•


                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

    DEANGELO SCOTT and RYAN           )
    PRATT,                            )
              Plaintiffs,             )
                                      )
         v.                           )    Civil Action No. 14-817 (GK)
                                      )
    DISTRICT OF COLUMBIA,             )
                                      )
               Defendant.             )
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                              MEMORANDUM OPINION

         Plaintiffs DeAngelo Scott and Ryan Pratt ("Plaintiffs") bring

    this putative class action against the Government of the District

    of Columbia   ("Defendant" or "the District"), alleging violations

    of   the   Fourth   and   Fifth   Amendments   of   the   United   States

    Constitution, as well as common-law conversion, in relation to the

    District's "post and forfeit" procedures.

         This matter is before the Court on the Defendant's Motion to

    Dismiss Complaint [Dkt. No. 19]. Upon consideration of the Motion,

    Opposition [Dkt. No. 22], Supplemental Opposition [Dkt. No. 23],

    Reply [Dkt. No. 24], the entire record herein, and for the reasons

    set forth below, the Motion shall be granted.
I .     Background

        A.    Factual Overviewl

        On April 05, 2008, Mr. Scott and Mr. Pratt, who is Mr. Scott's

stepson,      were   arrested       outside          their    D.C.   apartment     at

approximately 8:00 p.m. Compl. at             ~~    15-36 [Dkt. No. 1]. Mr. Scott

was     charged   with   possession      of    an    open    container   of   alcohol

pursuant to D.C. Code § 25-lOOl(a) (1), and Mr. Pratt was charged

with disorderly conduct pursuant to D.C. Code§ 22-1321(1). Compl.

at ~~ 47, 53.

        The District's "post and forfeit" procedure allows persons

charged with certain misdemeanors to "post and forfeit an amount

as collateral . . . and thereby obtain a full and final resolution

of the criminal charge." D.C. Code § 5-335.01. When Mr. Scott and

Mr. Pratt arrived at the police station, they were given the option

to "post and forfeit"        in return for their release that evening.

Mr.   Scott posted and forfeited              $25,    and Mr.    Pratt posted and

forfeited $35. Compl.       ~~   52, 58. Neither Mr. Scott nor Mr. Pratt

filed    a   motion to set       aside   the       forfeiture   within the     90-day

period, as set forth in the statute. D.C. Code§ 5-335.0l(d)(6).




1 For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
Plaintiffs' Complaint [Dkt. No. 1]

                                          2
       B.    Procedural Background

             1.      The Fox Case

       On December 15, 2010, Barbara Fox and Hamilton P. Fox,                              III

filed a Complaint comprised of both non-class claims for false

arrest and putative class claims challenging the District's "post

and forfeit" procedure. See Fox v. District of Columbia, 2010-cv-

2118   (D.D.C. 2010)       (ABJ)      ("Fox")       [Dkt. No. 1]. The parties agree

that the Fox case, decided by Judge Amy Jackson, tolled the statute

of limitations for the Plaintiffs' claims in the present case, but

disagree as to when the tolling ceased.

       On March 30, 2012, Judge Jackson dismissed all of the class

claims in Fox, but permitted the Foxes to amend their complaint to

add two new class claims.              See Fox v.           District of Columbia,          851

F.2d 20     (D.D.C.     2012)      ("Fox   I").       On February 15,            2013,   Judge

Jackson dismissed the two new class claims, leaving only the Foxes'

individual claims. See Fox v. District of Columbia, 923 F.2d 302

(D. D. C. 2 Ol 3)   ( "Fox I I" ) .

       On April 26, 2013, Mr. Fox2 filed a motion to direct an entry

of final     judgment pursuant to Fed.                 R.    Civ.   P.   54(b)    as to the

dismissal of his class "post and forfeit" claims. Fox, Dkt. No. 72.




2 Mrs. Fox was not included in the putative class action claims
challenging the "post and forfeit procedure. Her sole claim was
against a police sergeant in his individual capacity, which was
dismissed on February 20, 2013. See Fox v. District of Columbia,
924 F. Supp. 2d 264, 266 (D.D.C. 2013).

                                                3
•


    Judge Jackson denied this motion on October 3,                          2013.    Fox,   Dkt.

    No. 80. On February 28, 2014,       Mr~       Fox settled his individual claims

    and final judgment was entered.

