                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



MICHAEL JOHNSON,
                                                     Civil Action No. 12-cv-868 (BJR)
       Plaintiff,
                                                     ORDER GRANTING PLAINTIFF’S
                                                     MOTION FOR LEAVE TO AMEND THE
               v.                                    COMPLAINT; GRANTING PLAINTIFF’S
                                                     MOTION FOR AN ENLARGMENT OF
LEON E. PANETTA,                                     TIME; STRIKING DEFENDANT’S
                                                     MOTION TO DISMISS THE
       Defendant.                                    COMPLAINT, AND STRIKING
                                                     DEFENDANT’S MOTION FOR A
                                                     PROTECTIVE ORDER


                                     I.      INTRODUCTION

       Plaintiff Michael Johnson, a former employee of the Department of Defense, seeks

injunctive and declaratory relief against Defendant Leon E. Panetta in his official capacity as the

Secretary of Defense, related to the Department’s allegations that Plaintiff was overpaid by the

Department for approximately six years. Presently pending before the Court are four motions: (1)

Defendant’s Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim upon

which Relief May Be Granted (Dkt. No. 12); (2) Plaintiff’s Motion for Leave to Amend the

Complaint (Dkt. No. 13); (3) Plaintiff’s Motion for Enlargement of Time within which discovery

in this case must be completed (Dkt. No. 19); and (4) Defendant’s Motion for a Protective Order

barring Plaintiff from seeking discovery until this Court has resolved Defendant’s Motion to

Dismiss (Dkt. No. 26).

       Upon consideration of the motions, the memoranda in support thereof, the entire record,

and the applicable law, the Court will GRANT Plaintiff’s Motion for Leave to Amend the

Complaint, GRANT Plaintiff’s Motion for Enlargement of Time, STRIKE Defendant’s Motion

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to Dismiss, and Strike Defendant’s Motion for a Protective Order. The Court’s reasoning is set

forth below.

            II.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        Plaintiff Michael Johnson is a retired civilian federal employee of the Department of

Defense (the “Department”). Dkt. No. 1 “Comp.” at ¶ 4. Johnson began his career with the

Department in 1998 when he was hired as a police officer. Id. at ¶ 6. In 2005, he was transferred

to the Communications Office within the Department, where he continued to work as a police

officer. Id. at ¶ 8. He claims that in October 2011, the Department informed him that he had been

mistakenly overpaid since his transfer to the Communications Office. Id. at ¶ 9. Johnson claims

that the Department told him that he was overpaid by “varying...amounts—some as high as

$107,857.46.” Id.

        Johnson alleges that he was unaware that he had been overpaid. Id. at ¶ 10. He further

alleges that the Department told him that he can seek a “waiver” of the overpayment from the

Department’s accounting office, but he must do so by June 1, 2012, and if he does submit a

waiver request, “he must accept responsibility for the debt.” Id. at ¶ 11. He claims that the

Department told him that if the accounting office denied his waiver request, he would be

required to repay the entire debt to the Department. Id. To date, Johnson has not submitted a

waiver request.

        Johnson filed the present action on May 31, 2012. The Complaint sets forth the above

factual allegations, but fails to state a specific cause of action. It does request, however, that this

Court: (1) “Issue a Rule Nisi” and “conduct an evidentiary hearing on the issues” outlined in his

complaint; (2) Stay the Department imposed June 1, 2012 deadline for Plaintiff to seek waiver of

the alleged overpayment until this Court can determine “if the debit [sic] is valid against



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Plaintiff,” (3) “Enter Declaratory Judgment against [the Department] in favor of Plaintiff finding

Plaintiff does not owe the debt to the United States Government”, and (4) Award him attorney

fees and costs. Id. at ¶ 12. The Complaint also states that this Court has jurisdiction over the

matter pursuant to 28 U.S.C. §§ 1331 and 1343. Id. at ¶ 2.

       Defendant answered the Complaint on October 15, 2012. Dkt. No. 5. In the Answer,

Defendant raised multiple affirmative defenses, including lack of subject matter jurisdiction,

failure to state a claim, and sovereign immunity. Id. at 1-2. Thereafter, on November 30, 2012,

the parties attended a scheduling conference with Judge Richard W. Roberts, the judge then

assigned to this case. Defendant claims that at the conference, Defendant “identified defects in

jurisdiction and on the merits of the Complaint in response to questions from the Court” and

Plaintiff indicated that he intended to amend the Complaint. Dkt. No. 14, “Def.’s Opp.” at 1.

