Hajjar-Nejad v. George Washington University ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMAD JAVAD HAJJAR-NEJAD,
Plaintiff,
v. Civil Action No. 10-00626 (CKK)
GEORGE WASHINGTON UNIVERSITY,
Defendant.
MEMORANDUM OPINION
(August 15, 2011)
Plaintiff Mohammad Javad Hajjar-Nejad (“Hajjar-Nejad”) commenced this action against
The George Washington University (“GW”) on April 9, 2010, asserting a series of claims in
connection with his dismissal as a medical student from GW’s School of Medicine and Health
Sciences (the “Medical School”) in July 2007. In the short time that the action has been pending,
Hajjar-Nejad has amended his complaint twice, dropping claims and narrowing the universe of
relied-upon factual allegations. In the operative iteration of his complaint—the [20] Second
Amended Complaint—he asserts a single claim sounding in breach of contract. Specifically,
Hajjar-Nejad claims that the written offer of acceptance provided by GW and executed by him
constitutes a binding agreement between the parties and that GW breached the terms of that
agreement by dismissing him from the Medical School and refusing to provide him with the
contemplated educational services. At present, there are three motions pending before the Court:
GW’s [21] Motion to Dismiss Plaintiff’s Second Amended Complaint (“Motion to Dismiss”);
Hajjar-Nejad’s [24] Motion to Reinsert Civil Rights Complaints (“Motion to Amend”)1; and a
1
Although styled as a “Motion to Reinsert Civil Rights Complaints,” like GW, the Court
construes the submission as a motion to amend under FED . R. CIV . P. 15(a).
[25] Motion for Leave to Withdraw as Plaintiff’s Counsel of Record (“Motion to Withdraw”) by
Michael W. Beasley, Esq. (“Beasley”). Upon consideration of the parties’ submissions, the
relevant authorities, and the record as a whole, GW’s Motion to Dismiss will be granted-in-part
and denied-in-part, Hajjar-Nejad’s Motion to Amend will be denied, and Beasley’s Motion to
Withdraw will be granted.
I. BACKGROUND
A. Factual Background
While an undergraduate at GW, Hajjar-Nejad applied to GW’s Medical School. Second
Am. Compl. (“2d Am. Compl.”), ECF No. [20], ¶ 9.2 On November 5, 2003, the Medical School
presented him with a written Offer of Acceptance, and he executed the document two days
later—on November 7, 2003. Id.
The Offer of Acceptance is a single page. See id. Ex. 1 (Offer of Acceptance) at 1. It
offers Hajjar-Nejad “admission to the Doctor of Medicine degree program” upon certain terms
and conditions. Id. By executing the document, Hajjar-Nejad “accept[ed] the conditional offer
of acceptance” for the academic year beginning in 2004. Id.
The Offer of Acceptance identifies several terms and conditions to GW’s offer. Among
other things, Hajjar-Nejad was required to submit additional application materials, complete his
undergraduate studies with a satisfactory level of performance, demonstrate his financial ability
2
This factual background is derived from the well-pleaded factual allegations in Hajjar-
Nejad’s Second Amended Complaint—the operative iteration of the complaint—which for
purposes of the pending motions the Court assumes to be true. See Erickson v. Pardus, 551 U.S.
89, 94 (2007). Where appropriate, the Court will also reference documents attached to or
incorporated in that document. See Equal Empl. Opportunity Comm’n v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
2
to pay tuition and related expenses, and provide a $100 deposit and a $2,900 tuition prepayment.
Id. Of particular relevance to this action, Hajjar-Nejad certified the following:
I understand that I will be subject to the Regulations for M.D.
Candidates that are set forth in the [Medical School] Bulletin. As a
medical student, I agree to become familiar with the Bulletin and the
Regulations and to abide by them.
Id. In addition, the Offer of Acceptance includes the following clause:
I understand that the submission of false or misleading information
or material omission in connection with the application process shall
be grounds for withdrawing my conditional offer of acceptance to
[the Medical School]. I further understand and agree that if any such
submissions or omissions are discovered after matriculation in the
Doctor of Medicine degree program or award of a degree, [the
Medical School] has the right, in its sole discretion, to dismiss me
from [the Medical School] and/or revoke my degree.
Id. Outside this narrow context, the Offer of Acceptance does not on its face purport to describe
the circumstances under which Hajjar-Nejad could be dismissed from the Medical School or the
scope of GW’s discretion in determining when dismissal is appropriate. Nor does it purport to
describe whether Hajjar-Nejad had any continuing right to attend the Medical School.
Hajjar-Nejad began his studies at the Medical School in 2004. He was a “superb” student
and “excell[ed]” in his first two years. Id. ¶ 14. In April 2006, he was accepted into an honors
program for third-year students by a committee of nine faculty members based on its
consideration of a written essay, project proposal, mentorship, prior achievements, and strength
of academic performance. Id. ¶ 15. Hajjar-Nejad participated in the honors program through
August 11, 2006 and, in this period, he reported to unspecified individuals his “good faith
observations” that included “limited criticisms of hospital practices.” Id. ¶ 19. Around this same
time period, he began to be subjected to “adverse and unwarranted comments” from faculty and
3
students. Id. For example, on August 23, 2006, Senior Associate Dean W. Scott Schroth, M.D.
