. and Mr. Alexis
explained that he had had a verbal altercation with an unknown individual at the Norfolk airport
and that this individual sent three people to follow him and keep him awake by making noises,
talking to him, and sending vibrations through his body with a microwave device. The City of
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Newport Police made a report of Mr. Alexis’s allegations. At 9:30 a.m., the Newport Police
Officer-in-Charge contacted the Naval Station Police Sergeant to relay the information
concerning Mr. Alexis and faxed him a copy of the report with a note saying, “FYI on this. Just
thought to pass it on to you in the event this person escalates.” Proctor Compl. ¶ 52.
Between 10:00 and 10:30 a.m., the HPES supervisor contacted her lead supervisor
at HPES to report Mr. Alexis’s behavior and claims, to which the lead supervisor responded that
The Experts had decided that Mr. Alexis would be withdrawn from his Newport assignment.
When the HPES second shift supervisor returned to her room, Mr. Alexis told her that the three
individuals were now in the room above them. Mr. Alexis wanted to acquire a radar gun to hear
what they were saying. The HPES second shift supervisor called the lead supervisor again after
lunch to report her conversation with Mr. Alexis. She also later told a co-worker at HPES about
Mr. Alexis’s behavior and the surrounding events.
Later that day, on August 7, the Human Resources (HR) Director and the Legal
Counsel for The Experts initiated an investigation into Mr. Alexis’s claims. The HR Director
contacted the HPES second shift supervisor, as well as the Middletown Police Department. The
HR Director believed that “the Middletown Police Department provided police coverage for all
of the hotel in which Alexis resided while in Newport, Rhode Island.” Proctor Compl. ¶ 60.
However, no reports were obtained from Middletown because it was the wrong police
department. 6 At 11:39 p.m., the FSO for The Experts accessed the Joint Personnel Adjudication
System and entered a “Debrief” action, thereby formally indicating that Mr. Alexis no longer
required access to classified information or to the Naval Undersea Warfare Center. Because Mr.
6The police departments that investigated Mr. Alexis’s claims were the Naval Station Newport
Police and the City of Newport Police Departments.
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Alexis was removed from his Newport assignment, he left Newport and checked in that night at
the Best Western hotel at the Providence airport. On August 8, 2013, Mr. Alexis traveled to Fort
Worth, Texas.
On August 9, 2013, the HR Director for The Experts contacted Mr. Alexis’s
mother, who indicated that Mr. Alexis “had been suffering from paranoia for a long time, that
this was not the first episode he had experienced, and that he required mental health treatment.”
Kohler Compl. ¶ 52; Ridgell Compl. ¶ 50; Zagami Compl. ¶ 52; Jacobs Compl. ¶ 63. Later that
day, the HR Director met with the FSO and the rest of The Experts’ management team on the
Contract; that group concluded that Mr. Alexis should rest before his next assignment. The
Experts, particularly the FSO, decided not to file an adverse information report with DoD’s
Central Adjudication Facility because “the information collected about [Mr.] Alexis was based
on rumor and innuendo, and therefore a report to the government should not be made, since
doing so may infringe on [Mr.] Alexis’s privacy rights.” Proctor Compl. ¶ 65.
At 2:55 p.m., on August 9, 2013, the FSO entered an “indoctrination” action,
indicating that Mr. Alexis “was an individual [with] authorized access to classified information
under the cognizance of The Experts.” Id. ¶ 66. Thereafter, Mr. Alexis was assigned to four
projects at different locations –– specifically, (1) Williamsburg, Virginia from August 12-16,
2013; (2) Newport, Rhode Island from August 19-23, 2013; (3) Carderock, Maryland from
August 26-30, 2013; and (4) Crystal City, Virginia from September 3-6, 2013. Plaintiffs allege
that Mr. Alexis was allowed to return to work without any proof of counseling or mental health
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treatment. There are no allegations of unusual behavior during Mr. Alexis’s deployments to
Williamsburg, Newport, Carderock, and Crystal City. 7
2. Events of September 2013
On September 9, 2013, The Experts assigned Mr. Alexis to the Washington Navy
Yard. This was his fifth assignment since the events of August 4-7, 2013. Plaintiffs allege that
“HPES and The Experts provided Mr. Alexis access to the Navy Yard facility and Building 197
on the basis of his ‘SECRET’ security clearance” and without conducting “any additional
background checks or fitness for duty checks or examinations” or requesting proof of mental
health treatment. Kohler Compl. ¶ 58; Ridgell Compl. ¶ 56; Zagami Compl. ¶ 58; Jacobs Compl.
¶ 69. “During the week of September 9, 2013, other than leaving a disk in a classified computer,
no performance issues were noted.” Proctor Compl. ¶ 69.
On September 14, 2013, Mr. Alexis purchased a Remington 870 12-gauge
shotgun and ammunition in Lorton, Virginia. He then purchased a hacksaw and other items at a
home improvement store. Mr. Alexis sawed off the shotgun so that he would be able to carry it
in his bag and conceal it. He also carved the words “my ELF [extremely-low frequency]
weapon,” “better of [sic] this way,” “not what y’all say,” and “end to the torment” into the
7 The only instance alleged was an e-mail exchange on September 1, 2013 between Mr. Alexis
and the president of Freedom from Covert Harassment and Surveillance (FFCHS), in which Mr.
Alexis claimed that he was subject to “constant bombardment from some type of [extremely low-
frequency or] ELF weapon, that had almost cost him his job.” Proctor Compl. ¶ 68 (internal
quotation marks omitted). The allegation is irrelevant to Plaintiffs’ claims because FFCHS has
no connection with Defendants and there are no factual allegations to show that Defendants
knew or should have known about this e-mail exchange. FFCHS self-identifies as a non-profit
organization that helps “victims” or “targets” of “Remote Brain experimentation, Remote Neural
Monitoring of an entire Humans Body [sic]; manipulated by such evil technologies as Patented
Voice-to-(Human)-Skull (the forceful 24/7 of projected noise to a citizen’s head) even to Remote
Burns by high powered lasers, or burns by Directed Energy and more.” FFCHS, What We Do,
https://www.freedomfchs.net/what-we-do/ (last visited Aug. 2, 2016).
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shotgun. Frasier Compl. ¶ 47. No Plaintiff, victim, or Defendant knew these facts until the later
government investigation. On September 16, 2013, at 7:44 a.m., Mr. Alexis arrived in a rental
car at the 6th Street gate of the Navy Yard and used his valid common access card to enter.
After parking his car, at approximately 8:00 a.m., he used his valid temporary building pass to
enter the lobby of Building 197, passing by the HBC guard station. Mr. Alexis did not pass
through any metal detectors and the HBC guards did not search his belongings. He was carrying
a backpack to conceal the gun and ammunition.
Mr. Alexis headed to the restroom on the fourth floor. At 8:15 a.m., Mr. Alexis
exited the restroom and began shooting people indiscriminately. Using the shotgun and a Beretta
handgun that he took from Officer Ridgell, one of the decedents and an employee of HBC, Mr.
Alexis killed twelve individuals and injured four others. After over an hour of carnage, Mr.
Alexis was shot and killed by a police officer at 9:25 a.m. A note was found in Mr. Alexis’s
computer stating, “ultra low frequency attack is what I’ve been subject to for the last three
months, and to be perfectly honest that is what has driven me to this.” Frasier Compl. ¶ 47.
C. Procedural History
Following the events of September 16, 2013, the Navy and DoD conducted
separate extensive investigations and issued lengthy reports on Mr. Alexis and the shooting.
Plaintiffs rely on these reports in their pleadings and cite, in many instances verbatim, the
reports’ determinations. The nine related cases came before the Court in diverse ways. One of
the complaints (Delorenzo) was originally filed in a Florida state court. It was then removed to
the U.S. District Court for the Middle District of Florida, and eventually transferred to this Court.
Three of the complaints (Frasier, Proctor, and Halmon-Daniels) were directly filed in this Court,
and the remaining five (Kohler, Ridgell, Zagami, McCullough, and Jacobs) were originally filed
in Superior Court for the District of Columbia and then removed here.
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This Court has jurisdiction over the nine complaints pursuant to 28 U.S.C. § 1332
because the parties in each case are citizens of different states and the amount in controversy
exceeds the sum of $75,000 exclusive of interest and costs. Moreover, the parties agree that the
venue properly lies in this Court. D.C. tort law controls this diversity action. The Experts moves
to dismiss the nine complaints for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and, in the alternative, for failure to state a claim upon which relief may be
granted under Federal Rule of Civil Procedure 12(b)(6). HPES and HBC move to dismiss the
complaints against them under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs filed their
respective oppositions, to which Defendants replied. In addition, at the Court’s request, HBC
and Plaintiffs Kohler, Zagami, and Jacobs filed supplemental briefs concerning the relevance of
HBC’s security contract with Naval Facilities Engineering Command to the negligence claims
against HBC. Finally, on August 16, 2016, the Court held oral argument in open court and gave
the parties ample time to expand on their arguments and discuss the various grounds for
dismissal. 8 Defendants’ motions to dismiss are fully briefed and ripe for resolution.
II. LEGAL STANDARDS
A. Motion to Dismiss Under Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed. R. Civ.
8 Counsel for each defendant had the opportunity to argue its own motion to dismiss. On the
Plaintiffs’ side, counsel for Mr. Proctor argued the issues of heightened foreseeability and the
claims of negligent hiring, retention, and supervision on behalf of all Plaintiffs. Counsel for
Plaintiffs Kohler, Ridgell, Zagami, and Jacobs addressed the political question doctrine on behalf
of all Plaintiffs. Counsel for these Plaintiffs also argued their unique claims on their own behalf,
specifically those based on the D.C. Industrial Safety Act, D.C. Code. §§ 32-801 to -812, against
HPES and The Experts, as well as the negligence claim against HBC. Finally, counsel for
Plaintiff Delorenzo argued on her behalf a negligence claim against HPES and The Experts
based on the criminal prohibition against firearms in federal facilities, 18 U.S.C. § 930. See
generally 8/16/2016 Hr’g Tr.
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P. 12(b)(1). No action of the parties can confer subject matter jurisdiction on a federal court
because subject matter jurisdiction is both a statutory and an Article III requirement. Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter
jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United
States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (noting that federal courts are courts of limited jurisdiction and “[i]t is
to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing
the contrary rests upon the party asserting jurisdiction”) (internal citations omitted).
Dismissal on the basis that Plaintiffs’ claims present non-justiciable political
questions constitutes a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and
“not an adjudication on the merits.” Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir.
2006). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court
should “assume the truth of all material factual allegations in the complaint and ‘construe the
complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from
the facts alleged.’” 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)). Nevertheless, “the court need not
accept factual inferences drawn by plaintiffs if those inferences are not supported by facts
alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.” Speelman v.
United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006). A court may consider materials outside the
pleadings to determine its jurisdiction. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107
(D.C. Cir. 2005); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003). A court has “broad discretion to consider relevant and competent evidence” to resolve
factual issues raised by a Rule 12(b)(1) motion. Finca Santa Elena, Inc. v. U.S. Army Corps of
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Engineers, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B Charles Wright & Arthur Miller,
Fed. Prac. & Pro., Civil § 1350 (3d ed. 2004)); see also Macharia v. United States, 238 F. Supp.
2d 13, 20 (D.D.C. 2002), aff’d, 334 F.3d 61 (2003) (in reviewing a factual challenge to the
truthfulness of the allegations in a complaint, a court may examine testimony and affidavits). In
these circumstances, consideration of documents outside the pleadings does not convert the
motion to dismiss into one for summary judgment. Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13,
21 (D.D.C. 2003).
B. Motion to Dismiss Under Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. A
court must treat the complaint’s factual allegations as true, “even if doubtful in fact,” id., but a
court need not accept as true legal conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is “plausible on its face.”
Twombly, 550 U.S. at 570. A complaint must allege sufficient facts that would allow the court
“to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678-79. In deciding a motion under Rule 12(b)(6), a court may consider the facts
alleged in the complaint, documents attached to the complaint as exhibits or incorporated by
16
reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v.
Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
III. ANALYSIS
A. Subject Matter Jurisdiction – Political Question Doctrine
The Experts argues that the claims against it should be dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) because they raise non-justiciable political
questions. “The political question doctrine excludes from judicial review those controversies
which revolve around policy choices and value determinations constitutionally committed for
resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). The underlying rationale is that “courts
are fundamentally underequipped to formulate national policies or develop standards for matters
not legal in nature.” United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir.
1981).
“The political question doctrine is ‘primarily a function of the separation of
powers.’” Schneider v. Kissinger, 310 F. Supp. 2d 251, 258 (D.D.C. 2004), aff’d, 412 F.3d 190
(D.C. Cir. 2005) (quoting Baker v. Carr, 369 U.S. 186, 210 (1962)). In Baker, the Supreme
Court enumerated six factors that could render a case non-justiciable:
Prominent on the surface of any case held to involve a political
question is found (1) a textually demonstrable constitutiona l
commitment of the issue to a coordinate political department; or (2)
a lack of judicially discoverable and manageable standards for
resolving it; or (3) the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
(4) the impossibility of a court's undertaking independent resolution
without expressing lack of respect due coordinate branches of
government; or (5) an unusual need for unquestioning adherence to
a political decision already made; or (6) the potentiality of
embarrassment of multifarious pronouncements by various
departments on one question.
17
Baker, 369 U.S. at 217 (numbers not in original); see also Ralls Corp. v. Comm. on Foreign Inv.,
758 F.3d 296, 313 (D.C. Cir. 2014). “Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for non-justiciability on the ground of a political
question’s presence.” Baker, 369 U.S. at 217. The Experts contends that the first, second, and
fourth of the six Baker factors are implicated in the Complaints –– namely, textual constitutional
commitment to a political branch, lack of manageable standards, and the potential lack of respect
to a coordinate branch of government. It calls the Navy “the elephant in the room (but not in the
caption)” and argues that given its “substantial and inescapable role” in these cases, the claims
raise a political question. Experts MTD, Case No. 15-216 [Dkt. 121] at 1. 9 The Court disagrees.
With respect to the first factor, The Experts argue that Plaintiffs’ claims invoke
issues that are constitutionally committed to the Navy and the Executive Branch. The Experts
point out Navy’s investigation of Mr. Alexis’s background, the decision to grant him a Secret-
level security clearance, the decision to honorably discharge him, and the decision not to report
Mr. Alexis’s arrests. None of this is relevant, let alone “inextricable from the case at bar.”
Baker, 369 U.S. at 217 (emphasis added). Plaintiffs do not challenge these actions. Navy’s
choices and actions are not at issue because The Experts was not required to hire or retain Mr.
Alexis, or to assign him to work at the Navy Yard following the events of August 2013. In the
event that civil liability is imposed, it would be based on what The Experts knew or should have
known about Mr. Alexis prior to the shooting, regardless of what the Navy knew or should have
reported.
9 The Experts filed an omnibus motion to dismiss and an omnibus reply brief in all nine cases.
For purposes of clarity, the Court will only use the docket numbers of the Delorenzo case when
citing its briefs. Nonetheless, both documents may be found in each of the other cases.
18
Certainly, some of the Plaintiffs’ theories of liability would implicate matters that
are within the sole purview of the Executive, such as the issuance and revocation of a security
clearance. See Delorenzo Compl., Case No. 15-216 [Dkt. 1] ¶¶ 280-82 (alleging that had The
Experts made an adverse incident report under NISPOM, Mr. Alexis’s security clearance may
have been revoked, and his access to the Navy Yard denied). These theories are unnecessary to
advance a negligence claim.
With respect to the second and fourth factors, Plaintiffs’ claims do not require the
Court to pass judgment on any of the Navy’s actions. There is no need to speculate as to what
the Navy should or could have done with respect to Mr. Alexis’s security clearance or arrest
record. Instead, the Court must analyze the allegations against The Experts under the analytical
framework applicable to negligence claims. This is what courts applying D.C. law do on a daily
basis and, thus, it cannot be said that the legal standards governing these tort claims are not
judicially manageable. Finally, while the actions and judgments of the Navy are inevitably
lurking background facts, they are not implicated in any of the claims against Defendants. There
is no potential risk that the Court’s analysis of the merits in these cases will disrespect the Navy
or the Executive. Even if the Navy were to hold part of the blame for the damages sustained in
these cases, it does not render the claims against The Experts non-justiciable on the basis of a
political question. See Hill v. McDonald, 442 A.2d 133, 137 (D.C. 1982) (stating that “one
cannot escape liability for one’s own negligence merely because another person . . . may have
contributed to the injury by his wrongful or negligent act”).
Accordingly, the Court holds that Plaintiffs’ claims present a justiciable question
and that it has jurisdiction to address the merits of these Complaints.
