Coleman v. Trustees of Purdue University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_
)
MACISTE COLEMAN, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 17-1527(EGS)
ANN MARIE CLARK and PURDUE )
UNIVERSITY, )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Maciste Coleman and defendant Ann Marie Clark
collided when Professor Clark made an illegal right turn while
driving in the District of Columbia. Mr. Coleman claims that he
was injured in the accident and filed this lawsuit alleging that
Professor Clark was negligent and that her employer, Purdue
University, should be held vicariously liable. Pending before
the Court is defendants’ motion to dismiss Mr. Coleman’s
complaint on the ground that the claims are barred by Indiana’s
sovereign immunity. Upon consideration of defendants’ motion,
the response and reply thereto, and the applicable law, the
Court GRANTS defendants’ motion and dismisses plaintiff’s
complaint.
I. BACKGROUND
On August 28, 2014, Mr. Coleman was operating his
motorcycle in the right lane going southbound on 23rd Street NW
1
toward Constitutive Avenue in the District of Columbia. Compl. ¶
5, ECF No. 1-1 at 8. Mr. Coleman alleges that defendant Ann
Marie Clark, a professor at Purdue University, made an illegal
right turn that caused her to collide with Mr. Coleman. Id. ¶¶
6-7, ECF No. 1-1 at 8. Officers from the National Park Service
arrived at the scene and spoke with the parties. See Defs.’ Mot.
to Dismiss Ex. 1, ECF No. 9-1. The Motor Vehicle Traffic
Accident Report filed by the National Park Service indicates
that Professor Clark was issued a citation for the accident.
Id., ECF No. 9-1 at 3. The report further specifies that, while
there was damage to the right side of Mr. Coleman’s motorcycle,
“[n]o injuries were reported.” Id.
Less than two weeks after the accident, Mr. Coleman’s
attorney sent a letter to JFW Specialty Co., the third-party
claims adjuster handling claims against Purdue. See Defs.’ Mot.
to Dismiss Ex. 2, ECF No. 9-2. The subject line of the
attorney’s letter stated that the “Insured” in the matter was
“Purdue University.” Id. The letter further indicated that Mr.
Coleman had suffered “injuries” but did not specify the nature
or severity of the injuries. Id. Mr. Coleman’s attorney sent
three additional letters to JFW between July 2015 and April
2017. See Defs.’ Mot. to Dismiss, Exs. 3-5, ECF No. 9-3, 9-4,
and 9-5. These letters were addressed only to JFW and did not
copy anyone at Purdue or the State of Indiana. See id.
2
On June 30, 2017, Mr. Coleman filed suit in the Superior
Court of the District of Columbia against Professor Clark for
operating her vehicle “in a negligent, careless and reckless
manner.” Compl. ¶ 8, ECF No. 1-1 at 8. Mr. Coleman’s complaint
also included a respondeat-superior claim against Purdue. Id. ¶¶
5-18, ECF No. 1-1 at 8-10. Mr. Coleman asserts that, as a result
of the accident, he “was violently knocked and thrown about,
sustaining severe, painful and permanent injuries to his body as
well as severe and protracted shock to his nervous system.” Id.
¶ 10. Mr. Coleman seeks compensatory damages in the amount of
$850,000 for the injuries he sustained as a result of
defendants’ purported negligence. Id. ¶¶ 14, 18.
Defendants removed this case on July 28, 2017 based on
diversity jurisdiction. See Defs.’ Notice of Removal, ECF No. 1.
Defendants subsequently filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing that Mr.
Coleman’s suit is barred by Indiana’s sovereign immunity. See
Defs.’ Mot. to Dismiss, ECF No. 9. Defendants’ motion is ripe
for the Court’s adjudication.
