                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
VANESSA E. GATES,              )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 11-1462 (RWR)
                               )
UNITED STATES OF AMERICA,      )
et al.,                        )
                               )
          Defendants.          )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Vanessa Gates filed this complaint as the personal

representative of the estate of her daughter, Tiffany Gates-

Jackson, against the United States of America and the District of

Columbia (“the District”), alleging that the defendants’

negligence was responsible for Gates-Jackson’s death.   The

defendants have moved to dismiss the complaint.   Because the

complaint states a plausible claim of negligence against the

District of Columbia, but because the plaintiff has conceded the

United States’ motion to dismiss the complaint with prejudice,

the District’s motion to dismiss will be denied and the United

States’ motion to dismiss will be granted.

                            BACKGROUND

     In August 2008, Roderick Ridley was arrested and charged

with committing arson at Gates-Jackson’s District of Columbia

apartment.   Gates-Jackson assisted the District of Columbia

Metropolitan Police Department (“MPD”) with the prosecution
                                    -2-

against Ridley.    In return, the District provided her with

victims’ assistance funds and protection from Ridley.       Compl.

¶¶ 11-14.    Ridley was convicted of arson and incarcerated in the

District of Columbia Department of Corrections (“DOC”).       Id.

¶¶ 15-16.

     Ridley was eventually transferred from the District of

Columbia Jail to a halfway house, from which he absconded in

October 2008.    Compl. ¶¶ 16-17.     The District and the United

States Marshals Service notified Gates-Jackson of Ridley’s

escape.   Even though several judges had ordered Ridley to stay

away from Gates-Jackson’s apartment, the District and Marshals

Service helped her relocate into a “safe home” to protect her

from further harm.    Gates alleges that the District and the

Marshals Service were in frequent contact with Gates-Jackson, and

provided her with the personal telephone numbers of some of their

agents, including the telephone number for Inspector

Robert Hoffmaster of the Marshals Service.       Id. ¶¶ 18-23.

     Gates-Jackson lived in the safe home for approximately one

month, but was moved back into her apartment in November 2008.

Compl. ¶ 25.    On November 21, 2008, Gates-Jackson telephoned 911

to request emergency assistance because she saw Ridley near her

apartment.    Id. ¶ 26.   An MPD officer spoke with her but did not

see Ridley.    Id. ¶¶ 27-28.   She saw Ridley later and called

Inspector Hoffmaster.     Id. ¶ 29.    The Inspector continued his
                                 -3-

telephone call with Gates-Jackson while he traveled to her

apartment.    After Inspector Hoffmaster arrived at Gates-Jackson’s

apartment and was parked outside, Gates-Jackson told Hoffmaster

that she needed immediate assistance because Ridley was kicking

down her apartment door.    Hoffmaster waited outside Gates-

Jackson’s apartment for MPD backup.    Over the phone, Hoffmaster

heard Ridley kick down Gates-Jackson’s door and physically

attack her.    Gates-Jackson died from Ridley’s beating.   Id.

¶¶ 31-36.

     Gates filed this complaint in August 2011, alleging one

count of negligence against both defendants (Count I).     Compl.

¶¶ 51-55.    Gates’ complaint asserts that the District departed

from the applicable standards of care in numerous ways, including

by failing to conduct an accurate DOC security classification of

Ridley and to prevent his escape, and by failing to provide

protection to Gates-Jackson and to place a “lookout” for Ridley.

Id. ¶¶ 40-41, 44-45.    The complaint alleges that the Marshals

Service departed from the applicable standards of care by failing

to provide protection for Gates-Jackson, and by failing to arrest

Ridley.   Id. ¶ 49.   Both defendants have now moved to dismiss

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

                             DISCUSSION

     Rule 12(b)(1) provides that a federal court must dismiss a

case when it lacks subject matter jurisdiction.    Fed. R. Civ. P.
                                 -4-

12(b)(1).    “‘Before a court may address the merits of a

complaint, it must assure that it has jurisdiction to entertain

the claims.’”    Cornish v. Dudas, 715 F. Supp. 2d 56, 60 (D.D.C.

2010) (quoting Marshall v. Honeywell Tech. Solutions, Inc., 675

F. Supp. 2d 22, 24 (D.D.C. 2009)).     It is the plaintiff’s burden

to demonstrate subject matter jurisdiction.    Shuler v. United

States, 531 F.3d 930, 932 (D.C. Cir. 2008).    If the plaintiff

cannot meet her burden, the court must dismiss the action.    Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)

(citing Ex parte McCardle, 74 U.S. 506 (1868)).    In considering a

motion to dismiss for lack of subject matter jurisdiction, a

court “‘treat[s] the complaint’s factual allegations as true’”

and “‘grant[s] plaintiff ‘the benefit of all inferences that can

be derived from the facts alleged.’”    Nat’l Whistleblower Ctr. v.