19
B. Motions to Dismiss by HPES and The Experts
Plaintiffs allege tort claims against HPES and The Experts. The common thread
across the nine complaints are the common law negligence claims (i.e., negligent hiring,
retention, supervision, undertaking, and credentialing) against both defendants for failure to
anticipate and prevent the criminal acts of Mr. Alexis on September 16, 2013. The nine
complaints are premised on the basic allegation that Mr. Alexis’s behavior prior to September
16, 2013 raised serious concerns about possible violent tendencies that should have alerted HPES
and The Experts. There are also various counts alleging claims of statutory duty in tort and/or
negligence per se against both defendants, as well as three counts of assault and battery based on
a theory of vicarious liability. HPES and The Experts argue that Plaintiffs’ theories of liability
are legally deficient and that the Complaints against them must be dismissed as a matter of law.
The main point of contention revolves around the applicable legal standard for those claims
rooted in D.C. negligence law.
1. Theories of Negligence under D.C. Common Law
To state a claim on which relief can be granted, Plaintiffs must allege sufficient
facts to make a plausible showing that: (1) HPES and The Experts owed a duty of care to the
Plaintiffs; (2) HPES and The Experts breached this duty of care; and (3) the breach of that duty
proximately caused each Plaintiff’s injuries. See District of Columbia v. Harris, 770 A.2d 82, 87
(D.C. 2001). These three elements must be met to render HPES and The Experts liable on any
negligence theory for damages arising from the Navy Yard shooting.
In the District of Columbia, there is a “general rule of nonliability at common law
for harm resulting from the criminal acts of third parties.” Romero v. Nat’l Rifle Ass’n of Am.,
Inc., 749 F.2d 77, 81 (D.C. Cir. 1984) (Scalia, J.) (citing Kline v. 1500 Massachusetts Ave.
Apartment Corp., 439 F.2d 477, 481 (D.C. Cir. 1970); Hall v. Ford Enterprises Ltd., 445 A.2d
20
610, 611 (D.C. 1982)). One “limited exception to [this] ‘general rule of nonliability’” is the
heightened foreseeability principle, by which a defendant may be liable for harm resulting from
another’s criminal act only if it were particularly foreseeable to the defendant that a third party
would commit the crime. Workman v. United Methodist Comm. on Relief, 320 F.3d 259, 263
(D.C. Cir. 2003) (quoting Romero, 749 F.2d at 81). This heightened showing of foreseeability
has been described as “‘exacting,’ ‘demanding,’ ‘precise,’ and ‘restrictive.’” Sigmund v.
Starwood Urban Inv., 475 F. Supp. 2d 36, 42 (D.D.C. 2007) (Sigmund I), aff’d sub nom.
Sigmund v. Starwood Urban Retail VI, LLC, 617 F.3d 512 (D.C. Cir. 2010) (Sigmund II) (citing
Novak v. Capital Mgm’t. & Dev. Corp., 452 F.3d 902, 912 (D.C. Cir. 2006); Bell v. Colonial
Parking, Inc., 807 F. Supp. 796, 797 (D.D.C. 1992); Potts v. District of Columbia, 697 A.2d
1249, 1252 (D.C. 1997); Lacy v. District of Columbia, 424 A.2d 317, 323 (D.C. 1980)).
The D.C. Court of Appeals has considered “the requisite duty of care required for
negligence” to be “a function of foreseeability, arising only when foreseeability is alleged
commensurate with ‘the extraordinary nature of [intervening] criminal conduct.’” District of
Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 641 (D.C. 2005) (quoting Potts, 697 A.2d at
1252); see also Workman, 320 F.3d at 265 (noting that “D.C. Courts have repeatedly spoken of
the heightened foreseeability requirement in terms of duty”) (citations omitted). 10 In such
10 The D.C. Circuit has noted that D.C. negligence law “might offend a doctrinaire” because
foreseeability is considered usually in terms of the constituent elements of breach and causation,
as opposed to whether a duty is owed. Workman, 320 F.3d at 265 (“Ordinarily, the relationship
between the parties is the key to determining whether the defendant had a legally enforceable
duty to the plaintiff (or her decedent), whereas foreseeability is important to issues of proximate
causation and conformity to the standard of care, issues that arise only after a duty has been
found.”) (citations omitted). The D.C. Court of Appeals has acknowledged this criticism of D.C.
negligence law, yet has continued to apply the analytical framework as is. See Beretta, 872 A.2d
at 641 n.4. Accordingly, the Court “appl[ies] the law of the District of Columbia as its own
courts would apply it” and does not “second-guess the analytical framework those courts have
erected.” Workman, 320 F.3d at 265.
21
circumstances, “the plaintiff bears the burden of establishing that the criminal act was so
foreseeable that a duty arises to guard against it.” Potts, 697 A.2d at 1252.
In cases involving third-party criminal conduct, D.C. courts have “tended to
leapfrog directly to the foreseeability issue” to resolve questions of liability. Workman, 320 F.3d
at 265. This is precisely what the parties have done by focusing on the foreseeability of Mr.
Alexis’s criminal acts and arguing whether any of the Complaints alleges sufficient facts to show
that HPES and The Experts owed a duty of care to Plaintiffs. HPES and The Experts argue that a
heightened showing of foreseeability is required to render them liable because, absent such a
showing, the Court cannot find there was a duty to guard against Mr. Alexis’s criminal acts.
Plaintiffs oppose.
i. Duty and Foreseeability in Claims of Negligent Hiring,
Retention, and Supervision
As HPES and The Experts contend, the heightened foreseeability requirement
stems from the extraordinary nature of criminal conduct. See McKethean v. WMATA, 588 A.2d
708, 717 (D.C. 1991) (“Because of ‘the extraordinary nature of criminal conduct, the law
requires that the foreseeability of the risk be more precisely shown.’”) (quoting Lacy, 424 A.2d
at 323); see also Romero, 749 F.2d at 83 (“[C]ivil liability for the intervening, independent
criminal acts of third parties is extraordinary, and District of Columbia courts, in their
development of common-law tort rules, have imposed especially stringent requirements to
support it.”) (citation omitted). Criminal conduct is said to be “extraordinary” because “under
ordinary circumstances it may reasonably be assumed that no one will violate the criminal law.”
Morgan v. District of Columbia, 468 A.2d 1306, 1318 (D.C. 1983) (quoting Restatement
(Second) of Torts § 302B cmt. d (1965)). However, contrary to what HPES and The Experts
contend, the third-party criminal conduct does not end the inquiry.
22
In discussing intervening criminal acts and the applicable foreseeability standard,
D.C. courts consider the negligence theory being advanced and the circumstances of each case.
“The question is not simply whether a criminal event is foreseeable, but whether a duty exists to
take measures to guard against it . . . [, which] is ultimately a question of fairness.” Romero, 749
F.2d at 79 (internal quotation marks and citations omitted) (emphasis in original).
There are two lines of cases in which a lesser degree of specificity is required
with respect to evidence of foreseeability: those involving either (1) “a special relationship
between the parties to the suit” or (2) “a relationship of control between the defendant and the
intervening criminal actor . . . .” Romero, 749 F.2d at 81 (internal citations omitted) (recognizing
these two categories as “[t]he only District cases departing from that [general] rule” of
nonliability at common law for intervening criminal acts); see also Workman, 320 F.3d at 263
(“From our review of the D.C. cases, we see that the requirement that the defendant have been able to
foresee that a third party would likely commit a criminal act ordinarily has, and perhaps must have, a
relational component.”). In the absence of such relationships or when the circumstances of a
particular case do not suggest a duty of protection or a duty to control, then “the evidentiary hurdle is
higher” and the risk of the criminal act must be precisely shown. Workman, 320 F.3d at 264. 11
11 Workman opined that “the cases suggest a sliding scale: If the relationship between the parties
strongly suggests a duty of protection, then specific evidence of foreseeability is less important,
whereas if the relationship is not the type that entails a duty of protection, then the evidentiary
hurdle is higher.” Workman, 320 F.3d at 264 (holding that an international relief organization
owed no duty to protect aid contractor from murder by third-party Somalis). The Circuit
referenced only the relationship between the parties because that was the issue implicated in the
case. Nonetheless, this Court finds that the sliding scale reasoning goes beyond the facts of
Workman and extends to cases involving a relationship of control between the defendant and the
intervening actor. See Smith v. Hope Village, Inc., 481 F. Supp. 2d 172, 195 (D.D.C. 2007); see
also Restatement (Second) of Torts § 315 (“There is no duty . . . to control the conduct of a third
person as to prevent him from causing physical harm to another unless . . . a special relationship
exists between the actor and the third person which imposes a duty upon the actor to control the
third person’s conduct.”).
23
The rationale for lessening the requirement of heightened foreseeability in cases
involving a special relationship between the parties is that “the ability of one of the parties to
provide for his own protection has been limited in some way by his submission to the control of
the other,” and, therefore, “a duty should be imposed upon the one possessing control (and thus
the power to act) to take reasonable precautions to protect the other one from assaults by third
parties which, at least, could reasonably have been anticipated.” Kline, 439 F.2d at 483. 12 This
category is inapplicable here since Plaintiffs did not submit in any way to the control of HPES or
The Experts and there is no special relationship (contractual, at common law, or otherwise)
between them.
The focus of Plaintiffs’ briefs revolves around the second category of cases:
those involving a special relationship of control between defendants (HPES and The Experts)
and the intervening criminal actor (Mr. Alexis). The heightened requirement of foreseeability is
lessened in this category of cases because the defendant knows the actor, has the ability to
control or supervise him, and can prevent his misconduct so long as the necessity and
opportunity to do so arises. See, e.g., Restatement (Second) of Torts § 316 (recognizing duty of
parent to control conduct of child); id. § 317 (recognizing duty of master to control conduct of
servant); id. § 318 (recognizing duty of possessor of land or chattels to control conduct of
12 The D.C. Court of Appeals has recognized “the relationships of landowner to invitee,
businessman to patron, employer to employee, school district to pupil, hospital to patient,
[]common carrier to passenger [, and landlord to tenant]” as examples of special relationships
that “give rise to a duty of one party to protect the other party from foreseeable criminal acts of
third persons . . . .” Hall, 445 A.2d at 611 n.4 (citations omitted) (emphasis added); see also
Workman, 320 F.3d at 264. In such cases, “the heightened foreseeability is lessened somewhat,
and ‘can be met instead by a combination of factors which give defendants an increased
awareness of the danger of a particular criminal act.’” Sigmund I, 475 F. Supp. 2d at 42 (citing
Novak, 452 F.3d at 912; Doe v. Dominion Bank, 963 F.2d 1552, 1561 (D.C. Cir. 1992); District
of Columbia v. Doe, 524 A.2d 30, 33 (D.C. 1987)).
24
licensee); id. § 319 (recognizing duty of those in charge of person having dangerous
propensities).
Under those circumstances, a duty to exercise reasonable care “should be imposed
upon the one possessing control (and thus the power to act) to take reasonable precautions” to
prevent the person under its control from intentionally harming others or from conducting
himself as to create an unreasonable risk of bodily harm to others. Kline, 439 F.2d at 483 (noting
“there is no liability normally imposed upon the one having the power to act if the violence is
sudden and unexpected provided that the source of the violence is not an employee of the one in
control”) (emphasis added); see also Phelan v. City of Mount Rainier, 805 A.2d 930, 941 (D.C.
2002) (“Generally, one has no duty to prevent the criminal acts of a third party who is not under
the defendant’s supervision or control unless the criminal conduct was the foreseeable result of
the person’s negligence.”) (internal quotation marks and citation omitted) (emphasis added).
Naturally, the one possessing control is not an insurer of public safety. A duty of
care is owed only to those persons foreseeably exposed to the risk of harm resulting from the
actor’s misconduct –– specifically, those brought into contact with a third person subject to the
defendant’s control or supervision whom the defendant “knows or should know to be peculiarly
likely to commit intentional or reckless misconduct.” Restatement (First) of Torts § 302, cmt. n
(1930); see also Fleming v. Bronfin, 80 A.2d 915, 917 (D.C. 1951). Under these circumstances,
a defendant “is required to anticipate and provide against all of these misconducts” regardless of
whether the “third person’s misconduct is or is not criminal at common law or under a statute.”
Restatement (First) of Torts § 302, cmt. n. Moreover, a defendant “is subject to liability only for
such harm as is within the risk . . . caused by the quality of the employee which the employer had
reason to suppose would be likely to cause harm.” Restatement (Second) of Agency § 213
25
(1958); see also Argonne House Co. v. Garrison, 42 F.2d 605 (D.C. Cir. 1930) (holding that
employer’s knowledge of employee’s criminal conviction for intoxication did not put employer
on notice that employee might be a thief).
To prevail on a theory of negligent hiring, retention, or supervision, “it is
incumbent upon a party to show that an employer knew or should have known its employee
behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with
that actual or constructive knowledge, failed to adequately supervise the employee.” Giles v.
Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985) (citing Murphy v. Army Distaff Found., Inc., 458
A.2d 61, 64 (D.C. 1983)). This standard may apply to intentional conduct outside the scope of
employment, even when the conduct is criminal in nature. See Int’l Distrib. Corp. v. Am. Dist.
Tel. Co., 569 F.2d 136, 139 (D.C. Cir. 1977) (stating that “an employer has a duty to supervise
those of its employees who are privileged because of their employment to enter another’s
property” and noting that “[t]his duty even extends to activities which, like theft, are outside the
scope of employment”) (citing Restatement (Second) of Torts § 317 and accompanying
comments). With respect to how the interplay between duty and foreseeability works in practice
in the context of negligent hiring, retention, or supervision claims, the Court is left to reason by
analogy from applicable D.C. cases.
In Murphy v. Army Distaff Foundation, Inc., the D.C. Court of Appeals reversed
the entry of summary judgment in favor of a retirement home for wives of deceased army
officers after the home’s gardener shot a trespasser six times. 458 A.2d at 62. The trespasser
sued the retirement home for his injuries under a theory of negligent supervision. See id. at 62
n.1, 63. The D.C. Court of Appeals noted that, to prevail under this theory of liability, the
plaintiff needed to establish that the retirement home “knew or should have known that its
26
employee regularly ejected trespassers while armed, and that the employer failed to take
reasonable precautionary measures in supervising him.” Id. at 63. Other than evidence of prior
altercations between the gardener and trespassing youth, there was no evidence that the employer
knew or should have known that the gardener “‘carried a gun or had a propensity to use one.’”
Id. at 64. Nonetheless, the D.C. Court of Appeals reversed the trial court’s entry of summary
judgment and remanded the case for trial on the basis that “‘[o]ne who engages in an enterprise
is under a duty to anticipate and to guard against the human traits of his employees which unless
regulated are likely to harm others.’” Id. (quoting Restatement (Second) of Agency § 213, cmt.
g)
Murphy is not a paradigm of clarity or precision. 13 What is clear is that Murphy
ultimately did not require specific evidence of foreseeability when it reversed the trial court’s
entry of summary judgment. Murphy demonstrates that awareness of an employee’s dangerous
behavior or attributes could be sufficient to establish foreseeability under a theory of negligent
supervision if that attribute proximately caused the injury sustained by the plaintiff –– an
outcome clearly inconsistent with the requirement of specific foreseeability evidence. Compare
Restatement (Second) of Agency § 213 and Restatement (Third) of Agency § 7.05(1) (2006)
with Sigmund I, 475 F. Supp. 2d at 42 (noting that a heightened showing of foreseeability
“requires proof that the specific type of crime, not just crime in general, be particularly
foreseeable at the relevant location”) (citing Romero, 749 F.2d at 79-80; Lacy, 424 A.2d at 323)
and McKethean, 588 A.2d at 717 (explaining “that a specific crime, ‘rather than merely harm in
general,’ [must be] foreseeable”) (citing Romero, 749 F.2d at 79-80).
13 It is not clear why the D.C. Court of Appeals first stated that specific proof that the gardener
regularly ejected trespassers while armed was necessary, but then found that evidence of prior
altercations could be sufficient by itself to find the employer liable.
27
The D.C. Court of Appeals has confirmed this reading of Murphy in subsequent
cases involving criminal misconduct and allegations of negligent hiring, supervision, and
retention. Specifically, in Giles v. Shell Oil Corp., a case involving a suit against Shell for
damages arising from an incident in which a service station attendant fatally shot a boy, the D.C.
Court of Appeals relied on Murphy to articulate the foreseeability standard applicable to claims
of negligent hiring, retention, and supervision –– namely, whether “an employer knew or should
have known its employee behaved in a dangerous or otherwise incompetent manner . . . .” Giles,
487 A.2d at 613 (citing Murphy, 458 A.2d at 64). 14
In Brown v. Argenbright Security, Inc., the D.C. Court of Appeals held that a store
owner (Safeway Stores, Inc.) was not liable for negligent supervision of a security guard
employed by a contractor (Argenbright Security, Inc.) who stopped a minor “on suspicion of
shoplifting . . . and, in the course of searching her, touched her in a sexually improper manner.”
782 A.2d 752, 755 (D.C. 2001). 15 Applying the standard articulated in Giles and citing Murphy,
the court concluded that “no facts would warrant an inference of negligent supervision against
14 The D.C. Court of Appeals affirmed the entry of summary judgment in favor of Shell because
“[t]he attendant who fired the fatal shot was not an employee of Shell” and, thus, there was no
“master-servant relationship.” Giles, 487 A.2d at 613.
