                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



  CECIL HOLT,

                         Plaintiff,

                 v.                                  Civil Action No. 17-1173 (ESH)

  THE WALSH GROUP, et al.,

                         Defendants.




                         MEMORANDUM OPINION AND ORDER

       Before the Court is defendant Walsh Group’s motion to dismiss, or in the alternative, for

summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. For the

reasons that follow, defendant Walsh Group’s motion is denied without prejudice, and plaintiff is

granted leave to amend his complaint.

                                        BACKGROUND

       Plaintiff Cecil Holt was injured while working as a construction worker on the roof of

402 Tingey Street, SE in Washington DC (hereinafter, “the Premises”). (Pl.’s Compl. ¶¶ 8, 15.)

On April 14, 2017, plaintiff brought suit in the Superior Court of the District of Columbia against

Walsh Group, the owner of the Premises, and various subcontractors performing work there.

(Pl.’s Compl. ¶¶ 2–7.) Defendants removed the case to federal court based on diversity

jurisdiction. 28 U.S.C. § 1332(a).

       Defendant Walsh Group then filed this motion arguing that plaintiff erroneously named

Walsh Group as the supervisor of the construction site on the Premises when Walsh Construction

Co. II, LLC (hereinafter “Walsh Construction”) was actually responsible for supervising the
construction site. Plaintiff counters that (1) defendant Walsh Group was involved in or

responsible for the Premises, (2) a motion to dismiss would be premature because plaintiff

requires additional discovery to determine which Walsh entity had control over the Premises and

the relationship between defendant Walsh Group and Walsh Construction, and (3) plaintiff

should be granted leave to amend his complaint under Federal Rule of Civil Procedure 15 if

Walsh Construction is indeed the proper defendant.

                                            DISCUSSION

        “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) (citation omitted). “A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. “In ruling on a motion to dismiss, the Court may consider not only

the facts alleged in the complaint, but also documents attached to or incorporated by reference in

the complaint and documents attached to a motion to dismiss for which no party contests

authenticity.” Demissie v. Starbucks Corp. Office & Headquarters, 19 F. Supp. 3d 321, 324

(D.D.C. 2014); see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).

        To succeed on a motion for summary judgment, defendant must demonstrate that “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). This Court is generally reluctant to grant summary

judgment when the parties have not had a full and fair opportunity to conduct discovery.

See Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012); Taylor v. FDIC, 132



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F.3d 753, 765–66 (D.C. Cir. 1997); see also Baker v. Henderson, 150 F. Supp. 2d 13, 16 (D.D.C.

2001).

         Defendant Walsh Group is a holding group that claims to own no shares in Walsh

Construction, and to have never held itself out as Walsh Construction’s agent. (Glimco Decl.

¶¶ 6–8.) However, Walsh Group shares an address, telephone number, and fax number with

Walsh Construction. (Pl.’s Exs. 3–6; Glimco Decl. ¶¶ 4–5.) Plaintiff has also provided an

affidavit swearing that he observed “numerous signs on the work site identifying Walsh as the

general contractor” and spoke with several Walsh employees both on and off the Premises.

(Pl.’s Ex. 2.)

         After reviewing plaintiffs’ complaint and the attached and incorporated documents that

the Court may consider at this stage, this Court denies the motion to dismiss; plaintiff has stated

a facially plausible negligence claim against defendant Walsh Group. See Iqbal, 556 U.S. at 678.

This Court also denies the motion for summary judgment because material facts remain

regarding (1) defendant Walsh Group’s control over the Premises and (2) defendant Walsh

Group’s relationship with Walsh Construction. See Anderson, 477 U.S. at 248.

         In addition, this Court grants plaintiff leave to amend his complaint to add Walsh

Construction as a party. Fed. R. Civ. P. 15(a)(2); Canuto v. Mattis, No. CV 16-2282 (EGS),

2017 WL 3437662, at *4 (D.D.C. Aug. 10, 2017); Johnson v. Veterans Affairs Med. Ctr., 133 F.

Supp. 3d 10, 13 (D.D.C. 2015).

                                          CONCLUSION

         For the reasons stated above, it is hereby

         ORDERED that defendant’s motion to dismiss/motion for summary judgment




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IS DENIED WITHOUT PREJUDICE; it is further

       ORDERED that plaintiff is given leave to file an amended complaint on or before

September 15, 2017; it is further

       ORDERED that defendants shall file their responsive pleading, as required by Federal

Rule of Civil Procedure 15, on or before September 29, 2017; and it is further

       ORDERED that an initial scheduling conference is set for October 18, 2017, at 11:00

a.m.




                                                    /s/ Ellen Segal Huvelle
                                                    ELLEN SEGAL HUVELLE
                                                    United States District Judge


Date: September 6, 2017




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