Johnson v. McCool , 808 F. Supp. 2d 304 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DUANE J. JOHNSON, )
)
Plaintiff, )
)
v. ) Civ. Action No. 11-0119 (RMC)
)
STEPHEN J. MCCOOL et al., )
)
Defendants. )
MEMORANDUM OPINION
In this civil action removed from the Superior Court of the District of Columbia,
plaintiff Duane J. Johnson, proceeding pro se, sues Superior Court Magistrate Judge Frederick J.
Sullivan, former Assistant United States Attorney (“AUSA”) Steven J. McCool, and Attorney
Joseph J. Bernard for trover, conversion, and breach of contract stemming from their alleged
refusal to return his legal property. On January 18, 2011, AUSA Rudolph Contreras, Chief of the
Civil Division of the United States Attorney’s Office for the District of Columbia, certified
pursuant to 28 U.S.C. § 2679(d) that Mr. McCool was acting within the scope of his employment
at the time of the alleged misconduct. Mr. Johnson has moved to strike the certification, but he
has not stated any facts suggesting that Mr. McCool was acting outside the scope of his
employment. Therefore, the Court, finding that the United States is properly substituted, will
deny Mr. Johnson’s motion to strike the certification.1
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In response to Westfall v. Erwin, 484 U.S. 292 (1988), Congress enacted the Westfall
Act, which authorizes "an Attorney General or designee who believes that a federal employee
was acting within the scope of his employment at the time of the alleged incident [to] issue a
certification to that effect." Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995),
abrogated on other grounds by Osborn v. Haley, 549 U.S. 225 (2007). “The certification carries
(continued...)
The United States moves to dismiss the complaint under Rules 8(a) and 12(b)(6)
of the Federal Rules of Civil Procedure [Dkt. # 13]. Mr. Johnson has opposed the motion and
has moved to remand the case to Superior Court [Dkt. # 4]. Upon consideration of the parties’
submissions and the entire record, the Court will grant in part and deny in part the United States’
motion to dismiss and will deny Mr. Johnson’s motion to remand.
I. BACKGROUND
In his one-page complaint filed in Superior Court, Mr. Johnson alleges the
following. From December 2009 to July 2010, “each” of the Defendants “received valuable legal
property from Plaintiff.” Compl. [ECF Dkt. # 1 at 4]. Each defendant was “instructed to return
Plaintiff’s valuable legal property within fifteen . . . day[s] of receipt,” but has “refused to do so.”
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a rebuttable presumption that the employee has absolute immunity from the lawsuit and that the
United States is to be substituted as the defendant.” Wilson v. Libby, 535 F.3d 697, 711 (D.C.
Cir. 2008) (citations omitted). Because a Westfall certification acts as the government's proffer
of a prima facie case that at the time of the alleged misconduct, its employee was acting within
the scope of his employment, see Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994), the
burden shifts to the Plaintiff “to raise a material dispute regarding the substance of [the
certification] by alleging facts that, if true, would establish that [the federal employee] [was]
acting outside the scope of [his] employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir.
2003) (citation omitted). Plaintiff must prove by a preponderance of the evidence that such is the
case. See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir.
1997). Mr. Johnson asserts that Mr. McCool “was not lawfully working for the federal
government in the capacity of a former government employee or officer of the United States
because [he] was never appointed as an [AUSA] in the first instance.” Mot. for Case Remand,
Mem. of P. & A. in Supp. [Dkt. # 4] at 2. He cites his complaint in a previous action dismissed
by this Court, Johnson v. Sullivan, Civ. Action No. 09-2056 (RBW), but the presiding judge in
that action explicitly rejected the same arguments Mr. Johnson makes in this case about Mr.
McCool. See Johnson v. Sullivan, 748 F. Supp. 2d 1, 13 n.6. (D.D.C. 2010) (“The plaintiff's
challenge of the validity of the certification filed by McCool is meritless.”). Therefore, Mr.
Johnson is collaterally estopped from relitigating the validity of Mr. McCool’s appointment and
the government’s Westfall certification.
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Id. As a result, Mr. Johnson claims that he has lost revenue and, thus, seeks $250,000 in
monetary damages for the loss of his “motions, pleadings, [and] transcripts.” Id.Mr. Johnson further alleges that Mr. McCool “requested” that he “send him
motions, pleadings, and transcripts because he was interested in how plaintiff constructed his
documents;” that he sent [Mr. McCool] his “only versions of his work product;” that he
“requested defendant McCool to return [his legal papers] within fifteen . . . days of receipt
because it was all that Plaintiff had;” and that Mr. McCool agreed to return the papers but did not
do so. Pl. Duane Joseph Johnson’s Opp’n to Mot. to Dismiss and Opp’n to Mot. to Show Cause
& Mot. to Remand (“Pl.’s Opp’n”) [Dkt. # 23] ¶¶ 1-6.