II. LEGAL STANDARD
“A federal district court may only hear a claim over which
it has subject-matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court’s
jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37, 44
3
(D.D.C. 2017) (internal citation and quotation omitted). To
survive a Rule 12(b)(1) motion, the plaintiff bears the burden
of establishing that the court has jurisdiction by a
preponderance of the evidence. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). “Because Rule 12(b)(1) concerns a
court’s ability to hear a particular claim, the court must
scrutinize the plaintiff's allegations more closely . . . than
it would under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65
(D.D.C. 2011) (internal citations omitted). In so doing, the
court must accept as true all of the factual allegations in the
complaint and draw all reasonable inferences in favor of the
plaintiff, but the court need not “accept inferences unsupported
by the facts alleged or legal conclusions that are cast as
factual allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64
(D.D.C. 2001). In reviewing a motion to dismiss pursuant to Rule
12(b)(1), the court “may consider materials outside the
pleadings” in determining whether it has jurisdiction to hear
the case. Jerome Stevens Pharm., Inc. v. Food and Drug Admin.,
402 F.3d 1249, 1253 (D.C. Cir. 2005).
III. ANALYSIS
Defendants argue that Mr. Coleman’s claims against a state
university and a state employee are barred by Indiana’s
sovereign immunity. Although Indiana waives it sovereign
4
immunity in certain circumstances — including when its agent
negligently causes a motor-vehicle collision, see State v.
Turner, 153 Ind. App. 197, 199 (1972) — an individual bringing
suit against the state must satisfy certain statutory
prerequisites prior to filing an action. Defendants assert that
Mr. Coleman failed to meet the statutory requirements here by,
among other things, not providing prompt notice of his claims as
required by the Indiana Tort Claims Act. Defendants urge the
Court to apply the Indiana Tort Claims Act based on the
principle of comity.
“[W]hen a federal court exercises diversity . . .
jurisdiction over state-law claims, ‘the outcome of the
litigation in the federal court should be substantially the
same, so far as legal rules determine the outcome of a
litigation, as it would be if tried in a State court.’” Felder
v. Casey, 487 U.S. 131, 151 (1988) (quoting Guaranty Trust Co.
v. York, 326 U.S. 99, 109 (1945). In this diversity action,
then, the Court must first determine whether District of
Columbia courts would apply Indiana’s notice-of-claim provision
5
on the basis of comity. 1 As explained more fully below, the Court
finds that District of Columbia would apply Indiana’s notice
provision, that Mr. Coleman failed to provide sufficient notice
as required by that law, and that Mr. Coleman’s claims against
Professor Clark cannot stand.
A. Comity Requires the Application of Indiana Law
“Comity principles ensure that foreign law that does not
conflict with the law of the forum state may be applied to
foster cooperation between sister jurisdictions.” Solomon v.
Supreme Court of Fla., 816 A.2d 788, 790 (D.C. 2002). The
District of Columbia Court of Appeals has explained that the
presumption “‘that the States intended to adopt policies of
1 The parties have not addressed whether choice of law
principles are relevant to the Court’s decision whether to
recognize Indiana’s immunity rules under principles of comity.
Indeed, the intersection between choice-of-law principles and
the common-law doctrine of comity is unclear. See Briscoe v.
Arlington County, 738 F. 2d 1352, 1360 (D.C. Cir. 1984)
(“District of Columbia courts have not expressly considered
whether choice of law principles are relevant, as a matter of
D.C. law, to the decision whether to recognize a sister state’s
immunity rules.”). The Briscoe court declined to resolve the
question, instead finding that it was “one that the District of
Columbia Court of Appeals should properly resolve in the first
instance.” Id. Although the Court has not found any District of
Columbia cases directly addressing the relationship between
choice-of-law and comity, the District of Columbia Court of
Appeals has found that comity required application of a sister
state’s immunity rules without doing a choice of law analysis.
See Solomon v. Supreme Court of Florida, 816 A.2d 788 (D.C.
2002). Accordingly — and for the additional reason that both
parties agree that District of Columbia law applies to this
action — the Court declines to do a choice of law analysis here.