Department of Health and Human Services, 839 F. Supp. 2d 40, 44

(D.D.C. 2012) (quoting Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation omitted)).

However, “[b]ecause subject matter jurisdiction focuses on the

court’s power to hear the claim, . . . the court must give the

plaintiff’s factual allegations closer scrutiny when resolving a

Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)

motion[.]”    Aref v. Holder, 774 F. Supp. 2d 147, 159 (D.D.C.

2011).
                                -5-

     “‘A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.’”   Howard Univ. v. Watkins, 857 F. Supp. 2d 67, 71

(D.D.C. 2012) (quoting Peavey v. Holder, 657 F. Supp. 2d 180, 185

(D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6))).   Motions to

dismiss under Rule 12(b)(6) test the legal sufficiency of a

complaint.   Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d

123, 129 (D.D.C. 2009).

     To survive a motion to dismiss, a complaint must
     contain sufficient factual matter, acceptable as true,
     to “state a claim to relief that is plausible on its
     face.” . . . A claim has facial plausibility when the
     plaintiff pleads factual content that allows the court
     to draw the reasonable inference that the defendant is
     liable for the misconduct alleged.

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

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

“The complaint must be construed in the light most favorable to

the plaintiff and ‘the court must assume the truth of all

well-pleaded allegations.’”   Watkins, 857 F. Supp. 2d at 71

(quoting Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir.

2004)).   “[A] complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations[.]”   Twombly,

550 U.S. at 555.   However, “[w]here a complaint pleads facts that

are ‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of
                                 -6-

entitlement to relief.’”    Iqbal, 556 U.S. at 662 (quoting

Twombly, 550 U.S. at 557.

I.   NOTICE UNDER D.C. CODE § 12-309

     The District argues that the negligence claim should be

dismissed for lack of jurisdiction because the plaintiff failed

to provide timely and proper notice of a claim under D.C. Code

§ 12-309.    Under that provision,

     [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, [her] 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.

D.C. Code § 12-309.    The notification requirement is strictly

applied, and the provision is “‘construed narrowly’” against

claimants.    Snowder v. Dist. of Columbia, 949 A.2d 590, 600 (D.C.

2008) (quoting Gross v. Dist. of Columbia, 734 A.2d 1077, 1081

(D.C. 1999)); Dist. of Columbia v. Dunmore, 662 A.2d 1356 (D.C.

1995).   “Only two types of notice can satisfy the requirements of

Section 12-309, however: (1) a written notice to the Mayor of the

District of Columbia, or (2) a police report prepared in the

regular course of duty.”    Blocker-Burnette v. Dist. of Columbia,

730 F. Supp. 2d 200, 204 (D.D.C. 2010) (citing Brown v. Dist. of

Columbia, 251 F. Supp. 2d 152, 165 (D.D.C. 2003)).    “Section

12-309 makes clear that police reports are the only acceptable

alternatives to a formal notice,” and “[t]he court is not free to
                                -7-

go beyond the express language of the statute and authorize any

additional documents to meet its requirements.”   Doe v. Dist. of

Columbia, 697 A.2d 23, 28 (D.C. 1997).

      The District argues the plaintiff failed to comply with

§ 12-309 because the injury occurred on November 21, 2008, and

Gates did not provide a notice of claim to the District until

November 2010.   Dist.’s Mem. in Supp. of Mot. to Dismiss

(“Dist.’s Mem.”) at 11-12.   However, Gates argues, and the

District does not dispute, that she met the requirements of § 12-

309 because Officer Manuel Gaffney prepared a police report in

November 2008 in the regular course of his duty with the MPD

which provided the District sufficient notice of the time, place,

cause, and circumstances of the injury suffered by Gates-Jackson.

Pl.’s Opp’n to Dist.’s Mot. to Dismiss at 13.   Because police

reports are an acceptable alternative to formal notice, and the

District does not dispute that Gaffney’s report was sufficiently

detailed to provide notice, the motion to dismiss for lack of

subject matter jurisdiction will be denied.

