                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   FELECIA TAYLOR, individually and as
   legal guardian of her minor children D.B.
   and T.B.,

                             Plaintiff,                     Civil Action 08-00578 (HHK)

                       v.

   DISTRICT OF COLUMBIA, et al.,

                             Defendants.


                                    MEMORANDUM OPINION

       Felecia Taylor, individually and on behalf of two children, D.B. and T.B., who are in her

care, brings this action against the District of Columbia and a number of its employees

(“District”), Annie Milloy, the children’s former foster care provider (“Milloy”), and Lucille

Hicks, one of the owners of the property where Milloy and the children lived before the children

were removed.1 Taylor asserts claims against the District under 42 U.S.C. § 1983 alleging

violations of D.B. and T.B.’s constitutional rights, and claims against Hicks asserting common-

law tort causes of action.

       Arguing that the court may not exercise supplemental jurisdiction over the common-law

claims brought against her, Hicks moves to dismiss this suit (as against her) for lack of subject

matter jurisdiction [#50]. Upon consideration of the motion, the opposition thereto, and the

record of this case, the court concludes that the motion should be granted.




       1
          The other defendant in this suit is Thomas D. Walsh, Inc., the management company
for the property where Milloy and the children lived.
                                        I. BACKGROUND

       Pertinent to the instant motion, and according to Taylor’s complaint, the circumstances

giving rise to this suit are as follows. In May 2000, the District removed D.B. and T.B. from the

custody of their birth mother out of concern for their health and welfare. The following month,

they were placed into foster care with defendant Milloy. While the children were living with

Milloy, the District regularly tested their blood lead levels, which showed “sustained blood lead

levels for 2-4 times the upper normal limits.” Second Am. Compl. ¶ 29.

       In September 2002, the District conducted a lead inspection test that confirmed that there

were lead-based paints in Milloy’s residence. The following month, Milloy and Hicks received a

written “Notice of Defect” informing them that “lead-based paints [had] been identified on [the]

property,” and directing them to correct the lead-based paint hazard within 10 days of the notice.

Id. ¶ 33. Taylor alleges that D.B. and T.B. suffered injuries as a result of the failure of the

owners and manager of the property to correct the lead hazard at Milloy’s residence and the

failure of the District to require compliance with the Notice of Defect.

       Around March 2003, in response to allegations that D.B. and T.B. had been

inappropriately exposed to sexual activity by Milloy and sexually assaulted while in her care, the

District removed D.B. and T.B. from Milloy’s care and placed them with Taylor, with whom

they presently reside. Taylor filed this suit in the Superior Court for the District of Columbia,

and it was removed to this court based on the District’s notice that this court has federal question

jurisdiction. Taylor’s complaint asserts District of Columbia common-law claims of negligence,

gross negligence, and breach of the implied warranty of habitability against Hicks (“state-law

claims”), and causes of action based on 42 U.S.C. § 1983 against the District.



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                                          II. ANALYSIS

       Hicks moves to dismiss this case against her on the grounds that this court lacks subject

matter jurisdiction. Hicks argues that this court cannot exercise supplemental jurisdiction over

Taylor’s state-law claims because the facts that give rise to these claims do not form part of the

same case or controversy that gives rise to Taylor’s federal claims. In the alternative, Hicks

argues that if the court finds that it may exercise supplemental jurisdiction over the state-law

claims, the court should nevertheless decline to exercise supplemental jurisdiction because the

state-law claims substantially predominate over the federal claims. Because Hicks’ first

argument is correct, the court need not and does not address Hicks’ alternative argument.2

       Under the Judicial Improvements Act, a district court may exercise supplemental

jurisdiction over state-law claims that are “so related to the [federal claims] they form part of the

same case or controversy.” 28 U.S.C. § 1367(a). In order for a federal claim and a state-law

claim to form part of the “same case or controversy,” the claims must derive from a “common

nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Claims


       2
           In her opposition brief as well as during oral argument, Taylor argues for the first time
that irrespective of the court’s ability to exercise supplemental jurisdiction over her state-law
claims against Hicks, the court nevertheless has diversity jurisdiction in this case. The court
rejects this argument because, among other possible reasons, Taylor did not allege facts that
establish diversity jurisdiction in her complaint. See Jung v. Ass’n of Am. Med. Colls., 300 F.
Supp. 2d 119, 163 (D.D.C. 2004) (“[T]he Court [will not] permit plaintiffs to supplement the . . .
allegations in their complaint with additional assertions from their brief. It is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (internal
citation omitted). On May 12, 2009, following the oral argument, Taylor filed a “Notice of
Filing,” in which she states that “on May 4, 2009, Plaintiffs, D.B. and T.B. were adopted by
Plaintiff Felecia Taylor, . . . , and accordingly are now, if not prior to their adoption, citizens of
the state of Maryland . . . .” [#91]. Taylor’s “Notice of Filing” does not affect the outcome of
this motion because “[d]iversity of citizenship is assessed at the time the suit is filed.” See Bush
v. Butler, 521 F. Supp. 2d 63, 71 (2007) (citing Freeport-McMoRan, Inc. v. K N Energy, Inc.,
498 U.S. 426, 428 (1991)).

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derive from a “common nucleus of operative fact” only if the plaintiff would ordinarily be

expected to try them all in one judicial proceeding. Id. If there is almost no factual or legal

overlap between the state and federal claims, a common nucleus of operative fact does not exist.