6
broad comity toward one another’” applies “equally to the
District of Columbia.” Id. (quoting Hall, 440 U.S. at 425). In
Solomon, the Court of Appeals upheld “the absolute immunity of
the Florida Bar and its agents for conduct related to their
performance of disciplinary functions, conducted in the District
of Columbia, where equivalent District bar disciplinarily agents
would be entitled to such immunity in [D.C.] courts.” Id. at
789-90. In so doing, the Court of Appeals explained that “the
District of Columbia courts should, on principles of comity ‘as
a matter of harmonious interstate relations,’” apply the
immunity of sister’ states in cases where the District would
also be entitled to immunity. Id. (quoting Nevada v. Hall, 440
U.S. 410, 422 (1979)) (emphasis added).
Consistent with these principles, the Court finds that,
although not constitutionally required to do so, see Nevada v.
Hall, 440 U.S. 410 (1979), District of Columbia courts “should”
recognize the sovereign immunity of a sister state so long as
the other state’s rules are sufficiently harmonious to those
governing the District’s immunity in District of Columbia
courts. Accordingly, the Court must examine whether Indiana’s
requirement that, in order to overcome sovereign immunity, a
plaintiff with a claim against the state must provide notice is
consistent with District of Columbia law.
In pertinent part, the Indiana Tort Claims Act provides:
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[A] claim against a political subdivision is
barred unless notice is filed with: (1) the
governing body of that political
subdivision; and (2) the Indiana political
subdivision risk management commission . . .
within one hundred eighty (180) days after
the loss occurs.
Ind. Code. § 34-13-3-8. Like Indiana law, District of Columbia
law also requires an individual to file a notice of claim for
suits against the District of Columbia:
[A]n action may not be maintained against
the District of Columbia for unliquidated
damages to person or property unless, within
six months after the injury or damage was
sustained, the claimant, his agent, or
attorney has given notice in writing to the
Mayor of the District of Columbia of the
approximate time, place, cause, and
circumstances of the injury or damage. A
report in writing by the Metropolitan Police
Department, in regular course of duty, is a
sufficient notice under this section.
D.C. Code § 12-309. In most relevant aspects, Indiana and the
District of Columbia’s notice provisions are the same:
• They both impose a similar time limit.
Compare Ind. Code § 34-13-3-8(a) (requiring
notice “within one hundred eight (180) days
after the loss occurs”), with D.C. Code §
12-309(a) (requiring notice within “six
months after the injury or damage was
sustained”).
• They both require the notice to be in
writing. Compare Ind. Code § 34-13-3-12(requiring notice to “be in writing”), with
D.C. Code § 12-309(a) (notice must be “in
writing”).
• They both require delivery of the notice to
a specified governmental office. Compare
8
Ind. Code § 34-13-3-8 (requiring notice to
“the governing body of th[e] political
subdivision and the Indiana political
subdivision risk management commission”)
with D.C. Code § 12-309(a) (requiring
notice “to the Mayor of the District of
Columbia”). 2
Moreover, both notice provisions are grounded in the same
policies of ensuring that the government has an adequate
opportunity to investigate claims and to protect the public
treasury. Compare George v. Dade, 769 A.2d 760, 765 (D.C. 2001)
(purpose of the notice of claim provision is “to ensure adequate
opportunity for investigation to determine facts, and to protect
District revenues against unreasonable claims”), with Harrison
v. Veolia Water Indpls., LLC, 929 N.E.2d 247, 253 (Ind. Ct. App.
2010) (explaining that the notice provision is designed “to
permit prompt investigation of claims” and “one of the main
concerns [the Indiana Tort Claims Act] intended to address
clearly was protection of the public treasury”) (citation
omitted).
Mr. Coleman rejects the conclusion that the two notice
provisions are substantially similar, pointing out that
2 While Indiana law provides that a “political subdivision”
for purposes of the statute includes a “state educational
institution,” Ind. Code § 34-13-3-8, the District of Columbia
does not allow its political subdivisions to be sued at all,
instead requiring a plaintiff to bring suit against the District
itself, see Younger v. D.C. Pub. Sch., 60 F. Supp. 3d 130, 142
(D.D.C. 2014).
9
defendants’ “completely ignore[] D.C. Code § 12-309’s statutory
exception of notice for accidents involving a police report.”