Judge Roberts issued an order establishing the procedural deadlines in this matter, including a

deadline of January 29, 2013 by which to amend the Complaint. Dkt. No. 8.

       On January 25, 2013, Defendant filed the instant Motion to Dismiss; Plaintiff filed the

instant Motion for Leave to Amend the Complaint on January 29, 2013. On March 8, 2013,

Plaintiff requested that Judge Roberts extend the deadline by which the parties were to complete

discovery. Dkt. No. 19. The matter was reassigned to this federal district court judge on May 30,

2013. Dkt. No. 24. Thereafter, on June 4, 2013, Defendant requested that this Court enter a

protective order prohibiting Plaintiff from seeking discovery until the Court has resolved the

outstanding Motion to Dismiss. Dkt. No. 25. The motions are now ripe for review.

                                       III.   DISCUSSION

       Defendant moves to dismiss the original Complaint, asserting that this Court lacks

subject matter jurisdiction and that Plaintiff fails to state a claim on which relief may be granted.



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Plaintiff seeks to amend the Complaint in order to clarify the basis for this Court’s jurisdiction,

and to clarify the cause of action under which he seeks relief.

       Generally, a court must ascertain whether it has jurisdiction before it is empowered to

take any action in a matter. See Saxon Fibers, LLC v. Wood, 118 Fed. Appx. 750, 752 (4th Cir.

2005) (noting that if a court does not have subject matter jurisdiction, it is not empowered to

entertain a motion to amend a complaint). However, where, such as here, a plaintiff seeks to

amend the complaint in order to correct defective allegations of jurisdiction, the plaintiff is

entitled to do so pursuant to 28 U.S.C. § 1653. See Newman-Green, Inc. v. Alfonzo-Larrain, 490

U.S. 826, 831 (1989) (stating that the law operates in such a way that if jurisdiction “in fact

exists at the time the suit was brought..., though defectively alleged,” the defective allegations

may be amended any time prior to resolution of the suit, even in the appellate courts); see also,

District of Columbia ex rel. American Combustion, Inc. v. Transamerica Ins. Co., 797 F.2d

1041, 1044 (D.C. Cir. 1986) (“Section 1653’s liberal amendment rule permits a party who had

not proved, or even alleged, that diversity exists, to amend his pleadings even as late as on

appeal.”) Thus, Plaintiff is authorized to amend the Complaint to correct defective jurisdiction

allegations, if jurisdiction actually existed at the time he filed the complaint. This Court is

authorized to review the motion to amend in order to ascertain whether jurisdiction exists. Sun

Printing and Publishing Ass’n v. Edwards, 194 U.S. 377, 382 (1904) (“[t]he whole record …

may be looked to, for the purpose of curing a defective averment of … diversity of citizenship,

and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein

stated which in legal intendment constitute such an allegation, that is sufficient.”).

       Furthermore, from the standpoint of judicial efficiency, the Court concludes that the most

pragmatic approach to resolving the instant motions, is to first address Plaintiff’s Motion for



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Leave Amend the Complaint. See, e.g., Adams v. FedEx Ground Package Systems, Inc., 2013

WL 61448, *1 (D. Colo. January 4, 2013) (noting that defendants’ arguments asserted in their

pending motion to dismiss also applied to plaintiff’s motion to amend, and therefore, addressed

motion to amend first); In re K–Dur Antitrust Litigation, 338 F. Supp. 2d 517, 528 (D.N.J. 2004)

(noting efficiencies of disposing of a motion to amend along with a motion to dismiss); Leach v.

Northern Telecom, Inc., 790 F. Supp. 572, 573–74 (E.D.N.C. 1992) (reasoning that a pragmatic

approach to plaintiff’s motion to amend assured the best use of judicial time and resources).

Therefore, this Court will initially address Plaintiff’s Motion for Leave to Amend the Complaint.

