                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


ANTHONY CLARK,                                       )
                                                     )
             Plaintiff,                              )
                                                     )
                     v.                              )    Civil Case No. 12-01310 (RJL)
                                                     )
COMPUTER SCIENCE CORP., et al.,                      )
                                                     )
              Defendants.                            )

                                    5-I-
                              MEMORANDUM OPINION
                          August -J-'
                                  2013 [## 4, 6, 11, 22, 23, 26]

       Plaintiff Anthony Clark initiated this action in D.C. Superior Court against his

former employer, Insight Global, Inc., and technology companies Kforce, Inc. and

Computer Science Corporation ("CSC"). Plaintiff alleged that defendants erroneously

accused him of stealing a laptop, thereby triggering his arrest, detention, and criminal

prosecution. Defendants removed this action and filed three motions to dismiss and two

motions for summary judgment. 1 Plaintiff moved to amend the complaint in such a way

as to eliminate federal jurisdiction and to permit the Court to remand the case. Mot. to



1 Mot. to Dismiss, Aug. 14, 2013 [Dkt. # 4] ("Insight Global's Mot. to Dismiss"); Def.
Computer Science Corp.'s Mot. to Dismiss Pl.'s Compl., Aug. 14, 2013 [Dkt. # 6]
("CSC's Mot. to Dismiss"); Def. Kforce Inc.'s Mot. to Dismiss Pl.'s Compl. for Failure to
State a Claim for Which Relief May Be Granted, Aug. 21, 2013 [Dkt. # 11] ("Kforce' s
Mot. to Dismiss"); Def. Insight Global, Inc.'s Mot. for Summ. J., Feb. 28, 2013 [Dkt. #
22] ("Insight Global's Mot. for Summ. J."); Def. Kforce Inc.'s Mot. for Summ. J., Mar.
27, 2013 [Dkt. # 26] ("Kforce's Mot. for Summ. J.").

                                              1
Amend Compl. and Remand, Feb. 27, 2013 [Dkt. # 23] (Pl.'s Mot. to Amend/Remand").

Because plaintiff has failed to state a claim upon which relief can be granted, the Court

GRANTS defendants' Motions to Dismiss, DENIES as moot defendants' Motions for

Summary Judgment, and DENIES plaintiffs Motion to Amend the Complaint and

Remand.

                                            BACKGROUND

       Plaintiff began working for Insight Global as a Senior Systems Analyst in

December 2009. Compl., June 27, 2012 [Dkt. # 1], ~ 16. Both Insight Global and

Kforce were subcontractors for CSC, which provided information technology ("IT")

services to the Environmental Protection Agency ("EPA").              !d.~   13. In resolving IT

inquiries at EPA, plaintiff occasionally took inoperable laptops to his home to conduct

diagnostic testing. !d.    ~   18.   esc also issued plaintiff a work laptop, which plaintiff
occasionally used for work at home. !d.          ~   19. Plaintiff alleges that Insight Global,

Kforce, and CSC were aware that employees took home both their work laptops and

other, inoperable laptops. !d.       ~   22. Plaintiff also alleges that CSC issued him a

"Property Pass" that permitted plaintiff to remove his laptops and other laptops from the

job site. !d.   ~   20.

       On February 24, 2011, plaintiff took home his work laptop and one inoperable

laptop after work. !d.    ~    22. The following day, plaintiff came to work without either

laptop. !d.   ~   23. That same day, he learned that his employment with Insight Global


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was terminated. Jd. ~ 24. He informed Insight Global Account Manager Olivia Wheeler

that he had the two laptops, his badge, and a work telephone at his home that he needed to

return to Insight Global. !d. ~ 26. In the weeks following his termination, plaintiff

called Wheeler and other employees at Insight Global, CSC, and Kforce several times to

arrange the return of the work property, but he was unable to return the property. !d.~~

27-30.

          Over a month after plaintiffs termination, Kforce contacted the Department of

Homeland Security ("DHS") to report the inoperable laptop as stolen. Id.                 ~   32. Because

the laptop contained software that traced its location when connected to the internet, DHS

detected that the laptop was in plaintiffs possession.           !d.~~   35-37. After a DHS agent

contacted plaintiff about the laptop, plaintiff returned his work laptop on June 15, 2011

and returned the inoperable laptop on June 20, 2011.         !d.~    40.