II. DISCUSSION
The United States seeks dismissal of the complaint under Rule 8(a) for failure to
satisfy the minimal pleading requirements and Rule 12(b)(6) for failure to state a claim upon
which relief can be granted. It is clear from the United States’ response that the complaint
provides adequate notice of a claim; thus, its motion to dismiss under Rule 8(a) will be denied.
See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) (“Rule 8's liberal pleading standard
requires only ‘a short and plain statement of the claim showing that the pleader is entitled to
relief,’ . . . and courts are charged with construing the complaint ‘so . . . as to do substantial
justice . . . .’ ”) (citations omitted).
At this pleading stage, a complaint may be dismissed under Rule 12(b)(6) for
failure to state a claim upon a determination that the plaintiff cannot establish “any set of facts
consistent with the allegations in the complaint” to support the alleged violation. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). In ruling on a motion to
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dismiss, a court must treat the complaint's factual allegations as true, “even if doubtful in fact.”
Id. But it need not accept legal conclusions cast as factual allegations, Warren v. District of
Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004), or “inferences drawn by [the plaintiff] if such
inferences are unsupported by the facts set out in the complaint,” Kowal v. MCI Communications
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition, a court must construe pro se filings
liberally and, absent any indication of prejudice to the defendant, should read “all of the
plaintiff’s filings together[.]” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).
The United States contends that Mr. Johnson has stated neither a breach of
contract claim nor a conversion claim.2
1. The Breach of Contract Claim
The Court agrees that Mr. Johnson has not stated a breach of contract claim, see
Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 5, but even if he had, this
Court would lack jurisdiction over Mr. Johnson’s claim for $250,000 because a claim of that
amount based on an express or implied contract with the United States must be brought in the
U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a); § 1346(a)(2) (vesting concurrent
jurisdiction in the district court over contract claims not exceeding $10,000). Hence, the Court
will grant the United States’ motion to dismiss the breach of contract claim.
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The United States has not addressed Mr. Johnson’s trover claim. Because the trover
claim goes hand in hand with the conversion claim, see Black’s Law Dictionary (9th Ed. 2009)
(defining trover as “[a] common-law action for the recovery of damages for the conversion of
personal property”), it, too, will survive the instant motion to dismiss.
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2. The Conversion Claim
The United States’ argument that Mr. Johnson has failed to state a conversion
claim -- for which it may be held liable under the Federal Tort Claims Act, 28 U.S.C. § 2674 -- is
belied by Mr. Johnson’s unrefuted opposition. Under District of Columbia law, conversion is
defined as “an intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the
other full value of the chattel.” Edmonds v. United States, 563 F. Supp. 2d 196, 202 (D.D.C.
2008) (quoting Fed. Fire Protection Corp. v. J.A. Jones/Tompkins Builders, Inc., 267 F. Supp. 2d
87, 92 n.3 (D.D.C. 2003)). “A defendant will be liable for conversion if the plaintiff shows that
the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3)
over the personal property of another, (4) in denial or repudiation of that person's rights thereto.”
Gov’t of Rwanda v. Rwanda Working Grp., 227 F. Supp. 2d 45, 62 (D.D.C. 2002) (citations
omitted). “When the initial possession is lawful, the plaintiff must make a demand for the return
of the converted goods to demonstrate the adverse nature of the possession.” Id. (citation
omitted).
The United States argues that Mr. Johnson cannot show that an unlawful exercise
has occurred because Mr. McCool “did nothing more than retain service copies of legal
documents” that Mr. Johnson was required to serve during court proceedings. Def.’s Mem. at 4-
5. Mr. Johnson counters that his claim “does not stem from defendant McCool not returning
service copies . . . .” Pl.’s Opp’n ¶ 10. Rather, Mr. Johnson states that he supplied the
documents because Mr. McCool had “requested” them and that Mr. McCool had agreed to return
the documents within 15 days. Id. ¶¶ 1, 4-5. According to Mr. Johnson, when Mr. McCool
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failed to return the documents as he had allegedly agreed, he “requested defendant McCool to
return his property.” Id. ¶ 6. The United States has not refuted Mr. Johnson’s statements, and
Mr. Johnson has sufficiently pleaded the elements of conversion. Hence, the Court will deny the
United States’ motion to dismiss the conversion claim without prejudice.
III. CONCLUSION
For the foregoing reasons the Court will grant the United States’ motion to
dismiss Mr. Johnson’s breach of contract claim for failure to state a claim and will deny without
prejudice the United States’ motion to dismiss the conversion claim. Consequently, the Court
will deny Mr. Johnson’s motion to remand the case to Superior Court. In addition, the Court will
deny Mr. Johnson’s motion to strike the Westfall certification for the reasons stated above and
will deny Mr. Johnson’s remaining pending motions.
A separate Order accompanies this Memorandum Opinion.
/s/
ROSEMARY M. COLLYER
Date: September 9, 2011 United States District Judge
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