(“Schroth”) reported to other senior faculty that Hajjar-Nejad had “leveled criticisms” against
them. Id. ¶ 20. According to Hajjar-Nejad, this act of reporting marked the beginning of a
“pattern of hostility and antagonism” against him. Id.
In his third year, Hajjar-Nejad began to experience “increasingly hostile treatment” from
the Medical School’s faculty, and in particular James L. Scott, M.D. (“Scott”), the Dean of the
Medical School. Id. ¶ 21. On October 23, 2006, Schroth, acting under Scott’s direction,
informed Hajjar-Nejad that he “would have to leave” the honors program and that, if he did not
do so voluntarily, he would be “removed.” Id. ¶ 26. At a meeting with Medical School faculty,
Hajjar-Nejad stated that he believed there was no legitimate basis for the hostile treatment. Id. ¶
29. Ultimately, however, Hajjar-Nejad left the honors program. Id. ¶ 31.
Nonetheless, the alleged mistreatment of Hajjar-Nejad continued unabated. Id. ¶ 32. In
February 2007, he learned that the Subcommittee on Professional Comportment (the
“Subcommittee”) within the Medical Student Evaluation Committee (the “MSEC”) was
evaluating his academic progress. Id. ¶ 33. Hajjar-Nejad characterizes the outcome of this
process as “pre-determined.” Id. On May 3, 2007, Hajjar-Nejad attended a Subcommittee
meeting accompanied by legal counsel. Id. ¶ 34. He contends that the meeting was conducted in
violation of GW’s policies and regulations, though he does not specifically identify which
policies or regulations are at issue. Id. He further contends that he was not permitted to ask
questions, cross-examine witnesses, or to present witnesses or evidence of his own. Id.
Despite this hostile treatment, Hajjar-Nejad managed to complete the 2006-2007
academic year with passing grades and positive evaluations from his professors. Id. ¶ 35. But on
4
June 18, 2007, the Subcommittee issued its recommendations to the MSEC. Id. ¶ 37. The
contents of those recommendations are not entirely clear, though Hajjar-Nejad contends that they
related only to his academic responsibilities and included requiring him to repeat any clerkship in
the event he received a “low pass” grade. Id. Hajjar-Nejad contends that the recommendations
were contrary to GW’s “regulations and policies,” though again he does not specify which
regulations and policies those might be. Id.
On June 18, 2007, the MSEC held a meeting concerning Hajjar-Nejad chaired by Jeffrey
S. Ackman, M.D. Id. ¶¶ 38-40. Hajjar-Nejad was accompanied by counsel but was denied leave
to bring an expert witness and legal assistant. Id. ¶ 39. He did not receive a copy of the
Subcommittee’s recommendations until early that morning. Id. ¶ 38. Hajjar-Nejad claims that
the MSEC was comprised “primarily of white students” and individuals “pre-selected” by GW.
Id. ¶ 40. He contends that, contrary to the Medical School’s “regulations,” the MSEC did not
issue written recommendations despite his requests. Id. ¶ 41.
On July 26, 2007, Hajjar-Nejad received a letter dated two weeks earlier stating that the
MSEC had recommended Hajjar-Nejad’s dismissal. Id. ¶ 42. The letter indicates that the MSEC
held meetings on June 18, 2007 and July 9, 2007 to conduct their deliberations, and that in doing
so they “review[ed] the relevant aspects of the ‘Regulations for MD Candidates.’” Def.’s Mem.
Ex. 2 (Ltr. from J. Akman, M.D., to J. Scott, M.D., dated July 12, 2007), ECF No. [21-3], at 1.3
The letter goes on to provide as follows:
A motion was made and seconded to accept the Professional
Comportment Subcommittee’s report and recommendations. Serious
3
The letter is incorporated in the Second Amended Complaint and annexed to GW’s
opposition papers.
5
concerns were raised about Mr. Hajjar-Nejad’s professionalism,
honesty and integrity, his interpersonal relationships and his capacity
to work with others. Of particular concern[] were the following: Mr.
Hajjar-Nejad’s inability to accept responsibility for his own actions;
refusal to accept instructions or constructive feedback from residents,
faculty and deans; inability to work and communicate effectively with
peers and residents; inadequate understanding of the commitment to
and responsibility for patient care; lack of insight into personal
weaknesses and areas for improvement; and, inappropriate
understanding of the role of a medical student in the medical
education hierarchy. In addition, the Committee noted that these
concerns were not the result of an isolated incident, but appeared to
be a pattern in most interactions with Mr. Hajjar-Nejad.
Id. at 2. The letter states that a “motion for dismissal” passed in a “secret ballot vote” with nine
votes in favor, none against, and one abstention. Id.
