                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
KINGSLEY COMMODORE-MENSAH,    )
                              )
          Plaintiff,          )
                              )
          v.                  )       Civil Action No. 11-750 (RWR)
                              )
DELTA AIR LINES, INC.,        )
                              )
          Defendant.          )
_____________________________ )

                           MEMORANDUM ORDER

     Pro se plaintiff Kingsley Commodore-Mensah brings this suit

alleging that defendant Delta Air Lines, Inc. (“Delta”), lost or

delayed three packages the plaintiff shipped to Africa and

seeking $5,500 in damages.    Following an initial scheduling

conference, Commodore-Mensah filed a motion to amend his

complaint in order to add a breach of contract claim against

Delta.   The motion was denied without prejudice because

Commodore-Mensah had failed to attach a proposed amended

complaint to the motion.    Commodore-Mensah then re-filed his

motion to amend, attaching a proposed amended complaint.   At a

post-discovery status conference, the second motion was denied,

again without prejudice, for failure to properly plead breach of

contract, and the dispositive motions deadline was suspended to

provide Commodore-Mensah another opportunity to move to amend.

Commodore-Mensah has filed a third motion to amend the complaint
                                 -2-

and a motion for summary judgment.1    Delta has moved to extend

the discovery deadline.

     “The decision to grant or deny leave to amend . . . is

vested in the sound discretion of the trial court.”    Doe v.

McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977).    A court should

“determine the propriety of amendment on a case by case basis,

using a generous standard,” Harris v. Sec’y, U.S. Dep’t of

Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997), and pro se

complaints are construed with “special liberality,” Kaemmerling

v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008).    The “futility of

the proposed amendment[]” is a “factor[] that may warrant denying

leave to amend.”   Smith v. Café Asia, 598 F. Supp. 2d 45, 47

(D.D.C. 2009); see also Richardson v. United States, 193 F.3d

545, 548–49 (D.C. Cir. 1999).   “An amendment is futile if the

proposed claim would not survive a motion to dismiss.”    Café

Asia, 598 F. Supp. 2d at 48 (internal quotations omitted).       To

survive a motion to dismiss, a claim must be plausible on its

face, that is, the pleaded factual content must “allow[] the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”    Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009).    To determine whether the complaint states



     1
      Commodore-Mensah appears to have filed his motion for
summary judgment under the misapprehension that the original
dispositive motions deadline remained in place. The dispositive
motions deadline was, however, expressly suspended at the post-
discovery status conference.
                                  -3-

a viable claim, “any documents either attached to or incorporated

in the complaint,” as well as the complaint itself, may be

considered.   EEOC v. St. Francis Xavier Parochial School, 117

F.3d 621, 624 (D.C. Cir. 1997).    Ultimately, it is the

defendant’s burden to show why leave to file should not be

granted.   Café Asia, 598 F. Supp. 2d at 48.

     In his motion for leave to amend and its supporting

materials, Commodore-Mensah has alleged sufficient factual

content from which to draw a reasonable inference that Delta is

liable for breach of contract.    The elements of a breach of

contract claim are “(1) a valid contract between the parties; (2)

an obligation or duty arising out of the contract; (3) a breach

of that duty; and (4) damages caused by breach.”     Tsintolas

Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009).       Commodore-

Mensah’s third motion to amend alleges that he “entered into a

shipping agreement with Delta Airlines” that purported to entitle

the parties to a 30-day notification period before the agreement

could be terminated.   (Pl.’s Mot. to Amend at 1.)   Commodore-

Mensah appended to his motion a copy of the contract that he

executed, a communication that he alleges represents Delta’s

approval of the contract, and a communication that he alleges

represents Delta’s termination of the agreement without the

required 30-day notice.   (Id., Attachments 1 to 3.)    Those

allegations adequately plead the existence of a contract, duty,

and breach.   Commodore-Mensah further adequately pleads damages
                                -4-

by alleging that he suffered from the premature termination

because he had prepaid money into the account established by the

agreement and those funds, which were budgeted for shipping costs

related to Commodore-Mensah’s businesses in Ghana, became

unavailable when the account was closed.   Commodore-Mensah

contends that “[t]his chain of events seriously disrupted [his]

ability to run [his] businesses,” and that he suffered economic

hardship and losses as a result.   (Id. at 1-2.)

     Commodore-Mensah did not repeat all of the above

allegations, however, in the amended complaint that he attached

to his motion to amend.   The amended complaint states only that

he is “seeking damages for Delta breaching the contract we had by

cancelling my account prematurely.”   (Am. Compl. at 1.)   Delta

opposes Commodore-Mensah’s motion for leave to amend the

complaint on this ground, emphasizing that “[i]t is Plaintiff’s

Motion to Amend, and not the Amended Complaint, that contains the

damages that Plaintiff allegedly suffered as result [sic] of

failing to provide a 30 day notification prior to cancellation.”

(Def.’s Opp’n to Pl.’s Mot. to Amend at 2.)   However, in view of

the “special liberality,” Kaemmerling, 553 F.3d at 677, with

which courts should construe pro se complaints, and the detailed

motion and supporting documentation that Commodore-Mensah has

provided and which may be considered to determine whether the

complaint states a viable claim, St. Francis Xavier Parochial

School, 117 F.3d at 624, strict adherence to formality is not
                                  -5-

warranted.   The factual allegations set forth in the motion will

be deemed incorporated into the complaint and Commodore-Mensah’s

motion to amend the complaint will be granted.

     Since the amended complaint will be allowed, additional

discovery will also be permitted.       Commodore-Mensah’s motion for

summary judgment, which addresses both the claim for lost and

delayed shipments and the breach of contract claim, is therefore

premature.   See Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045

(D.C. Cir. 2008) (holding summary judgment was premature where

defendant had been afforded inadequate discovery).      In addition,

summary judgment is inappropriate because there are basic facts

in dispute between the parties.    See Fed. R. Civ. P. 56 (summary

judgment appropriate only “if the movant shows that there is no

genuine dispute as to any material fact”).      Delta disputes the

declared value of the items that Commodore-Mensah alleges Delta

lost or delayed, the scope of insurance coverage, and the weight

of lost items, each of which presents a genuine issue of material

fact bearing on Commodore-Mensah’s right to recover.      (Def.’s

Opp’n to Pl.’s Mot. Summ. J. at 7-10.)      Moreover, Commodore-

Mensah’s motion for summary judgment fails to comply with federal

and local rules that it be “accompanied by a statement of

material facts as to which the moving party contends there is no

genuine issue, which shall include references to the parts of the

record relied on to support the statement.”      Local Civil Rule

7(h); see also Fed. R. Civ. P. 56(c)(1).       For these reasons, the
                                 -6-

motion for summary judgment will be denied.     Accordingly, it is

hereby

       ORDERED that Delta’s motion [17] for extension of time to

complete discovery be, and hereby is, GRANTED.    The discovery

deadline is hereby CONTINUED to April 30, 2012, and the continued

post-discovery status conference is set for May 4, 2012 at 9:15

a.m.    It is further

       ORDERED that Commodore-Mensah’s motion [20] to amend the

complaint be, and hereby is, GRANTED.    The Clerk is directed to

file as the Amended Complaint the attachment to the Plaintiff’s

Motion [20] to Amend.    It is further

       ORDERED that Commodore-Mensah’s motion [22] for summary

judgment be, and hereby is, DENIED.

       SIGNED this 1st day of February, 2012.


                                          /s/
                                RICHARD W. ROBERTS
                                United States District Judge
