                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    POTOMAC ELECTRIC POWER
    COMPANY,

                Plaintiff,

         v.                                               No. 19-cv-2709 (DLF)

    WASHINGTON METROPOLITAN
    AREA TRANSIT AUTHORITY,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

        Plaintiff Potomac Electric Power Company (PEPCO) brings this suit against the

Washington Metropolitan Area Transit Authority (WMATA), alleging that WMATA’s negligent

acts harmed PEPCO’s equipment. Dkt. 1-4 (Compl.). Before the Court is WMATA’s Motion to

Dismiss. Dkt. 2 (Mot. to Dismiss). For the following reasons, the Court will grant the motion

but allow PEPCO an opportunity to amend the complaint.

I. BACKGROUND

        PEPCO, a public utility corporation, operates cable lines located underground in conduit

ducts and manholes throughout the Washington, D.C., metropolitan area. Compl. ¶¶ 8–9. 1

WMATA, a tri-jurisdictional government transit service, operates underground rail lines

throughout the Washington, D.C., area. Monument Realty LLC v. WMATA, 535 F. Supp. 2d 60,



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  Unless otherwise noted, the factual allegations cited in this opinion are drawn from PEPCO’s
complaint. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)
(court considering motion to dismiss must “accept all the well-pleaded factual allegations of the
complaint as true and draw all reasonable inferences from those allegations in the plaintiff’s
favor”).

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64 (D.D.C. 2008). On or before September 20, 2016, an underground switch gear belonging to

WMATA blew up near 1100 Ohio Drive SW, Washington, DC, 20024. Compl. ¶¶ 12, 14. This

explosion damaged PEPCO’s equipment, costing PEPCO $26,091.83 to repair and replace. Id.

¶¶ 14, 20, 22.

        On July 24, 2019, PEPCO filed its complaint against WMATA in the Superior Court of

the District of Columbia, alleging a single count of negligence. Dkt. 1 (Notice of Removal) ¶ 1.

WMATA removed the case to the United States District Court for the District of Columbia on

September 10, 2019, see id. ¶¶ 6–7, and moved to dismiss the claim pursuant to Federal Rule of

Civil Procedure 12(b)(6), see Mot. to Dismiss.

II. LEGAL STANDARD

        Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). To 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Although “detailed factual allegations” are not required, a

plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation,” id., and must “raise a right to relief above the speculative level,” Twombly, 550 U.S.

at 555. To state a facially plausible claim, the plaintiff must plead “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. This standard does not amount to a “probability requirement,”

but it does require more than a “sheer possibility that a defendant has acted unlawfully.” Id. A

complaint alleging “facts [that] are ‘merely consistent with’ a defendant’s liability . . . ‘stops




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short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

       When evaluating a Rule 12(b)(6) motion, the court “must construe the complaint in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from the

facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.

United States, 617 F.2d 605, 608 (D.C.Cir.1979)). Conclusory allegations, however, are not

entitled to an assumption of truth, and even allegations pleaded with factual support need only be

accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 678–

79. In determining whether a complaint states a claim, the court can consider the allegations

within the four corners of the complaint as well as “any documents either attached to or

incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. ANALYSIS

       WMATA contends that PEPCO’s complaint fails to state a claim for relief that is

plausible on its face. Def.’s Mem. in Supp. at 2–3; see also Iqbal, 556 U.S. at 678–79. The

Court agrees with WMATA.

       PEPCO relies on the doctrine of res ipsa loquitur to prove its claims of negligence

against WMATA. Compl. ¶¶ 9, 12, 14; Dkt. 12 (Pl.’s Opp’n) ¶¶ 12–13. Res ipsa loquitur

allows an inference of negligence if a plaintiff establishes that: “(1) an event would not

ordinarily occur in the absence of negligence; (2) the event was caused by an instrumentality in

defendant’s exclusive control; and (3) there was no voluntary action or contribution on plaintiff’s

part.” Mixon v. WMATA, 959 A.2d 55, 60 (D.C. 2008) (quoting Marshall v. Townsend, 464 A.2d

144, 145 (D.C.1983)). Res ipsa loquitur is “a rule of evidence,” not a rule of pleading or



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substantive law, so a plaintiff can invoke this doctrine at any time and need not specifically

mention res ipsa loquitur in the complaint. Teltschik v. Williams & Jensen, PLLC, 683 F. Supp.