Hajjar-Nejad claims that the dismissal determination was unjustified and contrary to
policies and regulations to which GW was “obliged to adhere.” 2d Am. Compl. ¶ 43. He
contends that the MSEC “exceeded the scope of its authority” and committed a number of
unspecified “procedural violations” in connection with the dismissal proceedings. Id.
On July 26, 2007, Scott adopted the MSEC’s recommendation and dismissed Hajjar-
Nejad from the Medical School. Id. ¶ 45. Hajjar-Nejad claims that this was improper because
GW’s regulations required the final decision to be made by the Vice President of Academic
Affairs. Id. Subsequently, Hajjar-Nejad sought to appeal the determination within GW; the
determination was ultimately upheld. Id. ¶¶ 47, 49.
Hajjar-Nejad claims that the campaign of mistreatment continued even after his dismissal.
He contends that GW put an “unlawful and retaliatory ‘hold’” on his academic transcripts for a
period of eight months to “preclude his subsequent transfer to an alternative medical school” and
prevented him from sitting for a national exam to become a physician. Id. ¶¶ 51-52.
6
B. Procedural Background
Hajjar-Nejad, proceeding without legal representation, originally commenced this action
in the United States District Court for the District of Maryland—on April 9, 2010. See Compl.,
ECF No. [1-4]. By any reasonable measure, Hajjar-Nejad’s original Complaint was sprawling; it
spanned 121 color-coded pages, included 193 paragraphs (several with discrete sub-parts), and
was accompanied by thousands of pages of exhibits. Although far from clear, Hajjar-Nejad
appeared to allege that he was unfairly and unlawfully dismissed from GW based on his race,
religion, and perceived national origin4 in violation of Title VI of Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq. (“Title VI”); Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”); the District of Columbia Human Rights Act, D.C. CODE § 2-1401.01 et seq.
(the “DCHRA”); and his constitutional rights to free speech, the free exercise of religion, and
equal protection under the law.
On April 19, 2010, the action was transferred to this Court, see Mem. (Apr. 19, 2010),
ECF No. [1-10], whereupon Hajjar-Nejad secured legal counsel and, with GW’s consent, filed an
Amended Complaint (the “First Amended Complaint”), see Am. Compl., ECF No. [13]. The
First Amended Complaint—itself no model of clarity—included three counts. In Count I, Hajjar-
Nejad appeared to claim that GW discriminated against him on the basis of his race, religion, and
national origin in violation of Title VII; Section 1 of the Civil Rights Act of 1866, 42 U.S.C. §
1981 (“Section 1981”); and the DCHRA.5 See id. ¶¶ 72-75. In Count II, Hajjar-Nejad appeared
4
Hajjar-Nejad identifies his race as Arabic or Middle Eastern; his religion as Muslim;
and his perceived national origin as Iranian.
5
The precise legal theories upon which Hajjar-Nejad intended to rely are not entirely
clear from the face of his First Amended Complaint.
7
to claim that GW retaliated against him for engaging in protected activity in violation of Title
VII; Section 1981; and the DCHRA. See id. ¶¶ 77-79. In Count III, Hajjar-Nejad alleged that
GW breached the terms of the Offer of Acceptance by dismissing him from the Medical School.
See id. ¶¶ 81-83.
On July 26, 2010, GW moved to dismiss Hajjar-Nejad’s First Amended Complaint. See
Def.’s Mot. to Dismiss First Am. Compl., ECF No. [14]. On August 20, 2010, Hajjar-Nejad,
acting through counsel, responded by filing a partial opposition and voluntarily dismissing his
“civil rights claims”—i.e., Counts I and II of the First Amended Complaint—without prejudice.
See Pl.’s Partial Opp’n to Def.’s Mot. to Dismiss First Am. Compl., and Voluntary Dismissal of
All Pending Civil Rights Claims, ECF No. [17]. By way of explanation, Hajjar-Nejad claimed
that some or all of his claims were still pending before the District of Columbia Commission on
Human Rights and therefore were yet to be fully exhausted. See id. at 3-4. Concurrently, Hajjar-
Nejad moved this Court for leave to file a second amended complaint omitting his “civil rights
claims” but retaining his claim for breach of contract, see Pl.’s Mot. for Leave to File Second
Am. Compl., ECF No. [18], which the Court granted, see Order (Aug. 24, 2010), ECF No. [19].
On August 24, 2010, Hajjar-Nejad filed his Second Amended Complaint, which remains
the operative iteration of the complaint in this action. Despite the sweep of the allegations set
forth therein, Hajjar-Nejad’s Second Amended Complaint asserts a single cause of action
sounding in breach of contract. See 2d Am. Compl. ¶¶ 58-60. Specifically, Hajjar-Nejad
contends that the Offer of Acceptance constitutes a binding contractual agreement and that GW
breached the agreement by dismissing him from the Medical School. See id.On September 17, 2010, GW filed the pending Motion to Dismiss. See Def.’s Mem. of P.
8
& A. in Supp. of its Mot. to Dismiss Pl.’s Second Am. Compl. (“Def.’s MTD Mem.”), ECF No.