15 Brown clarified that “[a]lthough Giles and other cases discuss negligent supervision in the
context of an employer-employee relationship and frequently use the term ‘employee,’ it is clear
from the Restatement [(Second) of Agency] and other authorities that a claim of negligent
supervision does not require proof that the supervised person was also an employee or agent.”
Brown, 782 A.2d at 760 n.11. The Restatement provides in relevant part that the supervised
person need not be an employee or agent to establish liability under a theory of negligent
supervision if the defendant was “negligent or reckless . . . in permitting, or failing to prevent,
negligent or other tortious conduct by persons, . . . upon premises or with instrumentalities under
[the defendant’s] control.” Restatement (Second) of Agency § 213(d).
28
Safeway.” Id. at 760 (internal quotation marks omitted). 16 The only evidence linking the
security guard to Safeway was “that a Safeway employee may have been present at the time of
the alleged assault,” which the court described as insufficient since the employee did not have
supervisory authority over the security guard and did not have “the power to control [the
guard’s] conduct or the opportunity to alert someone who did have that power in time to prevent
the harm.” Id. The court affirmed the entry of summary judgment in favor of Safeway.
Moreover, in Phelan v. City of Mount Rainier, a widow sued the City of Mount
Rainier, in Maryland, and its chief of police for negligent hiring, supervision, training, and
retention, after her husband was shot and killed by an off-duty Maryland police officer in
Washington, D.C. 805 A.2d 930, 932-33 (D.C. 2002). The plaintiff alleged that the police
officer shot her husband “eleven times without provocation.” Id. at 934 n.4. At summary
judgment, after the plaintiff withdrew her claims of negligent hiring and training, the trial court
granted summary judgment for the city and police chief on the remaining claims. On appeal, the
D.C. Court of Appeals applied the standard of Giles to the claims of negligent retention and
supervision and cited Murphy and Fleming v. Bronfin 17 for the proposition that an employer may
be found liable for the acts of its employees or agents even if the harm resulted from a willful act
16 Interestingly, the D.C. Court of Appeals cited Boykin, a case applying heightened
foreseeability, when addressing plaintiff’s respondeat superior claims, yet did not cite Boykin or
require specific foreseeability evidence when addressing plaintiff’s negligent supervision claim.
Compare Brown, 782 A.2d at 757-58 & n.7 (citing Boykin, 484 A.2d at 562) with id. at 759-60
(citing Giles, 487 A.2d at 613; Murphy, 458 A.2d at 63).
17 In Fleming, the plaintiff sued a grocery store operator for negligent hiring and supervision of a
store deliveryman who sexually assaulted her after delivering groceries and receiving payment.
80 A.2d at 916. The D.C. Court of Appeals held that an employer has a duty to exercise
reasonable care in hiring employees and not retain an unfit employee tasked with entering the
homes of customers. Id. at 916-17 (“When an employer neglects this duty and as a result injury
is occasioned to a third person, the employer may be liable even though the injury was brought
about by the willful act of the employee beyond the scope of his employment.”).
29
outside the scope of employment. See id. at 937 (citing Giles, 487 A.2d at 613; Murphy, 458
A.2d at 63; Fleming v. Bronfin, 80 A.2d 915, 917 (D.C. 1951)) (other citation omitted).
However, the Phelan court affirmed summary judgment because there were no
facts or circumstances to show that defendants knew or should have known that the officer
behaved in a dangerous or incompetent manner that rendered the shooting foreseeable. The
court noted that, unlike Murphy and Fleming, the intervening criminal act in Phelan did not
occur at the place of employment and was not associated in any way with his job. See id. at 938-
40. Simply put, despite arguable awareness of some dangerous attributes and “substantial
evidence that [he] had many disciplinary problems as a police officer prior to the shooting,” id. at
942, the victim was not within the group of foreseeable persons exposed to a risk of harm
because defendants did not bring the officer into contact with the victim. The evidence was
“insufficient to establish a duty on the part of the City running to [plaintiff’s] decedent or a
causal nexus between the failure to discipline and [the police officer’s] non-duty related
confrontation and shooting of the decedent in a jurisdiction where he was an ordinary citizen.”
Id. at 940 (citing District of Columbia v. Coleman, 667 A.2d 811, 816-17 (D.C. 1995)). 18
18 A similar result was reached in Rawlings v. District of Columbia, where the parents of a
fourteen-year-old boy sued the District of Columbia alleging, in part, that the Metropolitan
Police Department (MPD) was negligent in training and supervising a police officer who shot
and killed their allegedly unarmed child in an off-duty confrontation. 820 F. Supp. 2d 92, 98-
102 (D.D.C. 2011). Applying the standard articulated in Giles, the court found that defendants
did not bring the police officer into contact with the victim, and also, the fact that the police
officer was involved in two previous off-duty shootings was not probative of dangerous or
incompetent behavior because the prior shootings were justified and in compliance with MPD
policy. See id. at 115. It concluded that plaintiff had “failed to show that any duty of care was
breached by the District of Columbia . . . , much less a causal relationship between any supposed
breach and [the boy’s] death.” Id. at 116 (citing Phelan, 805 A.2d at 940).
30
Finally, in Schechter v. Merchants Home Delivery, Inc., a customer of an
appliance store sued the store and a delivery company for negligent hiring, training, and
supervision after a deliveryman committed theft in the customer’s home. 892 A.2d 415 (D.C.
2006). The D.C. Court of Appeals found that evidence that the deliveryman at one time had
entered a guilty plea to fourth degree of burglary with the intention to commit theft from a
dwelling, constituted sufficient evidence to find that the companies owed a duty of care to the
plaintiff by bringing him into contact with an employee whom the defendants knew or should
have known was likely to commit intentional or reckless misconduct. See id. at 431-32 (citing
Murphy, 458 A.2d at 64; Fleming, 80 A.2d at 917; Restatement (Second) of Agency § 213 &
cmt. g). The court remanded the case for trial.
HPES and The Experts fail to properly address the standard articulated in Giles or
acknowledge the line of post-Murphy cases applying this standard. They rely entirely on cases
requiring specific evidence of foreseeability, none of which analyzed claims of negligent hiring,
retention, or supervision. “[I]n stark contrast to nearly all of the cases cited . . . and relied upon
by the defendant[s],” the allegations in this case support the plausible existence of “‘a special
relationship of control between the defendant[s] and the intervening criminal actor,’ Romero, 749
F.2d at 81, giving rise to a duty of care and a commensurately less burdensome requirement that
the plaintiff demonstrate ‘specific evidence of foreseeability,’ Novak, 452 F.3d at 912 (internal
quotation marks and citation omitted).” Smith, 481 F. Supp. 2d at 195 (alteration omitted).
HPES and The Experts cite only three cases, all of which are inapposite and easily
distinguishable.
Lacy v. District of Columbia is one of the talismanic cases in D.C. tort law
concerning the requirement of heightened foreseeability. 408 A.2d 985 (D.C. 1979) (Lacy I), on
31
reh’g, 424 A.2d 317 (D.C. 1980) (Lacy II). In Lacy, a mother and daughter sued a school janitor,
principal, teacher, guidance counselor, and the District of Columbia to recover for injuries
sustained after the school janitor sexually assaulted the daughter. The case went to trial and, at
the conclusion of the plaintiff’s case, the trial judge ordered a directed verdict in favor of the
District of Columbia on the theory of negligent hiring, training, and supervision of the janitor.
See Lacy I, 408 A.2d at 990. The jury returned a verdict against the janitor on a theory of assault
and battery and against the school principal, teacher, counselor, and the District of Columbia on
a theory that they were negligent in their care of the child (i.e., ordinary negligence). The trial
judge set aside the jury verdict because it was “excessive” and “unreasonable” and ordered a new
trial. Id. at 987.
On retrial, a new trial judge did not allow the mother and daughter to “present
again to the jury the very same evidence they had presented at the first trial to prove the District
negligent in its hiring, training, and supervising of the janitor” because this theory was directed
out of the case. Id. at 990 (emphasis in original). The trial judge entered judgment against the
janitor and in favor of the other defendants on the remaining negligence claim. The mother and
daughter appealed, among other things, the order granting the new trial and the ruling that
evidence on the claims of negligent hiring, training, and supervision could not be presented to
the jury on retrial. They did not “assert [that the first trial judge’s] ruling on the sufficiency of
the evidence they presented was error.” Id. at 990 n.4. The D.C. Court of Appeals affirmed both
rulings, but reversed the second trial judge on a separate issue involving a jury instruction on
foreseeability and proximate cause. On a petition for rehearing, the D.C. Court of Appeals
readopted its “previous opinion in all respects except for the finding of prejudicial error”
concerning the jury instruction and affirmed the entry of judgment in favor of the District of
32
Columbia and the school officials (other than the janitor). Lacy II, 424 A.2d at 318. HPES and
The Experts rely on Lacy II for the proposition that a requirement of heightened foreseeability
applies to Plaintiffs’ claims of negligent hiring, retention, and supervision. However, it is clear
that Lacy II did not involve such claims.
The second case relied upon by HPES and The Experts is Boykin v. District of
Columbia, 484 A.2d 560 (D.C. 1984). In that case, a blind, deaf, and mute student sued the
coordinator of a program for blind and deaf students and the District of Columbia to recover for
injuries sustained after the coordinator sexually assaulted her. See id. at 561. The student
alleged that the District was negligent in hiring and supervising the coordinator. See id.
However, she presented no evidence to support her claims and so the trial judge granted the
District’s motion for summary judgment. On appeal, the D.C. Court of Appeals noted that “the
trial court was entitled to assume that [the student] admitted there was no evidence the District
knew or should have known that [the coordinator] posed a danger to students greater than that
posed by any other teacher.” Id. (citing Super. C. Civ. R. 12-1(k)). 19 The student did not assert
“that she had shown in the trial court that there was reason to think that [the coordinator] might
have been dangerous.” Id. at 564-65. In essence, the court held that there was no evidence of an
awareness that the coordinator behaved in a dangerous manner that created a risk of harm to the
student, which comports with the applicable standard in negligent hiring and supervision cases.
The student’s only theory against the District was that “it was negligent . . . to have permitted
19 In 1984, Superior Court Rule of Civil Procedure 12-1(k) required a non-moving party to file a
statement of genuine issues of material fact in support of its opposition to a motion for summary
judgment. See Anthony R. Pileggi, An Attorney’s Guide to Courthouse Practice and Procedure:
Civil Division District of Columbia Superior Court 1983, 32 Cath. U. L. Rev. 1063, 1113 (1983).
By citing Rule 12-1(k), the court made clear that the District was entitled to judgment as a matter
of law because plaintiff failed to support her claims of negligent hiring, training, or supervision,
or show there was a genuine issue of material fact warranting trial.
33
such one-on-one contacts” between teachers and students. Id. at 565. Her allegation was not
specific to the hiring and supervision of the offending coordinator, but resembled the general
negligence claim in Lacy. Boykin supports the proposition that claims of negligent hiring,
retention, and supervision are treated differently.
The last case relied upon by HPES and The Experts is this Court’s decision in
Jones v. R.I. Associates, LLC, No. 02-1820 (RMC), 2005 WL 1475367 (D.D.C. June 22, 2005).
In Jones, an officer of the D.C. Metropolitan Police Department pulled over a woman for
speeding and then drove her to the hotel where he worked off-duty as a security guard and raped
her in an unused conference room. The victim sued the hotel owner. See id. at *1. This Court
entered summary judgment in favor of the hotel owner because the plaintiff could not prove
heightened foreseeability. See id. Jones did not involve claims of negligent hiring, retention, or
supervision. Instead, the victim sued the hotel owner on a theory of “premises liability, which is
a ‘[a] landowner’s or landholder’s tort liability for conditions or activities on the premises.’” Id.
at *3 (citing Black’s Law Dictionary (8th ed. 2004)); see also id. at *4 (noting plaintiff “argue[d]
that the owner of the Hotel is liable to her because of its alleged negligence due to its failure to
prevent its premises from being used for the commission of a crime committed against [her] . . .
.”).
Thus, Lacy, Boykin, and Jones are inapplicable to Plaintiffs’ allegations because
none of those cases involved claims of negligent hiring, retention, and supervision. At the risk of
repetition and in the interest of clarity, D.C. case law indicates that an employer owes a duty of
care to those brought into contact with a third person subject to the defendant’s control or
supervision when the defendant knew or should have known that the third person was likely to
commit intentional or reckless misconduct. See Giles, 487 A.2d at 613 (“[I]t is incumbent upon
34
a party to show that an employer knew or should have known its employee behaved in a
dangerous or otherwise incompetent manner, and that the employer, armed with that actual or
constructive knowledge failed to adequately supervise the employee.”). In addition, the ensuing
harm must be foreseeable in light of the quality or conduct of the employee “which the employer
had reason to suppose would be likely to cause harm.” Restatement (Second) of Agency § 213;
see also Argonne House, 42 F.2d 605.
Having resolved this major point of contention regarding the applicable standard
to Plaintiffs’ claims of negligent hiring, retention, and supervision, the Court will examine
Plaintiffs’ allegations.
ii. Plaintiffs’ Claims of Negligent Hiring
Claim #1: HPES and The Experts negligently hired Mr. Alexis
All Plaintiffs allege that HPES and The Experts were negligent in hiring Mr.
Alexis as a computer technician assigned to work under the Navy-Marine Corps Intranet
Continuity of Service Contract. It is well established that “[a]n employer cannot be liable for
negligent hiring if the employer conducts a reasonable investigation into the person’s
background or if such an investigation would not have revealed any reason not to hire that
person.” Search v. Uber Techs., Inc., 128 F. Supp. 3d 222, 230 (D.D.C. 2015) (quoting Doe v.
Exxon Mobil Corp., 573 F. Supp. 2d 16, 28-29 (D.D.C. 2008)). Consequently, “to state a claim
for negligent hiring, a plaintiff must allege specific facts from which an inference can be drawn
that the employer did not conduct a reasonable background investigation, and that such an
investigation would have uncovered a reason not to hire the alleged tortfeasor.” Id. Plaintiffs do
neither.
35
Plaintiffs allege that HPES and The Experts knew or should have known of a
proclivity towards violence and a history of dangerous behavior by Mr. Alexis prior to
September 2012 (i.e., when he was first hired by The Experts). However, the Complaints do not
allege facts to support such a claim. The only relevant allegations are conclusory and
insufficient to satisfy Twombly. Plaintiffs allege that Mr. Alexis had a history of arrests (without
convictions) while he was in the Navy –– specifically between June 2004 and September 2010
–– where he allegedly exhibited a proclivity towards violence.
The Complaints directly contradict the conclusory statement that HPES and The
Experts knew about Mr. Alexis’s violent history. Plaintiffs allege throughout their pleadings that
the criminal convictions checks, motor vehicle driving record check, and the drug screening test,
required by HPES and conducted by The Experts on two separate occasions, in September 2012
and July 2013, failed to reveal Mr. Alexis’s arrest record or related violent conduct. See, e.g.,
Delorenzo Compl. ¶ 13; Proctor Compl. ¶¶ 24, 26; Kohler Compl. ¶ 32; Ridgell Compl. ¶ 30;
Zagami Compl. ¶ 32; Jacobs Compl. ¶ 42. Similarly, the Navy Report relied upon by Plaintiffs
and cited, in many instances verbatim, in their Complaints, reinforces the allegations that Mr.
Alexis was subject to “pre-employment suitability checks . . . which involved a drug test, a motor
vehicle driving record check, and criminal convictions checks.” HPES MTD, Case No. 15-216,
Ex. A. [Dkt. 120-2] (JAGMAN Report) at 31-32. 20 As Plaintiffs allege, Mr. Alexis had no
convictions and was never prosecuted. The two “pre-employment suitability checks” required
by HPES would never have revealed arrests or Mr. Alexis’s supposed violent background. The
20 As did The Experts, HPES filed an omnibus motion to dismiss and an omnibus reply brief in
all nine cases. For purposes of clarity, the Court will only use the docket numbers of the
Delorenzo case when citing its briefs. Nonetheless, both documents may be found in each of the
other cases.
36
Complaints internally contradict any allegations that might have supported an inference of actual
knowledge. The Court cannot “accept inferences that are unsupported by the facts set out in the
complaint.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal citation and quotation
marks omitted).
Plaintiffs’ assertion that HPES and The Experts should have known about Mr.
Alexis’s prior arrests and supposed proclivity towards violence is even more conclusory and
without factual support. Plaintiffs baldly allege that the pre-employment checks were
“insufficient” because they “failed to uncover [Mr. Alexis’s] prior arrest record . . . .” Proctor
Compl. ¶ 27; see also Kohler Compl. ¶ 32; Ridgell Compl. ¶ 30; Zagami Compl. ¶ 32; Jacobs
Compl. ¶ 42 (alleging that HPES and The Experts should have known because “arrests in [Mr.
Alexis’s] background . . . were a matter of public record”). However, Plaintiffs do not, and
cannot, allege that HPES and The Experts were legally required (by federal or local statute,
contract, or otherwise) to conduct criminal arrest checks for the position of computer technician.