II.   NEGLIGENCE CLAIM AGAINST THE DISTRICT

      The District argues that Gates fails to state a plausible

claim of negligence for two reasons.   First, the District argues

that the complaint fails to state a claim of negligence against

the District because it was not highly foreseeable that Ridley

would attack Gates-Jackson in the manner that he did.
                                -8-

The District points out that Ridley was ordered to stay away from

Gates-Jackson, and that as soon as Gates-Jackson telephoned

emergency services, the MPD responded to the call in the same

manner as “they would to any other call to” emergency services.

Dist.’s Mem. at 5.   Second, the District argues that the

negligence alleged by Gates “falls squarely within the

crosshairs” of the public duty doctrine, which shields

municipalities from negligence claims.   Dist.’s Mem. at 6-9.

     To establish negligence under D.C. law, a plaintiff must

allege “‘a duty of care owed by the defendant to the plaintiff, a

breach of that duty by the defendant, and damage to the interests

of the plaintiff, proximately caused by the breach.’”    Sigmund v.

Starwood Urban Retail VI, LLC, 617 F.3d 512, 514 (D.C. Cir. 2010)

(quoting Dist. of Columbia v. Beretta, 872 A.2d 633, 642 n.3

(D.C. 2005) (internal quotation omitted)).   Both of the

District’s arguments pertain to the “duty” element.

     A.   Heightened foreseeability for acts of a third party

     Where a plaintiff attempts to hold a defendant liable for

injuries caused by the intervening criminal act of a third party,

District of Columbia courts generally apply a “heightened

foreseeability standard,” see Bd. of Trustees v. DiSalvo, 974

A.2d 868, 871 (D.C. 2009); Bruno v. W. Union Fin. Servs., 973

A.2d 713, 719 (D.C. 2009), which seeks to determine whether “the

criminal act was so foreseeable that a duty arises to guard
                                -9-

against it.”   Sigmund, 617 F.3d at 514 (quoting Beretta, 872 A.2d

at 641).   Although courts usually consider “foreseeability . . .

important to issues of proximate causation and conformity to the

standard of care, issues that arise only after a duty has been

found,” courts applying District of Columbia law have “repeatedly

spoken of the heightened foreseeability requirement in terms of

duty.”   Workman v. United Methodist Comm. on Relief, 320 F.3d

259, 265 (D.C. Cir. 2003) (citing Graham v. M. & J. Corp., 424

A.2d 103, 105 (D.C. 1980)); Potts v. Dist. of Columbia, 697 A.2d

1249, 1252 (D.C. 1997); see also McKethean v. Wash. Metro. Area

Transit Auth., 588 A.2d 708, 717 (D.C. 1991); DiSalvo, 974 A.2d

at 871-72 (stating that “heightened foreseeability factors

directly into the duty analysis” and that “consideration of

whether a duty exists to protect another from intervening

criminal acts includes consideration of heightened

foreseeability”).   Generalized notice is insufficient to create

an obligation; for the risk of third-party criminality to be

foreseeable, “the evidence must demonstrate ‘that the defendant

had reason to anticipate the type of particular criminal attack

that actually occurred.’”   G’Sell v. Carven, 724 F. Supp. 2d 101,

108 (D.D.C. 2010) (quoting DiSalvo, 974 A.2d at 873).

“[H]eightened foreseeability ‘does not require previous

occurrences of the particular type of harm, but can be met

instead by a combination of factors which give defendants an
                                   -10-

increased awareness of the danger of a particular criminal act.’”

DiSalvo, 974 A.2d at 872 (quoting Dist. of Columbia v. Doe, 524

A.2d 30, 33 (D.C. 1987)).

     Here, the complaint alleges facts that plausibly give rise

to a duty on behalf of the District toward Gates-Jackson.      Taking

the facts alleged in the complaint as true, the District should

have been aware and did demonstrate awareness of the danger that

Ridley would attack Gates-Jackson at her apartment after Gates-

Jackson helped the District in Ridley’s prosecution.     The

District helped place her in a safe-home to protect her from

being further harmed by Ridley in her home, and gave her personal

telephone numbers of District agents.     Ridley had already been

convicted for trying to burn down Gates-Jackson’s apartment, and

the protective orders against Ridley should have alerted the

District to the fact that Ridley posed a significant danger to

Gates-Jackson.    Id. at 5-6.

     B.     Public duty doctrine

     The District also argues that the complaint should be

dismissed because the duty to protect Gates-Jackson was no

different than the MPD’s general duty to protect the public,

which “falls squarely within the crosshairs” of the public duty

doctrine.    Dist.’s Mem. at 9.    “The public duty doctrine has long

protected municipalities from negligence claims because it

establishes that ‘[t]he duty to provide public services is owed
                                 -11-

to the public at large,’ not to any specific individual.”