[21-1]. On October 1, 2010, Hajjar-Nejad filed an opposition through counsel. See Pl.’s Mem.
in Opp’n to Def.’s Mot. to Dismiss Second Am. Compl. (“Pl.’s MTD Opp’n”), ECF No. [22].
On October 12, 2010, GW filed a reply. See Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to
Dismiss Pl.’s Second Am. Compl. (“Def.’s MTD Reply”), ECF No. [23].
On November 9, 2010, Hajjar-Nejad filed his pending Motion to Amend, seeking to
amend the complaint to assert claims arising under Title VI, Title VII, and Section 1981. See
Pl.’s Mem. in Supp. of Pl.’s Mot. to Reinsert Civil Rights Compls. (“Pl.’s MTA Mem.”), ECF
No. [24]. Hajjar-Nejad filed his Motion to Amend pro se, even though he was represented by
counsel at the time. See infra Part III.C. On November 23, 2010, GW filed an opposition. See
Def.’s Opp’n to Pl.’s Mot. to Reinsert Civil Rights Compls. (“Def.’s MTA Opp’n”), ECF No.
[26]. On November 30, 2010, Hajjar-Nejad filed a pro se reply. See Pl.’s Reply Mem. (“Pl.’s
MTA Reply”), ECF No. [27].
On November 12, 2010, Beasley filed his Motion to Withdraw, wherein Beasley certifies
that he served a copy of the motion upon Hajjar-Nejad and informed Hajjar-Nejad of his duty to
inform the Clerk of the Court whether he intended to oppose the motion or to proceed pro se in
this action. See Mot. to Withdraw at 2. However, as of the date of this Memorandum Opinion,
the public docket reflects that Hajjar-Nejad has not filed an opposition or otherwise responded to
Beasley’s motion.
9
II. LEGAL STANDARDS
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” FED . R. CIV . P. (8)(a), “in
order to ‘give the 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) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a
complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” FED .
R. CIV . P. 12(b)(6). When presented with a motion to dismiss for failure to state a claim, the
district court must accept as true the well-pleaded factual allegations contained in the complaint.
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, __ U.S. __,
130 S. Ct. 2064 (2010). Although “detailed factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff
must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555. “Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain
sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. The plaintiff must provide more than just
“a sheer possibility that a defendant has acted unlawfully.” Id. at 1950. When a complaint’s
well-pleaded facts do not enable a court, “draw[ing] on its judicial experience and common
10
sense,” “to infer more than the mere possibility of misconduct,” the complaint has not shown that
the pleader is entitled to relief. Id.Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a
matter of course within a prescribed time period. See FED . R. CIV . P. 15(a)(1). Where a party
seeks to amend its pleadings outside that time period or for a second time, it may do so only with
the opposing party’s written consent or the district court’s leave. See FED . R. CIV . P. 15(a)(2).
The decision whether to grant leave to amend a complaint is entrusted to the sound discretion of
the district court, but leave “should be freely given unless there is a good reason, such as futility,
to the contrary.” Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996),
cert. denied, 520 U.S. 1197 (1997). As the Supreme Court has observed:
If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits. In the absence of any apparent or
declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be
“freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962). “[A] district court has discretion to deny a motion to
amend on grounds of futility where the proposed pleading would not survive a motion to
dismiss.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004),
cert. denied, 545 U.S. 1104 (2005). Review for futility is practically “identical to review of a
Rule 12(b)(6) dismissal based on the allegations in the amended complaint.” In re Interbank
Funding Corp. Secs. Litig., 629 F.3d 213, 215-16 (D.C. Cir. 2010) (quotation marks omitted).
Because leave to amend should be liberally granted, the party opposing amendment bears the
11
burden of coming forward with a colorable basis for denying leave to amend. Abdullah v.
Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008).
III. DISCUSSION
The Court’s discussion here proceeds in three parts. The Court will first address GW’s
Motion to Dismiss. Thereafter, the Court will turn to Hajjar-Nejad’s Motion to Amend. Finally,
the Court will resolve Beasley’s Motion to Withdraw. For the reasons set forth below, the Court
will grant-in-part and deny-in-part GW’s Motion to Dismiss, deny Hajjar-Nejad’s Motion to
Amend, and grant Beasley’s Motion to Withdraw.
A. GW’s Motion to Dismiss
GW tenders only two arguments in favor of dismissal of Hajjar-Nejad’s Second Amended
Complaint. First, GW contends that Hajjar-Nejad has failed to plead sufficient facts to provide
“fair notice” of his breach of contract claim. See Def.’s MTD Mem. at 3-4.6 Second, GW
contends that Hajjar-Nejad’s breach of contract claim is time-barred to the extent it is premised
on conduct that pre-dates April 9, 2007, three years before he filed his original Complaint in this
action. See id. at 4-6.
1. The Sufficiency of Hajjar-Nejad’s Allegations
To state a claim for breach of contract under District of Columbia law,7 a plaintiff must
6
Because GW’s memorandum is not paginated, the Court will refer to the page numbers
generated by the Court’s CM-ECF System.