                  2.    The Present Case

           Plaintiffs filed this Complaint, which was assigned to this

    Judge,    on May 16, 2014. The Complaint alleges violations of the

    Fourth and Fifth Amendments pursuant to 42 U.S.C.                       §   1983, as well

    as    common-law conversion.    See Compl.            at   ~~    111-146.        The    class

    action claims in the present case are virtually indistinguishable

    from those that were brought in the Fox case. The Plaintiffs are

    also represented by one of the same attorneys that represented the

    plaintiffs in Fox.

           On June 12, 2014, before the District of Columbia had filed

    an appearance in the case       (and before Plaintiffs had even filed

    their Affidavit of Service on the Court's docket), Plaintiffs filed

    a    Motion   for   Class Certification            [Dkt.   No.   5] .       Prior to     this

    Court's Order on the Motion for Class Certification, the District

    filed the present Motion to Dismiss ("Def.'s Mot.") on August 29,

    2014 [Dkt. No. 19]. On October 3, 2014, this Court denied without

    prejudice the Motion for Class Certification due to the pending

    Motion to Dismiss and Plaintiffs'                  failure to comply with Local

    Civil Rule 7(m).

           In its Motion to Dismiss, the District argues that the case

    must     be   dismissed   because   it        is    time-barred          (Fed.    R.     Civ.

                                              4
P. 12(b) (1)) and because none of the six counts state a valid legal

claim (Fed. R. Civ. P. 12 (b) (6)). Plaintiffs filed their Opposition

("Pls.'     Opp'n")     on     October       9,     2014     [Dkt.      No.     22],   and    a

Supplemental Opposition ("Pls.' Supp. Opp'n) on October 17, 2014

[Dkt. No.     23]. The District filed its Reply ("Def.'s Reply")                             on

November 10, 2014 [Dkt. No. 24].

II.    Legal Standards

       A.    Standard of Review under Fed. R. Civ. P. 12(b) (1)

       As courts of      limited jurisdiction,                federal         courts possess

only those powers        specifically granted to them by Congress or

directly by the U.S. Constitution. Kokkonen v. Guardian Life Ins.

Co.    of Am.,    511 U.S.     375,    377        (1994).    The plaintiff bears the

burden of establishing by a preponderance of the evidence that the

Court has subject matter jurisdiction to hear the case. See Shuler

v. United States, 531 F.3d 930, 932                  (D.C. Cir. 2008). In deciding

whether to grant a motion to dismiss for lack of jurisdiction under

Rule    12 (b) (1),    the     court   must         "accept     all      of     the    factual

allegations       in   [the]     complaint          as      true [.]"     Jerome       Stevens

Pharmaceuticals, Inc. v. Food            &   Drug Admin., 402 F.3d 1249, 1253-54

(D.C. Cir. 2005)       (citing United States v. Gaubert, 499 U.S. 315,

327 (1991))      (internal quotation marks omitted). The Court may also

consider matters outside the pleadings, and may rest its decision




                                              5
on its own resolution of disputed facts. See Herbert v. Nat'l Acad.

of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

       B.    Standard of Review under Fed. R. Civ. P. 12(b) (6)

       To survive a motion to dismiss under Rule 12(b) (6) for failure

to state a claim upon which relief can be granted,                              a plaintiff

need only plead "enough facts to state a claim to relief that is

plausible on its face" and to "nudge [ ]                 [his or her] claims across

the line from conceivable to plausible." Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated

adequately,       it   may be    supported by           showing        any   set    of     facts

consistent with the allegations in the complaint." Id. at 563.

       Under the Twombly standard,                 a   "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success .                 [,] must assume all the allegations in

the complaint are true           (even if doubtful in fact)                              [, and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged." Aktieselskabet AF 21. November

2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)                            (internal

quotation     marks     and    citations          omitted).      The    court      does     not,

however, accept as true "legal conclusions or inferences that are

unsupported by the facts alleged."                 Ralls Corp. v. Comm. on Foreign

Inv.   in    U.S.,     758    F.3d    296,    315      (D.C.    Cir.     2014)      (citation

omitted) .        Furthermore,         a     complaint         which    "tenders          'naked

assertion [s] '      devoid of       'further factual enhancement'" will not

                                              6
suffice.      Ashcroft v.      Iqbal,   556 U.S.        662,     678    (2009)     (quoting