In fact, such a requirement would likely suffer from significant constitutional infirmities and
violate D.C. law. See infra at 38 & n.21.
“[C]harges resulting in acquittal clearly have no legitimate significance” and “a
collection of dismissed, abandoned, or withdrawn arrest records are no more than gutter rumors
when measured against any standards of constitutional fairness to an individual . . . .” Utz v.
Cullinane, 520 F.2d 467, 479 (D.C. Cir. 1975) (quoting United States v. Dooley, 364 F. Supp.
75, 77 (E.D. Pa. 1973)). The “dissemination of arrest records in a situation in which it is known
they will be utilized for employment and licensing purposes” would impose “considerable
barriers,” id. at 479-80, and likely undermine an individual’s due process rights, the sacrosanct
37
presumption of innocence, as well as impair the constitutional right of privacy, see id. at 482 n.
41.
Moreover, “information concerning a prospective employee’s record of arrests
without convictions, is irrelevant to his suitability or qualification for employment.” Id. at 482
(quoting Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970), modified on
other grounds and aff’d as modified, 472 F.2d 631 (9th Cir. 1972)) (emphasis added). In
addition, at the time of Mr. Alexis’s hiring, the Duncan Ordinance regulated the dissemination of
arrest records in the District of Columbia and prohibited access to any pre-conviction or post-
exoneration arrest information for employment purposes. The Ordinance provided in relevant
part “that it shall be an offense punishable by a fine not to exceed $50.00, for any person to
require as a condition of employment the production of any arrest record or copy, extract or
statement thereof at the expense of any employee or applicant for employment to whom such
record may relate.” Id. at 485-86 (noting that “[a]lthough Duncan Ordinance [was] not officially
reported, it [was] reproduced as an Appendix to” Morrow v. District of Columbia, 417 F.2d 728,
745-46 n.9 (D.C. Cir. 1969)). 21
In conclusion, any inference that HPES and The Experts knew or should have
known of Mr. Alexis’s arrest record and dangerous behavior prior to 2012 is unsupported and
21 The Duncan Ordinance was adopted by the D.C. Board of Commissioners on October 31,
1967. The Ordinance was subsequently amended by the Re-Entry Facilitation Amendment Act
of 2012, effective June 15, 2013 (D.C. Law 19-319; 60 D.C. Reg. 2333 (March 1, 2013)) and the
Post-Arrest Process Clarification Amendment Act of 2014, effective April 24, 2015 (D.C. Law
20-243; 61 D.C. Reg. 8320 (August 15, 2014)). In addition, in 2014, the D.C. Legislature
enacted the Fair Criminal Record Screening Act of 2014, effective December 17, 2014 (D.C.
Law 20-152; 61 D.C. Reg. 8904 (August 21, 2014)) reiterating that “an employer may not make
an inquiry about or require an application to disclose or reveal an arrest or a criminal accusation
made against the applicant, which is not pending against the applicant or did not result in a
conviction.” D.C. Code § 32-1342 (a) (alterations omitted).
38
contradicted by Plaintiffs’ own allegations. See Arpaio, 797 F.3d at 19. According to the
Complaints and the Navy Report, The Experts hired Mr. Alexis knowing that he: (1) had no
criminal convictions and that he passed the drug test and the motor vehicle driving record check
required by HPES; (2) was honorably discharged from the Navy in January 2011; and (3) had an
active Secret-level security clearance with a favorable re-enlistment code. No jury could find
from these facts that HPES or The Experts failed to exercise reasonable care in hiring Mr.
Alexis. See Boykin, 484 A.2d at 564; cf. Schechter, 892 A.2d at 431-32; Fleming, 80 A.2d at
916-17.
The assertion that HPES and The Experts “had actual and/or constructive
knowledge of [Mr.] Alexis’s propensity for gun violence” has no factual support. Halmon-
Daniels Compl., Case No. 15-1501 [Dkt. 1] ¶ 95. Plaintiffs contend that they should be allowed
discovery to learn precisely what HPES and The Experts knew about Mr. Alexis at the time of
his hiring. They seem to argue it is “unreasonable to expect the Complaint to offer a more
detailed factual foundation for Plaintiff[s’] negligent-hiring claim.” Search, 128 F. Supp. 3d at
230. To the contrary, the Court adopts the analysis of another member of this Court in similar
circumstances:
This apparent Catch-22 is the reason that “detailed factual
allegations are not necessary to withstand a Rule 12(b)(6) motion,”
but it does not excuse a Plaintiff’s failure to “put forth factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Kenley v.
District of Columbia, 83 F. Supp. 3d 20 (D.D.C. 2015) (internal
quotation marks and citations omitted). Were that not the case, a
plaintiff might merely invoke the magic words — e.g., “negligent
hiring,” “constructive knowledge,” and the like — and thereby
subject a defendant to costly and potentially meritless litigation.
Id. at 230-31. Plaintiffs’ allegations that HPES and The Experts knew, or should have known,
are conclusory and insufficient to satisfy Twombly’s pleading threshold. See Willett v. United
39
States, 24 F. Supp. 3d 1167, 1180 (M.D. Ala. 2014); see also Stevens v. Sodexo, Inc., 846 F.
Supp. 2d 119, 128 (D.D.C. 2012) (dismissing claims of “negligent hiring, supervision, and
retention” because “bare, conclusory assertions, in the form of unenlightening legal-speak, that
Sodexo ‘knew or should have known’ are insufficient to survive Sodexo’s Motion to Dismiss”).
Accordingly, Plaintiffs’ claims that HPES and The Experts were negligent in hiring Mr. Alexis
will be dismissed.
Claim #2: HPES negligently hired The Experts
Plaintiffs Kohler, Ridgell, Zagami, and Jacobs assert in their Complaints that
HPES negligently hired The Experts and proximately caused their injuries. See Kohler Compl.
¶¶ 89-91; Ridgell Compl. ¶¶ 87-89; Zagami Compl. ¶¶ 89-91; Jacobs Compl. ¶¶ 99-101. At oral
argument, counsel for HPES conceded that it did not address this claim in its motion to dismiss.
See 8/16/2016 Hr’g Tr. at 13:24-14:8 (“Well, Your Honor, I didn’t read the complaints as
making an argument that HP was responsible for anything that The Experts did or didn’t do and
sort of a vicarious liability theory.”) 22 Although Plaintiffs Kohler, Ridgell, Zagami, and Jacobs
clearly assert this claim in their Complaints and HPES did not move to dismiss it, the claims are
devoid of factual allegations that could support an inference that HPES negligently hired The
Experts.
Plaintiffs needed to “allege specific facts from which an inference can be drawn
that [HPES] did not conduct a reasonable background investigation [of The Experts], and that
such an investigation would have uncovered a reason not to hire [The Experts].” Search, 128 F.
Supp. 3d at 230. However, there are no allegations concerning the investigation and hiring of
22 HPES may have misunderstood the nature of this claim. Plaintiffs Kohler, Ridgell, Zagami,
and Jacobs assert a direct-liability theory of negligent hiring of a subcontractor, as opposed to a
claim of negligence based on the vicarious liability doctrine of respondeat superior.
40
The Experts or any history of incompetent behavior by The Experts, let alone any indication that
The Experts was selected notwithstanding an actual or constructive awareness of its lack of skill,
experience, or equipment. See Restatement (Second) of Torts § 411 & cmt. a and b. To the
contrary, the Complaints focus on Mr. Alexis’s relationship with The Experts, which is irrelevant
to the assertion that HPES acted negligently when it entered into a contract with The Experts to
provide services under the Navy-Marine Corps Intranet Continuity of Service Contract.
Accordingly, these allegations will also be dismissed. See Baker v. Dir., U.S. Parole Comm’n,
916 F.2d 725, 727 (D.C. Cir. 1990) (“Because it is patently obvious that [plaintiff] could not
have prevailed on the facts alleged in his complaint, we find that sua sponte dismissal was
appropriate.”)
iii. Plaintiffs’ Claims of Negligent Retention and Supervision
Claim #1: HPES and The Experts negligently retained and supervised Mr. Alexis
To state a claim for negligent retention and supervision, Plaintiffs must allege
sufficient facts to advance a plausible inference that HPES and The Experts “knew or should
have known” that Mr. Alexis “behaved in a dangerous or otherwise incompetent manner” prior
to the Navy Yard shooting, and that HPES and The Experts, “armed with that actual or
constructive knowledge failed to adequately supervise” Mr. Alexis. Giles, 487 A.2d at 613
(citing Murphy, 458 A.2d at 64). According to this theory of negligence and the allegations in
the Complaints, HPES and The Experts had a duty to exercise reasonable care to control Mr.
Alexis “while acting outside the scope of his employment as to prevent him from intentionally
harming others or from so conducting himself as to create an unreasonable risk of bodily harm to
them” because: (1) Mr. Alexis was brought into contact with the victims of the shooting through
his employment (in other words, he was “privileged to enter” the premises due to his status as a
41
computer technician assigned to work at the Navy Yard); and (2) HPES and The Experts had the
“ability to control” Mr. Alexis which, given Mr. Alexis’s prior behavior, they knew or should
have known “of the necessity and opportunity for exercising such control.” Restatement
(Second) of Torts § 317 and Restatement (First) of Agency § 302, cmt. n; see also, e.g., Int’l
Distrib. Corp., 569 F.2d at 139; Schechter, 892 A.2d 415; Phelan, 805 A.2d at 938-40; Fleming,
80 A.2d at 917.
HPES and The Experts do not contest the sufficiency of Plaintiffs’ allegations
with respect to Mr. Alexis’s authorization to enter the Navy Yard due to his employment or their
ability to control and supervise Mr. Alexis. They also do not contest Plaintiffs’ allegations
concerning the inadequacy of their actions in failing to prevent the shooting. Rather, HPES and
The Experts focus on the sufficiency of the allegations concerning what HPES and The Experts
knew or should have known about Mr. Alexis prior to the shooting. The relevant question at a
motion to dismiss is whether the actual or constructive knowledge of HPES and The Experts is
sufficiently supported to make plausible a duty to exercise reasonable care in retaining and
supervising Mr. Alexis.
Plaintiffs’ allegations on this issue could be divided into two categories: (1) Mr.
Alexis’s arrest record and supposed violent behavior while he was in the Navy (June 2004-
September 2010); and (2) Mr. Alexis’s alleged violent behavior while he was a subcontractor
(September 2012-September 2013). With respect to the first category, the Court has already
found that the Complaints did not provide any actual basis to infer that HPES and The Experts
knew or should have known of Mr. Alexis’s prior arrest record and supposed proclivity towards
violence at the time of his hiring. See supra at 36-40. Similarly, the Complaints do not provide
any factual basis to infer actual or constructive knowledge of Mr. Alexis’s arrest record or
42
alleged pre-employment history of violence acquired by HPES or The Experts after his hiring in
September 2012. 23
At oral argument, counsel for Mr. Proctor suggested that because “[t]here was an
[alleged] August 9th, 2013 discussion with Mr. Alexis’s mother,” in which she said that Mr.
Alexis “had prior incidents of being paranoid,” HPES and The Experts knew or should have
known of Mr. Alexis’s arrest record and proclivity towards violence. 8/16/2016 Hr’g Tr. at
50:12-17; see also Proctor Compl. ¶ 62 (“On August 9, 2013, The Experts HR director called
[Mr.] Alexis’s mother who said that [Mr.] Alexis had been paranoid and this was not the first
episode he had experienced.”); Kohler Compl. ¶ 52; Ridgell Compl. ¶ 50; Zagami Compl. ¶ 52;
Jacobs Compl. ¶ 63. 24 The allegation falls short. It supports the limited inference that The
Experts became aware in August 2013 that Mr. Alexis suffered from a mental illness. The vague
allegation that Mr. Alexis “had been paranoid” in the past fails to support an inference of actual
or constructive awareness of Mr. Alexis’s arrest record and supposed violent attributes. Simply
put, any attempt to equate mental illness with violence must fail. See White v. Mansfield-
Richland, No. 12-CA-115 and 12-CA-116, 2013 WL 3936036, at *1, 8 (Ohio Ct. App. July 18,
23 The Court notes that some Plaintiffs use the term “criminal history” to refer to Mr. Alexis’s
arrest record and pre-2012 actions although he was not prosecuted for any offense, let alone
convicted of a crime. “There is no rational basis to presume guilt and active criminality from the
mere fact of an arrest” and “[f]ew things are as fundamental to our legal system as the
presumption of innocence until overcome by proof of guilt beyond a reasonable doubt at a fair
trial.” Davis v. Paul, 505 F.2d 1180, 1184 (6th Cir. 1974), rev’d on other grounds, 424 U.S. 693
(1976); see also Menard v. Mitchell, 328 F. Supp. 718, 724 (D.D.C. 1971) (“Under our system of
criminal justice, only a conviction carries legal significance as to a person’s involvement in
criminal behavior.”).
24There are no allegations that HPES was or should have been aware of this conversation
between Mr. Alexis’s mother and the HR Director for The Experts.
43
2013) (stating that while defendant “may have been aware of his son’s mental illness, . . .
suffering from a mental illness does not automatically equate violent behavior.”). 25
Perhaps aware of the frailty of their pre-2012 allegations, Plaintiffs shifted their
focus at oral argument to the events of August 2013. See 8/16/2016 Hr’g Tr. at 49:17-19
(counsel for Plaintiff Proctor agreeing with Court that pre-2012 allegations “are not necessary to
a well pled complaint”); see also id. at 68:14-17 (counsel for Plaintiffs Kohler, Ridgell, Zagami,
and Jacobs agreeing with Court that pre-2012 allegations “are of tangential relevance” and that
“[w]hat’s really key here is August of 2013 and the events of that month leading up to the day of
the shooting”). With respect to the second category of allegations, the Complaints describe in
detail the bizarre behavior of Mr. Alexis during his assignment to the Naval Undersea Warfare
Center in Newport, Rhode Island on August 4-7, 2013. One may conclude from these
allegations (e.g., complaining of hearing voices, being followed, and being tormented by
electronic low-frequency waves) that Mr. Alexis suffered from a mental illness at that time.
However, the allegations do not lead to an inference of future violent behavior. To conclude
otherwise would contribute to the perpetuation of the false notion that mentally-ill individuals
are predisposed or likely to be violent, a stereotype that would create undesirable incentives in
the employment context. 26
25Counsel for Plaintiff Proctor indicated at oral argument that this allegation “is a perfect
example for why discovery should be allowed to proceed in this case.” 8/16/2016 Hr’g Tr. at
50:19-20. However, discovery would be nothing more than a speculative fishing expedition.
26 If it were true that exhibiting symptoms of psychosis is sufficient to put an employer on actual
or constructive notice of an employee’s future violent behavior, many employers may be
reluctant to hire individuals with some kind of mental illness or disorder in violation of the
American with Disabilities Act, 42 U.S.C. § 12101, et seq.
44
Indeed, the D.C. Circuit stated in Hicks v. United States that “[g]eneralizations
must be avoided as much as possible in the area of psychiatry” and, thus, a “claim of negligence
must be considered in light of the elusive qualities of mental disorders and the difficulty of
analyzing and evaluating them.” 511 F.2d 407, 415 (D.C. Cir. 1975). Such generalizations were
not always “avoided” in Plaintiffs’ briefs and pleadings. See McCullough Opp’n, Case No. 15-
1639 [Dkt. 21] at 16 (stating that “there is a consistent profile for the active shooter: these
people are crazy — not merely angry, disgruntled or neurotic — crazy[; i]t is the sine qua non
for the active shooter — crazy”) (emphasis added). The Court concludes that awareness of Mr.
Alexis’s episode of mental illness did not automatically impose a duty of care on HPES and The
Experts.
Nonetheless, there are allegations that, combined with the symptoms of mental
illness exhibited by Mr. Alexis during August 4-7, 2013, barely push Plaintiffs’ claims of
negligent retention and supervision over the plausibility threshold of Twombly. For example,
Plaintiffs allege that: (1) on August 4, 2013, the project coordinator for The Experts had to calm
down an angry Mr. Alexis over the phone and persuade him to get away from a male seated
across the aisle from him at the Norfolk Airport; (2) on August 6, 2013, the travel coordinator for
The Experts contacted the desk clerk at the Navy Gateway Inns & Suites and expressed her
concern that Mr. Alexis could harm someone; (3) the hotel’s desk clerk contacted the Naval
Station Newport Police to request that a police officer be assigned close to the hotel in case Mr.
Alexis attempted to hurt someone; and (4) on August 7, 2013, the Newport Police Officer-in-
Charge contacted the Naval Station Police Sergeant to relay the information concerning Mr.
45
Alexis and fax him a copy of a police report with a note saying, “FYI on this. Just thought to
pass it on to you in the event this person escalates.” 27
These allegations, in combination with Mr. Alexis’s behavior at the Norfolk
Airport and in Rhode Island, could support an inference that HPES and The Experts were on
actual or constructive notice that Mr. Alexis behaved in a “dangerous or otherwise incompetent
manner” and that he might harm others or create an unreasonable risk of bodily harm to others.