7
To the extent they address the question, both parties assume that District of Columbia
law applies to Hajjar-Nejad’s breach of contract claim. The Court need not question this
assumption. In any event, based on the present record, it appears that both parties entered into
the agreement while in the District of Columbia and contemplated that at least partial
performance would occur there.
12
allege (i) a valid contract between the parties, (ii) an obligation or duty arising out of the contract,
(iii) a breach of that duty, and (iv) damages caused by that breach. Tsintolas Realty Co. v.
Mendez, 984 A.2d 181, 187 (D.C. 2009). GW’s self-described “core argument” in support of
dismissal is this—the “Second Amended Complaint cites to no specific policy, regulation or
contractual provision that GW purportedly breached.”8 Def.’s MTD Reply at 1. GW contends
that, in the absence of greater specificity, Hajjar-Nejad’s allegations are “conclusory,” Def.’s
MTD Mem. at 2, and fail to provide “fair notice of his claim,” Def.’s MTD Reply at 2. The
Court agrees, but only to a certain extent. The Court cannot conclude that Hajjar-Nejad has
failed to provide “fair notice” of his breach of contract claim altogether.
i. “Policies” and “Regulations”
The Court agrees that the Second Amended Complaint is deficient in important respects.
In the Second Amended Complaint, Hajjar-Nejad periodically refers to “regulations,” “policies,”
“rules,” “procedures,” and “directives” that GW allegedly contravened during the course of the
parties’ three-year relationship. However, with one exception that the Court will address shortly,
see infra Part III.A.1.ii, Hajjar-Nejad’s allegations with respect to these “regulations” and
“policies” are conclusory. The Second Amended Complaint lacks allegations that would allow
this Court to conclude (i) that these “regulations” and “policies” constituted a valid contract
between Hajjar-Nejad and GW; (ii) that they imposed specific obligations or duties on GW; and
(iii) that GW breached those specific obligations or duties.9 True, in his opposition to GW’s
8
GW contends that Hajjar-Nejad has conceded this argument by failing to address it in
his opposition. See Def.’s MTD Reply at 1. The contention is without merit.
9
For example, there is no indication that these “regulations” and “policies” were
supported by consideration on both sides or otherwise constituted independent, stand-alone
13
Motion to Dismiss, Hajjar-Nejad identifies five sets of “regulations” or “policies” that he
contends GW violated: (1) the Medical School’s Student Mistreatment Policy and Procedures;
(2) GW’s Non-Retaliation Policy; (3) GW’s Regulations for M.D. Candidates; (4) GW’s Guide
to Student Rights and Responsibilities; and (5) GW’s Disruption of University Functions Policy.
See Pl.’s MTD Opp’n at 6-10. However, “[i]t is axiomatic that a complaint may not be amended
by the briefs in opposition to a motion to dismiss.’” Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (quoting Coleman v. Pension Benefit
Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000)). Accordingly, Hajjar-Nejad’s belated
identification of these documents in his opposition papers cannot cure the fundamental defects in
his Second Amended Complaint.
Equally troubling, Hajjar-Nejad’s claim for breach of contract, as it is framed in the
Second Amended Complaint, is based on one, and only one, alleged breach—namely, that GW
allegedly “rescinded the contract to provide educational services to [Hajjar-Nejad] through its
precipitous and unlawful dismissal of Plaintiff.” 2d Am. Compl. ¶ 59. In his opposition papers,
Hajjar-Nejad confirms this and expressly disclaims that he is alleging that anything “outside of
the ultimate contract termination” constituted “separate actionable” breaches. Pl.’s MTD Opp’n
at 12. Nonetheless, several of the “regulations” and “policies” identified by Hajjar-Nejad in his
opposition papers relate to such matters as the prohibition against verbal attacks; the
confidentiality of communications; protections against improper academic evaluations; and free
access to university buildings. See id. at 6-10. Given Hajjar-Nejad’s statement that his breach of
contract claim is limited to his dismissal from the Medical School, it is perplexing why he
contractual agreements.
14
continues to claim that these “regulations” and “policies” are even relevant.
In any event, the Court agrees with GW that Hajjar-Nejad’s Second Amended Complaint
fails to provide adequate notice of his breach of contract claim to the extent he intends to base it
on an unidentified universe of “regulations,” “policies,” “rules,” “procedures,” and “directives.”
Therefore, the Court will grant GW’s Motion to Dismiss to the extent it rests on this basis.
ii. The Offer of Acceptance
Meanwhile, the Court cannot conclude that Hajjar-Nejad has completely failed to state a
claim for breach of contract. GW acknowledges that the Offer of Acceptance is referenced in
and attached to the Second Amended Complaint. See Def.’s MTD Mem. at 3. Similarly, GW
concedes, as it must, that Hajjar-Nejad’s Second Amended Complaint specifically alleges that
the Offer of Acceptance is a mutually binding agreement supported by consideration on both
sides. See 2d Am. Compl. ¶ 58. Likewise, it is undisputed that the Second Amended Complaint
specifically alleges that GW breached the Offer of Acceptance by dismissing Hajjar-Nejad from
the Medical School and that Hajjar-Nejad suffered damages as a result of the alleged breach.