Twombly, 550 U.S. at 557)          (alteration in Iqbal):

III. Analysis

        A.    Plaintiffs' Claims Are Time-Barred

              1.      D.C. Statute of Limitations

        The   parties    agree   that     Plaintiffs'      putative        class      action

claims are subject to a three-year statute of limitations.                               See

Carney v. American Univ.,           151 F.3d 1090,             1096    (D.C.   Cir.    1998)

("The Supreme Court has held that in states with multiple statutes

of     limitations,     claims under section 1983               are governed by the

residual or general personal injury statute of limitations                             (like

[D.C. Code]        section 12-301(8))              .")     (citing Owens v. Okure,

488 U.S.      235,    243-50   (1989));    D.C.   Code     §    12-301 (8)       (providing

three year limitation for claims not otherwise prescribed) .

        Plaintiffs' cause of action stems from their arrest and "post

and forfeiture," which took place on April 5, 2008. Therefore, the

three-year statute of limitations on their claims began running on

April 5, 2008.

              2.      Tolling by Fox

        American Pipe and its progeny stand for the proposition that

the filing of a          class action complaint           freezes       the statute of

limitations for all proposed class members. See American Pipe &

Const. Co. v. Utah, 414 U.S. 538, 539                   (1974); Crown, Cork & Seal

Co.,    Inc. v.      Parker, 462 U.S. 345,        350    (1983)       ("The filing of a

                                           7
class action tolls the statute of limitations 'as to all asserted

members of the class."')          (quoting American Pipe, 414 U.S. at 554)

        It is undisputed that under the American Pipe doctrine, the

filing of the Fox putative class action on December 15,                             2010,

tolled the statute of limitations for Plaintiffs' claims. At the

time of Fox's filing,          Plaintiffs had 112 days remaining in their

three-year limitations period. Def.'s Mot. at 7. Therefore, once

tolling ceased, they had 112 days in which to file their claims.

See American Pipe, 414 U.S. at 538                  ("Since the class action was

filed with 11 days yet to run in the period as tolled . . . , the

intervenors had 11 days after entry of the order denying them

participation in the class suit in which to move to file their

intervention motion.")

        Whether Plaintiffs timely filed their case depends on when

the Fox case ceased to toll Plaintiffs' claims. American Pipe and

the subsequent cases expanding it deal predominately with denials

of   class      certification,    which         terminated   tolling,    but       do   not

address the present situation in which all the class claims in a

case     were     dismissed    prior       to     the   court    reaching      a    class

certification decision.

        The question is therefore,              when a court never reaches the

issue of class certification, when does a putative class action

cease    to     toll   the   claims   of    its    proposed     class   members?        The

Defendant argues that tolling ceased for Plaintiffs' claims when

                                            8
the last of the class claims in Fox were dismissed.                        Plaintiffs

argue that tolling did not cease until final judgment was entered

on Mr. Fox's entire case, including his individual claims. Under

Defendant's interpretation, Plaintiffs filed the present lawsuit

342     days    after     the    limitations      period     ended,    while     under

Plaintiffs'         interpretation,       their Complaint would be considered

timely. See Def.'s Mot. at 7-8; Pls.' Mot. at 34-38.

               3.     Tolling     Ended    Upon   the   Dismissal     of   the   Class
                      Claims

        The question of whether the dismissal of all class claims in

a putative class action terminates tolling for purported class

members is a question of first impression for this Court. Indeed,

the   parties       do   not    identify    any   courts    that   have    previously

addressed this specific issue. For the reasons below,                      the Court

finds    that dismissal of all class claims in a                   suit term_inates

tolling and causes the limitations period for each absent class

member to resume running.

        The Seventh Circuit held in Sawyer v. Atlas Heating and Sheet

Metal Works, Inc. that "[t]olling lasts from the day a class claim

is asserted until the day the suit is conclusively not a class

action." 642 F. 3d 560, 563 (7th Cir. 2 011)               (voluntary dismissal of

class action terminates tolling) . Plaintiffs argue that a case is

only "'conclusively not a class action' when class action treatment




                                             9
has been denied or the case is entirely over." Pls.' Opp'n at 36.