McGaughey v. Dist. of Columbia, 684 F.3d 1355, 1358 (D.C. Cir.

2012) (quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C.

1981)).   However, there are situations where the public duty

doctrine does not protect the District from suit.   First, where

the government is affirmatively responsible for injury through

ordinary negligence resulting from the use of its police powers,

the public duty doctrine will not apply.   See Liser v. Smith, 254

F. Supp. 2d 89, 102 (D.D.C. 2003); Dist. of Columbia v. Evans,

644 A.2d 1008, 1017 n.8 (D.C. 1994) (ruling that the public duty

doctrine was not applicable where plaintiff alleged that police

negligently shot and killed her epileptic son).   Second, the

public duty doctrine does not protect the District from liability

if a special relationship between the government and the victim

created a specific legal duty.    Powell v. Dist. of Columbia, 602

A.2d 1123, 1128 (D.C. 1992).   A plaintiff can demonstrate a

special relationship by showing: (1) direct or continuing contact

between the plaintiff and the governmental agency; and (2)

justifiable reliance by the plaintiff.   Powell, 602 A.2d at 1130

(citing Platt v. Dist. of Columbia, 467 A.2d 149, 151 (D.C.

1983)).   For example, “[a] special relationship undoubtedly

exists where an individual assists law enforcement officials in

the performance of their duties” or where police otherwise “make

‘active use’ of a private citizen” in executing their official
                                -12-

duties.    Morgan v. Dist. of Columbia, 468 A.2d 1306, 1313 (D.C.

1983).    “[I]n narrow circumstances, a special relationship may

also be established by a course of conduct between the plaintiff

and the municipality strongly indicating the need for police

protection.”    Morgan, 468 A.2d at 1316.

      Here, the facts alleged in the complaint that give rise to

the District’s duty also are sufficient to allege a special

relationship between Gates-Jackson and the District.    Gates-

Jackson helped the District in Ridley’s prosecution.    The

District had direct and continuing contact with Gates-Jackson and

gave her personal telephone numbers of District agents.      The

District helped place her in a safe house and even contacted her

on the day she was murdered.    The complaint alleges a plausible

claim of negligence against the District, and the District’s

motion to dismiss it will be denied.

II.   NEGLIGENCE AGAINST THE UNITED STATES

      The United States has moved to dismiss the complaint with

prejudice for lack of subject matter jurisdiction, arguing that

the complaint’s claim against the United States is barred by the

discretionary function exception of the Federal Tort Claims Act,

18 U.S.C. § 2712(b).    United States’ Mem. in Supp. of Mot. to

Dismiss at 7-10.    The United States also argues that the

complaint should be dismissed because it fails to state that the

United States had a duty to protect Gates-Jackson.    Id. at 10-14.
                                 -13-

 Docketing it as a response to the United States’ motion, Gates

filed instead another copy of her earlier-filed opposition to the

District’s motion to dismiss.    The opposition to the District’s

motion does not address the arguments made in the United States’

motion.   The United States notified Gates of the error, United

States’ Reply at 1-2, but she did not file thereafter any

opposition addressing the United States’ motion.

     Local Civil Rule 7(b) provides that

     Within 14 days of the date of service . . . an opposing
     party shall serve and file a memorandum of points and
     authorities in opposition to the motion. If such a
     memorandum is not filed within the prescribed time, the
     Court may treat the motion as conceded.

Local Civil Rule 7(b).    “[I]t is well settled that a plaintiff’s

failure to respond to a motion to dismiss permits a court to

grant the motion as conceded.”    Hoffman v. Dist. of Columbia, 681

F. Supp. 2d 86, 94 (D.D.C. 2010) (citing Fox v. Am. Airlines, 389

F.3d 1291, 1294-95 (D.C. Cir. 2004) (affirming dismissal of a

complaint where the plaintiff failed to file a timely response to

the defendant's motion to dismiss)).       The plaintiff has not

responded to the United States’ motion, so the motion will be

deemed conceded.
                         CONCLUSION AND ORDER

     Gates’ complaint alleges a plausible claim of negligence

against the District of Columbia.       However, Gates has conceded

the United States’ motion to dismiss.       Therefore, it is hereby
                              -14-

     ORDERED that the District of Columbia’s motion [5] to

dismiss be, and hereby is, DENIED.    It is further

     ORDERED that the United States’ motion [14] to dismiss be,

and hereby is, GRANTED, and the complaint against the United

States is dismissed with prejudice.

     SIGNED this 5th day of March, 2013.


                                     /s/
                               RICHARD W. ROBERTS
                               United States District Judge