See id. ¶¶ 56, 59.
These allegations are sufficient to state a claim for breach of the Offer of Acceptance.
Significantly, GW’s entire argument in favor of dismissal is confined to the question of whether
Hajjar-Nejad’s allegations provide adequate notice of the basis of his breach of contract claim.
GW never argues that the Offer of Acceptance does not—as a matter of law—impose any
obligations on GW that would preclude it from dismissing Hajjar-Nejad under the facts alleged.
This is not an argument that the Court is inclined to reach in the absence of adequate briefing
from the parties: the Offer of Acceptance contains no merger clause and determining what the
15
parties’ understanding of the agreement was at the time of contract formation may very well
require further development of the factual record.
For example, the Offer of Acceptance vests GW with the “sole discretion” to dismiss
Hajjar-Nejad from the Medical School if Hajjar-Nejad had submitted “false or misleading
information” or made “material omission[s]” in connection with his application for admission.
See 2d Am. Compl. Ex. 1 (Offer of Acceptance) at 1. However, outside this narrow context, the
Offer of Acceptance does not on its face purport to describe the circumstances under which
Hajjar-Nejad could be dismissed from the Medical School or the scope of GW’s discretion in
determining when dismissal is appropriate. It does not even say whether or not Hajjar-Nejad had
a continuing right to attend Medical School for as long as he paid his tuition and otherwise
complied with the terms and conditions of acceptance.
Furthermore, the Offer of Acceptance includes the following language, which Hajjar-
Nejad certified in executing the document:
I understand that I will be subject to the Regulations for M.D.
Candidates that are set forth in the [Medical School] Bulletin. As a
medical student, I agree to become familiar with the Bulletin and the
Regulations and to abide by them.
Id. While this clause may reasonably be read merely as requiring Hajjar-Nejad to abide by the
Regulations for M.D. Candidates and imposing no similar obligation on GW, a colorable
argument could be made that the Offer of Acceptance included an implied promise that both
parties would abide by the regulations or that the treatment of Hajjar-Nejad would be “subject” to
them.10 The Court expresses no opinion on the matter, which neither party has addressed in the
10
The letter of dismissal suggests that the MSEC “review[ed] the relevant aspects of the
‘Regulations for MD Candidates’” prior to rendering its decision. Def.’s Mem. Ex. 2 (Ltr. from
16
course of briefing GW’s Motion to Dismiss. At this point, it suffices to observe that there are
sufficient allegations to state a claim for breach of contract based on the Offer of Acceptance,
and the Offer of Acceptance incorporates at least to some extent the Regulations for M.D.
Candidates. The Regulations for M.D. Candidates, in turn, appear to have some bearing upon
when dismissal is appropriate and the procedure for evaluating a student’s professional
comportment. See Pl.’s MTD Opp’n Ex. 3 (Regulations for M.D. Candidates) at E104-107. If
these regulations were part of the parties’ agreement, and if these regulations were not followed
in the course of dismissing Hajjar-Nejad from the Medical School—both of which are questions
that the Court is not in a position to address on the present record—a colorable argument could
be made that GW breached the Offer of Acceptance by dismissing Hajjar-Nejad without
complying with the regulations.
To be clear, the Court concludes only that Hajjar-Nejad has stated sufficient facts to
provide GW with “fair notice” of a claim that GW breached the Offer of Acceptance by
dismissing Hajjar-Nejad from the Medical School in July 2007. The Court emphasizes that the
purported agreement that must ultimately be shown to have been breached is the Offer of
Acceptance, as the Second Amended Complaint only contains sufficient allegations to state a
claim for relief in connection with that alleged agreement. Whether or not the Regulations for
M.D. Candidates are part of that agreement and relevant to Hajjar-Nejad’s claim is a matter that
will require further attention by the parties.
For the reasons set forth above, the Court will deny GW’s Motion to Dismiss to the
extent it seeks dismissal of Hajjar-Nejad’s claim that GW breached the Offer of Acceptance by
J. Akman, M.D., to J. Scott, M.D., dated July 12, 2007) at 1.
17
dismissing Hajjar-Nejad from the Medical School in July 2007.
2. The Statute of Limitations
In support of its Motion to Dismiss, GW argues in the alternative that Hajjar-Nejad’s
breach of contract claim is barred in part by the applicable statute of limitations. Under District
of Columbia law, the limitations period for breach of contract claims is three years. D.C. CODE §
12-301(7). Hajjar-Nejad filed his original Complaint in this action on April 9, 2010, meaning
that he cannot recover for any alleged breach pre-dating April 9, 2007. Consistent with this, GW
argues that Hajjar-Nejad’s “numerous allegations” that GW engaged in wrongful conduct before
April 9, 2007 are “time-barred.” Def.’s MTD Mem. at 5. Were this argument not based upon a
misunderstanding as to the scope of Hajjar-Nejad’s breach of contract claim, it would be
meritorious.11 However, the Court does not understand Hajjar-Nejad to be pursuing relief in
connection with an alleged breach occurring outside the limitations period. Instead, Hajjar-
Nejad’s claim for breach of contract, as it is framed in the Second Amended Complaint, is based
on one, and only one, alleged breach—namely, that GW allegedly “rescinded the contract to
provide educational services to [Hajjar-Nejad] through its precipitous and unlawful dismissal of
Plaintiff.” 2d Am. Compl. ¶ 59. Because it is undisputed that these events occurred no earlier
than July 26, 2007, within the limitations period, the statute of limitations presents no bar to
Hajjar-Nejad’s breach of contract claim.