         Three days later, a DHS agent informed plaintiff that he was the subject of an

outstanding arrest warrant for receiving the "stolen" laptop. !d.           ~   41. Plaintiff

voluntarily surrendered to the police six days later, at which time he was handcuffed,

subjected to a search, and detained for approximately 15 hours. In September 2011, he

went to trial in D.C. Superior Court, for which defendants provided witnesses and

testimony in an effort to prove that plaintiff committed the crime.             !d.~   52. After the

short trial, plaintiff was found not guilty. !d.   ~   51, 53.




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                                STANDARD OF REVIEW

       Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure on the ground that the complaint fails to state a claim upon

which relief can be granted. In evaluating defendants' motions, the Court must "treat the

complaint's factual allegations as true" and "grant plaintiff the benefit of all inferences

that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d

1111, 1113 (D.C. Cir. 2000) (citations and internal quotation marks omitted).

       "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his

entitle[ ment] to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (alteration in original) (citations and internal quotation marks

omitted). Rather, the complaint "must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation and internal quotation marks omitted); see also Twombly, 550 U.S. at

555 (factual allegations must "be enough to raise a right to relief above the speculative

level"). "[T]he court need not accept inferences drawn by plaintiff[ ] if such inferences

are unsupported by the facts set out in the complaint." Kowal v. MCI Commc 'ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Indeed, "where the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has



                                               4
alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556

U.S. at 679 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).

       Defendants also move for summary judgment pursuant to Federal Rule of Civil

Procedure 56. Summary judgment is proper where the pleadings, stipulations, affidavits,

and admissions in a case show that there is no genuine issue as to any material fact. Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must

accept as true the evidence of, and draw "all justifiable inferences" in favor of the party

opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986)

(citation omitted). A genuine issue exists only where "the evidence is such that a

reasonable jury could return a verdict for the nonmoving party." !d. at 248.

                                         ANALYSIS

       Plaintiffs complaint against defendants alleges five claims of torts: false arrest,

malicious prosecution, intentional infliction of emotional distress, negligent infliction of

emotional distress, and negligent hiring, training, supervision and retention. Compl. ~~

31-79. Unfortunately, for plaintiff, he fails to plead the facts necessary to establish the

elements of any of his claims. Because the complaint lacks allegations to support

plausible claims, defendants' Motions to Dismiss are GRANTED, and defendants'

Motions for Summary Judgment are DENIED as moot. Further, because plaintiff cannot

be permitted to amend his complaint for the purpose of eliminating federal jurisdiction,

plaintiffs Motion to Amend Complaint and Remand is DENIED.



                                               5
       I.      Defendants' Motions to Dismiss

       Defendants' motions to dismiss must be granted because plaintiff has not put forth

"sufficient factual matter" to create any plausible claims for relief against any of the

defendants. Iqbal, 556 U.S. at 678. Plaintiffs first claim, false arrest, requires facts

sufficient to conclude that he was unlawfully detained. Dewitt v. District of Columbia,

43 A.3d 291,295 (D.C. 2012); see also Magwoodv. Giddings, 672 A.2d 1083, 1086

(D.C. 1996) (probable cause for an arrest and detention constitutes a valid defense to false

arrest claim). False arrest does not occur when a person simply "giv[es] facts to an

officer showing that an offense has been committed," Smith v. District of Columbia, 399

A.2d 213, 218 (D.C. 1979), unless that person "knowingly and maliciously" makes a false

report to the police, Vessels v. District ofColumbia, 531 A.2d 1016, 1020 (D.C. 1987).

       Plaintiff simply alleges that the defendants "knew or should have known" that the

property was not stolen when they "instigated, directed, participated in, and effected the

[plaintiffs] arrest." Compl.   ~   44-46. But plaintiffs facts, even if assumed true, do not

support such an allegation. Plaintiff never alleges that CSC or Insight Global made any

report to law enforcement that led to his arrest. Regarding the only defendant that

allegedly contacted law enforcement-Kforce-plaintiff fails to show that Kforce

knowingly or maliciously made a false report. Plaintiff simply states that he made

"several calls to staff of [defendants]" to arrange to return of the laptops, but "Defendants

filed [sic] to assist or cooperate in the return of said property."   !d.~   30. Taken together,


                                                6
these facts, at best, demonstrate negligence by Kforce, but they cannot produce the

conclusion that Kforce knowingly and maliciously made a false report regarding the

laptop.