Pl.’s Opp., ECF No. 14 at 10. Section 12-309 of the D.C. Code
provides that “[a] report in writing by the Metropolitan Police
Department” is sufficient notice for purposes of the section.
This exception to the traditional notice requirement stems from
“the idea that written notice by a claimant should not be a
prerequisite to legal action if, in fact, actual notice in the
form of a police report has been received by the District.”
Allen v. Dist. of Columbia, 533 A.2d 1259, 1262 (D.C. 1987). A
police report satisfies the notice requirement if it contains
“information as to time, place, cause and circumstances of
injury or damage with at least the same degree of specificity
required of a written notice.” Id. The inquiry in determining
whether a police report is sufficient is whether “the District
should have anticipated, as a consequence of receiving the
police report, that a complaint . . . would be forthcoming.” Id.Here, the police-report exception does not save Mr.
Coleman’s case. For starters, the accident report in this case
was not “by the Metropolitan Police Department” as required by
the statute, but by the National Park Police. See Defs.’ Mot. to
Dismiss Ex. 1, ECF No. 9-1. Even if a report by a different
agency would suffice — and the Court is doubtful it would, see
Campbell v. Dist. of Columbia., 568 A.2d 1076, 1078 (D.C. 1990)
10
— it is undisputed that the report in this case states that
“[n]o injuries were reported.” See Defs.’ Mot. to Dismiss Ex. 1,
ECF No. 9-1 at 3. 3 Mr. Coleman points to Plater v. Dist. of
Columbia Dept. of Transportation, 530 F. Supp. 2d 101 (D.D.C.
2008), to argue that the report is nonetheless sufficient to
provide defendants “all the information they needed, and were
entitled to, from the police report.” Pl.’s Opp., ECF No. 14 at
15. In Plater, the court found that the police report was
sufficient to provide notice where it stated that plaintiff
“fell on some glass and hit his head on the ground” and
“suffered some laceration to the back of his head.” 530
F.Supp.2d at 106. Here, however, the National Park Police report
specifically disclaims any injuries. See Defs.’ Mot. to Dismiss
Ex. 1, ECF No. 9-1 at 3 (stating “[n]o injuries were reported”).
Moreover, there are no allegations that Mr. Coleman later
provided any information about his purported injuries within the
statutory period. See Miller v. Spencer, 330 A.2d 250, 252 (D.C.
1974) (“While the Code permits a police report to suffice as
3 Although the police report does state that the right side
of Mr. Coleman’s motorcycle was damaged, see Defs.’ Mot. to
Dismiss Ex. 1, ECF No. 9-1 at 3, Mr. Coleman’s lawsuit is not
primarily based on allegations of property damage, but rather on
allegations of personal injury. See Compl. ¶¶ 10-11, ECF No. 1-1
at 8 (alleging that he was “violently knocked and thrown about,
sustaining severe, painful and permanent injuries to his body as
well as severe and protracted shock to his nervous system” and
that he “incur[red] medical treatment and medical expenses for
the aforesaid injuries”).
11
notice of a claim in lieu of a written notice by the claimant,
his agent or attorney, the police report must, when the facts
are apparent, contain at least the substance of the same
information required of a written notice. When it does not
because no injuries are then apparent, it is the duty of the
plaintiff to supply that additional information when it becomes
apparent.”). Accordingly, the Court concludes that the police-
report exception does not render District of Columbia law
inconsistent with Indiana law under the fact of this case. See,
e.g., Aubin v. Dist. of Columbia, 107 F. Supp. 3d 169, 173–74
(D.D.C. 2015) (where police report only described the
circumstances of the arrest and did not describe any injury,
finding “there was no reason whatsoever, on the basis of this
police report, for defendant to have anticipated that a
complaint by plaintiff was forthcoming”).
Mr. Coleman also points to other salient differences
between the Indiana Tort Claims Act and District of Columbia
law: Indiana limits a claimant’s recovery to $700,000, see Ind.
