                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
DAVID L. CALDWELL,                  )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                  Civil Action No. 12-0406 (BAH)
                                    )
NATIONAL GALLERY OF ART,            )
                                    )
                  Defendant.        )
___________________________________ )


                                   MEMORANDUM OPINION


           The Court granted the defendant’s motion to dismiss the complaint as conceded on

May 7, 2012, on the mistaken belief that the plaintiff had not filed a timely opposition to the

defendant’s motion to dismiss. The plaintiff filed a response to the motion which the Clerk of

Court received on April 25, 2012, but has not yet been entered on the Court’s electronic docket.

The Court will grant leave to file the response, and the Clerk will be directed to docket the

response as the plaintiff’s opposition to the defendant’s motion to dismiss [Dkt. #3].


           The defendant moves to dismiss the plaintiff’s complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject matter jurisdiction due to the plaintiff’s failure to exhaust his

administrative remedies under the Rehabilitation Act prior to filing this lawsuit. 1 See Mem. of P.

& A. in Supp. of Mot. to Dismiss at 5-6. The plaintiff’s opposition in its entirety states:



1
        Because the plaintiff is proceeding pro se and in forma pauperis, the Court is responsible
for issuance of summonses and for service of process on the plaintiff’s behalf. See 28 U.S.C.
§1915(d); see also Fed. R. Civ. P. 4(c)(3). The Court, therefore, will deny the defendant’s
motion to dismiss under Rule 12(b)(5) for improper service of process.
                                                   1
                I David L. Caldwell file a motion for a continous [sic] due to
                National Gallery of Art has cancer [sic] my health insurance[.]
                [A]lso I am concern[ed] about this issue[.] I owe National Gallery
                of Art $4,134[.] I am requesting this motion to be heard through
                the court.
Pl.’s Opp’n. Missing from the plaintiff’s opposition is any reference to or discussion of the legal

argument raised by the defendant in its motion. Moreover, the plaintiff does not dispute that he

has failed to make or file any complaint regarding discrimination with the Equal Employment

Opportunity (EEO) office of his former employer. See Mot. to Dismiss, Ex. (Decl. of Kelly

Goode) ¶ 3.


            If a plaintiff fails to counter an argument set forth in a defendant’s motion to dismiss,

the Court may treat the argument as conceded. See, e.g., Rosenblatt v. Fenty, 734 F. Supp. 2d

21, 22 (D.D.C. 2010); Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d

174, 178 (D.D.C. 2002); see also FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (“It is

well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss

addressing only certain arguments raised by the defendant, a court may treat those arguments

that the plaintiff failed to address as conceded.”). The plaintiff’s utter failure to put forth a

substantive response to the defendant’s motion leads the Court, again, to grant its motion as

conceded.


            An Order accompanies this Memorandum Opinion.


DATE: May 24, 2012                                   /s/ Beryl A. Howell
                                                   BERYL A. HOWELL
                                                   United States District Judge




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