11
True, the Second Amended Complaint includes a large number of allegations
pertaining to GW’s allegedly wrongful conduct before April 9, 2007, but Hajjar-Nejad does not
claim that such conduct constitutes an independently actionable breach. See Pl.’s MTD Opp’n at
12 (“All of the matters of ‘alleged conduct’ . . . that occurred prior to April 9, 2007, may have led
up to and contributed towards the decision to breach the contract—but are not alleged to be in
and of themselves separate actionable acts outside of the ultimate contract termination”). In
other words, these are nothing more than background allegations.
18
B. Hajjar-Nejad’s Motion to Amend
Hajjar-Nejad filed his Motion to Amend on November 9, 2010.12 Through this motion,
Hajjar-Nejad seeks to amend his complaint to assert claims arising under Title VI, Title VII, and
Section 1981. See Pl.’s MTA Mem. at 8-9. Hajjar-Nejad acknowledges that he voluntarily
withdrew his claims based on similar legal theories without prejudice on August 20, 2010, on the
ostensible basis that some or all of his claims were still pending before the District of Columbia
Commission on Human Rights and yet to be fully exhausted, but he now contends that he
received a “right to sue” letter from the U.S. Equal Employment Opportunity Commission on
September 29, 2010 and appears to suggest that this is sufficient to satisfy the exhaustion
doctrine.13 See Pl.’s MTA Mem. at 2 & Ex. 1 (Notice of Right to Sue).
GW opposes the Motion to Amend on three grounds: first, GW contends that the motion
is procedurally defective because Hajjar-Nejad failed to discuss its contents with GW’s counsel
prior to its filing, as required by the Local Rules of this Court; second, GW contends that the
motion is procedurally defective because it is unaccompanied by a proposed amended pleading,
as required by the Local Rules of Court; and third, GW contends that amendment would be
futile. See Def.’s MTA Opp’n at 3-8. In his reply, Hajjar-Nejad focuses almost exclusively on
GW’s futility argument, along with a host of other tangential and immaterial issues. See Pl.’s
MTA Reply at 2-8. He responds briefly to GW’s contention that his Motion to Amend is
procedurally defective because it is unaccompanied by a proposed amended pleading, suggesting
12
Hajjar-Nejad filed his Motion to Amend pro se, even though he was represented by
counsel of record at the time. See infra Part III.C.
13
In light of the Court’s decision today, it has no occasion to address whether this is
indeed the case and accordingly expresses no opinion on the matter.
19
that his “Breach of Contract and civil rights complaints are inseparable,” but does not deny that
he has failed to submit a proposed amended pleading. Id. at 8.
Local Civil Rule 7(m) requires counsel to discuss any anticipated non-dispositive motion
with opposing counsel, “in a good faith effort to determine whether there is any opposition to the
relief sought and, if there is an opposition, to narrow the areas of disagreement.” LCV R 7(m).
This rule applies with equal force to “non-incarcerated parties appearing pro se.” Id. As this
Court has recognized, the rule serves the important salutary purpose of “promot[ing] the
resolution of as many litigation disputes as possible without court intervention, or at least to force
the parties to narrow the issues that must be brought to the court.” Ellipso, Inc. v. Mann, 460 F.
Supp. 2d 99, 102 (D.D.C. 2006) (citing U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am.,
235 F.R.D. 521, 529 (D.D.C. 2006)). Where “a party files a nondispositive motion without
certifying its compliance with Rule 7(m), the motion will be denied.” Id. (citing Alexander v.
Fed. Bureau of Investigation, 186 F.R.D. 185, 187 (D.D.C. 1999)). In this case, GW asserts that
Hajjar-Nejad failed to discharge his obligations under the rule, and this assertion is left
uncontested in Hajjar-Nejad’s reply papers. On this basis alone, the Court will deny Hajjar-
Nejad’s Motion to Amend. To the extent Hajjar-Nejad intends to move this Court for leave to
amend his complaint (or, for that matter, to file any other non-dispositive motion), he must first
meet and confer with GW’s counsel in accordance with Local Civil Rule 7(m).
Local Civil Rules 7(i) and 15.1 require that any motion for leave to file an amended
pleading be accompanied by an original of the proposed pleading as amended. See LCV R 7(i);
LCV R 15.1. In the absence of a proposed pleading, neither the opposing party nor the district
court is in a position to “determine whether or not [the] proposed amendments would be futile.”