Code Ann. § 34-13-3-4(a)(1)(C), whereas there is no cap on
damages in the District of Columbia; and Indiana requires suits
to be filed in its state courts, see Ind. Code Ann. § 34-13-3-
5(f), while the District of Columbia does not have any such
limitation. Mr. Coleman argues that these sorts of differences
led another court in this district to decline to recognize the
12
immunity of a municipality. See Pl.’s Opp., ECF No. 14 at 10-11
(citing Skipper v. Prince George’s County, 637 F. Supp. 638,
639-40 (D.D.C. 1986). In Skipper, the court found that
application of the immunity provisions relied on by Prince
George’s County would violate the policies of the District of
Columbia in two ways: (1) by requiring a District of Columbia
resident who was injured in the District to bring suit in
Maryland; and (2) by limiting plaintiff’s recovery to $250,000
for tort liability. Skipper, 637 F. Supp. at 640. Here,
however, Indiana’s recovery limit and forum limitation have no
direct bearing on the Court’s decision to apply Indiana’s notice
provision, which is substantially similar to that of the
District’s. Moreover, the Skipper court was confronted with an
immunity claim brought by a municipality and not a sister state
with whom the District should seek “harmonious interstate
relations.” Hall, 440 U.S. at 426. Furthermore, the Skipper
court relied on choice-of-law principles in arriving at its
conclusion; here, the Court’s inquiry properly ends after
resolution of the comity issue.
The Court finds further support for its conclusion that
District of Columbia would apply Indiana’s notice provision in
view of the reliance, in part, by the District of Columbia Court
of Appeals on Schoeberlein v. Purdue University, 129 Ill.2d 372(Ill. 1989), in analyzing principles of comity in its Solomon
13
decision. In Schoeberlein, the plaintiff sued Purdue for damages
caused by a product that Purdue had sold to plaintiff’s Illinois
employer. Id. at 375. Purdue argued that it was immune from suit
under the Indiana Tort Claims Act. Based on principles of
comity, the Illinois Supreme Court agreed and affirmed the trial
court’s dismissal of the suit. Id. at 376. In so doing, the
Illinois Supreme Court found that application of Indiana’s
sovereign immunity provision in the tort context would not
contravene Illinois public policy because the Indiana and
Illinois statutes were “[s]imilar.” Id. at 380. For example,
both statutes provided immunity for the state except where
certain requirements were met, including imposing strict notice
requirements and placing a cap on liability. Id. Therefore,
plaintiff’s remedy would have been similarly “limited”
regardless of whether the Illinois or Indiana statute applied.
Id. at 379. Here, too, both Indiana and the District of Columbia
impose strict notice requirements. Although Indiana’s cap on
damages to $700,000 could limit Mr. Coleman’s damages should he
prevail, the Court finds this difference between Indiana and
District of Columbia law is not so substantial as to render
enforcement of Indiana’s statute contrary to the District’s
public policy.
For all these reasons, the Court finds that the notice
provisions of the District of Columbia and Indiana, as applied
14
to this case, are sufficiently harmonious such that the District
of Columbia would apply Indiana’s provision as a matter of
comity.
B. Plaintiff’s Claims are Barred Because He Did Not
Substantially Comply with the Notice Provision of the
Indiana Tort Claims Act
The Indiana Tort Claims Act governs tort claims against
governmental entities and their employees. Oshinski v. N.
Indiana Commuter Transp. Dist., 843 N.E.2d 536, 543 (Ind. Ct.
App. 2006). Under the Act, a potential plaintiff’s suit is
barred “unless he or she complies with the notice requirements”
set forth in the Act. Id. at 544. Those requirements provide
that a plaintiff must file notice with “the governing body of
[the political subdivision that is being sued]” and “the Indiana
political subdivision risk management commission” within 180
days after the loss occurs. Ind. Code. § 34-13-3-8(a). The
notice “must include the circumstances which brought about the
loss, the extent of the loss, the time and place the loss
occurred, the names of all persons involved if known, the amount
of the damages sought, and the residence of the person making
the claim.” Id. § 34-13-3-10. Although the notice requirement is
phrased in mandatory language, Indiana courts “have held that
substantial compliance with the notice provision will suffice
when the purpose of the Act has been satisfied.” Parke Cty. v.