Giles, 487 A.2d at 613; see also Fleming, 80 A.2d at 917 (citing Restatement (First) of Torts §
302, cmt. n); Restatement (Second) of Torts § 317 and § 319. Based on the allegations in the
Complaints, the Court cannot say that a jury might not find that HPES and The Experts had a
duty to properly supervise or control Mr. Alexis, which they might have breached by failing to
provide adequate supervision when authorizing Mr. Alexis to enter the Navy Yard. 28 See Int’l
Distrib. Corp., 569 F.2d at 139 (stating that “an employer has a duty to supervise those of its
employees who are privileged because of their employment to enter another’s property”); cf.
Phelan, 805 A.2d at 938-40.
Accordingly, Plaintiffs’ claims of negligent retention and supervision shall
proceed to discovery so that the parties will have a more detailed factual foundation for their
claims and their allegations of foreseeability. Upon further detail about the nature of the risk of
harm to others, everyone will be in a better position to “balanc[e] the magnitude of the risk
against the utility of [Defendants’] conduct” by taking into account the necessary factors, such as
27Neither HPES nor The Experts contest the sufficiency of the allegations with respect to what
they knew or should have known about the series of events in August 2013.
28 HPES and The Experts generally focused on the interplay between duty and foreseeability and
did not challenge the sufficiency of Plaintiffs’ allegations with respect to the adequacy of
supervision (i.e., breach of the duty of care).
46
“the known character, past conduct, and tendencies of the person whose intentional conduct
causes the harm, . . . the gravity of the harm that may result, . . . [and] the burden of the
precautions which the [Defendants] would be required to take.” Smith, 481 F. Supp. 2d at 190
(quoting Doe, 524 A.2d at 34 n.3; Restatement (Second) of Torts § 302B, cmt. f). The motions
to dismiss these claims will be denied.
Claim #2: HPES negligently retained and supervised The Experts
Plaintiffs Kohler, Ridgell, Zagami, and Jacobs assert in their Complaints that
HPES negligently retained and supervised The Experts. See Kohler Compl. ¶¶ 89-91; Ridgell
Compl. ¶¶ 87-89; Zagami Compl. ¶¶ 89-91; Jacobs Compl. ¶¶ 99-101. At oral argument,
counsel for HPES conceded that it did not address this claim in its motion to dismiss. See
8/16/2016 Hr’g Tr. at 13:24-14:8. Since HPES did not move to dismiss this claim and Plaintiffs
have alleged sufficient facts to state a claim that The Experts acted negligently with respect to
Mr. Alexis, the Court will allow this additional claim against HPES to proceed to discovery.
iv. Plaintiffs’ Remaining Claims of Common Law Negligence
In addition to the theories of negligent hiring, retention, or supervision, Plaintiffs
have asserted other claims of negligence against HPES and The Experts, using different labels to
describe their claims, such as “negligent undertaking,” “negligence,” “negligent credentialing,”
“gross negligence,” “reckless disregard,” and “failure to warn.” 29 Some Plaintiffs have also used
29 See Delorenzo Compl. Counts I and II (including “failure to warn” claim against HPES and
The Experts); Frasier Compl. Counts I and II (including “negligence” and “failure to warn”
claims against HPES and The Experts); Proctor Compl. Counts V and VI (alleging claims of
“negligence” under NISPOM and “other applicable law” against HPES and The Experts);
Halmon-Daniels Compl. Counts II and IV (alleging “failure to warn” claims against HPES and
Experts); Kohler/Ridgell/Zagami/Jacobs Compls. Counts II, III, V, and VI (alleging claims of
“negligent undertaking” and “negligence” against HPES and The Experts); and McCullough
Compl. Counts I and III (alleging claims of “negligence,” “gross negligence,” “failure to warn,”
47
the terms “survival action” and “wrongful death action” as separate claims against HPES and
The Experts. 30 These claims will be dismissed as discussed below.
Many of these claims rely on different labels to reiterate the theories of negligent
hiring, retention, and supervision. It is well established that “[a]s a matter of judicial economy,”
courts “may dismiss duplicative claims in [their] discretion.” DTCC Data Repository (U.S.) LLC
v. U.S. Commodity Futures Trading Comm’n, 25 F. Supp. 3d 9, 18-19 (D.D.C. 2014) (citing
Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 81 (D.D.C. 2010)). “Claims are duplicative
when they ‘stem from identical allegations, that are decided under identical legal standards, and
for which identical relief is available.’” Id. (quoting Wultz, 755 F. Supp. 2d at 81). Such is the
case here. Plaintiffs remaining negligence claims stem from the same fact allegations and rely
on the same theory of liability –– specifically, that despite an actual or constructive awareness
that Mr. Alexis could harm others, HPES and The Experts hired and retained Mr. Alexis and
authorized him to enter the Navy Yard while failing to take adequate measures to prevent the
ensuing harm on September 16, 2013.
Negligent Undertaking, Negligence, and Negligent Credentialing
Plaintiffs Kohler, Ridgell, Zagami, and Jacobs assert a “negligent undertaking”
claim against The Experts on the basis that “[b]y hiring Mr. Alexis . . . The Experts undertook to
“reckless disregard,” “negligent credentialing,” and “negligent performance of duties” against
HPES and The Experts).
30 See Halmon-Daniels Compl. Counts V and VI; Kohler/Zagami Compls. Counts IX and X; and
Ridgell Compl. Counts VIII and IX. To clarify, a claim of wrongful death and/or survival does
not constitute an independent theory of liability against Defendants. Instead, they refer to the
statutory right of action under D.C. law and the nature of recoverable damages for each theory of
liability. While a “wrongful death action is to recover damages to beneficiaries resulting from
decedent’s death,” a survival action is “to recover damages the decedent could have recovered
but for his death.” Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.
1984).
48
control Mr. Alexis, whom The Experts knew was likely to cause harm to others in and around his
workplace” and that The Experts breached this duty by failing to conduct an adequate
investigation of Mr. Alexis prior to his hiring and, after the events of August 2013, failing to take
adequate supervisory measures and failing to prevent Mr. Alexis from having access to the Navy
Yard. Kohler Compl. ¶¶ 73-77; Ridgell Compl. ¶¶ 71-75; Zagami Compl. ¶¶ 73-77; Jacobs
Compl. ¶¶ 83-87. These Plaintiffs also assert the same claim with identical allegations against
HPES vis-à-vis its alleged control over The Experts and Mr. Alexis. See Count V in Complaints
of Kohler, Ridgell, Zagami, and Jacobs.
Similarly, Plaintiffs Kohler, Ridgell, Zagami, and Jacobs assert claims of
“negligence” against The Experts on the basis that:
The Experts, as the employer of Mr. Alexis and because it knew that
he was likely to cause harm to others in and around his workplace .
. . owed persons working at the Washington Navy Yard . . . [a] duty
to exercise reasonable care in supervising and controlling Mr.
Alexis, including but not limited to controlling his access to the
Washington Navy Yard and his return to employment, so as to
prevent him from intentionally harming others and to prevent him
from conducting himself so as to create an unreasonable risk of
bodily harm to others.
Kohler Compl. ¶ 79; Ridgell Compl. ¶ 77; Zagami Compl. ¶ 79; Jacobs Compl. ¶ 89. These
Plaintiffs allege that The Experts breached its duty to control and supervise Mr. Alexis by failing
to “create, develop, or implement an adequate risk assessment or mitigation plan with respect to
employees who posed a risk of workplace violence, failing to [require or] adequately conduct a
psychological fitness examination, . . . failing to revoke Mr. Alexis’s security clearance, [and]
failing to bar Mr. Alexis from access to the Washington Navy Yard,” among other things. 31
31Under this “negligence claim,” Plaintiffs Kohler, Ridgell, Zagami, and Jacobs include a
“failure to warn” or “report” claim against both HPES and The Experts, which is discussed
separately below.
49
Kohler Compl. ¶ 83; Ridgell Compl. ¶ 81; Zagami Compl. ¶ 83; Jacobs Compl. ¶ 93. In other
words, their Complaints allege that HPES and The Experts failed to take adequate supervisory
measures to prevent the shooting. The same claim of “negligence” with identical allegations is
made against HPES in light of its alleged duty to control and supervise The Experts and Mr.
Alexis. See Kohler/Ridgell/Zagami/Jacobs Compls. Count VI. Plaintiff McCullough asserts a
similar, if not identical, claim of “negligence” against HPES and The Experts. See McCullough
Compl. Count I.
Plaintiff McCullough also asserts a claim of “negligent credentialing” against
HPES and The Experts, which is not recognized in the District of Columbia and is not applicable
to the facts of this case. Cf. Benjamin J. Vernia, Tort Claim for Negligent Credentialing of
Physician, 98 A.L.R. 5th 533 (2002) (discussing the tort of “negligent credentialing” as one
recognized in other jurisdictions in the medical malpractice context of extending privileges to
physicians). 32
Ultimately, these claims of “negligent undertaking,” “negligence,” and “negligent
credentialing,” stem from identical allegations and rely on the same underlying theory of liability
as the Plaintiffs’ claims of negligent hiring, retention, and supervision. Common to all of these
theories is the proposition that HPES and The Experts had a duty to exercise reasonable care in
hiring and retaining a competent employee, as well as controlling and supervising an employee’s
actions, and, by failing to take adequate supervisory, precautionary measures, they breached that
duty and proximately caused Plaintiffs’ injuries. Clearly, the claims are duplicative.
32In addition, Plaintiff McCullough abandoned the claim by failing to oppose the argument by
The Experts that there is no “negligent credentialing” claim in the District of Columbia. See
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003),
aff’d, 98 Fed. App’x. 8 (D.C. Cir. 2004).
50
Notably, Plaintiffs did not address these claims in their opposition briefs or at oral
argument. In fact, although HPES and The Experts moved to dismiss all claims rooted in
common law negligence, Plaintiffs only discussed the companies’ alleged duty of care in hiring,
retaining, and supervising Mr. Alexis, as well as the duty to warn others about the alleged risk of
harm posed by Mr. Alexis. Perhaps realizing that their claims were duplicative, Plaintiffs chose
to abandon many of them by failing to argue them as distinct theories of liability. See Hopkins,
284 F. Supp. 2d at 25 (“It is well understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain arguments raised by the defendant,
a court may treat those arguments that the plaintiff failed to address as conceded.”) (citations
omitted). The claims will be dismissed as duplicative or, in the alternative, as conceded.
Failure to Warn as Common Law Negligence
Despite using different labels, Plaintiffs allege that HPES and The Experts had a
duty of care to warn invitees to the Navy Yard and the Navy/DoD about the risk of harm posed
by Mr. Alexis. Plaintiffs contend that HPES and The Experts breached that duty to warn and
proximately caused their injuries. This theory of liability corresponds to an ordinary negligence
claim, which is why most Plaintiffs included it under their “negligence” counts. See Delorenzo
Compl. Counts I and II; Frasier Compl. Counts I and II; Proctor Compl. Counts V and VI;
Kohler/Ridgell/Zagami/Jacobs Compls. Counts III and VI; and McCullough Compl. Count I.
Moreover, the duty to warn may arise: (1) at common law and/or (2) pursuant to a contractual or
statutory obligation (more on this category later).
As discussed above, Plaintiffs’ position at this stage has been that their claims of
negligent hiring, retention, and supervision are fundamentally different and do not require
specific foreseeability evidence. In so arguing, they failed to discuss or identify the applicable
51
standard for a negligence claim based on a failure-to-warn theory at common law. Instead of
addressing the common law theory, Plaintiffs chose to focus exclusively on an alleged
contractual and/or statutory obligation to warn the Navy/DoD. As a result, Plaintiffs have
abandoned this common law theory. See Hopkins, 284 F. Supp. 2d at 25.
A negligence claim for failure to prevent a criminal act, which does not rely on a
duty to control or supervise, requires specific evidence of foreseeability. See Boykin, 484 A.2d
at 564-65; Lacy 424 A.2d at 323-24. There is no authority for the proposition that there is a duty
to warn a third party with whom there is no special relationship, especially in the context of an
invitee to someone else’s property. 33 Absent a duty of protection, which is the focus of the
failure to warn claim, the events of August 4-7, 2013 cannot support any inference that this
criminal act at the Navy Yard was foreseeable. Sigmund I, 475 F. Supp. 2d at 42 (“While a
plaintiff is not required to show previous occurrences of the particular type of harm at issue, the
D.C. Court of Appeals requires proof that the specific type of crime, not just crime in general, be
particularly foreseeable at the relevant location.”) (citations omitted); see also Bd. of Trustees of
Univ. of D.C. v. DiSalvo, 974 A.2d 868 (D.C. 2009).
Accordingly, these Plaintiffs’ negligence claims based on a common law theory
of failure to warn will be dismissed as conceded or, in the alternative, for failure to state a claim.
33The only exception of which the Court is aware is the duty to warn foreseeable victims of
mental patients originated in Tarasoff v. Regents of the University of California, 551 P.2d 334
(Cal. 1976). Under this limited exception, “the special relationship between a patient and a
psychotherapist creates a duty to third persons,” so long as the intended victim is “identifiable.”
White v. United States, 780 F.2d 97, 108 (D.C. Cir. 1986) (citations omitted). Plaintiffs neither
point to any other circumstance nor rely on any authority applicable to the circumstances at hand.
52
2. Negligence Per Se and Statutory Duty Theories
To recapitulate, the basic elements of a negligence claim are: the existence of a
duty of care, the breach of that duty of care, and an actual injury proximately caused by the
breach. The Court evaluated above Plaintiffs’ claims in which the requisite duty and standard of
care are supplied by the D.C. common law of negligence. Plaintiffs also assert claims in which
the duty or standard of care, or both, are supplied by contract or statute. When a court uses a
statute or regulation to modify a preexisting common law negligence action and to provide the
requisite duty and standard of care for a negligence claim, it is a claim of negligence per se. See
Chadbourne v. Kappaz, 779 A.2d 293, 295-96 (D.C. 2001); Jarrett v. Woodward Bros., 751
A.2d 972, 977 (D.C. 2000). However, when there is no preexisting common law negligence
cause of action and a plaintiff seeks tort liability based on a statutory duty owed to him, courts
refer to it as a statutory duty action in tort. See Caroline Forell, The Statutory Duty Action in
Tort: A Statutory/common Law Hybrid, 23 Ind. L. Rev. 781, 797-801 (1990) (discussing the
difference between negligence per se and statutory duty cases and analyzing two statutory duty
actions in the District of Columbia –– Turner v. District of Columbia, 532 A.2d 662 (D.C. 1987)
and Rong Yao Zhou v. Jennifer Mall Rest., Inc., 534 A.2d 1268 (D.C. 1987)); see also Williams
v. Invenergy, LLC, No. 3:13-CV-01391-AC, 2014 WL 7186854, at *7 (D. Or. Dec. 16, 2014)
Specifically, Plaintiffs allege that: (1) HPES and The Experts had a contractual
duty to report to the Navy/DoD the events of August 4-7, 2013 and to warn them about the risk
of harm posed by Mr. Alexis; and (2) HPES and The Experts were required under NISPOM to
report any adverse information of Mr. Alexis up the chain-of-command to DoD Central
Adjudication Facility and the Navy. Plaintiffs Kohler, Ridgell, Zagami, and Jacobs also allege
that HPES and The Experts were required under the D.C. Industrial Safety Act (ISA), D.C.
53
Code. §§ 32-801 to -812, and the Occupational Safety & Health Act (OSHA) 34 to furnish a
reasonably safe place of employment. Plaintiff Delorenzo also purports to allege an identical
claim under OSHA; however, OSHA is nowhere to be found in either Count I (against HPES) or
Count II (against The Experts) of her Complaint.
At the outset, the Court will dismiss Plaintiffs’ negligence contract-based claims.
Generally, no tort arises from a negligent breach of contract. See KBI Transp. Servs. v. Med.
Transp. Mgm’t., Inc., 679 F. Supp. 2d 104, 108 (D.D.C. 2010). This maxim holds true here
because Plaintiffs could not bring a breach of contract action as they were neither parties nor
intended beneficiaries of any relevant contract (e.g., the contract between HPES and The Experts
or the Contract between Navy and HPES). Moreover, “[a] breach of contract may only give rise
to a tort claim when there is an independent basis for the duty allegedly breached.” See id. at
108-09 (emphasis added). In this instance, Plaintiffs’ contract-based claims focus on the fact that
HPES and The Experts were required to comply with NISPOM and report any adverse
information concerning Mr. Alexis. The contract-based claims are duplicative of the negligence
NISPOM-based claims. As such, the Court will dismiss Plaintiffs’ negligence claims based on a
contractual duty.