          Similarly, plaintiff does not allege sufficient facts to support a claim of malicious

prosecution. For a malicious prosecution claim, a plaintiff must allege "(a) a criminal

proceeding instituted or continued by the defendant against the plaintiff, (b) termination

of the proceeding in favor of the accused, (c) absence of probable cause for the

proceeding, and (d) 'Malice,' or a primary purpose in instituting the proceeding other than

that of bringing an offender to justice." DeWitt, 43 A.3d at 296 (quoting Jarrett v.

Walker, 201 A.2d 523, 526 (D.C. 1964)). As with the false arrest claim, plaintiff

identifies no facts to support an allegation that defendants acted with malice toward

plaintiff. The conclusory allegation that"[ d]efendants, jointly and severally, acted with

malice in instigating and prosecuting said criminal action," Compl.       ~   60, is inadequate to

support a malicious prosecution claim.

          Plaintiff also fails to state facts sufficient to support his claim of intentional

infliction of emotional distress. Intentional infliction of emotional distress requires proof

of the following elements: "(1) extreme and outrageous conduct on the part of the

defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional

distress." Baltimore v. District of Columbia, 10 A.3d 1141, 1155 (D.C. 2011) (citations

and internal quotation marks omitted). To qualifY as "extreme and outrageous," the


                                                 7
conduct "must be so outrageous in character, and so extreme in degree, as to go beyond

all plausible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community." Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)

(citations omitted). By no stretch of the imagination could any of defendants' actions, as

stated in the complaint, be considered extreme and outrageous under this exacting

standard.

       Like his claim of intentional infliction of his emotional distress, his claim of

negligent infliction of emotional distress also must be dismissed. To support a claim of

negligent infliction of emotional distress, plaintiff may show that defendants caused him

direct physical injury or placed him in a "zone of physical danger" that caused him

serious emotional distress. District of Columbia v. McNeill, 613 A.2d 940, 943 (D.C.

1992); Williams v. Baker, 572 A.2d 1062, 1067 (D.C. 1990). While plaintiff alleges that

he was "handcuffed, subjected to a search of his body, [and] placed in a holding cell" by

police, Compl.   ~   43, he does not allege that the arrest caused him direct physical injury or

was placed in a zone of physical danger. Indeed, he states that he "voluntarily

surrendered" to police, absent any physical altercation. !d.     ~   42. His allegations of

"headaches and sleeplessness," id.     ~   64, are psychological symptoms-not a direct

"physical injury" actionable under this claim.

       Absent physical harm or a "zone of physical danger," plaintiff may claim negligent

infliction of emotional distress if he shows that "(1) the defendant has a relationship with


                                                  8
the plaintiff ... of a nature that necessarily implicates the plaintiffs emotional

well-being, (2) there is an especially likely risk that the defendant's negligence would

cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of

the defendant in breach of that obligation have, in fact, caused serious emotional distress

to the plaintiff." Hedgepath v. Whitman Walker Clinic, 22 A.3d 789, 810-11 (D.C.

2011 ). Plaintiff claims that defendants "owed a duty of reasonable care to Plaintiff to

investigate any claim regarding stolen property to determine if in fact the allegations have

a basis in fact," Compl.   ~   66, but plaintiff does not identify the "relationship [with

defendants] that necessarily implicates [his] well-being" that the claim requires. Even if

his employer-employee relationship with Insight Global were sufficient, 2 the conduct at

issue occurred after plaintiff was no longer employed. Further, it is, to say the least, a

stretch to suggest that, by failing to investigate a stolen property claim, defendants were

"especially likely" to cause "serious emotional distress" to plaintiff.