Plaintiffs read Sawyer too narrowly.

        Allowing tolling to continue for all absent class members

through the          entire pendency of              what    had become           an individual

lawsuit by Mr.          Fox--due to the dismissal of all class claims--

would not        further      the objectives and              justifications for class

action tolling.          The American Pipe court                 found that unless the

filing    of     a    class     action    tolled       the     statute       of    limitations,

potential       class     members      would     be    induced        to    file    motions    to

intervene       or    separate     actions       in order        to    protect       themselves

against        the    possibility        that    certification             would    be    denied.

414 U.S. at 553. It found that not permitting class action tolling

would     frustrate       the    principal           purposes    of        the    class    action

procedure--promotion of efficiency and economy of litigation. Id.

        The efficiency of the class action mechanism evaporates once

the class claims are dismissed, and it becomes necessary for the

absent members to pursue their own individual interests. To permit

tolling    to        continue    for     all    absent       class    members       beyond    the

dismissal of all class claims furthers neither the efficiency nor

the economy of litigation. Indeed, such a rule would only serve to

draw     out     litigation,        effectively             extending       the     statute    of




                                                10
limitations long past what the Supreme Court envisioned in American

Pipe.

        In Crown,       Cork     &   Seal,     the     Supreme      Court   "signaled that

American    Pipe     tolling         extends    as      far    as    is   justified by the

objectively reasonable               reliance        interests       of   the    absent        class

members." Bridges v. Dep't of Maryland State Police, 441 F.3d 197,

211 (4th Cir. 2006); 462 U.S. at 353-54. Once all class claims are

dismissed    from       a    case,    proposed         class    members         are    no   longer

justified in relying on the case to protect their interests, and

therefore the rationales underlying class action tolling are no

longer applicable.

        Plaintiffs'         proposed rule--that tolling continue after the

dismissal    of     all      class    claims- -would prejudice defendants                        and

expose     them    to       unreasonably        protracted           tolling.         Courts     are

required    to make          a   class   certification decision                  "at    an early

practicable time." Fed. R. Civ. Pro. 23 (c) (1) (A). This requirement

ensures that the tolling period is limited in scope and protects

against     "abuse        and    perpetual           tolling"       under   American           Pipe.

Bridges, 441 F.3d at 212. Plaintiffs' rule would have the opposite

effect, all but ensuring perpetual tolling.

        Such a rule would also create the undesirable result that a

plaintiff need only plead a class claim in order to toll claims

for countless absent class members throughout the course of the

plaintiff's entire individual litigation--even class claims that

                                                11
were quickly dismissed as non-meritorious would still suffice to

attach tolling to the entire life of the plaintiff's individual

case.    Such a rule would be inconsistent with the rationales of

American Pipe and the reasonable reliance interests of absent class

members.

        Plaintiffs put forward several arguments for why a case cannot

be considered "conclusively" not a class action even when all class

claims have been dismissed.          Plaintiffs'         first argument      for why

tolling continued until the final resolution of the Fox case is

that    the order dismissing the          class      claims   in Fox was merely

interlocutory. Pls.' Opp'n at 38. They argue that because the class

claims "could have been resurrected at any time," the case could
  I
not be considered "conclusively not a class action." Id.

        This argument is unpersuasive for the. very simple reason that

orders denying class certification are also interlocutory, and yet

the Supreme Court has repeatedly held that class certification

denials    cause   tolling   to    cease.      See   American     Pipe,   414   U.S.

at 552-53; Crown, Cork & Seal, 462 U.S. at 345. The fact that an

order     is   interlocutory      does   not      mean     that   a   case    cannot

conclusively be "not a class action."

        Next, Plaintiffs argue that the District could have avoided

the present class action by litigating the class certification

motion in Fox prior t"o moving to dismiss the claims. Pls.' Opp'n

at 40. This is an impractical solution.                  Requiring defendants to

                                         12
litigate class-certification prior to moving to dismiss meritless

claims, or else run the risk of facing perpetual tolling, does not

make sense. It would force defendants to waste time and resources

litigating the validity of a class, even if the underlying claims

are baseless.