       A.      Standard of Review

       Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his pleading once as

a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a); James

v. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282–83 (D.C. Cir. 2000). Once a responsive

pleading is served, however, a plaintiff may amend the complaint only by leave of the court or

by written consent of the adverse party. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182

(1962). The grant or denial of leave lies in the sound discretion of the district court. Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). The court must, however, heed

Rule 15’s mandate that leave is to be “freely given when justice so requires.” Id. Indeed, “[i]f the

underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he

ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182.

       The non-movant generally carries the burden in persuading the court to deny leave to

amend. Williams v. Savage, 569 F. Supp. 2d 99 (D.D.C. 2009) (citing Dussouy v. Gulf Coast Inv.

Corp., 660 F.2d 594, 598 n. 2 (5th Cir. 1981)); see also Gudavich v. District of Columbia, 22




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Fed. Appx. 17, 18 (D.C. Cir. 2001) (noting that the non-movant “failed to show prejudice from

the district court’s action in allowing the [movant’s] motion to amend”) (unpublished decision).

         Here, Defendant urges this Court to deny Plaintiff’s Motion for Leave to Amend the

Complaint on three grounds: (1) that the proposed amended complaint does not cure the lack of

subject matter jurisdiction; (2) the proposed amendment is futile because it fails to state a claim

on which relief may be granted; and (3) the motion is untimely. The Court will address each

argument in turn.

                  1.       This Court Has Diversity Jurisdiction over Plaintiff’s Claim

         Plaintiff asserts that this Court has subject matter jurisdiction over his claim pursuant to

28 U.S.C. § 1332, known as “diversity jurisdiction.” 1 Section 1332 confers subject matter

jurisdiction upon district courts over civil actions between “citizens of different States” and for

which the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. §

1332(a)(1). Plaintiff alleges that he is a citizen of Maryland and Defendant is a citizen of the

District of Columbia. Dkt. No. 13-2 at ¶¶ 4-5. Defendant does not challenge this assertion;

accordingly, Plaintiff has adequately alleged diverse citizenship.

         The second element of diversity jurisdiction—the amount in controversy—is also

satisfied. Defendant argues that the proposed amended complaint “fails to plead any amount in

controversy,” but instead, only references “Plaintiff’s receipt of ‘varying notices alleging

conflicting debt amounts—some as high as $107,857.46.’” Def.’s Opp. at 3. The Court disagrees.

The proposed amended complaint, read as a whole, clearly alleges that the amount in controversy

is potentially $107,857.46. Id. at ¶ 10. It is well settled that in determining the amount-in-

1
         Plaintiff also invokes jurisdiction under 28 U.S.C. §§ 1331 and 1343 in the proposed amended complaint.
However, Plaintiff appears to concede that the Court does not have jurisdiction under Section 1343 and does not
address Defendant’s arguments regarding the same. Accordingly, the Court will deem this argument waived. In
addition, because the Court concludes that it has subject matter jurisdiction over Plaintiff’s claim pursuant to Section
1332 (as discussed infra), it is not necessary to address whether jurisdiction exists under Section 1331.

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controversy, reference to either party’s situation is appropriate. Senate Select Committee on

Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 60 (D.D.C. 1973). Here, Plaintiff

alleges that the Department seeks to recover approximately $100,000 from him. This is sufficient

to satisfy the amount-in-controversy requirement.

       Moreover, disputes concerning the amount in controversy are decided according to the

“good faith/legal certainty” test set forth in St. Paul Mercury Indem. Co. v. Red Cab Co., 303

U.S. 283, 288-89 (1938). See Rosenboro v. Kim, 994 F.2d 13, 16-17 (D.C. Cir. 1993). This test is

stated as follows:

               The rule governing dismissal for want of jurisdiction in cases
               brought in the federal court is that, unless the law gives a different
               rule, the sum claimed by the plaintiff controls if the claim is
               apparently made in good faith. It must appear to a legal certainty
               that the claim is really for less than the jurisdictional amount to
               justify dismissal.
St. Paul Mercury, 303 U.S. at 288-289. Defendant does not contest Plaintiff’s good faith belief

that the amount in controversy satisfies the diversity statute. Likewise, the Court finds no reason

to question this conclusion. Dismissal, then, is appropriate only if it appears to a legal certainty

that the proposed amended complaint does not satisfy the jurisdictional amount required by

Section 1332. Id. Defendant has failed to make this showing. Accordingly, the Court finds that it

has subject matter jurisdiction over Plaintiff’s claim pursuant to Section 1332.