20
Creecy v. District of Columbia, Civil Action No. 10-841 (CKK), 2011 WL 1195780, at *11
(D.D.C. Mar. 31, 2011). As such, the failure to include the proposed pleading with a motion to
amend is a sufficient basis for denying the motion. Id. In this case, it is undisputed that Hajjar-
Nejad has failed to include an original of what would be his third amended complaint with his
Motion to Amend.14 On this basis as well, the Court will deny the motion. To the extent Hajjar-
Nejad intends to move this Court for leave to amend his complaint, he must include with his
motion to amend a proposed pleading identifying each any every claim he intends to pursue in
this action and a short and plain statement of the factual basis for those claims.15
C. Beasley’s Motion to Withdraw
When an attorney “agrees to undertake the representation of his client,” he is generally
obligated to “see the work through to completion.” Poblete v. Rittenhouse Mortg. Brokers, 675
F. Supp. 2d 130, 136 (D.D.C. 2009) (citation omitted). That obligation, however, is not absolute,
and under appropriate circumstances an attorney may seek to withdraw as a party’s counsel of
record. Where, as here, the party is not represented by another attorney and has not consented to
14
While Hajjar-Nejad’s First Amended Complaint asserted claims based on similar legal
theories, the Court cannot assume that the legal theories that Hajjar-Nejad now intends to pursue
are identical or that they are based on the same set of factual allegations. For instance, whereas
Hajjar-Nejad now seeks to pursue a claim under Title VI, no such claim clearly appears in the
First Amended Complaint.
15
Given the basis of the Court’s decision today, it has no occasion to address the merits
of GW’s futility argument. See Def.’s MTA Opp’n at 4-8. However, the Court pauses to
observe that even though GW’s contention that Hajjar-Nejad would be unable to state a plausible
claim for relief under Title VII appears, at least at first glance, to be compelling, left entirely
unaddressed by GW is the viability of Hajjar-Nejad’s proposed claims under Title VI and Section
1981. Furthermore, while GW contends that Hajjar-Nejad would be unable to recover under the
DCHRA, it does not appear that Hajjar-Nejad actually intends to pursue relief under that statute
in this case. See Pl.’s MTA Mem. at 8-9 (identifying only claims under Title VI, Title VII, and
Section 1981).
21
the requested withdraw in writing, the attorney must seek the district court’s leave to withdraw
and must provide the party a specified form of notice when doing so. See LCV R 83.6(c). The
decision of whether or not to grant leave to withdraw is committed to the sound discretion of the
district court. Poblete, 675 F. Supp. 2d at 136 (citation omitted). In exercising its discretion, the
court may take into account whether “the withdrawal would unduly delay trial of the case, or be
unfairly prejudicial to any party, or otherwise not be in the interest of justice.” LCV R 83.6(d).
Beasley filed his Motion to Withdraw on November 12, 2010. In his motion, Beasley
certifies that he provided Hajjar-Nejad with the requisite notice—specifically, he represents that
he served a copy of his motion on Hajjar-Nejad by both e-mail and regular mail, and informed
Hajjar-Nejad of his obligation to inform the Clerk of the Court in writing whether he intended to
oppose the motion, secure alternate counsel, or proceed without legal representation. See Mot. to
Withdraw at 2. Nonetheless, as of the date of this Memorandum Opinion, the public docket
reflects that Hajjar-Nejad has failed to file an opposition or otherwise respond to the motion.
As grounds for this motion, Beasley represents that “[s]everal disagreements have arisen”
between him and Hajjar-Nejad “with respect to the management of this case,” id. at 1, and claims
that Hajjar-Nejad filed the Motion to Amend with the Clerk of the Court withou his prior review
or approval, id. at 2. Under these circumstances, and in the absence of any opposition from
Hajjar-Nejad, the Court will exercise its discretion to grant Beasley leave to withdraw as counsel
of record. Given the present posture of this case, the Court concludes that Beasley’s withdrawal
would not unduly delay the trial of this case, be unfairly prejudicial to any party, or otherwise
conflict with the interest of justice. Accordingly, Beasley’s Motion to Withdraw will be granted.
In addition, Hajjar-Nejad will be required to file a notice with the Court by no later than August
22
25, 2011, indicating whether he intends to secure alternate legal counsel or to proceed in this
action pro se.
IV. CONCLUSION
For the reasons set forth above, the Court will grant-in-part and deny-in-part GW’s
Motion to Dismiss. Specifically, the motion will be granted insofar as it seeks dismissal of any
breach of contract claim based on an unidentified universe of “regulations,” “policies,” “rules,”
“procedures,” and “directives,” and the motion will be denied insofar as it seeks dismissal of
Hajjar-Nejad’s claim that GW breached the Offer of Acceptance by dismissing Hajjar-Nejad
from the Medical School in July 2007. In addition, Hajjar-Nejad’s Motion to Amend will be
denied and Beasley’s Motion to Withdraw will be granted. An appropriate Order accompanies
this Memorandum Opinion.
Date: August 15, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
23