        Plaintiffs' next argument is that "tolling continues through

the date of the decision on an appeal if an appeal reverses a

dismissal where there has been no final adverse determination of

class    claims."   Pls.'   Opp'n   at     41.    Plaintiff   argues   that   it

logically follows that tolling has to extend until the end of the

case before it can extend to the end of the appeal. Id. The cases

Plaintiffs cite provide very little support for this argument,

however.    If class action allegations were explicitly reinstated,

tolling might be made retroactive.               But it does not necessarily

follow    that   tolling must   continue through the          end of   a   case,

particularly where no appeal has been taken.

        Plaintiffs' final argument relies on the "forfeiture rule,"

as discussed in Wachovia Bank & Trust Co. v. Nat'l Student Mktg.

Corp. 461 F. Supp. 999, 1012 (D.D.C. 1978), rev'd on other grounds,

650 F.2d 342     (D.C. Cir. 1980)). The contours of the "forfeiture

rule"· are not well-defined,        but suggest that an individual who

pursues a separate lawsuit while a class action is pending may

forfeit the benefits of the class action.             In Wachovia, the court

found that plaintiffs who had filed a separate, individual action

                                      13
while class certification was pending, and later opted out of the

class, had forfeited the benefits of the class, including tolling.

The court reasoned that to permit plaintiffs to benefit from class

action tolling in order to file otherwise time-barred suits would

"sanction     duplicative    suits      and    violate    the      policies    behind

American Pipe." Id. at 1013.

       Plaintiffs   attempt        to   show    that   the      "forfeiture     rule"

conflicts with a holding that tolling ceased upon dismissal of the

class claims. This is not the case. Once the class claims in Fox

were dismissed,     the case ceased to be a              class action.        At that

point, the Plaintiffs in this case were at no risk of forfeiting

anything    upon    filing     their      individual         case.     Contrary    to

Plaintiffs'    argument,     the    policy rationales         of     efficiency and

avoiding duplicative suits are not burdened by the Court's holding.

       Plaintiffs caution that the Court's holding today "would have

required Mr. Scott and Mr. Pratt and other absent class members to

file   their own suits while Mr.              Fox's suit was still pending,"

thereby discouraging efficiency and sanctioning duplicative suits.

Pls.' Opp'n at 42. Yet this is precisely the point. Once the Foxes'

case was no longer a class action, the case no longer represented

class interests, and Mr. Scott, Mr. Pratt, and absent class members

were required to pursue their own individual remedies.

       For the foregoing reasons,             the Court holds that a case is

"conclusively not a class action" once all class claims have been

                                         14
dismissed. The Fox case,      when filed,      included individual claims

relating to Mr.     Fox's alleged wrongful arrest and class claims

challenging the "post and forfeit"         process.    On March 30,    2012,

Judge Jackson dismissed the "post and forfeit" claims. On February

15, 2013, Judge Jackson declined to reconsider the dismissal and

dismissed the two remaining post and forfeit claims.              This left

only Mr. and Mrs. Fox's individual claims.            It was at that point

that the case was "conclusively not a class action." Sawyer, 642

F. 3d at 563.

      On February 16, .2013, the 112 days remaining in Plaintiffs'

statute of limitations period began to run again. 3 The limitations

period expired on June 8, 2013, 342 days before Plaintiffs filed

the   present   lawsuit.   Def. 's Mot.   at   8.   Therefore,   Plaintiffs'

Complaint was not timely filed and this Court lacks subject matter

jurisdiction to hear the case.




3 In their Supplemental Opposition, Plaintiffs note that tolling
of their conversion claim is governed by 28 U.S.C. § l3q7(d), in
addition to American Pipe. Section 1367 (d) provides that "[t] he
period of limitations for any [related state law] claim asserted
. . . . shall be tolled while the claim is pending and for a period
of 30 days after it is dismissed unless State law provides for a
longer tolling period." Even with the additional 30 days,
Plaintiffs' conversion claim was filed 312 days late and is time-
barred.

                                     15
        B.     Failure to State a Claim

       Having found Plaintiffs' Complaint to be untimely, the Court

need not reach Defendant's contention that Plaintiffs have failed

to state a claim.

IV.     Conclusion

      For    the    foregoing    reasons,        Defendant's   Motion   to   Dismiss

Complaint          shall   be   granted.    An     Order   shall   accompany    this

Memorandum Opinion.




April 9, 2015




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