Ropak, Inc., 526 N.E.2d 732, 737 (Ind. Ct. App. 1988). In this
15
regard, “the crucial consideration is whether the notice
supplied by the claimant of his intent to take legal action
contains sufficient information for the city to ascertain the
full nature of the claim against it so that it can determine its
liability and prepare a defense.” Schoettmer v. Wright, 992
N.E.2d 702, 707 (Ind. 2013) (citation and internal quotation
marks omitted).
Mr. Coleman concedes that he “failed to send written notice
under the Indiana Tort Claims Act to the designated recipients
within the 180 day timeframe” in this case. Pl.’s Opp., ECF No.
14 at 17. He further concedes that “his communications with the
third party claims adjuster would not constitute substantial
compliance under the Act.” Id. Instead, he argues that
defendants should be estopped from relying on Mr. Coleman’s
failure to comply with the Act’s notice requirements because
“they never informed Plaintiff that Defendant Clark was a
government employee” and because he was unware that “Purdue
University was a state owned university.” Id. at 17-18 (citing
Gregor v. Szarmach, 706 N.E.2d 240, 243 (Ind. Ct. App. 1999));
see also Pl.’s Supp. Mem., Aff. of Danny R. Seidman, ECF No. 17
¶¶ 6-7 (plaintiff’s counsel averring that he “did not know that
Purdue University was an Indiana state instrumentality,” and
that the claims adjuster never gave him “any reason to believe
16
that Defendants was [sic] covered by the Indiana Tort Claims
Act”). 4
Under Indiana law, “[t]he party claiming equitable estoppel
must show its ‘(1) lack of knowledge and of the means of
knowledge as to the facts in question, (2) reliance upon the
conduct of the party estopped, and (3) action based thereon of
such a character as to change his position prejudicially.’”
Schoettmer, 992 N.E.2d at 709 (citation omitted). “Equitable
estoppel will not apply against the State unless there is ‘clear
evidence that its agents made representations upon which the
party asserting estoppel relied.’” Id. “The burden to produce
that evidence rests upon the party claiming estoppel.” Id.
Here, the letter from Mr. Coleman’s counsel to JWF, which
was sent less than two weeks after the accident, clearly stated
that the “insured” was “Purdue University.” Defs.’ Mot. to
Dismiss Ex. 2, ECF No. 9-2. Even if Mr. Coleman and his counsel
4 Six days after filing its memorandum in opposition to
defendants’ motion to dismiss, plaintiff filed a supplemental
affidavit in support of his opposition. See Supp. Aff., ECF No.
17. The affidavit, which is signed by plaintiff’s counsel,
supports plaintiff’s arguments that defendants should be
estopped from relying on the notice provision in the defense of
this suit. See generally id. Defendants moved to strike the
affidavit as untimely and filed without leave of the Court. See
Defs.’ Mot. to Strike, ECF No. 18. In its discretion, and
because there is no evidence that defendants were substantially
prejudiced by the late filing, the Court will consider the
supplemental affidavit in resolving defendants’ motion to
dismiss. The Court admonishes plaintiff’s counsel to carefully
read and comply with the federal and local rules in the future.
17
lacked actual knowledge that Purdue University is a state
university, plaintiff has not shown that he did not have the
“means of knowledge” to acquire that information. See
Schoettmer, 992 N.E.2d at 709. After all, a simple search of
“Purdue University” would have confirmed that it is a “public”
institution. See Wikipedia, Purdue University,
https://en.wikipedia.org/wiki/Purdue_University (last visited
July 20, 2018) (“Purdue University is a public research
university in West Lafayette, Indiana and is the flagship campus
of the Purdue University system.”).