The Court will also dismiss the negligence OSHA-based claim of Plaintiffs
Kohler, Ridgell, Zagami, and Jacobs because they failed to oppose the motions to dismiss this
claim in their opposition briefs and at oral argument. See Hopkins, 284 F. Supp. 2d at 25. With
respect to Plaintiff Delorenzo, the Court finds that she did not raise an OSHA-based claim in her
Complaint and her opposition brief was not the proper procedural vehicle to amend her
34 Plaintiffs fail to specify whether their claims are based on the federal OSHA statute, 29 U.S.C.
§§ 651-78, or the D.C. OSHA statute, D.C. Code. §§ 32-1101 to -1124 (2001). Both statutes are
identical in all material respects. See D.C. Code § 32-1103(a)(1).
54
complaint. In addition, the OSHA-based claims of these Plaintiffs lack merit because OSHA
was designed to mitigate and prevent industrial accidents and occupational diseases, not violent
criminal conduct. See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1205-06 (10th Cir. 2009)
(noting “the absence of any specific OSHA standard on workplace violence” and that “OSHA is
aware of the controversy surrounding firearms in the workplace and has consciously decided not
to adopt a standard”) (emphasis in original).
i. Negligence under NISPOM
Plaintiffs’ claims under NISPOM are styled as negligence per se. Plaintiffs rely
on NISPOM to modify and expand the preexisting common law duty to warn and to hold HPES
and The Experts negligent as a matter of law for failing to comply with the standards articulated
in NISPOM. Under D.C. law, “violation of a statute or regulation may constitute negligence as a
matter of law,” that is, negligence per se. Dine v. W. Exterminating Co., No. CIV.A. 86-
1857(OG), 1988 WL 25511, at *4 (D.D.C. Mar. 9, 1988). 35 Critically, “[n]ot every statutory or
regulatory violation, however, permits a plaintiff to bypass the duty and breach of duty elements
of a negligence claim.” Id. In this context, “where a particular statutory or regulatory standard is
enacted to protect persons in the plaintiff’s position or to prevent the type of accident that
occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of
that standard renders the defendant negligent as a matter of law.” Ceco Corp. v. Coleman, 441
A.2d 940, 945 (D.C. 1982) (quoting Richardson v. Gregory, 281 F.2d 626, 629 (D.C. Cir.
1960)). “If, however, the defendant produces evidence tending to excuse or explain the
35 Although NISPOM is neither a statute nor a regulation, but rather an operating manual
defining security requirements for cleared defense contractors, HPES and The Experts assume
arguendo that Plaintiffs may rely on NISPOM to supply the duty and standard of care for their
claims. The Court will do the same and assumes, without deciding, that NISPOM could be
relied upon to assert a negligence per se claim.
55
violation, the violation may be considered evidence of negligence rather than negligence per se.”
Chadbourne, 779 A.2d at 295 (citations omitted).
In the case of an intervening criminal act, as here, D.C. law requires that “the
third-party criminal conduct” be “‘the very injury . . . which the statute intended to prevent.’”
Romero, 749 F.2d at 83 (quoting Janof v. Newsom, 53 F.2d 149, 152 (D.C. Cir. 1931)). In the
same way that D.C. courts, “in their development of common-law tort rules, have imposed
especially stringent requirements to support” civil liability for third-party criminal conduct, “they
would similarly require a clear indication of a statutory purpose producing such liability.” Id.
Thus, the statutory purpose must be narrowly defined to match the criminal conduct as closely
and precisely as possible. See id. (rejecting negligence per se theory under the D.C. Firearms
Control Regulation Act of 1975, D.C. Code Ann. §§ 6-2301 to -2380 (1981), because “neither
the nature of the provision in question nor its legislative history clearly indicates a purpose of
preventing crimes by gun-thieves”) (citation omitted). Consequently, the relevant question is
whether Plaintiffs can establish that NISPOM was intended specifically to prevent violent crimes
(i.e., mass murder) at a federal facility (i.e., military base).
NISPOM requires defense contractors, such as HPES and The Experts, to convey
pertinent derogatory information of cleared personnel to DoD’s Central Adjudication Facility via
“incident reports” through the Joint Personnel Adjudication System (JPAS). JPAS is the system
of records for personnel security clearance adjudication and management. By receiving incident
reports with derogatory or adverse information, DoD can determine whether the information
tends to demonstrate the individual’s inability to safeguard classified information and whether
his/her security clearance, which is a prerequisite to work on the Contract, should be revoked.
See generally HPES MTD, Ex. B to Raofield Decl. (NISPOM); see also Proctor Compl. ¶¶ 18-
56
19. Plaintiffs contend that if HPES and The Experts had reported the events of August 4-7, 2013
through JPAS, DoD would have revoked Mr. Alexis’s security clearance and he would not have
been able to access the Navy Yard in September 2013. Even if this speculative chain of events
were taken as true, it does not advance Plaintiffs’ theory because NISPOM was not issued to
prevent violent criminal conduct, let alone mass murder at the workplace.
NISPOM was issued as part of the National Industrial Security Program
established in Executive Order 12,829 to prevent the unauthorized disclosure of classified
information. See Exec. Order No. 12,289, 58 C.F.R. 3479, as amended 58 Fed. Reg. 3479
(January 6, 1993). The Executive Order clearly states: “The purpose of this [National Industrial
Security Program] is to safeguard classified information that may be released or has been
released to current, prospective, or former contractors, licensees, or grantees of United States
agencies.” Id. § 101 (emphasis added). Executive Order 12,289 identifies the purpose of
NISPOM as to “prescribe specific requirements, restrictions, and other safeguards that are
necessary to preclude unauthorized disclosure and control authorized disclosure of classified
information to contractors, licensees, or grantees.” Id. § 201 (emphasis added); see also
NISPOM § 1-100 (defining purpose of NISPOM) & § 1-300 (defining reporting obligations for
events “that affect proper safeguarding of classified information . . . to enable [DoD] to
determine whether classified information is protected”).
Since the purpose of NISPOM was not to protect individuals from violent crimes
at the workplace, Plaintiffs’ negligence claims under NISPOM will be dismissed. See Lewis v.
United States, 83 F. Supp. 3d 198, 210 (D.D.C. 2015); Hunter ex rel. A.H. v. District of
Columbia, 64 F. Supp. 3d 158, 190 (D.D.C. 2014).
57
ii. Negligence under ISA
The D.C. Industrial Safety Act provides in relevant part that “[e]very employer
shall furnish a place of employment which shall be reasonably safe for employees, shall furnish
and use safety devices and safeguards, and shall adopt and use practices, means, methods,
operations, and processes which are reasonably safe and adequate to render such employment
and place of employment reasonably safe.” D.C. Code § 32-808(a). 36 Plaintiffs Kohler, Zagami,
Ridgell, and Jacobs argue that ISA establishes a statutory duty of care that is actionable in tort. 37
There are two fatal problems with this theory of liability.
The first problem with Plaintiffs’ allegations is that ISA was enacted to prevent
workplace-related accidents and, thus, it does not establish a duty to prevent violent criminal
conduct. When interpreting a statute, the first step is to “look at the language of the statute by
itself to see if the language is plain and admits of no more than one meaning, while construing
the words in their ordinary sense and with the meaning commonly attributed to them.” Dobyns
v. United States, 30 A.3d 155, 159 (D.C. 2011) (internal quotation marks and citation omitted).
In addition, courts “may appropriately look beyond plain meaning:
36The statute defines “employer” as any person or entity (not including the District of Columbia
or the United States, or any instrumentality thereof) “having control or custody of any place of
employment or of any employee.” D.C. Code § 32-802(1). The statute defines “place of
employment” as “any place where employment is carried on,” including “any and all work of
whatever nature being performed by an independent contractor for the United States government
or any instrumentality thereof . . . .” Id. § 32-808(4).
37HPES and The Experts treated the negligence claim under ISA as one of negligence per se. At
oral argument, counsel for Plaintiffs Kohler, Ridgell, Zagami, and Jacobs argued that
characterizing their claims as negligence per se would “miss[] the thrust of [their] complaint and
of [their] argument” and that their claims are styled as a statutory duty action. 8/16/2016 Hr’g
Tr. at 80:5-14. Because, as explained in the text, ISA is inapplicable and does not impose a duty
on HPES and The Experts to prevent the criminal acts of Mr. Alexis, the disagreement
concerning the nature of the claims is immaterial.
58
where (1) a review of the legislative history or an in-depth
consideration of alternative constructions of the statutory language
reveals ambiguities that the court must resolve; (2) the literal
meaning of the statute produces absurd results; (3) the plain meaning
construction leads to an obvious injustice; or (4) refusal to adhere to
plain meaning is necessary in order to effectuate the legislative
purpose of the statute as a whole.
Id. (internal quotation marks omitted).
The purpose of ISA “is to foster, promote, and develop the safety of wage earners
of the District of Columbia in relation to their working conditions.” D.C. Code § 32-801.
Plaintiffs Kohler, Zagami, Ridgell, and Jacobs construe this broad statement to include any sort
of danger or risk, including mass murder. To support their argument, they rely on the statute’s
definition of “safe” and “safety” as “such freedom from danger to life or health of employees as
circumstances reasonably permit.” See id. § 32-802(3) (adding that the definition “shall not be
given any restrictive interpretation so as to exclude any mitigation or prevention of a specific
danger”). The statute’s purpose, as well as the definition of “safety,” are ambiguous, given the
breadth of the language. The “mitigation or prevention of a specific danger” might refer to the
risk of harm posed by an accident, an intentional tort, or a criminal act.
The ISA general language does not “clearly indicat[e]” a statutory purpose to
prevent violent criminal conduct. Romero, 749 F.2d at 83. In the absence of such “clear
indication” in the text, the Court looks past the statutory text. Id. (emphasis added). And indeed,
the legislative history directly contradicts the interpretation of ISA argued by Plaintiffs Kohler,
Zagami, Ridgell, and Jacobs. That history unambiguously shows that the true purpose of the
statute is to mitigate and prevent work-related accidents. The D.C. Court of Appeals in Martin v.
George Hyman Construction Co. stated in relevant part: “The congressional purpose [of ISA] in
imposing this greater duty of care toward wage earners is evident from the legislative history of
59
the [statute]. Congress was concerned with the ‘appalling numbers’ of wage earners injured in
employment-related ‘accidents.’” 395 A.2d 63, 70 (D.C. 1978) (quoting H.R. Rep. No. 918,
77th Cong., 1st Sess. 2 (1941); S. Rep. No. 675, 77th Cong., 1st Sess. 2 (1941)) (emphasis
added). The court further stated:
The congressional determination that “most of these accidents are
due to lack of proper supervision and control” is an implic it
recognition that wage earners will not always exercise due care for
their own safety. Finding that these accidents “could be avoided if
proper safety measures were taken” Congress imposed upon
employers (as broadly defined) the sole responsibility for avoiding
those accidents. In so doing, Congress established a new standard
of care which . . . requires the exercise of due care for the prevention
not only of injuries to which wage earners do not contribute but all
“accidents” which might be avoided by the employer’s care. See
generally 87 Cong. Rec. 7658 (1941) (remarks of Rep. Randolph)
(purpose of legislation is “accident-prevention”) . . . . This court is
not free to disregard the command of Congress nor to frustrate its
unequivocal intent.
Id. at 70-71 (emphasis added).
Without a single reference to workplace violence or criminal conduct in ISA’s
legislative history, the congressional record is replete with references to accident prevention as
its purpose. Those cases recognizing negligence claims under ISA, relied upon by Plaintiffs,
involved work-related accidents, not intentional torts or criminal conduct. See, e.g., Traudt v.
Potomac Elec. Power Co., 692 A.2d 1326, 1329-32 (D.C. 1997) (negligence claim for burns
sustained by employee while removing asbestos); Fry v. Diamond Constr., Inc., 659 A.2d 241,
247 (D.C. 1995) (negligence claim for injuries when employee fell off ladder); Martin, 395 A.2d
at 65, 70-71 (negligence claim for injuries when employee fell on a staircase). There is no
authority for the proposition that failure to anticipate and/or prevent a criminal act constitutes
negligence under the statute.
60
Finally, the legislative history and relevant case law highlight a second problem
with these Plaintiffs’ reliance on ISA. That statute was designed to impose liability on
employers who control either the premises of the workplace or the employee who suffers the
injury. See Traudt, 692 A.2d at 1329-32; Fry, 659 A.2d at 247; Martin, 395 A.2d at 65, 70-71.
ISA was enacted on the “implicit recognition that wage earners will not always exercise due care
for their own safety” and, thus, the burden to provide for their safety is imposed on the employer
as circumstances reasonably permit. Martin, 395 A.2d at 70. In the instant case, none of the
victims was an employee subject to the control and custody of either HPES or The Experts.
Similarly, the Navy (not HPES or The Experts) had control or custody of Building 197 at the
Washington Navy Yard. The fact that HPES and The Experts might have had control or custody
over Mr. Alexis is irrelevant under ISA.
Because neither the text of ISA nor its legislative history indicates a purpose of
preventing violent criminal conduct in the workplace, the Court will dismiss those claims based
on ISA.
iii. Negligence under 18 U.S.C. § 930 (Firearms in Federal Facilities) and
Federal Policies/Manuals/Regulations
In her opposition and at oral argument, Plaintiff Delorenzo stated that her
“Complaint adequately alleges a claim of negligence per se for violation of Title 18 United
States Code § 930 (prohibiting possession of firearms on federal facilities),” and that it relies on
this criminal statute to provide the requisite duty and standard of care. Delorenzo Opp’n to
HPES MTD, Case No. 15-216 [Dkt. 127] at 3; see also 8/16/2016 Hr’g Tr. at 86:7-10. 38 A
38This criminal statute provides, in relevant part, for the punishment of: (1) “whoever
knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal
facility”; (2) “[w]hoever, with intent that a firearm or other dangerous weapon be used in the
commission of a crime, knowingly possesses or causes to be present such firearm . . . in a
61
review of the counts against HPES and The Experts (Counts I and II respectively) in Plaintiff
Delorenzo’s Complaint shows no claim based on this criminal statute. Plaintiff Delorenzo makes
various references to the statute as part of her Complaint’s factual background and in Count III
(against the United States) and Count IV (against John/Jane Does #1-5). 39 Counts I and II,
which expressly mention NISPOM and the common law of negligence in the District of
Columbia, do not include any claim of negligence per se, much less one based on this criminal
statute.
In Counts I and II, Plaintiff Delorenzo alleges that HPES and The Experts
breached their “duties of care to [c]omply with the laws (Federal) and common law of the
District of Columbia in a non-negligent manner.” Delorenzo Compl. ¶¶ 236(A), 267(A). This
allegation was too vague to provide notice to Defendants that Plaintiff Delorenzo intended to
assert a negligence per se claim based on 18 U.S.C. § 930. See Fed. R. Civ. P. 8(a). “Judges are
not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its
arguments [and claims] squarely and distinctly, or forever hold its peace.” United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (internal quotation marks and citation omitted). The
Court finds that Plaintiff Delorenzo did not raise a negligence per se claim against HPES or The
Federal facility”; or (3) “[a] person who kills any person in the course of a violation of [the
previous two subsections], or in the course of an attack on a Federal facility involving the use of
a firearm . . . .” 18 U.S.C. § 930.
39 On November 3, 2014, District Judge Steven D. Merryday in the U.S. District Court for the
Middle District of Florida dismissed Count III (tort claims against United States) for lack of
subject matter jurisdiction. See Order, Case No. 15-216 [Dkt. 85]. Count IV, which alleges a
claim against unidentified federal employees under Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971) –– the federal cause of action to recover for damages sustained by a violation of
the U.S. Constitution by federal officers acting under the color of federal authority –– remains.
62
Experts and she cannot rely on her opposition brief and statements during oral argument to
amend her Complaint.
Moreover, even if Plaintiff Delorenzo had alleged a negligence per se claim based
on this criminal statute, it would fail as a matter of law. “Violation of a statute may give rise to a
civil cause of action, and may constitute negligence per se if the statute is meant to promote
safety, if the plaintiff is ‘a member of the class to be protected by the statute,’ and if the
defendant is a person ‘upon whom the statute imposes specific duties.’” McCracken v. Walls-
Kaufman, 717 A.2d 346, 354 (D.C. 1998) (quoting Marusa v. District of Columbia, 484 F.2d
828, 834 (D.C. Cir. 1973)) (other citation omitted). Even if the criminal prohibition in 18 U.S.C.
§ 930 met all three requirements, Plaintiff Delorenzo has failed to allege any facts to show that
HPES or The Experts knew about Mr. Alexis’s possession of a shotgun or his intention to bring
any firearm into the Navy Yard. At oral argument, counsel for Plaintiff Delorenzo stated that her
negligence per se claim is supported by the fact that, based on the Navy Report and a retained
expert on industrial security, “HP[ES] was obligated to physically deny [Mr.] Alexis access to
the federal facilities until HP[ES] could fully understand and deal with [Mr.] Alexis’s condition.”
8/16/2016 Hr’g Tr. at 86:22-24. The argument miscasts the nature of a negligence per se claim.
