                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


DUANE J. JOHNSON,                                    )
                                                     )
                       Plaintiff,                    )
                                                     )
                       v.                            )    Civ. Action No. 11-0119 (RMC)
                                                     )
STEPHEN J. MCCOOL et al.,                            )
                                                     )
                       Defendants.                   )


                                    MEMORANDUM OPINION

               In this civil action removed from the Superior Court of the District of Columbia,

plaintiff Duane J. Johnson, proceeding pro se, sues Superior Court Magistrate Judge Frederick J.

Sullivan, former Assistant United States Attorney (“AUSA”) Steven J. McCool, and Attorney

Joseph J. Bernard for trover, conversion, and breach of contract stemming from their alleged

refusal to return his legal property. On January 18, 2011, AUSA Rudolph Contreras, Chief of the

Civil Division of the United States Attorney’s Office for the District of Columbia, certified

pursuant to 28 U.S.C. § 2679(d) that Mr. McCool was acting within the scope of his employment

at the time of the alleged misconduct. Mr. Johnson has moved to strike the certification, but he

has not stated any facts suggesting that Mr. McCool was acting outside the scope of his

employment. Therefore, the Court, finding that the United States is properly substituted, will

deny Mr. Johnson’s motion to strike the certification.1

       1
           In response to Westfall v. Erwin, 484 U.S. 292 (1988), Congress enacted the Westfall
Act, which authorizes "an Attorney General or designee who believes that a federal employee
was acting within the scope of his employment at the time of the alleged incident [to] issue a
certification to that effect." Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995),
abrogated on other grounds by Osborn v. Haley, 549 U.S. 225 (2007). “The certification carries
                                                                                     (continued...)
                The United States moves to dismiss the complaint under Rules 8(a) and 12(b)(6)

of the Federal Rules of Civil Procedure [Dkt. # 13]. Mr. Johnson has opposed the motion and

has moved to remand the case to Superior Court [Dkt. # 4]. Upon consideration of the parties’

submissions and the entire record, the Court will grant in part and deny in part the United States’

motion to dismiss and will deny Mr. Johnson’s motion to remand.

                                        I. BACKGROUND

                In his one-page complaint filed in Superior Court, Mr. Johnson alleges the

following. From December 2009 to July 2010, “each” of the Defendants “received valuable legal

property from Plaintiff.” Compl. [ECF Dkt. # 1 at 4]. Each defendant was “instructed to return

Plaintiff’s valuable legal property within fifteen . . . day[s] of receipt,” but has “refused to do so.”



        1
         (...continued)
a rebuttable presumption that the employee has absolute immunity from the lawsuit and that the
United States is to be substituted as the defendant.” Wilson v. Libby, 535 F.3d 697, 711 (D.C.
Cir. 2008) (citations omitted). Because a Westfall certification acts as the government's proffer
of a prima facie case that at the time of the alleged misconduct, its employee was acting within
the scope of his employment, see Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994), the
burden shifts to the Plaintiff “to raise a material dispute regarding the substance of [the
certification] by alleging facts that, if true, would establish that [the federal employee] [was]
acting outside the scope of [his] employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir.
2003) (citation omitted). Plaintiff must prove by a preponderance of the evidence that such is the
case. See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir.
1997). Mr. Johnson asserts that Mr. McCool “was not lawfully working for the federal
government in the capacity of a former government employee or officer of the United States
because [he] was never appointed as an [AUSA] in the first instance.” Mot. for Case Remand,
Mem. of P. & A. in Supp. [Dkt. # 4] at 2. He cites his complaint in a previous action dismissed
by this Court, Johnson v. Sullivan, Civ. Action No. 09-2056 (RBW), but the presiding judge in
that action explicitly rejected the same arguments Mr. Johnson makes in this case about Mr.
McCool. See Johnson v. Sullivan, 748 F. Supp. 2d 1, 13 n.6. (D.D.C. 2010) (“The plaintiff's
challenge of the validity of the certification filed by McCool is meritless.”). Therefore, Mr.
Johnson is collaterally estopped from relitigating the validity of Mr. McCool’s appointment and
the government’s Westfall certification.


                                                   2
Id. As a result, Mr. Johnson claims that he has lost revenue and, thus, seeks $250,000 in

monetary damages for the loss of his “motions, pleadings, [and] transcripts.” Id.

                 Mr. Johnson further alleges that Mr. McCool “requested” that he “send him

motions, pleadings, and transcripts because he was interested in how plaintiff constructed his

documents;” that he sent [Mr. McCool] his “only versions of his work product;” that he

“requested defendant McCool to return [his legal papers] within fifteen . . . days of receipt

because it was all that Plaintiff had;” and that Mr. McCool agreed to return the papers but did not

do so. Pl. Duane Joseph Johnson’s Opp’n to Mot. to Dismiss and Opp’n to Mot. to Show Cause

& Mot. to Remand (“Pl.’s Opp’n”) [Dkt. # 23] ¶¶ 1-6.