Moreover, unlike the plaintiff in Schoettmer, who acted
without counsel and who was told by the state’s agent that it
would “be in his best interest to wait until all his medical
treatments were complete before settling his claim,” Mr. Coleman
was represented by counsel for nearly the entirety of the 180
day notice period and does not allege that JWF or defendants
made any affirmative “representations” upon which he relied. In
similar circumstances, other courts have declined to allow
estoppel to bar a notice defense in a suit under the Indiana
Tort Claims Act. See Mills v. Hausmann-McNally, S.C., 55 F.
Supp. 3d 1128, 1135-37 (S.D. Ind. 2014) (concluding that
estoppel claim failed where party had “demonstrated neither that
it lacked ‘knowledge or the means of knowledge’ that
[individual] was the employee of a stage agency, nor that it
18
relied to its detriment on representations made by [the state
agency] or its agent”). Simply put, Mr. Coleman has “not
demonstrated that this is a case triggering the equitable
doctrine’s protective concern for those who have been misled and
cannot reasonably be expected to discover the facts for
themselves.” Mills, 55 F. Supp. 3d at 1137.
C. Plaintiff’s Claim Against Professor Clark Is Also Barred
Under Indiana Law
The Indiana Tort Claims Act bars suit against a state
employee personally if the employee was acting within the scope
of her employment. Ind. Code. § 34-13-3-5. Likewise, District of
Columbia law provides that “no civil action . . . shall be
brought or be maintained against an employee of the District for
loss of or damage to property or for personal injury . . .
resulting from the operation by such employee of any vehicle if
it be alleged in the complaint . . . that the employee was
acting within the scope of his office or employment[.]” D.C.
Code § 2-415(a) (emphasis added). Here, Mr. Coleman’s complaint
specifically alleges that Professor Clark was “driving the
vehicle as aforesaid within the scope of her employment with,
and agency for the Defendant Purdue University, by carrying out
her job duties assigned by her employer.” Compl. ¶ 16, ECF No.
1-1 at 9; see also id. ¶ 17 (“At the time of the said collision,
Defendant, Clark, was driving the said vehicle as aforesaid with
19
the knowledge, consent and permission [of], Defendant, Purdue
University.”); id. ¶ 18 (alleging injuries were caused by
“Clark, while carrying out his [sic] job duties assigned by his
[sic] employer and while furthering the interests of Defendant
Purdue University”). In fact, defendants expressly concede that
Professor Clark was acting within the scope of her employment at
the time of the accident. See Defs.’ Reply, ECF No. 19 at 28.
Accordingly, by all accounts, Professor Clark was acting within
the scope of her employment at the time of the accident, and
therefore the claim against her must be dismissed under the
plain language of the statute.
In his opposition, plaintiff disavows these allegations in
his complaint and seeks leave to amend his complaint “to plead
that Defendant Clark was acting outside the scope of her
employment so that discovery can be done on that issue.” Pl.’s
Opp., ECF No. 14 at 19-21. Although the Court must “freely give
leave” to amend a complaint “when justice so requires,” Fed. R.
Civ. P. 15(a), plaintiff’s request here appears to be “a
transparent attempt by plaintiff to amend his pleading in order
to avoid a dispositive defense.” Colliton v. Cravath, Swaine &
Moore LLP, No. 08-0400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept.
24, 2008). As another court explained in rejecting a plaintiff’s
attempt to “retreat from his assertion” that the defendant was
acting “within the scope of his employment, “[w]here a plaintiff
20
blatantly changes his statement of the facts in order to respond
to the defendant’s motion to dismiss and directly contradicts
the facts set forth in his original complaint, a court is
authorized to accept the facts described in the original
complaint as true.” Rishikof v. Mortada, 70 F. Supp. 3d 8, 14
(D.D.C. 2014) (citation and internal quotation marks omitted,
alterations accepted). Here, the Court rejects Mr. Coleman’s
attempt to circumvent the clear allegations in his complaint in
response to the defendants’ dispositive motion. Accordingly, the
Court denies plaintiff’s request to amend his complaint to add
allegations that would directly contradict the allegations in
his original complaint.
IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the
defendants’ motion to dismiss plaintiff’s complaint is GRANTED.
A separate Order accompanies this Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 20, 2018
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