Under this theory of liability, a statute provides both the duty and the standard of
care. See Chadbourne, 779 A.2d at 295-96. As a result, Plaintiff Delorenzo may not rely on
expert testimony to establish the appropriate standard of care as if it were a common law
negligence claim. Moreover, Plaintiff Delorenzo’s allegation purports to hold HPES and The
Experts strictly liable for the shooting even if they did not “knowingly posess[] or cause[] to be
present a firearm” at the Navy Yard. 18 U.S.C. § 930 (emphasis added). This analysis is
inconsistent with a per se theory of liability. Plaintiff Delorenzo offers no facts to support her
63
allegation that HPES or The Experts violated this criminal statute. Therefore, even if such a
claim were alleged in Counts I and II of the Complaint, it would be dismissed as a matter of law.
A similar reasoning applies to Plaintiff Delorenzo’s plethora of executive orders,
policies, manuals, regulations, guidelines, and other documents, which were mentioned in her
opposition brief and her Complaint’s factual background, but were not relied upon or mentioned
in Counts I and II. See Delorenzo Opp’n to HPES MTD at 2, 26. 40 As stated above, the Court
finds that Plaintiff Delorenzo’s Complaint does not make out a negligence per se claim.
Moreover, her Opposition cites executive documents and refers to exhibits she attached to her
Opposition, but does not explain how any of them meets the three criteria for a negligence per se
claim. See McCracken, 717 A.2d at 354. “It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones.” Zannino, 895 F.2d at 17.
To be clear, none of these documents supports a negligence per se claim. As with
NISPOM, Executive Order 13,587 and its related regulations were promulgated to ensure the
effectiveness of insider threat programs and to protect classified national security information.
See Exec. Order No. 13,587, 3 C.F.R. 13587, 76 Fed. Reg. 63811 (October 7, 2001) (titled,
“Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing
and Safeguarding of Classified Information”). They were not designed to prevent workplace
violence, let alone mass murder on a military base. With respect to the other documents
regarding physical security and law enforcement within Navy or military installations, Plaintiff
40Some of the documents cited in her Opposition are: “Executive Order 13587: ‘National
Insider Threat Policy’; SECNAVINST 5510.37: ‘Department of the Navy Insider Threat
Program’ . . . [;] OPNAVINST 5530.14E (April 19, 2010)[;] DoD Directive 5210.56 (Feb 25,
1992, reissued April 1, 2011); SECNAVINST 5510.37 (Aug. 8, 2013); SECNAV M-5510.30
(June 2006).” Delorenzo Opp’n to HPES MTD at 2, 26 (alterations omitted).
64
Delorenzo has failed to show that these documents imposed specific duties on any entities other
than the Navy –– particularly not on HPES and The Experts, as to which there are no facts
showing they had control over the physical premises of the Navy Yard, had law enforcement
authority, and knew that one of its employees possessed a firearm to be used in the perpetration
of a crime. Therefore, even if properly raised, Plaintiff Delorenzo failed to state a negligence per
se claim upon which relief can be granted.
3. Theories of Vicarious Liability for Assault and Battery
Plaintiffs McCullough and Proctor assert three claims of assault and battery
against HPES and The Experts based on a theory of vicarious liability, specifically, the doctrine
of respondeat superior. 41 See McCullough Compl. Count II (“Assault & Battery”); Proctor
Compl. Count VII (“Vicarious Liability – Wrongful Death”) and Count VIII (“Vicarious
Liability – Survival”).
HPES and The Experts move to dismiss Count II of the McCullough Complaint
and Count VIII of the Proctor Complaint because they are barred by D.C.’s one-year statute of
limitations for assault and battery claims. See D.C. Code § 12-301(4). “The statute of
limitations for a claim brought pursuant to the Survival Act is the statute of limitations applicable
to the underlying claim, and the claim generally accrues on the date of the decedent’s injury, and
not on the date of the decedent’s death.” Casey v. Ward, 67 F. Supp. 3d 45, 53 (D.D.C. 2014),
reconsideration denied, 67 F. Supp. 3d 54 (D.D.C. 2015) (internal quotation marks and citation
omitted). Because the assault and battery claims underlying Plaintiff Proctor and McCullough’s
survival action accrued on September 16, 2013, and they filed their complaints on September 14,
41 “Respondeat superior is a doctrine of vicarious liability and allows the employer to be held
liable for the acts of his employees committed within the scope of their employment.” Penn
Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979) (citations omitted).
65
2015 (Proctor) and September 15, 2015 (McCullough) — “one year after the statute of
limitations expired — their survival claims against [HPES and The Experts] based on assault and
battery are therefore time-barred.” Casey, 67 F. Supp. 3d at 53. In addition, Plaintiffs Proctor
and McCullough failed to oppose this argument and, thus, conceded it. See Hopkins, 284 F.
Supp. 2d at 25. Both claims will be dismissed as time barred or, in the alternative, as conceded.
Plaintiff Proctor’s claim under D.C.’s wrongful death statute, which is governed
by a two-year statute of limitations, remains outstanding. See D.C. Code § 16-2702. To state a
claim against HPES and The Experts, Plaintiff Proctor must allege sufficient facts to support an
inference that Mr. Alexis’s conduct occurred within the scope of his employment as a computer
technician. Exxon Mobil Corp., 573 F. Supp. 2d at 24. Specifically, there must be sufficient
“facts, which, if true, demonstrate that the alleged conduct of [an employee] was an outgrowth of
their work assignments, or an integral part of their business activities, interests or objectives.”
Keys v. WMATA, 408 F. Supp. 2d 1, 4 (D.D.C. 2005). No such factual allegations can be found
in Plaintiff Proctor’s Complaint.
Conduct occurs within the scope of employment only if:
(a) it is of the kind he is employed to perform; (b) it occurs
substantially within the authorized time and space limits; (c) it is
actuated, at least in part, by a purpose to serve the master; and (d) if
force is intentionally used by the servant against another, the use of
force is not unexpectable by the master.
Restatement (Second) of Agency § 228 (1958); see also Schecter, 892 A.2d at 431. “If the
employees’ conduct is different in kind from that authorized, far beyond time or space limits, or
too little actuated by a purpose to serve the master, then the conduct is not within the scope of
employment.” Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006) (citing Restatement
(Second) of Agency § 228) (emphasis added). Moreover, “[t]he key inquiry is the employee’s
66
intent at the moment the tort occurred.” Id. at 142. Finally, as then-Judge Scalia wrote in Jordan
v. Medley: “A directed verdict against the employer would be particularly rare in the case of an
intentional tort, which by its nature is willful and thus more readily suggests personal
motivation.” 711 F.2d 211, 215 (D.C. Cir. 1983).
Plaintiff Proctor argues that this is one of those rare cases in which there are
sufficient facts to support a finding that Mr. Alexis was acting within the scope of his
employment when he engaged in a murderous rampage at the Navy Yard. The Court disagrees.
Plaintiff Proctor argues that HPES and The Experts were “vicariously liable for [Mr.] Alexis’s
acts through theories of agency in the aid of execution and apparent authority.” Proctor Opp’n,
Case No. 15-1494 [Dkt. 19] at 39-40 (citing Proctor Compl. ¶¶ 196-221). Plaintiff Proctor relies
on Restatement (Second) of Agency § 219(2)(d), which states in relevant part:
A master is not subject to liability for the torts of his servants acting
outside the scope of their employment, unless . . . the servant
purported to act or to speak on behalf of the principal and there was
reliance upon apparent authority, or he was aided in accomplishing
the tort by the existence of the agency relation.
He also relies on Doe v. Sipper where a part-time female employee of defendant New Leaf
Brands, Inc., sued the company after a company executive used his position to invite her to his
hotel room to book airline tickets for upcoming trade shows and then raped her. 821 F. Supp. 2d
384, 386 (D.D.C. 2011). The employee sought to hold the company liable for the executive’s
conduct on the basis of agency in aid of execution and apparent authority. The court rejected the
theory of apparent authority, but found that there were sufficient facts to support the theory of
agency in aid of execution. See id. at 390-93.
The Court finds that Mr. Alexis acted outside the scope of his employment when
he opened fire indiscriminately in Building 197 on the Navy Yard, killing twelve individuals and
67
injuring four others. Plaintiff Proctor cannot show that committing mass murder at the Navy
Yard was an outgrowth of Mr. Alexis’s work assignment as a computer technician or that it was
an integral part of his duties or business activities. See Keys, 408 F. Supp. 2d at 4; cf. Murphy,
458 A.2d at 62-63. Nor does Plaintiff Proctor allege that Mr. Alexis committed his crimes to
further the interests of HPES and The Experts. See Reddick, 398 A.2d at 31 (“The employer will
not be held liable for those willful acts, intended by the agent only to further his own interest, not
done for the employer at all.”); see also Frasier Compl. ¶ 47 (alleging that a note was found in
Mr. Alexis’s computer stating, “ultra low frequency attack is what I’ve been subject to for the
last three months, and to be perfectly honest that is what has driven me to this”).
Moreover, “[t]he moment the agent turns aside from the business of the principal
and commits an independent trespass,” such as here, “the principal is not liable” because “[t]he
agent is not then acting within the scope of his authority in the business of the principal, but in
the furtherance of his own ends.” Schechter, 892 A.2d at 431 (quoting Axman v. Washington
Gaslight Co., 38 App. D.C. 150, 158 (1912)). Similarly, in Boykin, the D.C. Court of Appeals
held that, even though the school employee’s job “necessarily included some physical contact”
with students, “a sexual assault may [not] be deemed a direct outgrowth of a school official’s
authorization to take a student by the hand or arm in guiding her past obstacles in the building.”
Boykin, 484 A.2d at 562. “If the instructor's actions in Boykin could not render his employer
vicariously liable, it is hard to see how Plaintiff [Proctor] could prevail on that issue here.”
Sipper, 821 F. Supp. 2d at 389.
68
With respect to his theories of apparent authority and agency in aid of execution,
Plaintiff Proctor’s sole authority, Sipper, supports dismissal of his claim. 42 As in Sipper, his
theory of apparent authority “can be easily dispensed with” because there is no factual basis to
intimate that Mr. Alexis could “have ‘purported to act or to speak on behalf of’” HPES or The
Experts while shooting people indiscriminately. Id. at 391. Indeed, his victims had no
“opportunity to even make th[e] determination” of whether to rely upon his alleged apparent
authority. Id. Any assertion to the contrary is totally belied by the allegations in the Complaint.
Plaintiff Proctor’s theory of agency in aid of execution fares no better. Plaintiff
Proctor argues that “but for the building pass provided and visit scheduled by The Experts and/or
HPES, [Mr.] Alexis would not have been able to commit this act.” Proctor Opp’n at 40-41
(quoting Proctor Compl. ¶¶ 204, 217). Assuming the factual allegations to be true, they are
insufficient. In Sipper, the court noted,
The D.C. Circuit has acknowledged the superficial expansiveness of
the standard. See Gary, 59 F.3d at 1397 (“In a sense, a supervisor
is always ‘aided in accomplishing the tort by the existence of the
agency’ because his responsibilities provide proximity to, and
regular contact with, the victim.”). Yet, as Gary explains, “The
commentary to the Restatement suggests that this [approach]
embraces a narrower concept that holds the employer liable only if
the tort was ‘accomplished by an instrumentality, or through
conduct associated with the agency status.’” Id. (citing Barnes v.
Costle, 561 F.2d 983, 996 (D.C. Cir. 1977) (MacKinnon, J.,
concurring)).
Sipper, 821 F. Supp. 2d at 392. The Sipper court identified multiple allegations to support an
inference that the alleged sexual assault was “accomplished by an instrumentality, or through
conduct associated with the agency status” of the perpetrator, i.e., the executive allegedly used
42 The Court assumes, without deciding, that Restatement (Second) of Agency § 219(2)(d)
applies to common-law claims in the District of Columbia. See Sipper, 821 F. Supp. 2d at 391
(citing Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995)).
69
his authority to lure plaintiff to his hotel room with a work-related excuse (booking flight tickets
for upcoming trade shows), even though he intended to have sex with her (forcibly or otherwise).
Id. at 392-93 (citation omitted).
Plaintiff Proctor only alleges that HPES and The Experts provided Mr. Alexis
with access to the Navy Yard. This fact is insufficient. “[P]rovid[ing] proximity to, and regular
contact with, the victim” does not support an aid-by-agency-relation theory. See Gary, 59 F.3d
at 1397. “It is a general principle of agency law that ‘[i]f a person has information which would
lead a reasonable man to believe that the agent is violating the orders of the principal or that the
principal would not wish the agent to act under the circumstances known to the agent, he cannot
subject the principal to liability.’” Id. (quoting Restatement (Second) of Agency § 166, cmt. a).
Plaintiff Proctor cannot avail himself of the theories in § 219(d)(2) because he “could not have
believed (and nor does []he claim) that [Mr. Alexis] was acting within the color of his authority.”
Id. at 1397-98; cf. Restatement (Second) of Agency § 219, cmt. e (including examples of a
telegraph operator who sends false messages purporting to come from another, and of a store
manager who uses his position to cheat customers).
HPES and The Experts did not provide Mr. Alexis with the instrumentality (the
shotgun) that aided him in the commission of his horrific crime. See Nichols v. Land Transp.
Corp., 103 F. Supp. 2d 25, 28 (D. Me. 1999), aff’d, 223 F.3d 21 (1st Cir. 2000) (rejecting
vicarious liability for employer who did not provide truck driver with knife used to stab plaintiff
and where driver did not act as agent when he left his truck to confront plaintiff). Mr. Alexis’s
criminal conduct (mass murder) cannot be associated in any way with his status as a computer
technician. See id.; cf. Restatement (Second) of Agency § 219, cmt. e.
70
The fact that an employee’s work “afforded him an opportunity to” commit the
crime is “insufficient to make [an employer] vicariously liable,” without regard to the theory of
liability. Boykin, 484 A.2d at 563-64. Accordingly, the Court rejects Plaintiff Proctor’s scope-
of-employment, apparent-agency, and aided-by-agency-relation theories. Plaintiff Proctor’s
claim for assault and battery under D.C.’s wrongful death statute will be dismissed for failure to
state a claim.
C. Motion to Dismiss by Security Firm HBC
Plaintiffs Kohler, Zagami, and Jacobs allege that HBC was negligent in failing to
provide reasonable security measures to prevent the Navy Yard shooting. They argue that HBC
voluntarily assumed a duty to provide security services at Building 197 on the Navy Yard and to
protect those on its premises. In support, Plaintiffs Kohler, Zagami, and Jacobs argue that HBC
assumed such a duty by its security contract with the Navy. See HBC Suppl. Mot., Ex. 1 [Dkt.
23-1] (HBC Contract). They argue that HBC’s voluntary undertaking not only created a
contractual duty to the Navy, but also, a special relationship between it and the victims that gave
rise to a common law duty to exercise reasonable care in performing its security services. HBC
moves to dismiss this common law negligence claim under Rule 12(b)(6).
“[A] determination of whether a duty exists is the result of a variety of
considerations and not solely the relationship between the parties”; it “is also shaped by
considerations of fairness and results ultimately from policy decisions made by the courts and the
legislatures.” Presley v. Commercial Moving & Rigging, Inc., 25 A.3d 873, 888 (D.C. 2011)
(quoting DiSalvo, 974 A.2d at 871 & n.2) (internal quotation marks and citation omitted)). In
“determining whether a party who performs services under a contract for one party assumes a
duty to an unrelated third party,” D.C. courts have considered, although not formally adopted,
§ 324A of the Restatement (Second) of Torts. Id. at 889 (citing Haynesworth v. D.H. Stevens
71
Co., 645 A.2d 1095, 1097 (D.C. 1994)); see also Gilbert v. Miodovnik, 990 A.2d 983, 994 n.15
(D.C. 2010) (noting that § 324A has not been formally adopted in the District of Columbia).
Section 324A provides that:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk
of such harm, or
(b) he has undertaken to perform a duty owed by the other
to the third person, or
(c) the harm is suffered because of reliance of the other or
the third person upon the undertaking.
Restatement (Second) of Torts § 324A. In light of the Restatement and “in the absence of
contractual privity with an unrelated third party,” such as here, courts applying D.C. law have
looked “to the contract to determine the scope of the undertaking as it relates to the protection of
the third party.” Presley, 25 A.3d at 888 (citing Haynesworth, 645 A.2d at 1098; Caldwell v.
Bechtel, Inc., 631 F.2d 989, 1000-01 (D.C. Cir. 1980)).
Plaintiffs Kohler, Zagami, and Jacobs highlight several portions of the HBC-Navy
security contract to support their claim. Some of the most relevant portions of that contract
provided:
 The Contractor shall provide security operations to ensure
security and safety for personnel, property, facilities, and assets
(HBC 00069).
 The Contractor shall monitor interior patrol areas to ensure
security breaches and criminal or suspicious activities are detected
and reported in a timely manner (HBC 00072).
72
 [The Contractor has a general duty] [t]o protect [(Naval Sea
Systems Command)] NAVSEA persons (military, civilians and
visitors) and property (HBC 00222).
 [With respect to the NAVSEA Fixed Posts, the Contractor
shall]:
o Take all reasonable precautions to protect the health and
safety of all persons in the building(s) under guard,
minimize the danger from all hazards to life and
property, comply with all health, safety and fire
protection regulations (including reporting
requirements), and remove from duty any security guard
employee who may have a communicable disease (HBC
00224).
o Deter the commission of assaults, batteries, robberies,
rapes and other crimes of violence in the guard’s area of
responsibility by his/her presence (HBC 00223).
