                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MARY JANE PIETSCH,                            :
                                              :
                       Plaintiff,             :       Civil Action No.:      09-0390 (RMU)
                                              :
                       v.                     :       Re Document Nos.:      3, 7, 12
                                              :
MCKISSACK & MCKISSACK,                        :
                                              :
                       Defendant.             :

                                    MEMORANDUM OPINION

  GRANTING THE PLAINTIFF’S SECOND MOTION TO AMEND THE COMPLAINT; DENYING AS
  MOOT THE PLAINTIFF’S FIRST MOTION TO AMEND THE COMPLAINT; DENYING WITHOUT
                 PREJUDICE THE DEFENDANT’S MOTION TO DISMISS

                                      I. INTRODUCTION

        This matter comes before the court on the plaintiff’s second motion to amend the

complaint and the defendant’s motion to dismiss. The plaintiff alleges that the defendant, an

engineering firm retained as a contractor by the National Institutes of Health (“NIH”), negligently

supervised and retained one of its employees, Doug Sedon, who worked in close proximity to the

plaintiff and allegedly harassed her over a period of more than a year. The defendant filed a

motion to dismiss, and in response, the plaintiff filed a motion to amend the complaint, which the

defendant opposed on the grounds that the plaintiff had not alleged an underlying tort as the

plaintiff’s theory of recovery requires. Rather than filing a reply in support of her motion to

amend the complaint, the plaintiff filed a second motion to amend the complaint, alleging that

Sedon’s actions constituted the underlying tort of intentional infliction of emotional distress

(“IIED”). The defendant opposed the plaintiff’s second motion to amend the complaint, arguing

that amendment would be futile.
       Because the court determines that the plaintiff’s allegations suffice to make out a claim of

negligent supervision and retention at this stage of the proceedings, the court grants the plaintiff’s

second motion to amend the complaint. As a result, the court denies as moot the plaintiff’s first

motion to amend the complaint and denies without prejudice the defendant’s motion to dismiss

the original complaint.



                                        II. BACKGROUND

                                       A. Factual Allegations1

       The defendant employed the plaintiff from 2000 to 2006. Proposed 2d Am. Compl. ¶ 6.

From 2006 through 2008, the plaintiff worked for other contractors but continued to work in the

same location, Trailer 30B at the NIH. Id. ¶¶ 7-9, 13. Sedon began working for the defendant in

Trailer 30B in August 2003. Id. ¶ 15. At some point between 2003 and 2006, the plaintiff and

Sedon had an intimate relationship, which the plaintiff ended in August 2006. Id. ¶ 17.

Following their breakup, Sedon began harassing the plaintiff. Id. ¶ 18.

       Sedon began sending harassing e-mails to the plaintiff in the summer of 2007. Id. ¶ 19.

When the plaintiff did not respond, Sedon became more aggressive, suggesting that the plaintiff

“needed therapy and was sick and twisted.” Id. ¶ 23. On numerous occasions, Sedon sent the

plaintiff obscene e-mails and text messages, including messages containing sexually graphic

pictures. Id. ¶¶ 24-25. Sedon made rude and humiliating comments about the plaintiff, publicly

humiliated her, verbally assaulted her and stalked her at her residence. Id. ¶¶ 28, 34-36. In


1
       For the purposes of ruling on these motions, the court assumes that the plaintiff’s allegations are
       true. See Atherton v. D.C. Office of the Mayor, 567 F.3d 673, 681 (D.C. Cir. 2009).


                                                    2
addition, Sedon once waved a utility knife in front of the plaintiff’s face. Id. ¶ 37. In August

2008, Sedon sent the plaintiff several e-mails in which he stated he was still dreaming about her

and in which he disparaged her recently deceased boyfriend. Id. ¶ 33. The harassment escalated

to the point that the plaintiff sought a peace order2 against Sedon. Id. ¶ 38.

       Throughout the time that Sedon harassed the plaintiff, the plaintiff complained to Dan

Cushing, the defendant’s Executive Vice President and Sedon’s immediate supervisor. Id. ¶ 29.

Cushing responded to the plaintiff’s complaints by stating variously that the plaintiff and Sedon

would “have to get along,” that the defendant’s client liked Sedon and that Cushing would talk to

Sedon about his behavior Id. ¶¶ 30-32.

       On August 22, 2008, the plaintiff reported to Cushing several inappropriate acts that

Sedon had committed the previous week. Id. ¶ 42, 46-49. Three days later, on August 25, 2008,

Cushing told the plaintiff that she would be transferred to a different building to separate her

from Sedon. Id. ¶ 50. The same day, the defendant placed Sedon on a two-week unpaid

suspension. Id. ¶ 52.

                                    B. Procedural Background

       The plaintiff originally commenced this action on January 14, 2009 in the Superior Court

of the District of Columbia, alleging that the defendant had negligently supervised and retained

Sedon. See generally Compl. On February 26, 2009, the defendant removed the case to this

court. See Notice of Removal. On March 3, 2009, the defendant then filed a motion to dismiss.