                                           II. DISCUSSION

                 The United States seeks dismissal of the complaint under Rule 8(a) for failure to

satisfy the minimal pleading requirements and Rule 12(b)(6) for failure to state a claim upon

which relief can be granted. It is clear from the United States’ response that the complaint

provides adequate notice of a claim; thus, its motion to dismiss under Rule 8(a) will be denied.

See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) (“Rule 8's liberal pleading standard

requires only ‘a short and plain statement of the claim showing that the pleader is entitled to

relief,’ . . . and courts are charged with construing the complaint ‘so . . . as to do substantial

justice . . . .’ ”) (citations omitted).

                 At this pleading stage, a complaint may be dismissed under Rule 12(b)(6) for

failure to state a claim upon a determination that the plaintiff cannot establish “any set of facts

consistent with the allegations in the complaint” to support the alleged violation. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). In ruling on a motion to


                                                   3
dismiss, a court must treat the complaint's factual allegations as true, “even if doubtful in fact.”

Id. But it need not accept legal conclusions cast as factual allegations, Warren v. District of

Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004), or “inferences drawn by [the plaintiff] if such

inferences are unsupported by the facts set out in the complaint,” Kowal v. MCI Communications

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition, a court must construe pro se filings

liberally and, absent any indication of prejudice to the defendant, should read “all of the

plaintiff’s filings together[.]” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).

               The United States contends that Mr. Johnson has stated neither a breach of

contract claim nor a conversion claim.2

               1. The Breach of Contract Claim

               The Court agrees that Mr. Johnson has not stated a breach of contract claim, see

Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 5, but even if he had, this

Court would lack jurisdiction over Mr. Johnson’s claim for $250,000 because a claim of that

amount based on an express or implied contract with the United States must be brought in the

U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a); § 1346(a)(2) (vesting concurrent

jurisdiction in the district court over contract claims not exceeding $10,000). Hence, the Court

will grant the United States’ motion to dismiss the breach of contract claim.




       2
          The United States has not addressed Mr. Johnson’s trover claim. Because the trover
claim goes hand in hand with the conversion claim, see Black’s Law Dictionary (9th Ed. 2009)
(defining trover as “[a] common-law action for the recovery of damages for the conversion of
personal property”), it, too, will survive the instant motion to dismiss.


                                                  4
               2. The Conversion Claim

               The United States’ argument that Mr. Johnson has failed to state a conversion

claim -- for which it may be held liable under the Federal Tort Claims Act, 28 U.S.C. § 2674 -- is

belied by Mr. Johnson’s unrefuted opposition. Under District of Columbia law, conversion is

defined as “an intentional exercise of dominion or control over a chattel which so seriously

interferes with the right of another to control it that the actor may justly be required to pay the

other full value of the chattel.” Edmonds v. United States, 563 F. Supp. 2d 196, 202 (D.D.C.

2008) (quoting Fed. Fire Protection Corp. v. J.A. Jones/Tompkins Builders, Inc., 267 F. Supp. 2d

87, 92 n.3 (D.D.C. 2003)). “A defendant will be liable for conversion if the plaintiff shows that

the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3)

over the personal property of another, (4) in denial or repudiation of that person's rights thereto.”

Gov’t of Rwanda v. Rwanda Working Grp., 227 F. Supp. 2d 45, 62 (D.D.C. 2002) (citations

omitted). “When the initial possession is lawful, the plaintiff must make a demand for the return

of the converted goods to demonstrate the adverse nature of the possession.” Id. (citation

omitted).

               The United States argues that Mr. Johnson cannot show that an unlawful exercise

has occurred because Mr. McCool “did nothing more than retain service copies of legal

documents” that Mr. Johnson was required to serve during court proceedings. Def.’s Mem. at 4-

5. Mr. Johnson counters that his claim “does not stem from defendant McCool not returning

service copies . . . .” Pl.’s Opp’n ¶ 10. Rather, Mr. Johnson states that he supplied the

documents because Mr. McCool had “requested” them and that Mr. McCool had agreed to return

the documents within 15 days. Id. ¶¶ 1, 4-5. According to Mr. Johnson, when Mr. McCool


                                                  5
failed to return the documents as he had allegedly agreed, he “requested defendant McCool to

return his property.” Id. ¶ 6. The United States has not refuted Mr. Johnson’s statements, and

Mr. Johnson has sufficiently pleaded the elements of conversion. Hence, the Court will deny the

United States’ motion to dismiss the conversion claim without prejudice.

                                      III. CONCLUSION

               For the foregoing reasons the Court will grant the United States’ motion to

dismiss Mr. Johnson’s breach of contract claim for failure to state a claim and will deny without

prejudice the United States’ motion to dismiss the conversion claim. Consequently, the Court

will deny Mr. Johnson’s motion to remand the case to Superior Court. In addition, the Court will

deny Mr. Johnson’s motion to strike the Westfall certification for the reasons stated above and

will deny Mr. Johnson’s remaining pending motions.

               A separate Order accompanies this Memorandum Opinion.




                                                           /s/
                                                     ROSEMARY M. COLLYER
Date: September 9, 2011                              United States District Judge




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