 Deadly force for NAVSEA Security Guards is justified . . .
[w]hen deadly force reasonably appears to be necessary to
protect law enforcement or security personnel who reasonably
believe themselves or others to be in imminent danger of death
or serious bodily harm . . . [or] to prevent commission of a
serious offense involving violence and threatening death or
serious bodily harm[, such as] murder, armed robbery and
aggravated assault (HBC 00227-228).
See HBC Contract. Clearly, HBC’s contract includes various references to the promotion of
safety and the protection of Navy Yard personnel against criminal acts.
The undertaking of a contractual duty is merely the point of departure. “We have
put aside the notion that the duty to safeguard life and limb, when the consequences of
negligence may be foreseen, grows out of contract and nothing else.” MacPherson v. Buick
Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (Cardozo, J.). “The contract provides the initiating
source of the duty” and since Plaintiffs Kohler, Zagami, and Jacobs have not “brought this action
. . . for breach of contract but rather . . . for an asserted breach of the duty of reasonable care,”
the Court must consider many facts beyond the contract, such as any of the defendant’s “superior
73
skills and position,” and the defendant’s “resultant ability to foresee the harm that might
reasonably be expected to befall.” Caldwell, 631 F.2d at 997, 998 n.12, 1000-02 (emphasis
added) (finding that in light of the contract, special skills, knowledge of the dangerous condition,
and ability to foresee the risk of harm and protect against such harm, the defendant assumed a
special relationship to protect the foreseeable plaintiff from such risk).
While the contract references a duty to deter and report criminal activity and the
authority to use deadly force to prevent a crime, it cannot be said that there is a duty (under the
contract or at common law) to protect against unforeseeable criminal acts by third parties. 43
Foreseeability remains at the core of this negligence claim, even when liability is premised on a
theory of voluntary undertaking. See id. at 993 (“The issue in this case, then, is whether the
contractual authority vested in [defendant] with respect to job site safety regulations created a
special relationship between [the parties to the suit] under which [defendant] owed a duty to
[plaintiff] to take reasonable steps to protect him from the foreseeable risk to his health posed by
the dust laden Metro tunnels.”). Other jurisdictions are in agreement. See Vu v. Singer Co., 538
F. Supp. at 33 (N.D. Cal. 1981), aff’d, 706 F.2d 1027 (9th Cir. 1983) (“Plaintiffs cannot prevail
on this claim because the ‘gratuitous undertaking’ doctrine does not obviate the requirement that
duty can only be predicated upon foreseeable harm to a foreseeable victim.”) (citation omitted);
see also Figueroa v. Evangelical Covenant Church, 879 F.2d 1427, 1436-39 (7th Cir. 1989)
43 HBC points out that the prevention of unforeseeable crimes is impossible. See E. Capitol View
Cmty. Dev. Corp. v. Robinson, 941 A.2d 1036, 1040 (D.C. 2008) (“A party’s obligation to
perform under a contract may be excused if performance is rendered impossible.”). Notably, in
tort law, “a duty of due care . . . is based primarily upon social policy,” not a contract; therefore,
it is society that “specifies to whom the duty is owed” (i.e., the foreseeable plaintiff), as well as
the “expectations of conduct, such as the expectancy that [defendant’s] actions will not cause
foreseeable injury to another.” Caldwell, 631 F.2d at 997-98 (citing W. Prosser, Handbook of
the Law of Torts, § 92 (4th ed. 1971)).
74
(stating that once college voluntarily provided security services to invitees on campus, liability
could attach only for those injuries resulting from the kinds of crimes reasonably foreseeable to
the college).
The tort concept of foreseeability is relevant to both elements of duty and
proximate causation. See Opp’n to HBC MTD, Case No. 15-1636 [Dkt. 28] at 26 (citing Rieser
v. District of Columbia, 563 F.2d 462, 479-80 (D.C. Cir. 2911), vacated and reinstated in
relevant part, 580 F.2d 647 (D.C. Cir. 1978) (en banc) (“The question of proximate causation,
like that of duty, is at base one of foreseeability. If a negligent, intentional or even criminal
intervening act or end result was reasonably foreseeable to the original actor, his liability will not
ordinarily be superseded by that intervening act.”). 44 This concept of foreseeability is not
abrogated or replaced in assumption of duty cases. As the D.C. Court of Appeals stated in
Haynesworth:
In a case of this nature, it is critical to determine whether a duty was
owed by the alleged tortfeasor to the person claiming injury. Woven
into this overall consideration is also the question of reasonable
foreseeable risk to be perceived by the actor at the time of the
incident. Stated another way, we must ask “whether the injury to
that individual [to whom a duty was owed] was reasonably
foreseeable to the defendant.” Powell v. District of Columbia, 602
A.2d 1123, 1133 (D.C.1992) (citations omitted).
645 A.2d at 1098. Therefore, even assuming that HBC shared part of the Navy’s duty to protect
invitees on its premises from criminal acts,45 Plaintiffs Kohler, Zagami, and Jacobs must still
allege sufficient facts to show that the criminal actions of Mr. Alexis were foreseeable to HBC.
44 Counsel for Kohler, Zagami, and Jacobs filed an identical Opposition to HBC’s motion to
dismiss and to HBC’s supplemental brief in each of the three cases. For purposes of clarity, the
Court will only use the docket numbers of the Kohler case for purposes of citations.
45HBC had no law enforcement authority and the Navy retained the ultimate authority to make
decisions related to safety and security of the premises at the Navy Yard, particularly since
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“Where an injury is caused by the intervening criminal act of a third party,” the
D.C. Court of Appeals “‘has repeatedly held that liability depends upon a more heightened
showing of foreseeability than would be required if the act were merely negligent.’” Beretta,
872 A.2d at 641 (quoting Potts, 697 A.2d at 1252). Plaintiffs Kohler, Zagami, and Jacobs argue
that in an assumption of duty case, HBC’s actions establish its duties and the heightened
foreseeability analysis is moot. Specifically, they argue that “[b]ecause HBC contractually
undertook to protect [the victims] from harm and its special relationship with [the victims]
encompassed a duty of protection, no heightened showing of foreseeability is required to subject
HBC to liability.” Opp’n to HBC’s Suppl. Br. [Dkt. 35] at 7. To support this proposition, these
Plaintiffs rely on a series of cases outside the District of Columbia, see id. at 3 n.4 & 8, as well as
those D.C. cases that opine that a showing of heightened foreseeability is lessened where the
relationship between the parties strongly suggests a duty of protection.
Assuming heightened foreseeability does not apply because the HBC-Navy
contract and the ensuing relationship between the parties may suggest a duty of protection, see
Workman, 320 F.3d at 264, Plaintiffs Kohler, Zagami, and Jacobs fail to offer sufficient facts that
Mr. Alexis’s criminal conduct was foreseeable. The Complaints do not show that it is
foreseeable to a security guard at his or her NAVSEA post in Building 197 that someone holding
a security clearance, authorized and assigned to work at the Navy Yard, in possession of a “valid
temporary access badge or [(common access card)] CAC to pass through the electronic badge
reader,” and heading to his workstation on the fourth floor of Building 197 would commit mass
murder. Kohler Compl. ¶ 19; Zagami Compl. ¶ 19; Jacobs Compl. ¶ 29. There is no allegation
military police also patrolled the premises. See HBC Contract at HBC 00224; see also 8/16/2016
Hr’g Tr. at 34:1-11.
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that HBC had knowledge of Mr. Alexis’s past behavior, character, or alleged propensity towards
violence. Mr. Alexis was not a trespasser or an intruder; rather, to HBC, Mr. Alexis was simply
another contractor going to work at the Navy Yard with lawful access to Building 197. Whether
it is analyzed in terms of duty, breach, or proximate causation, the risk of harm to the victims
was simply not foreseeable. In such circumstances, HBC did not stand “in a superior position,”
did not “fully posess[] the power to protect” the foreseeable plaintiffs, and did not have the
ability to foresee this harm. Caldwell, 631 F.2d at 1002.
This factual void is in stark contrast with cases like Caldwell and Cunningham v.
District of Columbia Sports and Entertainment Commission, where not only was the defendant
armed with a contractual obligation, ability and special skills, but also, was informed of the harm
that might reasonably be expected to occur to a foreseeable plaintiff. In Caldwell, the defendant
owed a duty to a worker to take reasonable steps to protect him from foreseeable risks to his
health because defendant was, among other things, “informed of high concentration of silica dust
and inadequate ventilation in the subway tunnels” and had the authority to stop the work. Id.
Similarly, in Cunningham, a security company hired to provide crowd management and guest
services at a concert, owed a duty to plaintiff to protect him against injuries sustained as a result
of a crowd crush incident because there was, among other things, evidence “that the crowd was
pretty packed and everyone was close together,” as well as of “crowd surfing” and “mosh pits.”
Cunningham v. D.C. Sports & Entm’t Comm’n, No. Civ. A. 03-839RWRJMF, 2005 WL
3276306, at *1-2 (D.D.C. Nov. 30, 2005); see also id. at *8 (“Under these circumstances, [the
security company] assumed a duty to act reasonably so that attendees of the concert would be
protected from foreseeable risks.”) (emphasis added).
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Moreover, in cases where “the heightened foreseeability is lessened” due to a
special relationship between the parties, foreseeability does not require “previous occurrences of
a particular harm, but can be met instead by a combination of factors which give defendants an
increased awareness of the danger of a particular criminal act.” Doe, 524 A.2d at 33; see also
DiSalvo, 974 A.2d at 872; Sigmund I, 475 F. Supp. 2d at 42. To meet this burden, Plaintiffs
Kohler, Zagami, and Jacobs allege that Navy Yard and nine other military installations are
“subject to a heightened risk of violent attacks, and in particular gun violence” because they each
had “suffered a violent attack . . . prior to the September 16, 2013 shooting,” specifically
including the Navy Yard “on two separate occasions in 1983 and 1984.” Kohler Compl. ¶ 9;
Zagami Compl. ¶ 9; Jacobs Compl. ¶ 8. “Even if the relationship here did entail a greater duty of
protection,” DiSalvo, 974 A.2d at 872, the alleged facts fall short of the showing made in those
cases that recognized a duty of protection vis-à-vis the sliding scale analysis. See, e.g., Novak,
452 F.3d at 904; Dominion Bank, 963 F.2d at 1555-61; Doe, 524 A.2d at 34; Kline, 439 F.2d at
480.
“It is not sufficient to establish a general possibility that the crime would occur”;
instead, Plaintiffs Kohler, Zagami, and Jacobs must allege sufficient facts to make it plausible
that HBC “had an increased awareness of the risk of [a shooting and murder at the Navy Yard].”
DiSalvo, 974 A.2d at 872. The fact that other military installations had suffered violent attacks
over the past seventeen years does not support an “increased awareness” of the risk of a similar
attack at the Navy Yard. Sigmund I, 475 F. Supp. 2d at 42 (noting that “the D.C. Court of
Appeals requires proof that the specific type of crime, not just crime in general, be particularly
foreseeable at the relevant location”) (citations omitted). Moreover, the fact that the Navy Yard
experienced two attacks more than thirty years ago is simply too remote to support any
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negligence claim against HBC. A careful review of D.C. law on this issue shows that “the
common thread” in all of these cases involving third-party criminal conduct is that the facts
supporting an inference of foreseeability “showed, if not awareness of the precise risk, close
similarity in nature or temporal and spatial proximity to the crime at issue.” DiSalvo, 974 A.2d
at 874 (emphasis added); accord Sigmund II, 617 F.3d at 516; Figueroa, 879 F.2d at 1436-39
(requiring similar evidence of foreseeability in a voluntary undertaking case under Illinois
law). 46 The background allegations lack that temporal and spatial proximity to the shooting of
September 2013.
On a final note, Plaintiffs Kohler, Zagami, and Jacobs often reduce their claim to
a contractual issue. They argue that HBC’s decision to enter into a contract to provide security
services at the Navy Yard gave rise to a duty to protect the victims from criminal actions. See
Opp’n to HBC MTD at 11-12 (stating that HBC “should not now, after the fact of its assumption
of the duty to provide contractual security services at the Navy Yard . . . be permitted to escape
liability on the basis that it did not see the potential harm”). This argument is at odds with the
relevant caselaw. Under D.C. law, foreseeability as a function of duty (and proximate causation)
remains an essential element of a negligence claim and is “shaped by considerations of fairness
and results ultimately from policy decisions,” as well as societal expectations. Presley, 25 A.3d
at 888 (internal quotation marks and citation omitted). Courts look at the particular
circumstances of each case and consider the terms of a contract, the defendant’s skills and
46 But see Burns Int’l Sec. Servs. Inc. of Fla. v. Phila. Indem. Ins. Co., 899 So. 2d 361, 364-65
(Fla. Dist. Ct. App. 2005); Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 592-94
(Fla. Dist. Ct. App. 2004)). In the Court’s opinion, these cases cited by Plaintiffs Kohler,
Zagami, and Jacobs “overly rel[y] upon contract theory to the point of losing focus of the nature
of the claim made here, which asserts negligence, rather than breach of contract.” Caldwell, 631
F.2d at 997; see also MacPherson, 111 N.E. at 1053.
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position, the defendant’s knowledge of a dangerous condition, and the ability to foresee the risk
of harm. See Caldwell, 631 F.2d at 997, 998 n.12.
As part of this fairness and policy inquiry in determining the existence of a duty
in each particular case, courts generally consider multiple factors, such as
(1) foreseeability of harm to plaintiff; (2) degree of certainty that
plaintiff suffered injury; (3) closeness of connection between
defendant’s conduct and injury suffered; (4) moral blame attached
to defendant’s conduct; (5) policy of preventing future harm; (6)
extent of burden to defendant and the consequences to the
community of imposing a duty to exercise care with resulting
liability for breach; and (7) availability, cost, and prevalence of
insurance for the risk involved.
Vu, 538 F. Supp. at 29 (citation omitted); accord W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 53, at 358 n.24 (5th ed. 1984) (cited with approval in Haynesworth, 645 A.2d
at 1098). Policy reasons and fairness prevent holding HBC liable for the unforeseeable criminal
actions of Mr. Alexis. It would be highly burdensome and contrary to the provisions of the HBC
Contract,47 to search the person and effects of everyone entering the Navy Yard premises,
especially those authorized to enter Building 197. Under these circumstances, “[a] defendant
may not be held liable for harm actually caused where the chain of events leading to the injury
appears ‘highly extraordinary in retrospect.’” Morgan, 468 A.2d at 1318 (quoting Lacy, 424
A.2d at 320-21).
47Because Mr. Alexis was assigned to work at the Navy Yard and was authorized to enter the
premises, HBC was not required under the contract to search his person or possessions for
weapons; instead, Mr. Alexis was subject to random search only. See HBC Contract at HBC
00054, 00070, 00211, and 00229.
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Accordingly, the Court holds that HBC did not owe Plaintiffs Kohler, Zagami,
and Jacobs a duty to protect them against the unforeseeable criminal acts of Mr. Alexis. The
negligence claims against HBC will be dismissed. 48
IV. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part the
motions to dismiss filed by HPES and The Experts in each of the nine cases. It will also grant
HBC’s Motion to Dismiss in the cases involving Plaintiffs Kohler (Case No. 15-1636), Zagami
(Case No. 15-1638) and Jacobs (Case No. 15-2242).
All claims against Defendants will be dismissed, with the exception of: (1)
Plaintiffs’ claims against HPES and The Experts for negligent retention and supervision of Mr.
Alexis; and (2) the claims of Plaintiffs Kohler, Ridgell, Zagami, and Jacobs against HPES for
negligent retention and supervision of The Experts.
A memorializing Order accompanies this Memorandum Opinion in each case.
Date: September 15, 2016
/s/
ROSEMARY M. COLLYER
United States District Judge
48 As an additional basis for dismissal, the Court finds that the facts alleged do not support an
inference that HBC breached any potential duty under the contract or at common law. Plaintiffs
Kohler, Zagami, and Jacobs merely allege that HBC “fail[ed] to maintain Building 197 as a gun-
free zone as required by law” and “to act with reasonable care under the circumstances.” Kohler
Compl. ¶ 113; Zagami Compl. ¶ 113; Jacobs Compl. ¶ 123. These allegations are bare
statements that do not show that HBC was negligent in performing its security duties under the
contract. Nothing in the Complaints supports an inference that: (1) Mr. Alexis had to be
searched notwithstanding his authorization to enter the premises; (2) HBC failed to report the
criminal conduct to the appropriate authorities; or (3) HBC failed to deter the criminal conduct of
Mr. Alexis once he initiated his shooting spree. In fact, the Court notes that Officer Ridgell, an
HBC security guard, was one of the fatal victims of the shooting. The Court need not accept as
true the legal conclusion that HBC failed to act with reasonable care. Iqbal, 556 U.S. at 678.
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