       Finally, plaintiffs claim of negligent hiring, training, supervision, and retention

cannot stand. 3 Negligent hiring, training, supervision, and retention require a showing of


2 See Hedgepath, 22 A.3d at 812-13 (to create negligent infliction of emotional distress,
the relationship "must 'implicate' the plaintiffs emotional well-being," such as that of a
psychiatrist/therapist or doctor/patient).
3 This Court assesses this claim under both Virginia law and District of Columbia law, as

defendant Insight Global states that its hiring, training, supervision, and retention occur in
its Virginia office. See Insight Global's Mot. to Dismiss at 17. For the Court's purpose,
the two states' laws are quite similar with respect to negligent hiring and negligent
retention. See J. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391, 394 (Va. 1988)
(negligent hiring occurs when an employer places "an unfit person in an employment

                                                  9
common law negligence: that an employer failed to use reasonable care in selecting,

training, supervising, or retaining an employee, thereby proximately causing harm to

plaintiff. See Beyene v. Hilton Hotels Corp., 815 F. Supp. 2d 235, 251 (D.D.C. 2011)

(quoting Fleming v. Bronfin, 80 A.2d 915, 917 (D.C. 1951)); Dormu v. District of

Columbia, 795 F. Supp. 2d 7, 31 (D.D.C. 2011); Phelan v. City of Mount Rainier, 805

A.2d 930, 940 (D.C. 2002). Yet nowhere in his complaint does plaintiff state facts to

explain how defendants were purportedly negligent in how they hired, trained, or

supervised their employees. The only employee mentioned by name is Insight Global's

Olivia Wheeler, who allegedly failed to respond to plaintiffs requests to return his

laptops. Compl. ,-r 25-29. Assuming these facts to be true, these facts certainly do not

show that Insight Global failed to properly train or supervise Wheeler, that Insight Global

knew or should have known that Wheeler was likely to harm plaintiff, or that Wheeler's

actions were a proximate cause of plaintiffs harm. Absent such facts, plaintiff has not

established the elements of his final negligence claims against defendants.




situation involving an unreasonable risk of harm to others"); Southeast Apartments
Mgmt., Inc. v. Jackman, 513 S.E.2d 395, 397 (Va. 1999) (negligent retention "based on
the principle that an employer ... is subject to liability for harm resulting from the
employer's negligence in retaining a dangerous employee who the employer knew or
should have known was dangerous and likely to harm"). The Supreme Court of Virginia
has not yet recognized a cause of action for negligent supervision or negligent training.
See Hernandez v. Lowe's Home Centers, Inc., 83 Va. Cir. 210 (Va. Cir. Ct. 2011). Even
if these causes of actions exist under Virginia law, plaintiff has failed to state facts that
support these claims under any conception of common law negligence.

                                             10
       II.    Plaintiff's Motion to Amend Complaint and Remand

       In lieu of opposing defendants' motions to dismiss, plaintiff moves to amend his

complaint and remand the case to D.C. Superior Court. Pl.'s Mot. to Amend/Remand at

1. Specifically, plaintiff seeks to remove defendant CSC and reduce his compensatory

and special damages from $800,000 to $70,000, thereby removing this Court's subject

matter jurisdiction over his complaint. !d. The remainder of plaintiffs claim would

remain substantively identical.

       A plaintiff cannot amend his pleading solely to defeat diversity jurisdiction. See

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293-94 (1938) ("events

occurring subsequent to removal which reduce the amount recoverable, whether beyond

the plaintiffs control or the result of volition, do not oust the district court's

jurisdiction"); Kopffv. World Research Group, LLC, 298 F. Supp. 2d 50, 57 (D.D.C.

2003) ("the time for assessing jurisdictional amount is at the time of removal"). Even if

plaintiffs amendment were permissible, a court may deny leave to amend if the

amendment would be futile. Since plaintiffs proposed complaint does not change or

enhance the factual allegations from his original complaint, his amended complaint would

fail to state a claim for the same reasons discussed above. For both of these reasons, his

motion to amend his complaint and remand is denied.

                                       CONCLUSION

       For the foregoing reasons, the Court GRANTS defendants' motions to dismiss,


                                               11
DENIES as moot defendants' motions for summary judgment, and DENIES plaintiffs

motion to amend the complaint and remand. An order consistent with this decision

accompanies this Memorandum Opinion.




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