Chelsea Condo. Unit Owners Ass’n v. 1815 A St., Condo. Group, LLC, 468 F. Supp. 2d 136, 141

(D.D.C. 2007).

       Hicks argues that a common nucleus of operative fact does not exist here because the

claims against her and the claims against the other defendants require a “much different legal and

factual analysis.” Hicks’ Mot. to Dismiss at 9. Hicks points out that claims against her stem

solely from the presence of a lead-based paint hazard on the property that she owns with others.

In contrast, the federal claims against the District involve (1) whether the District was deficient

in its selection, training, supervision, and retention of social workers and foster care licensing

agents, and (2) whether the District was negligent in placing the children with Milloy in the first

place and then failing to remove them when the District became aware of the hazardous

conditions in Milloy’s household, to wit, the lead-based paint hazard and the exposure of the

children to inappropriate sexual activity and sexual assault.

       Taylor rejoins that the facts of the case warrant a determination that the court may

exercise supplemental jurisdiction over the claims against Hicks. The case upon which Taylor

primarily relies, Morgan v. Barry, 785 F. Supp. 187 (D.D.C. 1992), however, provides scant

support for her position. In Morgan, the plaintiff sued District police officers under § 1983 and

various common-law theories for wrongfully evicting her from her home. Id. at 189. In denying

the defendants’ motion to dismiss the common-law tort claims for lack of subject matter

jurisdiction, the court found the exercise of supplemental jurisdiction appropriate because the



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plaintiff’s common-law claims and § 1983 claims both arose from “one set of

events”—specifically, the dispossession and eviction of the plaintiff. Id. at 192. Taylor argues

that similar to the facts in Morgan, a common nucleus of operative fact exists in the case at bar

because both the federal claims and state-law claims stem from one event: the existence of a

hazardous environment at the property that resulted in injuries to D.B. and T.B.

       Taylor’s characterization of the facts that give rise to both the state-law claims and the

federal claims as a single set of events as in Morgan fails. There is little doubt that Taylor’s §

1983 claims and state-law claims both derive from the existence of a lead-based paint hazard at

the property. This, however, is the extent of the commonalities between the state-law claims

raised against Hicks and the § 1983 claims raised against the District. The events that trigger

liability for Hicks and for the District are completely separate: Hicks’ liability stems from an

alleged failure to remedy the lead-based paint hazard, whereas the District’s liability stems from

its alleged failure to compel Hicks to remedy the lead-based paint hazard, or more generally, to

keep D.B. and T.B. safe from harm. Taylor’s state-law claims against Hicks involve facts such

as whether Hicks knew about the lead-based paint hazard, and whether she, as an owner (but not

the manager) of the property, had a duty to remedy the lead-based paint hazard, and if so, what

steps she took to remedy the hazard. In contrast, Taylor’s claims against the District depend on

facts that will show whether the District knew of the lead-based paint hazard, and whether the

duty of care owed to D.B. and T.B. required the District to compel the manager and owners of

the property, including Hicks, to remedy the lead-based paint hazard or take other actions to keep

D.B. and T.B. from being exposed to the lead-based paint hazard.

       Although Taylor’s federal and state-law claims generally relate to the presence of a lead-



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based paint hazard, the facts necessary to prove that the District breached a duty of care to D.B.

and T.B. would provide little insight into whether Hicks unlawfully failed to remedy the lead-

based paint hazard. See Singh v. George Washington Univ., 368 F. Supp. 2d 58, 72 (D.D.C.

2005) (court lacked supplemental jurisdiction over a state defamation claim because the facts

needed to prove the defamation claim would provide no insight into the facts needed to prove the

federal discrimination claim), rev’d on other grounds, 508 F.3d 1097 (D.C. Cir. 2007).

Accordingly, the state and federal claims here do not derive from a common nucleus of operative

fact and the court concludes that it should not exercise supplemental jurisdiction over the state-

law claims alleged against Hicks.3

                                       III. CONCLUSION

       For the foregoing reasons, Hicks’ motion to dismiss [#50] is granted. An appropriate

order accompanies this memorandum opinion.


                                                      Henry H. Kennedy, Jr.
                                                      United States District Judge



       3
          Hicks also argues that a common nucleus of operative fact does not exist because the
entire set of facts related to Taylor’s federal claims are not all relevant to the state-law claims,
and because no federal claims are alleged against her. The court concludes that these arguments
lack merit. First, Hicks’ interpretation of a “common nucleus of operative fact” improperly
constricts the analysis for exercising supplemental jurisdiction. State-law claims and federal
claims need not derive from the exact same set of facts in order for a court to exercise
supplemental jurisdiction. See FTC v. Mylan Labs., Inc., 62 F. Supp. 2d 25, 49 (D.D.C. 1999)
(“supplemental jurisdiction is warranted because the facts underlying the federal and state claims
are similar enough to create a common nucleus of operative facts”) (internal quotations omitted).
Second, whether federal claims are alleged against Hicks is of no consequence because the
statutory requirements for exercising supplemental jurisdiction are the same for parties that are
sued for both state and federal claims and those that are sued only for state-law claims. See
Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 559 (2005) (“[Section] 1367(a) is a
broad jurisdictional grant, with no distinction drawn between pendent-claim and pendent-party
cases.”).
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