2d 33, 43 (D.D.C. 2010). Nonetheless, “a plaintiff bringing a claim based on the doctrine of res

ipsa loquitur must plead” facts that—if accepted as true—support all three requirements of a res

ipsa loquitur claim, including “that it was caused by an agency or instrumentality within the

defendant’s exclusive control.” Bloyer v. Taidoc Tech. Corp., No. 10 C 50284, 2011 WL

2531063, at *2 (N.D. Ill. June 24, 2011) (internal citations omitted) (dismissing a medical

malpractice claim because the allegations did not support exclusive control). “Threadbare

recitals of the elements” of res ipsa loquitur, “supported by mere conclusory statements,” cannot

suffice to meet this requirement. Iqbal, 556 U.S. at 678.

       PEPCO alleges sufficient facts to support the first prong of a res ipsa loquitur

claim: switch gears rarely explode absent negligence. Compl. ¶ 14. But the complaint does not

allege facts that satisfy the other two prongs—that the switch gear was within WMATA’s

exclusive control or that PEPCO itself did not itself take action that contributed to the accident.

The complaint merely alleges that the explosion occurred “as a result of Defendant’s negligent

construction, operation, inspection, maintenance and repair of its underground facilities,” id. at

¶ 14; that WMATA failed “to exercise reasonable care in planning, design, supervision,

oversight, and performance at the Job Site,” id. at ¶ 16; and that “Pepco’s losses and damages

were caused . . . without any negligence by Pepco contributing thereto,” id. at ¶ 21. These are

legal conclusions couched as factual allegations, and the Court therefore is not bound to accept

them as true. See Twombly, 550 U.S. at 555.

       As alleged, the facts of the complaint do not rule out the possibility that PEPCO

exercised some degree of control over the switch gear or that the electrical current traveling



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through PEPCO’s underground cable lines contributed in some way to the accident. Res ipsa

loquitur requires PEPCO to plead facts within its own knowledge that show it did not exercise

joint control or take voluntary action that contributed to the explosion.

        Federal courts repeatedly have dismissed res ipsa loquitur claims when the pled facts

were insufficient to establish the exclusive control or voluntary action elements of the claim. In

Moore v. Pitt County Memorial Hospital, 139 F. Supp. 2d 712 (E.D.N.C. 2001), for example, the

plaintiff’s res ipsa loquitur claim failed as a matter of law because she never alleged that the

contaminated blood that infected her with Hepatitis C was in the exclusive control of the

defendant hospital, and not also accessible to the blood bank. Id. at 713. See also Charles v. K-

Patents, Inc., No. 1:17-CV-339, 2018 WL 9869532, at *7 (E.D. Tex. Aug. 10, 2018) (dismissing

because the complaint did not properly allege any elements of a res ipsa loquitur claim).

        As in these cases, PEPCO’s allegations do not state a claim that is plausible on its face.

Therefore, the Court will dismiss the complaint but will grant PEPCO leave to amend the

complaint if it is able to remedy the noted deficiencies. See Confederate Mem’l Ass’n, Inc. v.

Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (when a court dismisses under Rule 12(b)(6), the

plaintiff usually has an opportunity to amend); see also Charles, 2018 WL 9869532, at *12

(granting leave to amend after dismissal). Accordingly, it is

        ORDERED that the defendant’s Motion to Dismiss, Dkt. 2, is GRANTED. It is further

        ORDERED that the plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE. It

is further




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       ORDERED that the plaintiff shall file an amended complaint on or before July 6, 2020.

See Fed. R. Civ. P. 15(a)(2)–(3). If the plaintiff fails to amend its complaint before this date, its

claim will be dismissed with prejudice.




                                                               ________________________
                                                               DABNEY L. FRIEDRICH
June 22, 2020                                                  United States District Judge




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