               2.      Defendant Has Failed to Show that the Proposed Amended Complaint
                       Fails to State a Claim on which Relief May Be Granted

       Next, the Court must determine whether the proposed amended complaint states a claim

on which relief may be granted. This Court may deny a motion to amend “if the proposed claim

would not survive a motion to dismiss.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085,

1099 (D.C. Cir. 1996) (citing Foman, 371 U.S. at 181-82). Defendant’s opposition to Plaintiff’s

motion to amend is sparse, at best, and simply asserts that the proposed amended complaint fails

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to state a claim on which relief can be granted because: (1) “Plaintiff has no statutory right or

common law right to demand that this Court conduct an accounting of what he owes to the

Department,” and (2) Plaintiff’s claim is barred by the doctrine of sovereign immunity.

        Plaintiff counters that he is entitled to the relief that he seeks pursuant to the Declaratory

Judgment Act, 28 U.S.C. § 2201. Pl.’s Reply at 2-3 (“Plaintiff seeks a declaration from the Court

that he does not owe the Defendant $107,857.46, or any other amount which they [sic] desire.”).

He also asserts that sovereign immunity is not a defense against actions seeking injunctions

and/or declaratory relief. Id. at 3.

        Count I of the proposed amended complaint clearly states that Plaintiff seeks relief

pursuant to the Declaratory Judgement Act. Dkt. No. 13, Ex. 2 at ¶ 17. Defendant fails to

address, in any manner whatsoever, why this Act is not applicable to Plaintiff’s claim. Nor does

Defendant address why Plaintiff’s claim is allegedly barred by the doctrine of sovereign

immunity, other than to simply say that it is. “[I]t is not the obligation of this Court to research

and construct the legal arguments available to the parties.” Krupa v. Naleway, 2010 WL 145784,

*8 (N.D. Ill. January 12, 2010) (quoting Thakore v. Universal Mach. Co. of Pottstown, Inc., 2009

WL 3241619, *7 (N.D. Ill. September 25, 2009). To the contrary, perfunctory and undeveloped

arguments, and arguments that are unsupported by pertinent authority, are deemed waived. Id.;

see also, Raines v. U.S. Department of Justice, 424 F. Supp. 2d 60, 66 n. 3 (D.D.C. 2006) (noting

that it is not the obligation of the court to research and construct legal arguments open to parties,

especially when they are represented by counsel); Rivera-Gomez v. de Castro, 843 F.2d 631, 635

(1st Cir. 1988) (stating that it is the party’s task to spell out his arguments squarely and

distinctly). As such, the Court finds that Defendant has failed to carry his burden to establish that

the proposed amended complaint fails to state a claim on which relief may be granted.



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               3.      Plaintiff Timely Filed the Motion to Amended the Complaint

       Defendant also argues that this Court should deny the Motion for Leave to Amend the

Complaint because Plaintiff failed to bring the motion in a timely manner. Def.’s Opp. at 4. This

argument is without merit. Judge Roberts instructed Plaintiff to file a motion to amend the

Complaint by January 29, 2013. Dkt. No. 8. Plaintiff did so. As such, the motion is timely.

                                     IV.     CONCLUSION

       For the foregoing reasons: (1) the Court GRANTS Plaintiff’s Motion for Leave to Amend

the Complaint (Dkt. No. 13); (2) in doing so, the Defendant’s Motion to Dismiss the original

Complaint becomes moot. Therefore, the Court STRIKES as MOOT Defendant’s Motion to

Dismiss (Dkt. No. 12); (3) the Court also STRIKES as MOOT Defendant’s Motion for a

Protective Order barring Plaintiff from pursuing discovery in this case until this Court resolves

the motion to dismiss (Dkt. No. 25); (4) the Court GRANTS Plaintiff’s Motion for an

Enlargement of Time within which to complete discovery (Dkt. No. 19); and lastly (5) the parties

are instructed to submit to the Court on or before July 31, 2013 a jointly proposed scheduling

order setting new deadlines for the completion of discovery and dispositive motions.

       Dated this 17th day of July, 2013.



                                                     A
                                                     Barbara Jacobs Rothstein
                                                     U.S. District Court Judge




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