See generally Def.’s Mot. to Dismiss. In response, the plaintiff filed a motion to amend her

2
       Under Maryland law, a peace order provides protection for individuals experiencing certain
       kinds of abuse, including assault, harassment and stalking. See MD . CTS . & JUD . PROC . CODE §
       3-8A-19.1.


                                                   3
complaint on April 7, 2009, see Pl.’s Mot. to Amend, which the defendant opposed, see Def.’s

Opp’n to Pl.’s Mot. to Amend. Before the court issued a ruling on either pending motion, the

plaintiff filed a second motion to amend her complaint on April 24, 2009, see Pl.’s 2d Mot. to

Amend, which the defendant opposes as futile, see Def.’s Opp’n to Pl.’s 2d Mot. to Amend

(“Def.’s Opp’n”). The court now turns to the applicable legal standard and the parties’

arguments.



                                         III. ANALYSIS

               A. Legal Standard for a Motion for Leave to Amend the Complaint

       Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a

matter of course at any time before a responsive pleading is served. FED . R. CIV . P. 15(a).

Additionally, Rule 15(a) allows a party to amend its pleading to add a new party. Id.; Wiggins v.

Dist. Cablevision, Inc., 853 F. Supp. 484, 499 (D.D.C. 1994); 6 FED . PRAC. & PROC. 2d § 1474.

According to decisions of this circuit, Rule 15(a) “guarantee[s] a plaintiff an absolute right” to

amend the complaint once at any time so long as the defendant has not served a responsive

pleading and the court has not decided a motion to dismiss. James V. Hurson Assocs., Inc. v.

Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000) (citing FED . R. CIV . P. 15(a)). If there is more

than one defendant, and not all have served responsive pleadings, the plaintiff may amend the

complaint as a matter of course with regard to those defendants that have yet to answer. 6 FED .

PRAC. & PROC. 2d § 1481. Motions to dismiss and for summary judgment do not qualify as

responsive pleadings for the purposes of Rule 15. James V. Hurson Assocs., 229 F.3d at 283;




                                                  4
Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999); U.S. Info. Agency v. Krc, 905 F.2d

389, 399 (D.C. Cir. 1990).

       Once a responsive pleading is served, however, a plaintiff may amend the complaint only

by leave of the court or by written consent of the adverse party. FED . R. CIV . P. 15(a); Foman v.

Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave lies in the sound discretion of the

district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The court must,

however, heed Rule 15’s mandate that leave is to be “freely given when justice so requires.” Id.;

Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1083 (D.C. Cir. 1998).

Indeed, “[i]f 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.” Foman,

371 U.S. at 182. Denial of leave to amend therefore constitutes an abuse of discretion unless the

court gives sufficient reason, such as futility of amendment, undue delay, bad faith, dilatory

motive, undue prejudice or repeated failure to cure deficiencies by previous amendments. Id.;

Caribbean Broad. Sys., 148 F.3d at 1083.

       Denial of leave to amend based on futility is warranted if the proposed claim would not

survive a motion to dismiss. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.

1996). An amended complaint is futile if it merely restates the same facts as the original

complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a

legal theory or could not withstand a motion to dismiss. Robinson v. Detroit News, Inc., 211 F.

Supp. 2d 101, 114 (D.D.C. 2002) (quoting 3 FED . PRAC. 3d § 15.15[3]); Willoughby v. Potomac

Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (affirming the district court’s denial of

leave to amend given the “little chance” that the plaintiff would succeed on his claim).


                                                  5
        B. The Court Grants the Plaintiff’s Second Motion to Amend the Complaint

       In support of her second motion for leave to amend the complaint, the plaintiff

emphasizes the lenient standard the court should employ when ruling on such a motion. Pl.’s 2d

Mot. to Amend at 1. The plaintiff argues that none of the grounds for denial exists in this case.

See generally id. Anticipating the defendant’s argument that amendment would be futile, the

plaintiff maintains that Sedon’s behavior constituted IIED, the tort underlying her negligent

supervision and retention claims. See id. at 1-2.

       The defendant contests the plaintiff’s assertion that her allegations are sufficient to

withstand a motion to dismiss. See generally Def.’s Opp’n. Focusing on the underlying tort of

IIED, the defendant argues that Sedon’s conduct “could not plausibly amount to extreme or

outrageous conduct.” Id. at 3. The defendant urges the court to employ a heightened standard

for outrageous conduct because this case took place in the employment context. See id. at 4. The

defendant declares that “[e]mployer-employee conflicts generally do not, as a matter of law, rise

to the level of outrageous conduct.” Id. Attempting to illuminate the contours of its proposed

heightened standard, the defendant cites a number of cases, mostly employment-related, in which

courts have dismissed IIED claims. See id. at 5-7. Finally, in addition to contesting the

plaintiff’s allegations of extreme and outrageous conduct, the defendant argues that the plaintiff

has not alleged emotional distress in sufficient detail. See id. at 7.




                                                    6
       Under the law of the District of Columbia,3 an employer must

       use reasonable care to select employees competent and fit for the work assigned to
       them and to refrain from retaining the services of an unfit employee. When an
       employer neglects this duty and as a result injury is occasioned to a third person, the
       employer may be liable even though the injury was brought about by the willful act
       of the employee beyond the scope of employment.

Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 575 (D.C. 2007). To establish a negligent

supervision or retention claim, a plaintiff must show that “the employer breached a duty to

plaintiff to use reasonable care in the supervision or retention of an employee which proximately

caused harm to plaintiff.” Phelan v. City of Mount Rainier, 805 A.2d 930, 940 (D.C. 2002). In

addition, the claim must be predicated on a “common law cause of action or duties otherwise

imposed by common law.” Griffin, 925 A.2d at 576.

        In her proposed second amended complaint, the plaintiff alleges that the defendant acted

negligently by failing to respond to the plaintiff’s repeated complaints about Sedon’s conduct,

see Proposed 2d Am. Compl. ¶¶ 29-32, and that as a result, Sedon continued to torment her, see

id. ¶¶ 72, 81. The plaintiff’s claim is predicated on the underlying common law tort of IIED.

3
       Because the events giving rise to the plaintiff’s claims took place in Maryland, Maryland law
       arguably governs the plaintiff’s claims. See Proposed 2d Am. Compl. ¶¶ 1-2. Yet both parties’
       submissions rely on District of Columbia law. See generally Pl.’s 2d Mot. to Amend; Def.’s
       Opp’n to Pl.’s 2d Mot. to Amend; Def.’s Mot. to Dismiss; Pl.’s Opp’n to Def.’s Mot. to Dismiss.
       The standard for negligent supervision and retention under Maryland law is identical to that
       under District of Columbia law for purposes of ruling on the instant motions. See Alexander v.
       Wash. Gas Light Co., 481 F. Supp. 2d 16, 41-42 (D.D.C. 2006) (observing that “[u]nder
       Maryland law, ‘[i]n order to establish a claim for negligent hiring or retention, a plaintiff must
       prove that the employer of the individual who committed the allegedly tortious act owed a duty
       to the plaintiff, that the employer breached that duty, that there was a causal relationship between
       the harm suffered and the breach of the employer’s duty, and that the plaintiff suffered
       damages’”) (citing Penhollow v. Bd. of Comm’rs for Cecil County, 695 A.2d 1268 (Md. Ct. Spec.
       App. 1997); Cramer v. Hous. Opportunities Comm’n of Montgomery County, 501 A.2d 35 (Md.
       1985)). Therefore, the court need not resolve this discrepancy and will apply the law of the
       District of Columbia. Cf. Phelan v. City of Mount Rainier, 805 A.2d 930, 938 n.8 (D.C. 2002)
       (applying District of Columbia rather than Maryland law because the parties had relied on
       District of Columbia law and it was unnecessary, in light of the court’s ruling, to resolve the
       conflict of law issue).
                                                    7
See id. ¶¶ 62-65. In support of her allegation of IIED, the plaintiff catalogues a pattern of

offensive behavior by Sedon beginning in June 2007 and extending through August 2008.4 See

generally Proposed 2d Am. Compl. The plaintiff avers that for more than a year, Sedon made

sexually suggestive, demeaning and humiliating comments and sent the plaintiff harassing and

obscene e-mails and text messages. Id. The plaintiff also maintains that Sedon’s actions were

intentional and that she suffered emotional and physical injury as a result thereof. See id. ¶¶ 60,

64.

        Given the plaintiff’s detailed allegations regarding the defendant’s failure to respond to

her repeated complaints, along with her allegations regarding the emotional distress that Sedon’s

actions caused, the court concludes that the plaintiff has made out a claim of negligent

supervision and retention at this stage of the proceedings. See Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (observing that “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’”)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); cf. Khan v. Parsons Global

Servs., 521 F.3d 421, 429 (D.C. Cir. 2008) (reversing the district court’s dismissal and

concluding that the plaintiff’s allegations were sufficient to meet the criteria for IIED, although

the plaintiff made only limited allegations regarding her emotional distress). Accordingly,




4
       Contrary to the defendant’s contention, the alleged conduct did not take place within an
       employer-employee relationship. See Proposed 2d Am. Compl. ¶¶ 7-9, 13, 15. Rather, Sedon
       and the plaintiff worked in the same trailer for different contractors when the alleged conduct
       took place. Id.
                                                   8
amendment would not be futile, and therefore the court grants the plaintiff’s second motion to

amend the complaint.5



                                       IV. CONCLUSION

       For the foregoing reasons, the court grants the plaintiff’s second motion to amend the

complaint, denies as moot the plaintiff’s first motion to amend the complaint and denies without

prejudice the defendant’s motion to dismiss. An Order consistent with this Memorandum

Opinion is separately and contemporaneously issued this 12th day of January, 2010.




                                                                RICARDO M. URBINA
                                                               United States District Judge




5
       As a consequence, the court denies as moot the plaintiff’s first motion to amend the complaint.
       In addition, because the amended complaint supersedes the original complaint, the court denies
       without prejudice the defendant’s motion to dismiss the original complaint. See Bancoult v.
       McNamara, 214 F.R.D. 5, 13 (D.D.C. 2003).
                                                  9
